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In the information age, businesses are inundated with evidence that could be relevant in pending or future litigation. Electronic documents—e-mails, instant messages, text messages, electronic calendars, videotapes—as well as traditional paper documents are all sources of evidence in litigation. The storage, organization, and indexing of all of this information is costly for many businesses. As a result, businesses often enact document retention policies to preserve information for an established period of time, at the end of which the documents are destroyed.

But what if a business (or any person) destroys or loses evidence relevant to a case after receiving notice of a potential claim? What consequences will a party to litigation suffer as a result of lost or destroyed evidence? The Nevada Supreme Court considered this precise issue in Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006), and the consequences can be severe.

In Bass-Davis, the plaintiff suffered injuries after slipping and falling on a wet floor in a convenience store. She claimed the convenience store failed to warn her of the wet floor by posting signs in the store. The convenience store claimed it had posted a sign at the front door in accordance with company policy. Within one week after the accident, the plaintiff’s sister requested a copy of the convenience store’s surveillance videotape. While the videotape did not necessarily show the location of the slip and fall, it would have shown whether the convenience store had posted wet floor warning signs at the front door. However, the convenience store’s insurer lost the videotape.

In addition to discussing the imposition of sanctions, which are always available to a court for improper conduct of a litigant, the Court discussed two sources of Nevada law for handling spoliation of evidence issues at trial: statutory and common law. Under the common law, a jury can infer that missing evidence would be adverse to the party who negligently lost or destroyed the evidence. Under Nevada statutory law, there is a rebuttable presumption: “That evidence willfully suppressed would be adverse if produced.” NRS 47.250(3).

The more common situation is the case in which a party loses or destroys evidence as a result of negligence. In this scenario, the court can issue an adverse inference jury instruction. In other words, a jury can infer that the evidence that was lost would have been unfavorable to the party who lost the evidence. The inference is permissible, not mandatory. To receive an adverse inference, the party claiming that evidence was lost must first demonstrate that the opposing party had a duty to preserve the evidence. This duty can arise from ethics rules, statutes, regulations, or the common law. For example, a business in a regulated industry that is required by law to keep documents has a duty to preserve that evidence. However, the more common situation is the prelitigation duty to preserve. All persons have a prelitigation duty to preserve evidence once it is on notice of a potential legal claim. A party is on notice once litigation is “reasonably foreseeable,” which will depend upon the facts of a given case. For example, in Bass-Davis, the Court noted that litigation was reasonably foreseeable on the date of an accident in which a patron suffered a broken hip and left the defendant’s establishment in an ambulance. Even though the plaintiff may not file suit for up to two years, the defendant has an obligation to preserve all evidence relevant to the accident.

If a party willfully destroys evidence with intent to harm the opposing party, then instead of an adverse inference, the court will impose a rebuttable presumption. In this situation, the jury must presume that the evidence is adverse to the party who willfully destroyed the evidence unless the party can demonstrate by a preponderance of the evidence that the evidence “was not unfavorable.”

While the amount of information which businesses must retain can be overwhelming, to avoid costly sanctions, an adverse inference, or a rebuttable presumption, businesses must educate their employees and institute policies so that once the potential of litigation is foreseeable, the business immediately takes action to preserve all potentially relevant evidence.

Guidelines for the Retention of Medical Records in Nevada

It is axiomatic that all patients are eventually released from a healthcare provider’s care. Following a patient’s discharge (or death), providers may wonder how long they should retain a patient’s medical records. There is no law requiring medical records to be destroyed after a certain amount of time has passed following a patient’s discharge. If storage space and means permit, healthcare providers are certainly permitted to store and maintain all of their patient records. However, for most providers, storage space is becoming increasingly limited and costly, which necessitates medical record retention policies that are both legally and practically adequate and cost-efficient.

In formulating medical record retention policies, providers should consider: 1) Nevada laws governing the retention of certain medical records; 2) federal laws relevant to the retention of medical records; 3) Nevada’s statute of limitations relating to medical malpractice claims; and 4) other practical considerations relating to the retention of medical records.

