*1 The plaintiffs have moved to compel discovery (#127) of certain interrogatories and production requests related to metadata associated with the plaintiffs’ decedent's electronic medical records (EMR). The defendants objected (#128) and each side filed a reply (##129 and 130, respectively). The court presided over remote oral argument on June 27, 2022. For the reasons set forth below, the court grants this motion in part and denies it in part.

This is a medical malpractice case brought by the plaintiff Bethsaida Gilland both individually and as executrix of the estate of Steven Gilland. The complaint alleges the following relevant facts. The plaintiffs’ decedent passed away while in the care of the defendants as a result of their direct and/or vicarious liability for substandard medical care. The decedent was under the care of the defendants from June 13, 2018 until June 15, 2018 and died on or about 8:23 a.m. on June 15, 2018.

The plaintiffs have moved to compel answers to interrogatories 2 and 3 and to production requests 1 through 4. The parties submitted the requisite affidavit demonstrating that the parties attempted in good faith to resolve the objections. The specific discovery requests and objections at issue read as follows:

Interrogatory 2. “Identify the person or persons most knowledgeable as to the maintenance and retrieval of audit [trails] or audit logs of Mr. Steven Gilland's electronic medical records at St. Mary's Hospital in Waterbury, CT, including records of who accessed medical records, when those records were accessed, if the records were changed or altered, and, if the records were changed or altered, What changes were made to the records.”

Objection: “Defendants object to the extent that this interrogatory is overly broad and burdensome; seeks irrelevant and immaterial information; seeks duplicative information already produced in the medical records; and goes beyond the scope of discovery.”

Interrogatory 3. “Identify the person or persons most knowledgeable as to the maintenance and retrieval of electronic alerts, reminder, or ‘pop-ups’ seen by providers viewing, accessing or retrieving Mr. Steven Gilland's electronic medical records at St. Mary's Hospital in Waterbury, CT.”

Objection: “Defendants object to the extent that this interrogatory is overly broad and burdensome; seeks irrelevant and immaterial information; seek duplicative information already produced in the hospital records; and goes beyond the scope of discovery.”

Production Request 1. “All audit trails, metadata, EMR, or other identifiable health information associated with Mr. Steven Gilland, DOB 12/16/1971 for his June 2018 hospitalization. This shall include all available data for the patient from June 13, 2018 until present with no filters applied except for the patient name and date filter. Audit trails from each and every EMR system shall be provided and identify the source, application where the audit trail originated. Access, printing, entry of new information, editing of existing information shall clearly show the user, date and time, original value and edited value among all other available audit trail fields.”

*2 Objection: “Defendants object to the extent that this request is vague, overly broad and burdensome, seeks irrelevant and immaterial information; seeks duplicative information already produced in the hospital records; is not reasonably calculated to lead to the discovery of admissible evidence at the time of trial; constitutes an impermissible fishing expedition and goes beyond the scope of discovery.”

Production Request 2. “A full and complete copy of the manual for each hospital application that contains any of the referenced patient's EMR.”

Objection: “Defendants object to the extent that this request is vague, overly broad and burdensome, seeks irrelevant and immaterial information; seeks duplicative information already produced in the hospital records; is not reasonably calculated to lead to the discovery of admissible evidence at the time of trial; constitutes an impermissible fishing expedition and goes beyond the scope of discovery.”

Production Request 3. “Provide data dictionaries in a delimited electronic file format for any of the field entries for Mr. Steven Gilland's EMR such as username, lab work, procedure codes, medications among all other such coded fields that have long form descriptions and related in any way to the patient's EMR.”

Objection: “Defendants object to the extent that this request is vague, overly broad and burdensome, seeks irrelevant and immaterial information; seeks duplicative information already produced in the hospital records; is not reasonably calculated to lead to the discovery of admissible evidence at the time of trial; constitutes an impermissible fishing expedition and goes beyond the scope of discovery.”

Production Request 4. “Please export all data collected during the care of Mr. Steven Gilland. Export shall be a file containing raw/native format data as implemented by each of the EMR/HER software applications that contain patient's EMR, as well as a single Excel spreadsheet, in which the first row of the spreadsheet will identify the field names from the data dictionary as well as a connector to the file path of the exported native record referenced by the audit trail. Please produce these records on either CD/DVD, flash drive or via electronic file transfer service.”

Objection: “Defendants object to the extent that this request is vague, overly broad and burdensome, seeks irrelevant and immaterial information; seeks duplicative information already produced in the hospital records; is not reasonably calculated to lead to the discovery of admissible evidence at the time of trial; constitutes an impermissible fishing expedition and goes beyond the scope of discovery.”

