Thursday, February 23, 2012

Electronic Records, Subpoenas and the Hubris of Lawyers

 Nancy W. AndersonThe notice of subpoena did not surprise me; I already knew about the litigation. In my state attorneys must provide two weeks notice before serving a subpoena duces tecum to allow the affected parties time to seek protection, that is to quash the subpoena, in this case for medical records. Like most such subpoenas, this one, signed by attorney Nancy W. Anderson, representing Wells Fargo Bank, commands me to appear at the law office (Graham and Dunn) this coming Monday at 9 AM "to produce and permit inspection and copying of the following documents or tangible things." Typically one simply provides copies of the records by mail. Also typically, circa 2012, and for many years prior, such a subpoena might also likely mention electronic files. Since this one does not, I faxed attorney Anderson a letter asking for clarification and assistance. As of today she has chosen not to respond except that she did confirm that no one has succeeded in quashing the subpoena, so I must comply.

It turns out that the records in question exist not only in a manila folder in a file cabinet in my office, but also on the hard drive of an old computer, and in the cloud in three different locations. I can probably (I am no computer expert.) make digital copies of one or two of the files on a CD, but I know no way of copying some of the files that exist in the cloud. This means that anyone who wants to review the records will need to access them directly via the Internet. An attorney for my EMR (electronic medical record) service assured me that this can be done.

Attorney Anderson does not seem to appreciate the difference between paper medical records and the EMR, or maybe she just does not know what to do. This particular record includes at least two items that I am unable to "copy" to paper: a voice mail recording from Anderson herself and the digital signatures that I assume accompany each item. I can do no more than assume as I know of no way to view the signatures myself, much less render them to paper. I might liken the notion of copying an EMR to paper to that of copying water or the barking of a dog.

The confusion here certainly inconveniences me (although it does give me something to write about), but having myself reviewed as an expert witness pathetic paper counterfeits of electronic records, I have concluded that today an expert who has not accessed the EMR directly using a computer should be accorded no credibility in court. The credible expert witness therefor must not only demonstrate expertise in the area of medicine at issue, but must also know how to navigate the EMR, which in some cases requires considerable training and experience.

Still faced with an unresponsive -- if not rude -- attorney I sought help from Judge Dean Lum (pictured above), but officials at Superior Court advised me that I would have to file a motion to spur Judge Lum into action. Someday, maybe, but not now. Instead, they advised me to contact the opposing attorney. He simply told me not to worry too much but to keep after attorney Anderson.

All I need is for Anderson to tell me what she wants. Perhaps this post will move things along.


  1. I generally keep a separate paper record of potentially embarrassing data (cocaine, abortion, adultery) or, more often, just remember it without writing it down. One of my blogs (at discusses the problems inherent in EMR's more fully.

  2. What is the point of keeping a separate paper record of "embarrassing" info? Cocaine? Almost all my patients are recovering alcoholics or addicts, so that would be a tough one. Even many patients who never became addicted to it have experimented with cocaine. Adultery probably has minimal relevance to medical care anyway, but abortion is like any surgical procedure.