Nevada Law Governing Medical Record Retention

Nevada law requires providers of healthcare to maintain patient records for five (5) years following the date on which the patient record was created. This applies to all providers of healthcare, including licensed physicians, licensed dentists, licensed nurses, registered physical therapists, licensed psychologists, chiropractors, medical laboratory directors or technicians, and licensed hospitals and their employees.

In complying with Nevada’s five-year medical record retention requirement, patient records “may be retained in written form, or by microfilm or any other recognized form of size reduction, including, without limitation, microfiche, computer disc, magnetic tape and optical disc, which does not adversely affect their use…” Further, physicians who have performed an abortion are required to maintain certain medical records relating to the abortion for at least five (5) years after it is performed.

Federal Law Relevant to Medical Record Retention Policies

In addition to Nevada laws governing the retention of medical records by providers of healthcare, there are also a number of federal laws that may impact a

———————————————————————
See NRS § 629.051.
NRS 41A.017.
Id.
NRS 442.256 (providing that a “physician who performs an abortion shall maintain a record of it for at least 5 years after it is performed. The record must contain: 1. The written consent of the woman; 2. A statement of the information which was provided to the woman pursuant to NRS 442.253; and 3. A description of efforts to give any notice required by NRS 442.255.”).

provider’s obligation to retain a patient’s medical records. Principal among these include the following:

Medicare and Medicaid

As a condition of a hospital’s participation in the Medicare and Medicaid program, hospitals are generally required to retain the medical records of Medicare and Medicaid patients in their original or legally reproduced format for a period of at least five (5) years. Further, Medicare and Medicaid regulations require Critical Access Hospitals to retain medical records for at least six (6) years from the date of the last entry, or longer if the records may be needed in any pending proceeding.

The Health Insurance Portability and Accountability Act (HIPAA)

Contrary to popular belief, HIPAA does not mandate that medical records be retained for a certain period of time. Rather, HIPAA requires healthcare providers to retain only certain types of HIPAA documentation for a period of six (6) years from the date of its creation. Documentation that must be retained under HIPAA include a healthcare provider’s policies and procedures relating to HIPAA compliance, and communications or items explicitly required to be in writing or documented under HIPAA. Specifically, these documents include signed authorizations for disclosure of Protected Health Information, and responses to a patient who wants to either amend or correct a record, among other documents. Further, HIPAA generally provides patients with a right of access to inspect and obtain a copy of their medical records for as long as those records are maintained by the healthcare provider.

Mammography Quality Standards Act (MQSA)

MQSA requires a facility performing a mammogram to maintain the patient’s mammography films and reports for at least five (5) years, or at least ten (10) years if no subsequent mammogram of the patient is performed at the facility.

False Claims Act and the Federal Civil Statute of Limitations

The False Claims Act imposes penalties on persons who present false or fraudulent claims for payment to the United States Government. A false claim that is subject to penalties under the False Claim Act may involve a person who knowingly bills Medicare for services that were not provided. The False Claim Act allows claims to be brought up to six years after the act giving rise to the violation was committed, or three

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42 C.F.R. § 482.24(b)(1).
42 C.F.R. § 485.638(c).
See 45 C.F.R. § 164.530(j)(2).
See 45 C.F.R. § 164.530(j)(1).
See 45 C.F.R. 164.508(b)(6); 45 C.F.R. 164.526(f).
See 45 C.F.R. § 164.524(a).
21 C.F.R. 900.12(c)(4).
31 U.S.C. § 3729.

(3) years after the acts material to the false claim are known or reasonably should have been known by the United States Government, but in no event more than ten (10) years after the date on which the violation is committed, whichever occurs last. Further, the federal statute of limitations for civil penalties under a Federal Health Care Program is six (6) years.
Retention of Medical Records for Purposes of Medical Malpractice Lawsuits

A patient’s medical records have often been described as the single most important piece of evidence in a medical malpractice action. Without medical records, a healthcare provider may not be able to establish that the treatment provided to plaintiff met the standard of care. Additionally, providers should be aware that there are severe penalties for destroying or spoliating medical records that are relevant to potential or pending litigation.