Practice Book § 13-14 (a) provides in relevant part: “the judicial authority may, on motion, make such order proportional to the noncompliance as the ends of justice require.” “It is well settled that [t]he granting or denial of a discovery request rests in the sound discretion of the court.... A court's discovery related orders are subject to reversal only if such an order constitutes an abuse of discretion.... [I]t is only in rare instances that the trial court's decision will be disturbed.” (Internal quotation marks omitted.) Village Mortgage Co. v. Veneziano, 175 Conn. App. 59, 71, 167 A.3d 430, cert. denied, 327 Conn. 957, 172 A.3d 205 (2017).

The plaintiffs have moved to compel answers to certain interrogatories and production of certain documents concerning metadata and audit trails associated with the plaintiffs’ decedent's medical treatment with the defendants.

*3 “Metadata, frequently referred to as data about data, is electronically-stored evidence that describes the history, tracking, or management of an electronic document.... It includes the hidden text, formatting codes, formulae, and other information associated with an electronic document.” (Citation omitted; internal quotation marks omitted.) Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350, 354 (S.D.N.Y. November 21, 2008). “[A]n audit trail is a form of metadata created as a function of the medical provider's computerization of medical records.... The audit trail ... shows the sequence of events related to the use of and access to an individual patient's EHR [electronic health records]. For instance, the audit trail will reveal who accessed a particular patient's records, when, and where the health care provider accessed the records. It also shows what the provider did with those records –e.g., simply reviewed them, prepared a note, or edited a note. The audit trail may also show how long the records were opened by a particular provider. Each time a patient's EHR is opened, regardless of the reason, the audit trail documents this detail.” (Citation omitted, internal quotation marks omitted.) Gilbert v. Highland Hospital, 52 Misc. 3d 555, 557, 31 N.Y.S.3d 397 (2016).

There is no Connecticut authority specifically on point. Similarly, no Connecticut authority has engaged in a detailed legal analysis of these issues, but one Connecticut trial court case granted discovery of metadata after a general review of the issues. This case is Innis Arden Golf Club, Inc. v. O'Brien & Gere Engineers, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6006581-S (November 18, 2011, Brazzel-Massaro, J.) (52 Conn. L. Rptr. 904).[1] In Innis Arden Gold Club Inc., the defendant filed a motion to compel, and contended that “at a minimum the document production should include metadata” and that “metadata is standard in electronic production.” Id. The court stated that “because this is not addressed in the rules of practice in Connecticut, there is no particular standard except for a reasonableness review to enforce methods for complete and meaningful discovery.” Id. The court agreed that “metadata is an important source for the defendants as part of the orderly production of electronic disclosure.” Id. As such, the court ordered the plaintiff to cooperate in completing the metadata requested.

The law on the discoverability of metadata and audit trails under similar circumstances is developing and lower courts in other jurisdiction have reached mixed results.

Courts in other jurisdictions have granted discovery for audit trails and metadata of a patient's medical records.[2] In Vargas v. Lee, 170 A.D.3d 1073, 96 N.Y.S.3d 587 (2019), New York's highest court found this type of disclosure proper. In Vargas, the plaintiff brought a medical malpractice action against a hospital, alleging that the hospital failed to timely and properly manage and treat the patient's injury after his foot surgery. Id. The plaintiffs appealed the lower court's order denying the motion to compel production of the audit trail of medical records. Id. The lower court denied the requested audit trail because “metadata was not routinely produced unless the requesting party shows good cause” and because “the plaintiffs failed to sustain their burden of demonstrating the necessity and utility of audit trail production.” Id., 589. After a renewed motion to compel was filed, the lower court once again denied the motion. On appeal, the court found that “the plaintiffs, with the new material submitted in support of their renewed motion, sustained their threshold burden of demonstrating that the portion of the audit trail at issue was reasonably likely to yield relevant evidence.” Id., 591. The plaintiffs had sufficiently demonstrated that “an audit trail generally shows the sequence of events related to the use of a patient's electronic medical records ... [and that] the requested audit trail was relevant to the allegations of negligence that underlie [the] medical malpractice action in that the audit trail would provide, or was reasonably likely to lead to, information bearing directly on the post-operative care that was provided to the ... plaintiff.” Id. The plaintiffs further “demonstrated that such disclosure was also needed to assist preparation for trial by enabling their counsel to ascertain whether the patient records that were eventually provided to them were complete and unaltered.” Id. The defendant also failed to demonstrate that the requested disclosure was improper or unwarranted. Id. It was undisputed that the audit trail would contain pertinent information and the defendant made no showing that production would be onerous. Id.

