Making a list and checking it twice? Don’t forget about the most important law and technology developments in 2012, which also can 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 and Texas Lawyer), walks us through his top six tech issues of the year:
1. The use of technology-assisted review and predictive coding: The first case law on this issue emerged in 2012, with courts in New York, Virginia and Louisiana green-lighting the application of computer analytics to discovery. And given how much money companies “waste” on discovery, says Losey, “it’s 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 review and benefit the legal department’s bottom line.
“It’s 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 technology-assisted review 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 wars, but 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 that’s the same everywhere in the country.
But once that duty triggers, no matter how quickly attorneys scramble to preserve what they can, Losey says there’s always going to be a chronological “gap” in the data collection, which can be made into an issue during a big suit.
“Apple v. Samsung is a great example, because both Apple and Samsung argued the exact same thing: Oh, you didn’t act quickly enough to preserve data, and you didn’t 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 only will 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 suit hits. He also cautions counsel to be consistent: If you use multiple firms to handle preservation, differing methods could lead to inconsistencies.
“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.
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 it’s 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 department — including 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 there’s a data breach, it’s 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 issues, and companies shouldn’t ignore the cyber-chatter.
“It’s a good idea for a company to proactively be looking online,” says Losey. “What’s 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 don’t want to not be aware that there’s all kinds of bad press about you lingering, and you haven’t taken an opportunity to respond.”
In the legal domain of social media, keep an eye out for things like leaking of trade secrets — which could end up on an employee blog — and IP infringement happening via Facebook, Twitter, and the like.
“If you’re keeping general track of what’s out there about your company, you’re going to find out if someone’s using your trademark,” says Losey. “You’re going to see if people are violating your copyright. And that’s really important to know so you can stop it.”
If one thing’s for sure, says Losey, it’s that the items on this list will change fast, and in-house counsel need to move at the same pace as today’s technology.
“The most important thing is taking the time and effort to keep up,” he says.