Epsilon Breach: Risks and Lessons

Privacy Attorney Lisa Sotto says the Epsilon e-mail breach is a warning about the state of data security employed by some third-party service providers. Strong contracts related to security practices must be the norm, not the exception.

“These types of events provide warning signals to companies that use service providers such as Epsilon,” says Sotto, a managing partner of Hunton & Williams New York office, where her practice focuses on privacy, data security and information management issues. “Companies should be sure that have data-security measures in place,” and that the third parties with which they work rely on the same high-level security measures as well. “Make sure you have strong contractual obligations in place, to ensure that the third-parties are securing data in the same way you require,” she says.

The Epsilon breach is an interesting one, since e-mail addresses alone are not considered sensitive, Sotto says. As such, databases that house consumer e-mail files are typically never encrypted, nor are they protected with additional layers of security, such as dual-layer authentication, for access. For a company like Epsilon, e-mail addresses need to be readily accessible, but this breach could prove that ready accessibility may not be the most prudent route.

via Epsilon Breach: Risks and Lessons.

2010: Another Record-Breaking Year for FCPA Enforcement, Confirming “New Era” | Morrison & Foerster LLP – JDSupra

Since 2007, regulators and commentators alike have touted each passing year as a record-breaking year for FCPA enforcement. 2010 was no exception. Last year saw an explosion in the number of cases brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). The last 12 months also brought the imposition of record-breaking corporate fines and prison terms for individual defendants.

In November of last year, Assistant Attorney General Lanny Breuer, Criminal Division, DOJ, announced that “[W]e are in a new era of FCPA enforcement.”1 A look back at 2010 confirms Mr. Breuer’s statement—in the history of FCPA enforcement, there has never been a year quite like 2010.

via 2010: Another Record-Breaking Year for FCPA Enforcement, Confirming “New Era” | Morrison & Foerster LLP – JDSupra.

E-Discovery in Cross-Border Litigation: Taking International Comity Seriously | Venable LLP – JDSupra

With the possible exception of civil jury trials, no feature of the U.S. legal system is treated with as much apprehension abroad as pretrial document discovery. Most other national legal systems do not permit the kind of party-conducted and intrusive pretrial document discovery that U.S. litigators believe is essential to a full and fair settlement of disputes. Other countries restrict or prohibit parties from obtaining documents and often place pretrial investigation in the hands of judges. Differing fundamental views on the nature of state sovereignty and the proper balance of competing values in dispute resolution account for these differences in practice. The divergent value judgments have long been apparent in cases involving foreign litigants or witnesses in U.S. courts and have led foreign states to object to executing requests for documentary evidence for use in U.S. proceedings, sometimes frustrating the effective functioning of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.1 But the gulf between the United States and other countries when it comes to discovery practices has further widened with the rapid expansion of e-discovery in the United States.

This article discusses the ways in which the discovery of electronically stored information (“ESI”) poses special challenges to foreign litigants (both parties and nonparty witnesses) in U.S. courts – who are often stuck between conflicting legal obligations – and strains the channels of international judicial cooperation. We suggest that international comity, which the Supreme Court has explained should play a prominent role in district courts’ regulation of international discovery and should have heightened application when it comes to requests for ESI because unfettered e-discovery is so offensive to many foreign legal systems’ concepts of fairness, privacy, and sovereignty.

via E-Discovery in Cross-Border Litigation: Taking International Comity Seriously | Venable LLP – JDSupra.

Redacting Personally Identifiable Data From E-Filings | New York Law Journal

Electronic filing of court documents has become the norm rather than the exception both here, in New York federal and state courts, and around the country.[FOOTNOTE 1] The trend is driven by the pervasive availability of online technology to conveniently enable e-filing, as well as the generally held presumption in U.S. jurisprudence that court proceedings are public in nature and should be easily accessible to the public.

At the same time, privacy advocates, concerned about the amount of personally identifiable information easily available on the internet and the resultant increase of identity theft and other types of fraud, wish to restrict public access to certain types of data. These two somewhat contradictory philosophies intersect on the issue of whether the proliferation of electronic filing has unduly and unnecessarily exposed personally identifiable information to possible exploitation.

