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    Electronic discovery: What every pharmacy needs to know

    Ned MilenkovichNed 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.  

    See also: Expanding the role of pharmacists on the healthcare team

    Costs

    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. 

    See also: Murder and other criminal charges filed against NECC executives

    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.

    Tools

    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.

    Ned Milenkovich, PharmD, JD
    This article is not intended as legal advice and should not be used as such. When legal questions arise, pharmacists should consult with ...

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