Nevada’s statute of limitations generally requires that medical malpractice actions be brought within three (3) years from the date of injury, or one (1) year after the plaintiff should have reasonably discovered the injury, whichever occurs first. However, merely maintaining medical records until the statute of limitations has passed is inadequate for a number of reasons.

First, the statute of limitations is merely an affirmative defense which may lead to the dismissal of plaintiff’s claims after the suit is filed. However, it does not preclude a suit from being filed against the healthcare provider in the first place.

Second, there are certain exceptions that toll the time under the statute of limitations. For example, Nevada’s statute of limitations regarding medical malpractice claims is extended to the extent that a provider has concealed any negligent act upon which a plaintiff’s action is based.

Third, Nevada’s statute of limitations does not apply to many types of suits filed against healthcare providers. Nevada’s statute of limitations relating to medical malpractice actions applies to claims based upon the professional negligence of a healthcare provider. Under Nevada’s medical malpractice statute, professional negligence is defined as “a negligent act or omission to act by a provider of health care in the rendering of professional services.” Consequently, the statute of limitations does not apply to actions not based upon professional negligence, including actions involving intentional torts, criminal misconduct, fraud and other suits where a patient’s

——————————————————————————————————————————-
31 U.S.C. § 3731(b).
See 42 C.F.R. § 1003.132; see also 42 U.S.C. § 1320a-7a(c)(1).
See e.g., SHARON BARANOSKI & ELIZABETH A. AYELLO, WOUND CARE ESSENTIALS: PRACTICE
PRINCIPLES 36 (Lippincott Williams & Wilkins 2d Ed. 2008); WILLIAM H. ROACH, MEDICAL RECORDS AND
THE LAW 46 (Jones & Bartlett 3d Ed. 2003).
NRS 41A.097(2).
NRS 41A.097(3).
NRS 41A.097(2).
NRS 41A.015.

medical records may be vital to the provider’s defense. Further, Nevada’s statute of limitations typically does not apply to claims made pursuant to federal law, such as claims asserting Medicare billing error against the provider.

Fourth, healthcare providers may want to retain patient records longer than the statute of limitations for tax purposes in order to provide documentation of billing, services rendered, and monies received in case of a tax audit.

Finally, providers should be aware that Nevada has authorized special statute of limitation periods that allow minors to sue for sexual abuse which occurred prior to the plaintiff reaching the age of majority. Suits involving sexual abuse of a minor may be filed within ten (10) years after the plaintiff reaches the age of eighteen (18), or within ten (10) years after the plaintiff discovers, or reasonably should have discovered, that the injury was caused by sexual abuse, whichever occurs later. Providers of healthcare who routinely treat infants and minors should be especially mindful of these provisions when formulating medical record retention policies.

Other Practical Considerations

HMOs, PPOs or other healthcare networks may require participating providers to maintain medical records for a certain period of time. Providers should review any provider contracts they have to determine any contractual obligations they have as a participating provider. With regard to the retention of patient medical records received from other healthcare providers, providers are generally not required to maintain such records if they are not pertinent to the specialty consult or necessary in treating the patient’s condition.

Recommendations

In light of exceptions to the statute of limitations and the numerous types of claims against healthcare providers where the statute does not apply, a provider’s best course of action is to maintain records far beyond Nevada’s five-year statute of limitations. Therefore, the best approach is to retain the medical records of adult patients for at least ten (10) years after the patient has been discharged, and retain medical records of minors until ten years after the minor has reached the age of 18. Further, it is vital that every health care provider implement a clear and consistently applied medical record retention policy in order to reduce the risk of penalties for destroying or spoliating records that are relevant to potential or pending litigation.

