Top 6 Tech Issues of 2012 for In-House Counsel
Making a list and checking it twice? Dont forget about the most important law and technology developments in 2012which can also help guide in-house counsel in the new year. Here, Foley & Lardner attorney Adam Losey, who also edits the online nonprofit IT-Lex and is a member of the editorial advisory board for Law Technology News (a sibling publication of Corporate Counsel), walks us through his Top 6 tech issues of the year:
1. The Use of Technology-Assisted Review and Predictive Coding
The first case law on this issue emerged this year, with courts in New York, Virginia, and Louisiana greenlighting the application of computer analytics to discovery. And given how much money companies waste on discovery, says Losey, its really important to figure out ways to harness technology to do that better.
Depending on the case, technology-assisted review can facilitate large-scale document reviewand benefit the legal departments bottom line. Its not right in every case, but you certainly should consider the application of these technologies, says Losey. This technology can give you significant cost-savings. He adds that no one vendor has a monopoly on TAR, and that companies can kick the tires by running quality control tests first.
2. Preservation as a Priority
The Apple v. Samsung litigation has proven to be an epic chapter in the escalating patent warsbut it also demonstrated the increasing importance of data and document preservation. The duty to preserve information under the common law arises when you reasonably anticipate litigation," says Losey. And thats the same everywhere in the country.
But once that duty triggers, no matter how quickly attorneys scramble to preserve what they can, Losey says theres always going to be a chronological gap in the data collectionwhich can be made into an issue during a big lawsuit.
Apple v. Samsung is a great example, because both Apple and Samsung argued the exact same thing: Oh, you didnt act quickly enough to preserve data and you didnt meet your preservation obligation, says Losey. Both of them won that argument against each other. Ultimately, both sides agreed to drop the issue in court.
Data preservation will only continue to come under the microscope, says Losey. He recommends that in-house counsel implement a document-retention policy that spells out procedures for collecting and preserving email and other documents when a lawsuit hits. He also cautions counsel to be consistent; if you use multiple firms to handle preservation, differing methods could lead to inconsistences.
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 Floridas 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 thisor 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 knowledgewhich helps the law department make hiring decisions. I think its 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 persons 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 enforcervery much the policemen of a lot of these privacy laws, according to Losey.
Which is why its important to be vigilant in this legal arena. If youre a company of any size, and you dont have someone looking out for you on the privacy front proactively, you run a very serious risk of stepping on a landmine, he says.
5. Cybersecurity and Data Breaches
Could we write enough about this topic in 2012? Probably not. Frankly, most companies are terrible about [digital] security, because its difficult to be secure, says Losey.
One way companies can be vigilant is by hiring experts to test your network security. Losey also recommends opening up lines of communication between the legal department, and the IT departmentincluding to those who do the day-to-day grunt work, he says, since a crisis is no time to be making introductions between tech and legal. If theres a data breach, its the kind of thing that should come to the attention of in-house counsel.
6. The Business and Legal Implications of Social Media
Social media is presenting companies with a number of thorny legal and business issuesand companies shouldnt ignore the cyber-chatter. Its a good idea for a company to proactively be looking online, says Losey. Whats out there? What are people posting about you?
On the business front, use the social media tools available to you to address negative comments. A lot of companies do a really good job with that, says Losey. But you dont want to not be aware that theres all kinds of bad press about you lingering, and you havent taken an opportunity to respond.
In the legal domain of social media, keep an eye out for things like leaking of trade secretswhich could end up on an employee blogand IP infringement happening via Facebook, Twitter, and the like. If youre keeping general track of whats out there about your company, youre going to find out if someones using your trademark, says Losey. Youre going to see if people are violating your copyright. And thats really important to know so you can stop it.
If one things for sure, says Losey, its that the items on this list will change fastand in-house counsel need to move at the same pace as todays technology. The most important thing is taking the time and effort to keep up, he says.