Cybersecurity and personal privacy are real and compelling concerns. Whether we know it or not, virtually everyone has been victimized by data breach. Lawyers are tempting targets to hackers because, lawyers and law firms hold petabytes of sensitive and confidential data. Lawyers bear this heady responsibility despite being far behind the curve of information technology and arrogant in dismissing their need to be more technically astute. Cloaked in privilege and the arcana of law, litigators have proven obstinate when it comes to adapting discovery practice to changing times and threats, rendering them easy prey for hackers and data thieves.
Corporate clients better appreciate the operational, regulatory and reputational risks posed by lackluster cybersecurity. Big companies have been burned to the point that, when we hear names like Sony, Target or Anthem, we may think “data breach” before “electronics,” “retail” or “health care.” The largest corporations operate worldwide, so are subject to stricter data privacy laws. In the United States, we assume if a company owns the system, it owns the data. Not so abroad, where people have a right to dictate how and when their personal information is shared.
Headlines have forced corporate clients to clean up their acts respecting data protection, and they’ve begun dragging their lawyers along, demanding that outside counsel do more than pay lip service to protecting, e.g., personally-identifiable information (PII), protected health information (PHI), privileged information and, above all, information lending support to those who would sue the company for malfeasance or regulators who would impose fines or penalties.
Corporate clients are making outside counsel undergo security audits and requiring their lawyers institute operational and technical measures to protect company confidential information. These measures include encryption in transit, encryption at rest, access controls, extensive physical security, incident response capabilities, cyber liability insurance, industry (i.e., ISO) certifications and compulsory breach reporting. For examples of emerging ‘standards,’ look at the Model Information Protection and Security Controls for Outside Counsel Possessing Company Confidential Information lately promulgated by the Association of Corporate Counsel.
Forcing outside counsel to harden their data bulwarks is important and overdue; but, it’s also disruptive and costly. Many small firms will find it more difficult to compete with legal behemoths. Savvier small firms, nimbler in their ability to embrace cybersecurity, will frame it as a market differentiator. At the end of the day, firms big and small must up their game in terms of protecting sensitive data.
Enhanced cybersecurity is a rising tide that floats all boats.
Well, maybe not all boats. Let me share who’s likely to get swamped by this rising tide: requesting parties (or, as corporations call them “plaintiffs’ lawyers”), and their experts and litigation support providers. Requesting parties and others in the same boat will find themselves grossly unprepared to supply the rigorous cybersecurity and privacy protection made a condition of e-discovery. Continue reading
Lawyers spend a ton of time thinking about intent. Intent is what separates murder from negligent homicide. It’s key to deciding whether minds have met to form a binding contract. Intentional torts are punished. Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation. The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.![mobile-device-security[1]](https://craigball.net/wp-content/uploads/2017/04/mobile-device-security1.jpg?w=222&h=174)
Can anyone doubt the changes wrought by the modern “smart” cellphone? My new home sits at the corner of one-way streets in New Orleans, my porch a few feet from motorists. At my former NOLA home, my porch faced cars stopped for a street light. From my vantage points, I saw drivers looking at their phones, some so engrossed they failed to move when they could. Phones impact how traffic progresses through controlled intersections in every community. We are slow-moving zombies in cars.
Two characteristics that distinguish successful trial lawyers are preparation and strategy.
If you are in New York on Monday evening, please come hear me interview Nina Totenberg, NPR’s legendary legal affairs correspondent, and honor your peers in the corporate and government e-discovery world who are being recognized for excellence in e-discovery strategy, process and success. We will also honor noted author Michael Arkfeld for his contributions.
Bill Butterfield died on Tuesday, December 13 after a brief, silent battle with cancer. He was a good man and an exemplary attorney. Knowing that I will never meet him again, I mourn that I cannot know him better. I know well Bill’s tireless efforts to protect every litigant’s right to obtain full and fair discovery. His was a revered and respected voice at The Sedona Conference, where he stood against multitudes who would cripple our right to seek the truth that lives in electronically-stored information. Bill employed canny strategies that the naysayers couldn’t match: He was sensible, practical, courteous and kind. Bill listened. He considered, and he contributed. Bill was a worthy opponent to many, an enemy to none.
“Will the person who left their cell phone at the security checkpoint please retrieve it?” People constantly leave their phones behind at security checkpoints, washrooms, checkout counters and charge stations. Too, the little buggers slip out of pockets and purses. More than three million phones are lost in the U.S. every year, and less than one-in-ten lost phones finds its way home. Saturday night, I found an iPhone on the floor at a big party in the Faubourg Marigny in New Orleans. I located the owner by asking everyone in sight if they’d lost a phone, and when I found her, the owner didn’t know she’d dropped it.
As I stow the turkey platter and box up the pilgrim décor, I’m reminded that it’s time once more to celebrate E-Discovery Day, TODAY, Thursday, December 1. No doubt, you’re saying, “So SOON?!?! I still haven’t retrieved those E-Discovery Day 2015 balloons that got loose in the atrium, and who’s going to eat all that E-Discovery Day Kringle taking up space in the office freezer?” (Special-ordered from Racine in the traditional e-discovery flavor, Cinnamon, TIFF and Tears™).
In the wee hours last evening, I received a question posed by Angela Bunting with Nuix down in Sydney, Australia. Angela has such deep knowledge of e-discovery above and below the Equator that I was flattered to be queried by someone I’d go to for guidance. It was a magnificent hypothetical question.
Ball in your Court 