I like thunder; I don’t know why so many people fear it. After many hours on weekends, after school, and summer days and evenings lugging golf clubs as a caddy – they had metal shafts and heads back then – I came to appreciate thunder as a celebration. Thunder means the lightning didn’t hit you. I feel the same way about a litigation hold. Litigation holds have an image problem, like thunder, they do no harm, but provide a warning of imminent danger if ignored. They are looked at as a defensive tactic, used to ward off imposing sanctions for negligently or purposefully destroying relevant evidence. Why aren’t they looked at as an offensive tool, utilized to protect and preserve the materials needed to win a case – rather than something employed to avoid losing a case? Much of the work I have done for the State of New Jersey and for the insurance carriers I represent in private practice involves health care claim fraud. These are document heavy cases involving dozens, if not hundreds, of patients. Preserving all of the claim forms submitted, supporting records, and records of claims paid, is an essential task made easier if the records are preserved when the provider is first being investigated. The fraudulent and abusive billing practices play out over several years, and may encompass a period longer than that reflected in your record retention policy. Imposing a litigation hold on these records only means they will not be disposed of, altered, or destroyed in the ordinary course of business – they should be, but don’t have to be, gathered . Coupled with sound data management practices which encourage investigators to segregate the electronic messages about an investigation in a separate folder, rather than in a clutter of unsorted in and out boxes, the information remains available for collection when needed. Imposing a temporary litigation hold while the potential fraud is investigated also avoids any later debate about when the obligation to preserve information, including electronically stored information, was triggered. Because many of these health care claim fraud cases arise out of post-payment audits, any request for documentation directed to a medical provider should include a litigation hold request, imposing an obligation to preserve, and not alter or modify, patient treatment records, billing records and insurance claim submissions upon the provider while the matter proceeds.
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