——————————————————————————————————————————-
See NRS 11.215.
Id.
See Medical Mutual Insurance Company of Maine, Medical Record Retention Recommendations for
Physician Office Practices, Aug. 2008, http://www.medicalmutual.com/risk/tips/16.php?sP=1.

This article is for general informational purposes only. It is not intended as professional counsel and should not be used as such. As legal advice must be tailored to the specific circumstances of each case, nothing provided herein should be used as a substitute for advice of competent counsel. Your use of the information contained in this article does not create an attorney-client relationship between you and the author or Bailey Kennedy, LLP.

When I was recruited to write an article on social networking and the law, my first thought was, “what’s on my Facebook page, and is there anything I wouldn’t want any other attorney in Clark County to read?” Yes, I admit it, I – along with about 400 million other people in the world – actively use the Facebook.com website each month. More than half of us log onto Facebook on any given day. We post more than three billion photos each month and share more than five billion pieces of content (e.g., web links, news stories, blog posts, photos, and status updates). Facebook is, well, the face of an exploding genre of internet websites that facilitate social networking. Other behemoths in the genre include Myspace.com (still one of the top ten websites in the U.S.), Twitter.com (a website with over 75 million users that facilitates the posting of 140 character micro-blogs), and LinkedIn.com (a website with over 60 million users aimed at facilitating social networking between professionals).

The attraction of social networking websites is their ability to allow people to not only connect with their current “real life” friends, but also form extended, global networks of digital friendships. It is estimated that social networking accounts for more than ten percent of all time spent online. In December 2009, one of every four website page views was at one of the top social networking websites. While estimates vary widely, surveys indicate that around two-thirds of Facebook users alone access the site while at work.

What is social networking?

The term “social network” simply refers to a group of people who share common interests and participate in common activities, (e.g., family, friends, co-workers, neighbors, etc.) Social networking websites offer people a way to recreate and enhance their existing social networks by facilitating the ability to contact other people around the world that share common interests, characteristics, professions and friends. All social networking websites work in essentially the same way, with a user creating a profile with information about him or her, then creating a network by connecting that profile to other profiles through “friend requests.” The overarching feature of a digital social network is the ability to instantaneously transmit information to one’s entire social network. For example, while writing this article, I posted a status update on Facebook that said “writing an article discussing social networking and the law for the Communique.” All of my Facebook friends instantaneously received that message on their Facebook page, and some of my friends, within minutes, even responded to my post with web links and suggestions for content to include in the article. I also have the ability to post photographs, videos, and links to other web content that I find interesting and want to share with my Facebook friends. It also allows me to connect with my close friends and family, as well as high school and college friends who I probably wouldn’t have been able to easily keep up with otherwise.

It is a safe assumption that social networking websites are here to stay, and attorneys are no less likely to be engaging in online social networking than any other particular profession. Even if you never set up a profile or otherwise participate in online social networking, I can say with virtual certainty that someone closely associated with your law practice either has or will. Even if your firm bans the use of social networking websites from firm computers, there is no question that someone associated with your law practice will use such websites while not at work or from their mobile phone. And an ethical violation that occurs through a social networking website from a home computer is no less damaging than one that occurs via a firm-owned computer. Because of this, it is imperative that you, and those associated with your legal practice, remain cognizant of the fact that the Nevada Rules of Professional Conduct apply with as much force to a Facebook or Twitter post as they do to a conversation in a public elevator.

It’s Not a Feeling…Somebody’s Watching You

The characteristics of social networking websites that pose the biggest threat to an attorney’s ethical duties is their public nature and the fact that all information posted on a social networking website is public and open to anyone with an internet connection. Attorneys must take great care when posting information to avoid violating the duty of confidentiality or waving attorney-client privilege.

