PARADIGM SHIFT
BACK & FORTH
Six 2012 technology issues that
corporate counsel must watch in 2013.
By Catherine Dunn
As legal technology innovations prompt
changes in the law (and legal workflows)
there’s no question that in-house counsel
must keep up. Recently, Corporate Counsel asked Adam Losey to identify key 2012
tech issues to watch in 2013. Losey is an
associate at Foley & Lardner, president of
IT-Lex, and a member of LTN’s editorial
advisory board.
1. Technology-Assisted Review. Case
law matured in 2012, as courts green-lighted computer analytics in electronic
data discovery. Given how much money
companies “waste” on EDD, says Losey,
it’s important “to figure out ways to harness technology.” TAR can facilitate large-scale document review, and benefit the
law department’s bottom line. It’s not right
in every case, says Losey, but you should
consider the application of these technologies for significant cost-savings.
Action: No vendor has a monopoly on
TAR. Companies should kick the tires by
running quality control tests first.
2. Prioritize Preservation. The Apple
v. Samsung litigation became an epic
chapter in the escalating patent wars, and
demonstrates the increasing importance
of data preservation. In the U.S., the duty
to preserve data arises when you reasonably anticipate litigation, says Losey.
Once it triggers, no matter how quickly
attorneys scramble to preserve what
they can, there’s always a chronological “gap” in the data collection. In Apple
v. Samsung both companies argued that
the other didn’t act quickly enough to preserve data, and both won the argument.
Ultimately, they dropped the issue.
Action: Implement a document-reten-tion policy that spells out procedures for
collecting and preserving electronically
stored information. Be consistent; if you
use multiple vendors, differing methods
can lead to inconsistencies. “An ounce
of preventative legal work can be worth a
pound of triage in the litigation.”
3. Evolution of Local & State Rules.
Local jurisdictions and some states are
adopting new EDD rules and protocols,
says Losey. But the changes can catch
some unaware. He recalls a recent hearing where the issue was governed by
new Florida rules, but opposing counsel
was not aware they existed.
Action: Be sure the people you hire
are up to speed on local rules, or you
may face embarrassing losses. In-house
counsel at Kia Motors go so far as to test
outside law firms on their tech knowledge — which helps the law department
make hiring decisions ( http://at.law.com/
LTN132bb). “Everyone should do it, quite
frankly,” says Losey.
4. Privacy Issues & Statutes. Watch
for blind spots re: privacy laws. For example, under the California Invasion of Privacy Act, parties who record a call without a participant’s consent can face a
$5,000 fine. Action: Be vigilant. “If you
don’t have someone looking out for you
on the privacy front proactively, you run
a very serious risk of stepping on a land-mine,” says Losey.
5. Cyber Security & Data Breaches.
“Most companies are terrible about digital security, because it’s difficult to be
secure,” says Losey. Action: Hire experts
to test your network. Open lines of communication between legal and IT departments. “A crisis is no time to be to be
making introductions,” he says.
6. Social Media. Don’t ignore cyber-
chatter. Action: Monitor social media to
identify and address negative comments
with appropriate tools. Watch for trade
secrets leaks via employee blogs, Face-
book, and Twitter. If you keep current,
“You’re going to see if people are violating
your copyright ... so you can stop it.”
— Catherine Dunn is a reporter for
ALM’s Corporate Counsel magazine.
Email: cdunn@alm.com