*4 Various New York courts have further addressed this issue. In Gilbert v. Highland Hospital, supra, 52 Misc. 3d 555, the plaintiff brought an application to compel the discovery of the audit trails of a decedent's medical records. This related to the underlying medical malpractice action, which alleged negligence for failure to properly diagnose the decedent. Id., 556. The plaintiff sought discovery of these audit trails “because the medical records produced ... [did] not indicate whether an emergency department attending physician ever reviewed the plaintiff's medical records and plan of care prior to her discharge.” Id., 557. The court found that the plaintiff's request was relevant to the complaint's allegations that the decedent was not seen or evaluated by a medical doctor prior to discharge. Id., 558. The audit trail “will account for the attending physician's accessing and viewing the decedent's electronic records, a topic the plaintiff may wish to explore further during a deposition or cross-examination.” Id. As such, the evidence was material and necessary, and the court granted the motion.[3]

Other state courts have also ruled that the discovery of audit trails for medical records is proper. See Baker v. Geisinger Community Medical Center, Docket No. 16-CV-2946, 2017 WL 1293251 (Pa. Ct. Com. Pl. April 7, 2017) (“[s]ince the audit trail is relevant to the claims at issue and may be secured and produced without significant cost or hardship, it is discoverable under the proportionality standard governing discovery requests for electronically stored information”); Fernandez-Rajotte v. Dartmouth Hitchcock Medical Center, Docket No. 215-20110-CV-00455, 2014 WL 12540494 (N.H. Super. Ct. June 30, 2014) (audit trail not shielded by privilege and is subject to discovery as it is relevant to subject matter of suit).

Nonetheless, various other courts have denied the discovery of audit trails and metadata. In Punter v. New York City Health & Hospitals Corp., Docket No. 805071/2015, 2019 N.Y. Misc. LEXIS 1906 (N.Y. Sup. Ct. April 12, 2019), modified on reargument, Docket No. 805071/2015, 2019 N.Y. Misc. LEXIS 23627 (N.Y. Sup. Ct. November 4, 2019), aff'd, 191 A.D.3d 563, 138 N.Y.S.3d 856 (2021), the plaintiff sought information related to changes made to her electronic medical records. The plaintiff argued that the audit trail was necessary as it would allow her to see “when entries were made, and who made them, thus allowing her to determine whether the orders regarding diagnoses and treatments were made in a timely and appropriate manner.” Id. The court found that the plaintiff did not “demonstrate that the information gleaned from an audit trail would be material and necessary and cannot be deduced from plaintiff's [electronic medical records], which have already been produced.” Id. Further, the plaintiff made “no allegation that the [electronic medical records] are inauthentic or improperly altered. Plaintiff may establish such a foundation following further discovery and depositions ... rendering the instant request premature.” Id. Therefore, the court denied the plaintiff's request. Id.[4]

*5 What the court gleans from the review of these non-binding precedents is that it may grant a motion to compel production of metadata or audit trails of a patient's electronic medical records if doing so is relevant, material, and proportional to the plaintiffs’ claims, and the production thereof would not be burdensome to the defendants.

This conclusion, while rational and logical, is of limited utility in helping the court decide the issues raised in this motion. The conclusion reminds the court of a joke his former boss used to tell. The joke went like this. Two gentlemen were aloft in a hot air balloon, floating in parts unknown in a dense fog. All at once, the fog broke, and the ballooners spotted a man atop a high mountain. The ballooners shouted to the man, “Friend, can you please tell us where we are?” The gentleman responded, “Sure. You're in a hot air balloon.” One of the lost ballooners said to the other, “that guy must be a lawyer. Everything he told us was true, but none of it was helpful.”

It is a helpful to note the general principle that the court has discretion to compel discovery of metadata or audit trails of electronic medical records if they are relevant and material to the issues presented and not unnecessarily burdensome to the defendants. The court, however, cannot decide this motion without applying this principle to the specific discovery which is the subject of this motion.

Unfortunately, the positions advocated by counsel, while thoughtful and interesting, provided little assistance to the court in this regard because both counsel painted with a very broad brush. The court, claimed plaintiffs’ counsel, must allow discovery of audit trails because they are clearly part of the decedent's medical records and because HIPAA allows patients access to their records. Moreover, argued the plaintiffs, standard form interrogatories for plaintiffs in medical malpractice actions, newly adopted by the judges of the Superior Court effective January 1, 2022, although issued after the discovery at issue was propounded, support the granting of this motion.[5] The defendants, on the other hand, contend, in conclusory fashion, that audit trails are business records related to security which have nothing to do with patient treatment and which, additionally, are duplicative of the hospital records already provided.

