Using Facebook to Transmit PHI Violates VA Rules

Last month, Magistrate Judge Eric Long issued a decision, Cook v. U.S. Dep't of Veteran Affairs, No. 19-2119, 2020 U.S. Dist. LEXIS 231763 (C.D. Ill. Nov. 12, 2020), affirming a decision by a disciplinary board of the Department of Veteran Affairs to remove Cook from federal employment. Cook was employed as a physician, and the reasons for his dismissal included using Facebook Messenger to consult a patient about her ailments and send her information about her prescriptions. Cook also had sexual intercourse with the patient. Departmental rules require that encryption products be used to provide access to sensitive information. The rules required Cook to only post "sensitive information to web-based collaboration tools restricted to those who have a need-to-know and when proper safeguards are in place for sensitive information." Id. at *15 (citing R. 307).

One of the reasons why Cook requested that his dismissal be reversed was that the board's findings were not supported by substantial evidence. His bases for this assertion included the fact that he did not initiate the contact with the patient through Facebook. Judge Long concluded that, "Cook implicitly encouraged Patient A to contact him through Facebook because he continued to offer medical advice and refill prescriptions through Facebook from October 2017 until May 2018. " Id. at *16. The fact that Facebook was not an encryption application approved by the Department of Veterans Affairs and Cook's failure to take measures to safeguard the patient's information constituted substantial evidence to support his dismissal.

You have to wonder if the Court would have ruled differently if Cook had enabled end-to-end encryption - a feature which is available for Facebook Messenger.

S.D.N.Y. Orders Redactions In Summary Judgment Exhibits for PII Covered by GDPR

This past week, Judge Ronnie Abrams issued a decision, Letchford v. Scotwork (N. Am.), Inc., 19-CV-8921, 2020 U.S. Dist. LEXIS 221770 (S.D.N.Y. Nov. 24, 2020) granting the parties' joint motion to seal exhibits for their summary judgment motions.

The parties requested permission to redact personal information (email addresses, telephone numbers, and home addresses) of Scotwork employees who were EU citizens pursuant to the requirements of the General Data Protection Regulation. The Court determined that even though there was a strong presumption of access, since the documents were relevant for the Court's judicial function, it found limited redactions could be made since the personal information was not necessary or helpful to deciding the summary judgment motion. "Court thus finds that the parties' interest in maintaining the confidentiality of Defendants' employees' personal information sufficient to rebut the common-law presumption of access." Id. at *3.

For Motions to Transfer in the Age of ESI, Ease of Access is Moot

Yesterday, Judge Yvonne Gonzalez Rogers issued a decision, Williams v. Condensed Curriculum Int'l, No. 4:20-cv-05292-YGR, 2020 U.S. Dist. LEXIS 212886 (N.D. Cal. Nov. 13, 2020), denying the Defendant's motion to transfer venue.

In deciding such a motion, one of the factors to consider is the ease of access to evidence in the target forum. The Court's decision indicates that since most evidence these days is electronically stored information, this factor is moot. "Given that the records could easily be compiled electronically, if not already available in this format, this factor is neutral." Id. at *16.

The other factors to consider in ruling on a motion to transfer are:

1. The Plaintiff's choice of forum.

2. The convenience of the parties.

3. Convenience of the witnesses.

4. Familiarity of each forum with the relevant law.

5. Possibility of consolidating multiple cases.

6. Local interest in the matter.

7. The case load in each forum.