Discovery Requests Research Articles

HIPAA Requirements for Lawyers - Business Associate Contracts

Federal regulations promulgated under HIPAA, the Health Insurance Portability and Accountability Act, will impact the legal profession. The HIPAA regulations will protect the privacy and security of health information. First, attorneys who represent entities covered under HIPAA will need to enter into Business Associate Agreements with those clients. The Agreements will impose confidentiality, privacy, and security requirements upon lawyers and law firms. Particularly troublesome will be the impact that the Agreement has upon the attorney-client relationship, including the potential loss of the attorney-client privilege and attorney work product protections. The entities that the lawyer or law firm utilize in assisting to prepare the case will also be caught in the HIPAA web. Second, all attorneys who need access to health information to support their cases, will need to modify how they seek that information from entities who are covered under HIPAA. The HIPAA regulations change how an attorney may seek health information by way of subpoena or discovery request. This paper addresses the aspects of HIPAA that apply to lawyers and law firms by and through the Business Associate Agreements.

Coping with Electronic Data Discovery Issues

This article provides an overview of the steps a company should take if electronic discovery is requested from it during the course of litigation. Either by seeking a protective order or by inducing a motion to compel by objecting to the discovery requests, a ruling should be obtained from the court as to the parameters and limits of the requested discovery and who bears the cost of retrieving and producing the electronic data. If production is ordered by the court, the producing party must ensure through the use of formal review measures that any privileges protecting the data are not waived. While severe sanctions may be imposed on a party who destroys electronic evidence after litigation is initiated or when it is reasonably likely that litigation will ensue, a company may prevent a broad-scale, expensive production of electronic evidence by installing prior to any litigation a system of routine organization and disposal of non-essential electronic data.

Sanctions in Pre-Trial Discovery

In this paper, we make an economic analysis of various sanctions for disobedience to the discovery request in the common law tradition and in the civil law tradition mainly by examining their effects on settlement rates and social welfare. We find that sanctioning through inference discloses less information and encourages less settlements than both sanctioning by default judgment and sanctioning adopted in the civil law tradition. Also, we show that sanctioning through inference used together with financial sanction duplicates the outcome under default judgment if the penalty size is so chosen as to be equal to the defendant's discovery cost.

An improved network layer protocol based on mobile IPv6

The mobile IPv6 proposed by the IETF aims at providing mobility support on the next generation Internet. First, the authors described the basic principle of mobile IPv6 in brief and analyzed the advantages and disadvantages of it, presented a new idea of allocating a specific address space for mobile node (MN) and developed a new extension header and two ICMP message types for mobile IPv6. Lastly the authors proposed an optimization strategy for mobile IPv6 based on these extensions of protocol, which has the following advantages: 1) It is more convenient to manage the MNs because MN can be judged from its IP address; 2) When the correspondent node (CN) is not actively communicating with a MN, the MN and its home agent (HA) need not send Binding Update to the CN, and the CN need not send Binding Request to the MN. Only when the CN really wants to send a packet to the MN, will the CN voluntarily send a MN Discovery Request message to acquire the MN’s care-of address. In this way, the transmission of Binding Update and Binding Request is greatly reduced, consequently the network overhead is also decreased; 3) While sending packets, the CN simply uses a MN Home Address Extension Header without using IPinIP encapsulation and routing header, which can reduce the redundant information in the packet and the message delay; 4) All the packets sent by the CN can be directly routed to the MN and the triangle routing can be completely avoided. By using these protocol extensions, the overhead of the network is greatly reduced and the network quality of services (QoS) is improved.

Reinsurance, reserves, and drafting histories: Age of discovery for policyholders

In environmental insurance coverage litigation, insurance companies often vigorously contest the legitimate discovery requests of policyholders. Discovery inquires seeking drafting histories, reserves data, and reinsurance information have encountered much resistance as insurance companies cling to claims of privileges, burdens, and unfairness. Yet, insurance companies’ own actions in seeking sweeping discovery from policyholders and other insurance groups in subrogation and reinsurance disputes confirm the relevance of the discovery sought by policyholders. “Upon this point a page of history is worth a volume of logic.”; Justice Oliver Wendell Holmes, New York Trust Co. v. Eisner, 256 U.S. 3451 349 (1921). The case authorities are divided on the extent to which a policyholder may obtain discovery of the foregoing materials, and many of the decisions turn on case‐specific facts and arguments. Policyholder counsel would be well advised to pursue such discovery and to be prepared for battle.1 Ultimately, they will need to demonstrate to the court the relevance of the discovery to contested issues in their case. Policyholders often make the mistake of arguing that another claimant's files or the existence of a reserve or reinsurance contract is relevant or probative in and of itself in their case. Many judges reject this approach. However, all of the same issues may be highly relevant and probative on issues such as notice, lost policies, bad faith, failure to investigate and so on.

Exploiting Background Information in Knowledge Discovery from Text

This paper describes the FACT system for knowledge discovery from text. It discovers associations—patterns of co-occurrence—amongst keywords labeling the items in a collection of textual documents. In addition, when background knowledge is available about the keywords labeling the documents FACT is able to use this information in its discovery process. FACT takes a query-centered view of knowledge discovery, in which a discovery request is viewed as a query over the implicit set of possible results supported by a collection of documents, and where background knowledge is used to specify constraints on the desired results of this query process. Execution of a knowledge-discovery query is structured so that these background-knowledge constraints can be exploited in the search for possible results. Finally, rather than requiring a user to specify an explicit query expression in the knowledge-discovery query language, FACT presents the user with a simple-to-use graphical interface to the query language, with the language providing a well-defined semantics for the discovery actions performed by a user through the interface.

The Hague Evidence Convention Revisited: Reflections on Its Role in U.S. Civil Procedure

This article proposes a reworking of the basic terms of the Hague Evidence Convention. Under current law, U.S. courts typically do not employ the Convention's evidence-taking mechanisms when ordering discovery from either a litigant or a witness subject to the court's subpoena power. Instead, applying a comity analysis adopted in Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa,1 lower courts allow use of the direct discovery provisions of the Federal Rules of Civil Procedure. United States courts will usually require use of the Convention only when direct U.S. discovery is not available (as in the case of witnesses not subject to U.S. subpoena power). At the same time, foreign courts executing letters of request under the Convention generally will not provide U.S. litigants with assistance adequate for their purposes. Foreign courts usually regard U.S. discovery requests as impermissibly broad and, relying on their reservations under Article 23,2 refuse to execute such requests. When discovery is permitted, it often takes longer than U.S. litigants find acceptable. Both the United States and foreign nations are critical of this state of affairs. United States courts and litigants are saddled with what they describe as the awkward, unpredictable Aerospatiale comity analysis; they do not obtain useful assistance when resort to the Convention is required; and their judgments may not be enforceable abroad. At the same time, foreign nations resent unilateral U.S. discovery of materials located on their territory, which often violates local blocking statutes. A new compromise might be more satisfying. As part of this compromise, foreign states would replace their Article 23 reservations with undertakings to execute letters of request for information that is material to a foreign litigation, subject only to specifically recognized foreign privileges. This

Discovering the Secret Archives: Evidentiary Privileges for Church Records

In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.