The duty of confidentiality is set forth in Nevada Rule of Professional Conduct 1.6(a) and provides that that a lawyer shall not reveal information relating to representation of a client unless the client gives informed consent. The Rule is extremely broad and applies to all information received from the client, even if the information could be obtained from a public source. (See Lawyer Disciplinary Bd. v. McGraw, 461 S.E.2d 850 (W. Va. 1995). The attorney client privilege, on the other hand, arises from statutory provisions, and protects communications, intended to remain confidential, made between a client and attorney for the purpose of facilitating legal services to the client. (NRS 49.055 and NRS 49.095.) Although the attorney-client privilege is more an evidentiary rule than an ethical rule, disclosure of privileged information, by definition, constitutes a breach of the duty of confidentiality.

It should be obvious to all attorneys that posting a client’s litigation strategy as a Facebook status update, or tweeting word-for-word communications with a client, are going to be problematic. If you think these are ludicrous examples, see the August 25, 2009 Complaint filed by the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission against Kristine Ann Peshek (No. 6201779).

Yes, I am well aware that social networking websites offer certain privacy settings aimed at allowing users to control access to their postings, and that these settings may tempt attorneys to post confidential information while believing they can control access to it. I would advise against relying on such privacy settings to protect the information posted from being disclosed to the public. The privacy controls may not work as advertised due to a programming bug or other technical error, or a website may change its privacy policies with little or no notice, thereby exposing to the public what you thought was private. You do not want to be the attorney trying to explain to the Discovery Commissioner or Magistrate Judge why client confidences or privileged information was inadvertently exposed to the public on your Facebook or Twitter page. The best practice is to not post the information in the first place.

Another temptation posed by social networking sites is to seek advice relating to a particular issue you might face while representing a client on which you would like some outside advice or guidance. The annotations to the Model Rules of Professional Conduct (on which Nevada’s ethical rules are based) indicate that a lawyer is permitted to use a hypothetical to discuss issues relating to a case as long as there is no reasonable likelihood the listener will able to ascertain the identity of the client or the situation involved. (Model Rule of Professional Conduct 1.6, cmt. 4 (6th . Ed. 2007)). Although posting such a hypothetical on a website or other online medium is technically permissible, you must ask yourself whether it is advisable. Even if you post an extremely generic hypothetical, you never know who could be reading, and it might be read by future opposing counsel, much to your client’s chagrin. If you are going to post such a hypothetical, it is imperative that you obtain the client’s consent first, and even after doing so, exercise the utmost caution to avoid revealing the identity of the client or the client’s issue.

Remember that anyone could be viewing your Facebook or Twitter page – even a judge. Not only is it ethically prohibited, recklessly bashing or making derogatory comments about a judge (or candidate for judge), can lead to quite an embarrassing situation. Nevada Rule of Professional Conduct 8.2 states “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” In a somewhat recent case, the Florida Bar sanctioned Florida attorney Sean Conway for referring in an internet posting to Florida state court judge Cheryl Aleman as an “Evil, Unfair Witch” and criticizing her conduct with respect to setting criminal trials. The $1,200 fine was upheld by the Florida Supreme Court which determined that the statement failed as protected free speech because the post was not uttered in an effort to expose a valid problem with the legal system. The Florida Bar v. Conway, 2008 WL 4748577 (Fla. Oct. 29, 2008).

In a Texas state court, an attorney requested a continuance of a trial from Judge Susan Criss claiming that the attorneys’ father had passed away. But Judge Criss saw the attorney’s Facebook page on which the attorney made a series of posts detailing her week of drinking and partying. Let’s not forget Jonathan MacArthur, who was removed from his position as a North Las Vegas judge pro tem in 2007 after posting certain statements on his MySpace page that Clark County District Attorney David Roger contended “displayed a bias against prosecutors” and, therefore, caused Mr. Roger to believe that the State of Nevada would not “get a fair shake” by Mr. MacArthur. (See http://www.lvrj.com/news/9121536.html.) Regardless of your opinion of circumstances surrounding Mr. MacArthur’s removal as judge, attorneys and judges alike need to be aware that even if an internet posting is technically ethical, it can still lead to professional embarrassment.

