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Discovery on a Budget: Seven Resources for Keeping Costs Low
If you run or work in a small firm, learning ways to get the information you need without spending thousands of dollars is key—and may even prevent a motions battle with opposing counsel. Here are some resources for doing just that.
1 HITECH Act Records Requests
One of our firm’s largest expenses is obtaining clients’ medical records, which are crucial to evaluating injuries and damages. Since our clients often have comorbidities and health issues, their medical charts tend to be thousands of pages long. The cost of printed medical records adds up quickly, but the Health Information Technology for Economic and Clinical Health (HITECH) Act was a major game changer for our firm.1
The HITECH Act allows people to obtain electronic copies of their medical records for much lower prices. For example, instead of paying thousands of dollars for printed documents, an electronic disc copy of the records might cost less than $10.
But be aware that the HITECH Act allows an “individual”—not a law firm acting on someone’s behalf—to obtain records in an electronic format.2 Certain health care providers strictly construe this language and will reject a law firm’s electronic medical records request. Our firm uses a form letter that our client signs, which asks the health care provider to send the client’s medical records in electronic format to the firm. We never put HITECH requests on our firm letterhead because medical providers may deem those as coming from a law office, and we also have the client fill out and sign the letter. We have had great success with this process and estimate that it saved us more than $15,000 in 2018 alone.
2 Public Records Requests
The Freedom of Information Act (FOIA) allows the public to access information from federal agencies.3 Some documents are available for free online, but if not, you can request the specific documents that you are looking for and the agency will charge a small fee for the time spent pulling them and making copies.4
States have their own FOIA systems that are usually like the federal one. For example, in Georgia, you can send open records requests to almost any agency to ask for documents.5 My firm asks the Georgia Department of Community Health for inspection documents, including statements of deficiencies and plans of correction, in every case against long-term care facilities. This information can help show that the facility has systemic issues and had previous knowledge of these issues.
We also send open records requests to the relevant district attorney’s office to receive arrest, conviction, and plea records. For example, if we find out during discovery that a nursing home employee has a criminal history, we will send out these requests to get more information about any charges. Like FOIA requests, a small fee for staff time and copies will be assessed (usually around $5 to $10), but it is well worth it to get these documents early in litigation.
3 Government Websites
For cases involving nursing homes and other long-term care facilities, I use websites such as Medicare.gov and Data.Medicare.gov to quickly identify the correct owners of the entities. Search for the address of a facility, which should then pull up ownership information and the names of the people or entities with operational or managerial control, including the dates this control was acquired.
Sometimes the listing includes the names of managing employees and the dates they assumed their positions, which can help identify people you wish to depose. These sites also might lead you to ownership information for hospitals, home health caregivers, and more.
Whatever your practice area, also explore the state’s Secretary or Department of State website. The entry for each corporate entity registered to do business in the state usually includes the name of the registered agent and will often have uploaded files, including incorporation and dissolution documents. These materials can help you determine proper defendants, which could prevent a motions battle and save valuable time.
4 Buycrash.com
In motor vehicle personal injury cases, we often use BuyCrash.com, a LexisNexis® site that allows you to quickly retrieve incident reports for wrecks. If a law enforcement agency has submitted these documents to the site, they are available for purchase. Prices may vary by state.6 Depending on your state, you may be able to access reports instantaneously; in our experience, however, older reports may take longer to be pulled from the archives. If you search the site and a report is unavailable, you can set a notification to receive an email when the document is ready for download.7
5 TLOxp®
Another helpful tool, especially for deposition preparation, is TLOxp® (www.tlo.com), an online background check program. A complete background check report, which costs only $25, includes addresses, phone numbers, driver’s license information, property deeds, bankruptcy filings, professional licenses, criminal history, weapon permits, and more. This information helps us outline and prepare for depositions by giving us an overview of a person’s history. Based on whether the person has a criminal history, we then can send open records requests to find arrest, conviction, and plea records. TLOxp also offers the option of running a short report for only $5, which provides about two pages of information including addresses, phone numbers, and possible email addresses. Our firm often opts for the short report to find potential witnesses without having to pay for investigators or multiple full reports.
6 Social Media
Don’t overlook social media sites when gathering information for your case. We recently used Facebook and Twitter to find out which employees worked at a health care facility during a certain time period. Employees will post about their jobs online, often on their employer’s Facebook or Twitter pages—it’s easier than people think to connect who works where and when. By reviewing employee public profiles, we learned who we wanted to depose without having to file a motion to compel. LinkedIn is another great resource to help determine when employees worked at specific places, especially if they keep their profiles up to date. In another case, our firm did a quick Facebook search to find an ownership connection between a facility and another company. This information helped us determine the proper parties in a suit.
7 Arrests.org
To find booking and arrest records, we use Arrests.org, a free database of arrest records that is searchable by name, state, and county. Not every state is searchable through this site, including Alaska, New York, and Washington. The arrest record lists the arresting agency and the charges, and it often includes a mugshot. This information can be useful when trying to determine where to send an open records request for certified records of an arrest and conviction.
Michael A. Prieto is a partner at Prieto, Marigliano, Holbert & Prieto in Atlanta. He can be reached at mprieto@pmhplaw.com. The views expressed in this article are the author’s and do not constitute an endorsement of any product or service by Trial or AAJ.
Notes
- 42 U.S.C. §17935 (2009).
- 42 U.S.C. §17935(e)(1).
- 5 U.S.C. §552 (2016).
- 5 U.S.C. §552(a)(4)(A)(iv); see, e.g., U.S. Dep’t of State, Fees, Requester Categories, & Fee Waivers, https://foia.state.gov/request/Fees.aspx.
- Ga. Code Ann. §§50-18-70 et seq. (West 2012).
- In our experience, for example, the site normally charges $11 for a Georgia report.
- For more information, visit https://buycrash.com/en/faqs.
