No attorney supervised the preservation efforts of the defendant’s employees. Rather, employees decided “on their
own what was relevant and what wasn’t.”
Additional instant messages had existed on a hard drive
of a former employee of the defendant but the hard drive’s
data had been deleted.
The plaintiff’s work computer, on which the additional instant messages were presumably stored, could not be located even though it had been supposedly preserved.
Any instant messages that had existed on the computers
of the plaintiff’s harassers—other employees of the defendant—had been autodeleted.
Based on these and other findings the court concluded that
the defendant had been grossly negligent in its failure to pre-
serve the additional instant messages and recommended that
the parties “be allowed to present evidence and argument to
the jury regarding the defendant’s destruction/failure to pre-
serve electronic evidence in this case, and that the jury be in-
structed as the trial judge deems appropriate.”
In reaching its conclusion the Franklin court necessarily
found that the ESI had been “lost” within the meaning of
Rule 37(e). However, is the loss of ESI within a healthcare
provider’s IT systems self-evident when that ESI no longer
resides within the system? Envy Hawaii LLC v. Volvo Car
USA LLC, Civ. No. 17-00040 HG-RT (D. Hawaii Mar. 20, 2019)
provides an answer.
Envy Hawaii arose out of a contract dispute and allegations of improper business practices between a Hawaiian
car dealership and the national distributor of Volvos. After
two years of litigation, which included document production and depositions, the defendants moved for sanctions
against the plaintiff for its failure to preserve “Google email accounts and electronic dealer management system
records.” The court denied the motion, finding that that ESI
had not been lost.
The court began with a review of Rule 37(e): “The text of Fed-
eral Rule of Civil Procedure 37(e) provides that evidence is
‘lost’ and subject to spoliation sanctions when a party failed to
take reasonable steps to preserve it, and ‘it cannot be restored
or replaced through additional discovery.’”
The court then focused on the meaning of “lost” under the
rule: “Information is ‘lost’ for purposes of Rule 37(e) only if it is
irretrievable from another source, including other custodians.”
Cases decided after the implementation of the 2015 amend-
ment to Fed. R. Civ. P. 37(e) have highlighted the 2015 Advisory
Committee Notes to the Rule. The 2015 Advisory Committee
stated that “because electronically stored information often
exists in multiple locations, loss from one source may often be
harmless when substitute information can be found elsewhere.”
Fed. R. Civ. P. 37(e), 2015 Advisor [sic] Committee Notes. 1
With this focus, the court turned to the facts before it and
found that the defendants (the moving parties) had not met
their burden to show that the ESI had been lost. The plaintiffs
might not have preserved the ESI but the ESI might be stored
with third parties, which maintained the ESI on behalf of the
plaintiffs. Moreover, the court observed that the defendants
had not subpoenaed the third parties for the ESI or attempted
to retrieve it from a system to which they had access. Under
these circumstances, the court concluded that the ESI had not
been lost and left the defendants to serve subpoenas.
Implications for HIM
What lessons might Envy Hawaii have for a health information management (HIM) professional? There are several, all
arising when the professional is called upon for assistance
The professional should consider where relevant information resides within the provider’s I T system.
The professional should understand whether relevant
ESI resides outside the provider, for example, with a
business associate or in the cloud.
The professional should understand the need to preserve
that ESI and, as directed by counsel, take steps to preserve the ESI. That necessitates a knowledge of the form
in which the ESI was created and how it was stored so that
relevant metadata can be preserved.
This role for the professional might exist whether or not the
focus of preservation is solely the EHR or whether other ESI,
as in the earlier example of nurse’s notes, which might be the
subject of preservation.
This means that the HIM professional may have a central
role in avoiding the loss of relevant ESI.
Note: For a broader discussion of the role that the HIM
professional can have in litigation see the AHIMA Practice
Brief, “Health Information Management and Litigation: How
the Two Meet,” published in the May 2019 issue of the
Journal of AHIMA and available online in AHIMA’s HIM Body of
1. Envy Hawaii LLC v. Volvo Car USA LLC. Civ. No. 17-
00040 HG-RT. https://ediscovery.co/wp-content/up-
Gotteher, Gail and Ron Hedges. “Using Information Governance
to Avoid Data Breaches and Provide Cybersecurity.” Journal
of AHIMA 90, vol. 4 (April 2019): 30-31.
Ron Hedges ( email@example.com), JD, is a former US Magistrate Judge
in the District of New Jersey and is a writer, lecturer, and consultant on
topics related to, among other things, electronic information. He is a
senior counsel with Dentons US LLP.