If you wouldn’t want opposing counsel to see it, don’t post it.

Social networking websites are here to stay, and certainly can have a place in your personal and professional life. If you choose to make use of social networking websites, you must remember that they are public forums, and information posted on there has the potential to result in serious ethical mistakes and problems. A good rule of thumb to follow is to assume that anything you post will be seen by opposing counsel, so if you wouldn’t want opposing counsel to see it, don’t post it.

One aspect of Internet communications that is getting an increased amount of attention is the right of an anonymous Internet poster to remain anonymous, particularly if the posting is relevant to subsequent litigation. It is not difficult to envision an inflammatory anonymous Internet post about a coworker or supervisor, or even a strongly opinionated anonymous post about a person or business, easily becoming relevant to, or even the subject of, litigation. A brief perusal of the posts made to the various Las Vegas legal gossip blogs reveals myriad anonymous postings, some of which are informative, some of which are critical, and some of which are downright insulting, inflammatory, and likely defamatory.

Although First Amendment protections for anonymous online speech are the same as for anonymous speech made through traditional print or broadcast media, these protections do not necessarily mean that a person has the unfettered right to say anything online and remain anonymous (or free from civil or even criminal liability). A recent opinion from the Ninth Circuit Court of Appeals dealing with a lawsuit pending in the District of Nevada makes clear that the First Amendment does not provide the absolute right to remain anonymous online.

In In re Anonymous Online Speakers, _ P3d. _, 2011 WL 61635 (Jan. 7, 2011), the Ninth Circuit refused to overturn an order from the District of Nevada permitting the disclosure of the identity of anonymous blog posters in a commercial contract and business tort lawsuit. In the case, Quixtar, Inc. (successor to the Amway Corporation) alleged that former employees left Quixtar to start their own company, and in doing so stole Quixtar’s customers and engaged in an Internet smear campaign against Quixtar by making anonymous Internet blog posts deriding its business practices and products. Quixtar sought, and obtained, an order from the District Court forcing an individual to disclose the identity of the bloggers, i.e, the Anonymous Online Speakers, during a deposition; the Speakers petitioned the Ninth Circuit to overturn the District Court’s order.

The Ninth Circuit noted that anonymous speech has played an integral role in the history of American politics and is protected by the First Amendment. Moreover, because “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation. . . [or] concern about social ostracism,’” the Court confirmed that anonymous online speech is likewise protected. However, the level of protection available depends on the nature of the speech at issue. Speech of political nature always receives the highest level of protection. Commercial speech receives protection as long as it is not misleading or related to unlawful activity. Other types of speech, such as obscenity, receive no protection.

In this case, the Ninth Circuit held that the District Court properly applied these principles and correctly balanced the important value of anonymous speech versus a party’s need for relevant information in a civil lawsuit. The Ninth Circuit highlighted the District Court’s recognition of the “‘great potential for irresponsible, malicious, and harmful communication’ and that particularly in the age of the Internet, ‘the speed and power of internet technology makes it difficult for the truth to “catch up” to the lie,’” and concluded that Quixtar made a sufficient showing of need for the information, thereby justifying the District Court’s decision. In sum, the Ninth Circuit refused to overrule the District Court’s decision, thereby permitting disclosure of the anonymous Speakers’ identities.

The Ninth Circuit’s decision is important because while clearly acknowledging that anonymous online speech is protected under the First Amendment, it also serves as a reminder that such protection is not absolute and does not mean that the identity of an online speaker can never be disclosed.

All this means is that before ordering the disclosure of the identity of an online speaker, a court must balance the First Amendment’s protections (the availability of which depend heavily on the nature of the speech at issue) with a party’s need for the information in the litigation. In sum, the Ninth Circuit’s decision should serve as a reminder that although the First Amendment’s protections are broad, they are not absolute, and depending on the circumstances, may not prevent a court from ordering the disclosure of an anonymous online speaker’s identity.

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