At issue is the requirement that attorneys redact personally identifiable information from their e-filings. The obligation of an attorney to preserve the privacy interests of those involved in litigation and administrative proceedings has arisen in a variety of circumstances, and has been touched on in academic circles.

via Law.com – Redacting Personally Identifiable Data From E-Filings.

Business Pays for Bribery Act – WSJ.com

Bribery should not be condoned. Few business people would dare take issue with this statement, hence the dearth of voices being raised against the U.K. Bribery Act 2010, which is now on the statute book and due to come into force in April next year. Taking issue with a piece of legislation which is intended to toughen up the existing law against bribery does not look like good corporate citizenship.

Nevertheless, plenty of reservations about the Act are being aired privately and with good reason. This is a piece of legislation with huge implications for the conduct of businesses and not just those that are British. The territorial ambitions of the Act are so far reaching that any company with operations in the U.K. could fall foul of it, wherever in the world the alleged offence may be committed. And so extreme is the Act in its attempt to wipe out corrupt practices that it does not even allow the exception for ‘facilitation’ payments that exists under the United States Foreign Corrupt Practices Act.

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Bloomberg

BAE Systems paid heavy fines over bribery allegations.

That sensible exception ensures that in countries where officials demand and expect a payment for doing their jobs, such as processing customs forms or issuing visas, it is possible for US companies to operate without falling foul of the FCPA. The Bribery Act makes no such concession.

via Business Pays for Bribery Act – WSJ.com.

When E-Discovery Is Used as a Weapon | The Recorder

The attorney-client privilege is perhaps the oldest of the privileges for confidential communications known to common law. But the privilege is not available to a client who seeks legal advice to commit an ongoing or future crime or fraud. To prevent those abuses, courts have fashioned a limited exception to the privilege known as the crime-fraud exception.

Most attorneys understand that if they advise a client on how to rob a bank or perpetrate a fraud, their communications will not be shielded by the privilege. Yet, few attorneys realize that there is an increasing risk that their adversaries in litigation may use the crime-fraud exception to strip away the privilege protecting attorney-client communications in civil discovery. Most attorneys would view such an intrusion as an assault on the basic structure of the privilege. Without a strong, clear standard against such efforts in the civil arena, we expect there to be more attempts to expand the application of the crime-fraud exception to collateral litigation-related conduct in civil cases: particularly in the fast-evolving area of e-discovery and the unfamiliar and intimidating realm of information technology.

The strategy works as follows. The attorney planning to strip the privilege serves a typically overbroad set of document requests. She then follows up with a Federal Rules of Civil Procedure §30(b)(6) (or state law equivalent) deposition of the company’s representative to determine the failures or weaknesses in the company’s preservation, search, and production of electronically stored information. Technological advances have significantly increased the ways in which ESI can be saved, including but not limited to folders on various network drives that reside on different servers, hard drives, laptops, hand-held devices, home computers, and external storage applications. This increasing complexity is compounded by hardware and software that is constantly being updated or replaced. Personnel changes can also result in leaving no one with knowledge of each employee’s record-keeping habits. Faced with a broad-ranging document request, an attorney’s task of preserving and locating all relevant data becomes extraordinarily challenging. To make matters worse, the opposing counsel may then move to compel the production of documents under the low threshold of what is discoverable, which does not require proof of actual relevancy or admissibility at trial. The purpose is to create the impression that documents are missing or have been withheld.

Attorneys opposing this sort of motion to compel then face the difficult task of proving that all relevant documents were in fact preserved and produced, while at the same time ensuring the judge understands the company's technology infrastructure. Notwithstanding an attorney's reasonable and good faith effort to preserve and produce relevant documents, sources of potentially relevant data will inevitably go undiscovered. Or, the scope of preservation will be inadequate. If the opposing counsel obtains a sanctions order, it will characterize the discovery-related conduct as a “fraud,” and seek to pierce the attorney-client privilege by invoking the crime-fraud exception.

via When E-Discovery Is Used as a Weapon.