E&O Tips: Preserving Agency Documentation in the 21st Century

The following blog post was written by Mike Medford and Will Cherry from Manning, Fulton & Skinner, P.A. IIANC often receives inquiries from members seeking advice that requires the assistance of legal counsel.  The services of IIANC’s law firm are available to members, on a limited basis, at no cost. Our Free Legal Service Program is a legal consultation service provided, without charge, to IIANC member agencies by Manning, Fulton & Skinner, P.A., based in Raleigh, NC.

Creating and maintaining adequate documentation is critical to avoiding errors and omissions claims and making those claims easier to defend when they do arise.  The following are three tips about preserving records. 

First, keep your own records.  Do not rely on the websites of insurance carriers for any significant part of your record keeping.  Key information may not be accessible on the carrier’s website when an E&O claim arises two, three or more years later, and it is possible that the carrier will be on the other side of the case. 

Second, take care to preserve the availability and accessibility of electronically stored information [“ESI”].  Instruct your IT personnel to make sure that ESI is preserved and remains accessible when you replace servers, computers or software programs.  ESI should be migrated to a new server, computer or program to the fullest extent possible and preserved in some other manner if migration is not possible.  All ESI should be backed up regularly so that it can be restored in the event of a server/computer crash or other catastrophe.  Backups should be stored at some location other than the agency’s office so that they will remain available if a catastrophe strikes the office itself. 

Third, institute a “litigation hold” as soon as you receive any indication that a customer, carrier or other person may be contemplating a claim against your agency.  Provide written instructions to everyone who may have possession of information relating to the disputed account that they must preserve all paper and ESI.  Have your IT personnel suspend any automatic deletion routines in your system.  If documents or ESI are deleted after the agency is deemed to have had a reasonable expectation that a claim may be forthcoming (even if the deletion is accidental or unintentional), the court may instruct the jury that it can infer that the deleted information would have been harmful to the agency’s case. 

Michael T. Medford               medford@manningfulton.com

William S. Cherry                  cherry@manningfulton.com

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