How to Preserve Electronic Medical Records for Litigation

Last Updated: November 9, 2026

Table of Contents

• Why Electronic Medical Records Matter as Evidence
• What Counts as an Electronic or Legal Health Record
• Medical Record Retention for Litigation: Rules and Timelines
• Issuing a Legal Hold and Stopping Routine Destruction
• Electronic Medical Record Metadata as Evidence
• Step-by-Step: Preserving Electronic Medical Records for Litigation
• Writing a Preservation Letter That Holds Up
• Speak With Cummings Law About Your Medical Records Before They Are Lost
• Frequently Asked Questions

Electronic medical records now sit at the center of most malpractice cases. A patient who believes a diagnosis was missed or care was poor often needs the chart to prove it. Yet electronic health records can be changed, overwritten or deleted through routine system activity if nobody acts. Knowing how to preserve them early is one of the most important steps a patient or family can take. (Source: a 2025 study by A. Torab-Miandoab and coauthors)

The clinical documentation in these systems is also more detailed than many people expect. A 2025 study by A. Torab-Miandoab and coauthors, published on PubMed Central, The impact of electronic medical records on clinical documentation, reported an average time savings of 75 minutes in clinical documentation after adopting electronic records. That shift means more of the care story now lives in digital form.

Why Electronic Medical Records Matter as Evidence

Electronic records often hold the clearest timeline of what happened. They can show when a test was ordered, when a result arrived, and when a provider opened the chart. Paper charts rarely offer that kind of detail.

Those records can also be hard to challenge. According to Epstein Becker Green, Electronic Health Records Pose Several Challenges, when EHR data is relevant to a case, the defense of a covered entity can become expensive and inefficient. That is why early, careful preservation matters.

What Counts as an Electronic or Legal Health Record

An electronic health record is the digital version of a patient’s chart. It usually includes notes, orders, test results, medication lists and messages. A legal health record is the subset of that information a provider treats as its official record for legal purposes. Because the legal health record is only a subset of the electronic chart, preserving the underlying data and its history may require digital forensics services to establish what was created, changed, or retained.

• Clinical notes and progress entries
• Lab, imaging and test results
• Orders, prescriptions and referrals
• Patient portal messages and phone encounters

Medical Record Retention for Litigation: Rules and Timelines

Retention rules vary. Providers keep records for set periods that depend on the state, the provider type and the patient’s age. To understand Hawaii’s filing deadlines and pre-litigation steps, read the Hawaii medical malpractice claim timeline.

Do not assume a record will still exist because the law requires it to be kept. Request a copy as soon as you suspect a problem, and ask in writing that the provider preserve the entire chart. For a step-by-step guide to handling a misdiagnosis claim, see how to handle a misdiagnosis claim in Hawaii.

Issuing a Legal Hold and Stopping Routine Destruction

A legal hold is a written directive that suspends the normal deletion, purging and alteration of records that may be relevant to a claim. It is the single most time-sensitive step in preserving electronic medical records for litigation, because routine system activity can overwrite or purge data before anyone reviews the chart.

A hold that only reaches the treating physician is usually incomplete. Electronic records can live across many systems and custodians, each of which may destroy data on its own schedule. A defensible hold generally reaches:

• The health information management department and the records custodian
• The compliance or privacy officer
• The IT team responsible for the EHR, servers and backups
• The EHR vendor and any third-party records or storage vendor
• Any billing, scheduling or portal vendor that holds related data
• Individual clinicians and staff who touched the chart

The hold should identify the patient, the dates of care, the providers involved, the matter or potential claim, and the categories of records and data to preserve. It should expressly cover native electronic files, metadata, audit logs, system logs, backups and archived copies, not just the printed chart.

Backups deserve separate attention. Many organizations rotate or overwrite backups on a fixed cycle, and a hold that does not reach the backup administrator can lose the only copy of a record that was later altered.

Verification matters as much as issuance. A common pattern is for a hold to be sent but never confirmed, leaving the sender to assume the records are safe. Ask each recipient to acknowledge the hold in writing, to confirm which systems and custodians it reached, and to describe any data that could not be preserved.

Watch out: a hold sent only to a front-desk address or a general customer-service inbox may never reach the people who control deletion, so send it to named custodians and keep proof of delivery.

When the matter concludes, the hold is released in writing, and the organization returns to its normal retention schedule. Until that release, treat every copy of the record as potentially relevant and avoid relying on any single system as the only source.

Electronic Medical Record Metadata as Evidence

Metadata is the information about a record rather than the clinical content itself: who created an entry, when it was created, when it was last edited, what changed, and which user or system made the change. In an EHR, that information usually lives in audit trails and system logs rather than in the note a clinician sees on screen.