*6 The problem with the arguments of both sides is that the court does not have the luxury of annunciating generalized pronouncements. Rather, the court must decide whether to compel responses to six specifically worded discovery requests. Moreover, the court must make these decisions without the benefit of facts that would have been helpful to the court. For example, the plaintiffs’ discovery requests are loaded with jargon, but the plaintiffs did not submit the definitions section of their requests, if such a definitions section existed. For another illustration, the defendants argue that the requests are duplicative of responses already tendered, but fail to attach those responses so that the court may decide whether that argument holds water.

Counsel, to their credit, helped the court to understand that elements of metadata and audit trails may, at the very least, demonstrate that edits to the decedent's electronic medical record were made at different times by different people. But even after extensive briefing and oral argument, the court does not have a clear understanding of the essential issue, namely, do metadata and/or audit trails constitute a part of the decedent's electronic medical record or are they more analogous to drafts of a contract later finalized? Moreover, although the plaintiffs argued that the metadata and audit trails may be probative of whether any after-the-fact whitewashing of the decedent's electronic medical record took place, such an argument, devoid of proof, is mere speculation.

As a result, the court must do the best it can by reviewing each request individually.

In so doing, the court finds that the plaintiffs have yet to convince the court that metadata and audit trails are part of the decedent's electronic medical record, an issue the court finds dispositive of most of this motion. However, the plaintiffs should be given the opportunity to do so. Certain of the discovery requests that are the subject of this motion to compel, would provide the basis for deposition practice that may, depending on the answers received, allow the plaintiffs to return to court to reargue this essential issue.

Interrogatories 2 and 3 may be analyzed together. Each asks the defendants to merely identify individuals. Interrogatory 2 asks for the defendants to identify “the person or persons most knowledgeable as to the maintenance and retrieval of audit [trails] or audit logs of Mr. Steven Gilland's electronic medical records at St. Mary's Hospital in Waterbury, CT, including records of who accessed medical records, when those records were accessed, if the records were changed or altered, and, if the records were changed or altered, what changes were made to the records.” Interrogatory 3 seeks to have the defendants identify “the person or persons most knowledgeable as to the maintenance and retrieval of electronic alerts, reminder, or “pop-ups” seen by providers viewing, accessing or retrieving Mr. Steven Gilland's electronic medical records at St. Mary's Hospital in Waterbury, CT.” The defendants’ attorney agreed during argument that the identification of a person or person who knew the most about the maintenance or retrieval of audit trails concerning the decedent's electronic medical records or of alerts or reminders seen when one accesses such electronic medical records would not be burdensome or cumbersome. Moreover, part of the defendants’ objection to this motion was that the plaintiffs’ requests were premature because the plaintiffs had not demonstrated that the discovery requests at issue were reasonably calculated to lead to the discovery of admissible evidence. The answers to these interrogatories would provide the plaintiffs with the names of potential deponents whose testimony may help the court ultimately decide whether the metadata and audit trails of the decedent's electronic medical records were treatment records, as the plaintiffs claim, or, rather business and security records unrelated to treatment, as the defendants maintain.

*7 The answers to these interrogatories are not privileged, and the interrogatories themselves are not overly broad, burdensome, vague, and/or duplicative. Moreover, these questions are reasonably calculated to lead to the discovery of admissible evidence. For all these reasons, the court grants the motion to compel the answers to Interrogatories 2 and 3.

For similar reasons, the court grants the motion to compel a response to production request 2. This request seeks “[a] full and complete copy of the manual for each hospital application that contains any of the referenced patient's EMR.” As with interrogatories 2 and 3, production request 2 is clear, not duplicative, and a response to it would not be overly broad or burdensome. Moreover, the response to it would provide the plaintiffs with the ability to inquire of the potential deponents disclosed in interrogatories 2 and 3 how these applications work and whether or not metadata and audit trails constitute electronically-maintained health records of the decedent. Therefore, this production request is reasonably calculated to lead to the discovery of admissible evidence. For all of these reasons, the court grants the motion to compel a response to production request 2.

The court denies the motion to compel answers to production requests 1, 3 and 4 because the plaintiffs have not shown that metadata and audit trails are part of the decedent's electronic medical record. Moreover, these productions requests 3 and 4 are also chock full of technical jargon that makes them, without further definition, both vague and incomprehensible to the average person.[6] Finally, production request 1's temporal endpoint of “the present” is unreasonably long. For all of these reasons, the court denies the motion to compel answers to production requests 1, 3 and 4.

For all of the above-stated reasons, the court grants this motion is part and denies it in part.

SO ORDERED.