Discovery Issues Associated with AI Scribe Audio and Audit Trails

Matthew P. Keris, Shareholder; Chair, EMR and Audit Trail Practice Group | Marshall Dennehey

Matthew P. Keris chairs Marshall Dennehey’s national EMR and Audit Trail Practice Group and is a recognized authority on electronic medical records in litigation, including audit trail preservation, discovery, and the integration of artificial intelligence into clinical documentation. He is the author of Electronic Medical Records and Litigation (Thomson Reuters Legal, 2014) and has defended health care providers and businesses in complex civil litigation for more than twenty years.

• Education & Credentials

Mr. Keris earned his J.D. from Roger Williams University School of Law in 1996 and his B.A., cum laude, from Shippensburg University of Pennsylvania in 1993. He is admitted to practice in Pennsylvania (1996), New York (2011), and Connecticut (2021), before the U.S. District Courts for the Middle District of Pennsylvania (2000) and the Northern District of New York (2020), and before the U.S. Supreme Court (2023). He is also an Mcare-approved mediator.

• Recognition & Leadership

Mr. Keris has been listed in The Best Lawyers in America for Medical Malpractice Law – Defendants and Litigation – Health Care and holds Martindale-Hubbell’s AV Preeminent rating. He is a past president of both the DRI Foundation and the Pennsylvania Defense Institute, has served multiple terms as President of the Pennsylvania Association for Health Care Risk Management, and currently serves as editor of Patient Safety.

• Professional Involvement

Mr. Keris serves on the Healthcare Standards Institute Workgroup on AI Governance Standards and is a member of several professional organizations, including the American Society for Healthcare Risk Management and the Pennsylvania Bar Association Health Care Law Committee. He has also provided commentary to NBC News, Thomson Reuters, Law360, The Legal Intelligencer, and Becker’s Hospital Review.

• Experience

Mr. Keris speaks frequently on the discovery issues at the center of this program, with recent presentations including “Anticipated AI Discovery Issues in Litigation” (2026), “The Role of AI and EMRs in Discovery” (2025), and “Audit Trail 101” before the Philadelphia Court of Common Pleas (2025). He has also published extensively on artificial intelligence, electronic medical records, and medical negligence in The Legal Intelligencer and the Journal of Healthcare Risk Management. His trial work includes a defense verdict in a long-term care case involving spoliation issues and the first Pennsylvania civil jury trial taken to verdict during the COVID-19 pandemic.

SESSION 1 – Pre-Suit Access Requests and Why the Deposition Comes Before the Motion | 2:30pm – 3:30pm ET

This session equips plaintiff attorneys with a sequenced, pre-suit strategy for obtaining AI scribe audio recordings and audit trails before automatic deletion windows close. Attendees will learn how to deploy the HIPAA right of access, preservation letters, and Rule 27 depositions to perpetuate testimony before litigation begins — and before evidence vanishes. Attorneys will leave with a working framework for identifying what AI scribe data exists, how to demand it, and how to structure a pre-suit deposition targeting vendor IT custodians when deletion is imminent.

BREAK | 3:30pm – 3:40pm ET

SESSION 2 – Impeaching the Note with the Audio and Moving When the Audio Is Gone | 3:40pm – 4:40pm ET

This session equips plaintiff attorneys with a concrete framework for using AI scribe audio recordings to impeach AI-generated clinical notes at deposition and trial, and for pursuing spoliation sanctions when those recordings have been deleted. Attendees will learn how to identify and exploit the attestation gap between what was spoken and what the AI-signed note says, how to structure a FRCP 37(e) motion or state-law adverse inference argument when audio has been destroyed, and how to fight the health system’s attempt to classify audio as a non-record transitory communication. By the end of this session, attorneys will be able to build a preservation-to-spoliation timeline, cross-examine on hallucination, and move for sanctions with the right evidentiary foundation.