BarbriSFCourseDetails
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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, April 30, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    30 minutes

Credit Information

  • An excellent opportunity to earn Ethics CLE credits. Note: BARBRI cannot guarantee that this course will be approved for ethics credits in all states. To confirm, please contact our CLE department at pdservice@barbri.com.

$297.00
CLE
ALL

This CLE webinar will discuss the trial lawyer's ethical obligations, professional responsibilities, and best practices concerning cybersecurity, privacy, and the protection of confidential, privileged, and proprietary electronic data and communications in the context of litigation, specifically documents and testimony created, produced, reviewed, or received during discovery. The program will review key cybersecurity issues, such as Rule 26(f) conference topics and best practices for working with third-party vendors.

Faculty

Denise E. Backhouse
Shareholder
Littler Mendelson PC

Ms. Backhouse provides focused guidance and expertise on information governance and electronic discovery matters to Littler's lawyers and their clients. She is an elected member of the American Law Institute, a founding member of the Board of Directors of the International Data Law Association, and a founding director of the Cardozo Data Law Initiative (CDLI), Benjamin N. Cardozo School of Law, Yeshiva University. Denise served as Co-Chair and on the Steering Committee of the American Bar Association Cross-Border Institute. Ms. Backhouse serves on the Working Group Series Leadership Council of The Sedona Conference®, is a former member of the Steering Committee of The Sedona Conference's Working Group on International Electronic Information Management, Discovery and Disclosure (WG6), and is actively involved in The Sedona Conference’s Working Groups on Electronic Document Retention and Production (WG1) and Data Security and Privacy Liability (WG11). She is also a Certified Information Privacy Professional/Europe (CIPP/E). Ms. Backhouse is a frequent author, speaker, and lecturer on eDiscovery and data protection issues, including on such topics as developing trends; cross-border discovery, data privacy; and privilege and ethics in eDiscovery.

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Emily Westridge Black
Partner
Shearman & Sterling LLP

Ms. Westridge Black is a partner in the firm’s Litigation practice. Her practice focuses on the representation of companies and high-profile individuals in class actions, internal investigations, product liability litigation, global compliance and anticorruption matters, cybersecurity matters, and other complex commercial litigation.

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Description

The amount and sensitivity of data changing hands during discovery, often through multiple third parties, is highly attractive to cyber criminals. No law firm wants the monetary, reputational, and professional damage that would almost certainly follow a security breach.

Attorneys must understand their obligations to safeguard that information and to know how to do so. ABA Model Rules 1.1, 1.4, 1.6, 5.1, 5.2, 5.3, and 1.15 are the starting point. New York lawyers also must comply with relevant New York rules and statutes to protect digital information at all times.

Cybersecurity should be discussed at the Rule 26(f) conference to establish disclosure and remediation protocols in the event of a breach. Firms that fail to properly vet their discovery vendors and software--and insist on the same from opposing counsel--risk serious consequences. AI-powered hacking and "deep fakes" make securing remote deposition testimony vital.

Listen as this panel discusses what litigators need to know about cyber risks that arise during various stages of litigation, their ethical duties and responsibilities regarding cybersecurity, and best practices for mitigating those risks.

Outline

  1. Constitutional, statutory, and regulatory authorities
    1. ABA Rules of Professional Responsibility
    2. New York Rules of Professional Responsibility
    3. Formal opinions
    4. NIST (National Institute of Standards and Technology Cybersecurity Framework)
    5. CISA
    6. Federal Financial Institutions Examination Council Guidance
  2. Cybersecurity at the Rule 26(f) pretrial conference
    1. Due diligence on eDiscovery service and technology vendors
    2. Duty to disclose security breaches and plan for post-breach mitigation and remediation
    3. Security breach prevention and recovery
  3. Cloud security concerns

Benefits

The panel will discuss these and other important topics:

  • What aspects of cybersecurity might be of heightened importance for a litigator?
  • How should cybersecurity protocols be negotiated in Rule 26 conferences and are they subject to proportionality limits?
  • Is a data breach "accidental" for purposes of clawback provisions?
  • What security measures might be required for remote depositions?
  • What is the risk of ESI reassembly and read-only dissection?