Technology is changing and advancing at an exponential rate and impacts how consumers and companies supply and purchase goods and services, how we access and store digital information, and safeguard against data breaches and cyber threats. The recent COVID pandemic and the need for millions to work from home has highlighted the increased risk and exposure that comes with rapidly advancing technology.
While deterrence, detection, response, and remediation are highly technological functions, they also have far ranging legal implications as well. As such, we help clients with the legal aspects in preventing and responding to unauthorized access and theft of data: from the initial response to responding to related government investigations and, if necessary, resulting in civil litigation.
Few aspects of litigation cause more concern for businesses today than the rapidly changing impact of information management and electronic discovery, which can add an additional layer of complexity to litigation. Not only is the law regarding electronic discovery largely uncharted in many jurisdictions, but related technology, which typically outpaces the law, is constantly advancing.
Our clients face varying and often untested standards across different jurisdictions regarding electronic discovery in their litigation matters – many states have still not adopted procedural rules, and those that have vary significantly in the duties they impose on litigants. To further complicate matters, many rules are new and lack interpretive case law.
Even within the federal court system, standards and expectations vary from circuit to circuit. Effectively managing electronic discovery in a manner that fulfills duties imposed on counsel and serves the client is among the biggest challenges facing litigators today
The single most expensive aspect of litigation is electronic discovery. Electronic discovery must be comprehensively managed as its own cohesive project, within the context of the litigation. Properly managed, electronic discovery can serve the client, focus the litigation, and remain cost-effective. From defensible preservation efforts, data collection and processing, to analysis and production, management of the client’s discovery efforts should meet the client’s expectations and serve the client’s goal.
The Cyber Security and E-Discovery team is led by Richard Smith and Paul Zimmerman.
Richard is one the firm’s founding partners and has been an integral member of the firm’s litigation group for his entire legal career. His extensive litigation experience includes having tried over 175 jury trials to verdict in over 30 Alabama counties and all three Alabama federal district courts. He obtains successful results in more than 90% of his cases.
Paul is a member of The Sedona Conference Working Group 1 (Electronic Document Retention and Production) and Working Group 11 (Data Security and Privacy Liability) and is the former chair of CLM’s E-Discovery and ESI committees. He currently serves on the firm’s Technology Committee.
- Our firm is local counsel defending a national retail chain selling general goods, in a cyber-liability matter resulting from hackers gaining access to two of the retail chain's servers carrying its customers' payment information, potentially resulting in thousands of cases of identity theft. The plaintiffs, the financial institutions that issued the credit and debit cards the hackers stole, numbered about 2,500 banks. Following discovery and depositions on class certification issues, the plaintiff banks moved for the Court to certify them as a nationwide class. On March 13, 2019, the judge in the case issued an order denying the plaintiffs' motion for class certification based on the variations in state law involving individualized questions of law on the class’ negligence claims.
- Obtained summary judgment dismissal in a data breach case filed as a class action. The case involved the firm’s representation of a hospital that was subject to a data breach when a third party broke into a locked office building on the hospital campus.
- Advised a large electronic discovery provider regarding the defensibility of its machine learning tool.
- E-Discovery projects include a $33mm commercial claim alleging property damage, the defense of a defective product claim seeking damages for quadriplegia, and multiple employment cases.
- Represented companies to protect trade secrets, as well as companies and individuals accused of misappropriating trade secrets.
- Defeated a plaintiff’s motion for preliminary injunction on all relief sought regarding supposed trade secrets except with regard to software which clients undisputedly did not have.
- Represented four hospitals and two practice groups in a class action alleging a data breach of patient information, along with being designated as local counsel for all other hospital defendants with related cases consolidated through an MDL proceeding.
- Advised a nationwide retailer regarding an alleged breach of employee and customer data (no litigation filed).