A preservation request should name the specific data to keep, because a general request for “the chart” often produces only a printed or PDF export. The categories worth naming include:

• The native electronic file or database export, not just a printed or PDF copy
• Audit trails showing who accessed, created, edited or deleted entries, and when
• System and access logs, including login and logout times
• Version history and any amendment or addendum records
• Timestamps in the system’s native format and time zone
• User and role identifiers tied to each entry
• Metadata for attachments, images and portal messages

How the data is exported matters. A PDF or printout flattens the record and typically drops audit history, version data and precise timestamps. A native export or a vendor-produced data extract preserves more of the underlying structure, but it must be documented so a later reader can understand what was produced and what was left out.

Watch out: exporting a record can itself change metadata, so ask that the export be documented and that the original native files and audit logs remain preserved and unaltered alongside any working copy.

Chain of custody ties the metadata to the case. Keep a written log of who requested the records, who produced them, when they were transferred, who accessed them and where they are stored. Store copies in a way that preserves file integrity, and avoid opening or editing native files in place. If a dispute arises later, that log and the untouched native files are what let you show the record is authentic and complete.

Metadata is also where late entries and altered notes tend to surface. An audit trail can show that a note was edited days after the encounter or that a user opened a chart only after a complication was discovered. That is why the request should go out early, before routine system activity and retention purges erase the trail.

Step-by-Step: Preserving Electronic Medical Records for Litigation

Follow these steps to protect your records:

1. Request a complete copy of your chart in writing, including audit logs if available.
2. Send a written preservation request to the provider and its records vendor.
3. Keep your own copies of bills, portal messages and correspondence.
4. Note dates of care, symptoms and conversations while your memory is fresh.
5. Ask the provider to confirm in writing that the hold is in place.
6. Speak with an attorney before signing any release or accepting a settlement offer.

For help with this process, see our guide on How To Request Medical Records For A Malpractice Case.

The steps below cover the main actions to take to protect your records, with the timing each one calls for.

Step	What to do	Timing
1	Request a complete copy of your chart in writing, including audit logs if available	As soon as you suspect a problem
2	Send a written preservation request to the provider and its records vendor	Early, before routine deletion
3	Keep your own copies of bills, portal messages and correspondence	Ongoing
4	Note dates of care, symptoms and conversations	While memory is fresh
5	Ask the provider to confirm in writing that the hold is in place	After sending the request
6	Speak with an attorney before signing any release or settlement	Before signing anything

Writing a Preservation Letter That Holds Up

A preservation letter should be specific. It should name the patient, the dates of care, the providers involved, and the types of records to keep. It should also request that native files and audit trails be preserved.

Send the letter by a method that creates a delivery record, such as certified mail. Keep a copy for your file. A vague letter invites a vague response.

Patients weighing whether to pursue a claim often compare the options first. For that comparison, see Malpractice Lawsuit vs Insurance Settlement: What to Know.

Speak With Cummings Law About Your Medical Records Before They Are Lost

Medical records can disappear faster than most people expect. If you believe a provider missed a diagnosis or gave poor care, the time to act is now. Cummings Law represents malpractice victims in Hawaii and operates on a contingency basis, so there are no attorneys’ fees or court fees unless your case is successfully resolved. Founder Brian Cummings can review your records and explain your options. Call for a consultation!

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Frequently Asked Questions

How can a medical record be used in litigation?

In a Hawaii personal injury or medical malpractice case, medical records are often the central evidence. They document what a provider knew, what was ordered, what was done and when. Attorneys use them to establish the standard of care, identify missed diagnoses or delays, and calculate damages through billing records. Because electronic medical records also contain audit trails and timestamps, they can show who accessed or changed an entry and when. Preserving the complete record, not just the printed version, is what makes these details usable. Cummings Law can request and review your records as part of a case evaluation.

Why does metadata matter when preserving electronic medical records?

Metadata is the data about the record: creation dates, edit history, user IDs and audit logs. It can show whether a note was written at the time of care or added later, which can be critical when a timeline is disputed. A printout or PDF often strips this information, so courts may question whether the copy is complete or authentic. Preserving records in native format, with audit logs intact, helps establish authenticity and integrity. Pricing for records requests varies, so contact Cummings Law for current information on what your case may involve.

How long must EHR records be kept?

Retention requirements depend on the type of provider, the setting and the rules that apply where the care was given. Federal rules set some minimum periods for certain hospital and provider records, but many states impose their own longer or different retention periods, and some apply rules based on patient age. Because these periods vary, the safest approach is to confirm the rule that applies to your specific provider with the official state or federal source. Once litigation is anticipated, routine destruction should stop regardless of the normal schedule.

How can a patient request a copy of an electronic health record?

Patients generally have a right under HIPAA to request a copy of their records from the provider or health system that holds them. The request is usually made in writing, and the provider may charge a fee that is limited by federal rules and state law. Ask for the complete record in electronic form, including imaging and lab results where possible. Keep a copy of your request and any response. If a provider delays or refuses, a Hawaii attorney can help you determine your next steps. Contact Cummings Law for a consultation about your records.