Ned MilenkovichPharmacies, like many other businesses, face challenges in managing the information they create. The information can take many forms: e-mails, spreadsheets, presentations, texts, other interoffice communications, customer lists, audit reports, financial data, and patient data. The great majority of this data is stored on company servers, in the Cloud, and in some cases on employees’ personal devices.
Regrettably, in the case of a lawsuit, much of this data is “discoverable.” That means that if a pharmacy is sued or brings a lawsuit, the opposing party can request and in many instances obtain any of this information, subject only to the very weak restriction that it be “relevant to the claims or defenses of any party.” In practice, this means that a pharmacy must be prepared to store, search, and ultimately produce this information to its adversary, or risk sanctions by the presiding tribunal.
According to a recent study, the costs associated with the production of electronic evidence or “e-discovery” account for approximately 50%-70% of the total cost of litigation. For example, if a pharmacy receives a subpoena regarding communications and data related to drug purchases, it will need to work with its IT department to segregate this data and may determine that this represents a very large volume of information.
Not all of the data containing information is going to be “relevant.” Some may be advertisements, or news articles, or may simply contain the name of the drug but not disclose any information that has been requested. Other data may be highly relevant. This is where fees in litigation may escalate. In an easy document review, the average attorney reviews roughly 100 documents per hour (or just over one document per minute). In short, depending on the volume of documents to be reviewed, fees can increase very quickly.
The good news is that there are excellent tools available to speed up the review, cull the size of the original data set, and ensure that the review is proceeding efficiently and at a reasonable rate. For example, nearly all document review platforms allow a reviewer to “de-dupe” e-mails, eliminating duplicate e-mails so that each e-mail is reviewed only once.
More advanced tools allow reviewers to train the computer to conduct the review automatically, without an attorney reviewing each document. These tools of course come at a cost, and they are not appropriate for every case.
It is important for a pharmacy enterprise to discuss with legal counsel fees, costs, and strategies as early in the process as possible. Below are a few tips for advancing that conversation productively:
Discuss whether and which review platform makes sense. A host of excellent software tools make reviewing these documents easy and intuitive. More often than not, they’re worth it.
Discuss the use of contract attorneys. Contract attorneys are freelancers hired for particular jobs, such as document review. Their rates are often much lower than the standard rates charged by typical legal counsel.
Negotiate, negotiate, negotiate. Not just with the software and service vendors, but with the other side. Make sure counsel is working hard to limit the scope of the review. A few hours spent preparing and conducting a meaningful conference with the other side can save many fees and hours later. In federal court, it is also required.
Have a plan. Every pharmacy should have a document retention program, including a standard policy for the deletion of archived e-mail on company servers. There is nothing in the federal law that prohibits the deletion of company e-mail at regular intervals, unless a party is sued, contemplating a suit, or threatened with a suit. In that case, routine destruction of archived e-mail must cease.
Finally, a pharmacy should be sure its counsel is well versed in this area. Again, this is a significant cost center. Too often, clients are stuck with large, unanticipated e-discovery bills because their counsel did not focus on these details.