After the Terpening Preservation Order: What the Next Record Needs to Show

Discovery order of 29 Oct 2026No sanctions findingCCFMG is not CFMG

In Terpening, the October 29 order requires a preservation declaration within 21 days, if not already served, and a Rule 30(b)(6) witness within 35 days, unless a date is already set. Those periods calculate to November 19 and December 3. The order permits deadline modifications; sanctions remain undecided. This is a follow-up to the order already reported on the site, not a newly imposed sanction. [1]

The defendant identified as CCFMG in this case is Central California Faculty Medical Group. It must not be confused with California Forensic Medical Group in the separate correctional-health investigation. Nothing in this preservation analysis supplies a factual link between the two cases. [1]

For readers following the case, the distinction between a lost record and a sanctions finding is essential. Rule 37(e) addresses electronically stored information that should have been preserved for litigation, was lost because reasonable steps were not taken, and cannot be restored or replaced through additional discovery. Measures responding to prejudice and the most severe consequences depend on different findings. The latter require intent to deprive another party of the information's use in the litigation. [2]

That framework explains why a preservation inquiry asks several questions rather than stopping at the word “missing.” When did a duty to preserve arise? Which people and devices were covered? What instructions were issued? What did a collection vendor actually receive? Were the data exported, checked, backed up and returned? Did anyone verify the export before the source device was replaced or discarded? Could the relevant exchange still be found in another participant's records? These are proposed analytical questions, not findings about what any defendant or vendor did.

A chronology should separate ordinary operations from litigation preservation. An organization may routinely replace phones, shorten retention periods or migrate software. Whether those practices were reasonable once litigation was anticipated is a separate question that depends on timing, notice and the available alternatives. A policy that exists on paper may tell little about implementation; a technical failure may be significant without establishing a deliberate attempt to destroy evidence. Both possibilities must remain visible until the record resolves them.

The declared account should also be distinguished from what a witness personally knows. A corporate witness can explain the organization's designated testimony, while a technical custodian may have direct knowledge of extraction, storage and recovery attempts. Their accounts may overlap, or expose a gap that requires an additional record. A responsible case report should identify those roles and attribute assertions to the person or organization making them.

For physicians and healthcare organizations, this is a practical documentation problem as well as a litigation story. Clinical work can generate information across an EHR, secure messaging, email, a mobile device and an external service. A clean PDF export is not necessarily a complete record of who entered a statement, when it changed or where the supporting communication originated. An internal record inventory can distinguish the signed clinical record, its amendments, audit history, supporting communications and operational logs. This is an editorial proposal for a review workflow; the appropriate retention and legal-hold decisions depend on the actual system and applicable requirements.

The same analytical habits are useful when an AI tool assists documentation. Ask which artifact is the draft, which is the adopted note, who changed it, and which systems received it. That analogy does not establish that AI was involved in Terpening. It connects two different subjects through a common evidentiary question: can a later reviewer reconstruct the origin and handling of the information without relying solely on the polished final output?

The next publication should report each verified step at its own level. If a declaration becomes public, describe its author, scope and assertions. If organizational testimony is available, link to the relevant pages and examine the surrounding questions and answers. If a sanctions motion is filed, identify the relief requested and the opposing response. If the court rules, state exactly what it found and what consequence it ordered. Until then, keep the case's preservation-discovery label and preserve the earlier dated account.

For patients, clinicians, attorneys and researchers, the value of this approach is that it permits scrutiny without prejudgment. Evidence of a missing record can raise a serious question. It becomes a legal conclusion only through the required factual and procedural steps. The website's next update should make those steps easier to follow.

Dates in this record