"An ounce of preventative legal work can be worth a pound of triage in the litigation," says Losey.
3. Evolution of state rules and e-discovery protocols in different circuits and districts: "Local jurisdictions and some states are adopting new rules to deal with e-discovery issues," explains Losey. The state of Florida, for example, recently came out with new e-discovery rules.
But the changes can catch some unawares. "I had a hearing [recently] where the issue was entirely governed by Florida's new rules, which took effect in October, and the lawyer on the other side was not aware the rules existed," says Losey. "I have never seen that happen."
His advice: "Make sure that the people you hire are really up to speed on this, or else they could wind up really losing badly."
In-house counsel at Kia Motors go so far as to test outside counsel on their tech knowledge, which helps the law department make hiring decisions.
"I think it's a wonderful idea," says Losey. "Everyone should do it, quite frankly."
4. General awareness of privacy issues and statutes: There are plenty of potential blind spots when it comes to the many state and federal laws governing privacy. For example, under the California Invasion of Privacy Act, parties that record a call without a person's consent can be liable for a $5,000 penalty.
"I think all companies that do business in the United States that record calls should be aware of it," says Losey.
And at the federal level, companies will find that the Federal Trade Commission is an active enforcer — "very much the policemen of a lot of these privacy laws," according to Losey.
That is why it's important to be vigilant in this legal arena. "If you're a company of any size, and you don't have someone looking out for you on the privacy front proactively, you run a very serious risk of stepping on a landmine," he says.
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