Data privacy, data breaches, information security and electronic discovery are hot-button topics that will become of critical importance to the legal industry in 2020.
With a rising occurrence of ransomware attacks taking place locally, particularly against government agencies, expect to see more cyber-related litigation and class-action suit attempts in Baton Rouge when an organization’s data has been breached.
Historically, many class-action suits involving data breaches have been decertified due to troubles with establishing standing, says attorney Jessica Engler of Kean Miller. That’s because the plaintiffs typically are unable to establish that they were actually injured by the breach, only that they suffered an increased likelihood of their information being stolen.
But Engler predicts the litigation process will be made easier for many businesses by the California Consumer Privacy Act, which went into effect Jan. 1. The act will affect Baton Rouge companies that conduct business in California and either bring in at least $25 million in annual revenue or receive 50% of their revenue from purchasing consumer data.
“If those companies haven’t started taking a look at it yet, it’s definitely time to do so,” Engler says.
Another area likely to explode within the legal profession is electronic discovery, or the preservation of electronically stored information used as evidence in legal matters.
For local attorneys representing companies, that means a bevy of new data sources such as workplace communication apps like Slack, social media channels like Facebook and the information-storing devices offshore workers wear when drilling for oil are fair game in a court of law.
How does one govern all this growth?
It can be a largely back-ended process. For an attorney, the first step usually involves data-mapping all of a client’s potentially pertinent information, or knowing exactly what information they have out there and precisely where and how it can be accessed, says attorney Melissa Cresson, also of Kean Miller. But companies can get ahead of this by establishing and following a clear process for data storage that will alleviate some of the legal headache.
“If you don’t have a retention policy in place and you’re not executing that consistently, you’ll have a problem when litigation ensues,” says Cresson, who also recommends consulting with the opposing party ahead of time about what data sources can be considered reasonable for the suit.
Other factors a company might want to consider, says Cresson, include the costs and time burdens of collecting, reviewing and processing information, which must only be “proportional to the needs of the client and what’s at issue in the case.”