7 Tips for In-house Counsel and e-Discovery Teams



by David Horrigan on October 27, 2015

Collection , Community , Cyber Security & Data Privacy , Legal & Industry Education

The 2015 Annual Meeting of the Association of Corporate Counsel (ACC) brought about 3,500 legal professionals to Boston last week for what is billed as the world’s largest educational event for in-house legal counsel. Kicked off by Harvard Business School associate professor Amy Cuddy, the event included legal education content ranging from protecting the attorney-client privilege to protecting your executive presence in the office.

As its name implies, ACC is an organization of and for lawyers, but in covering this year’s conference, we found seven tips useful for just about anyone working on a legal team.

1. Take care in collecting data.

The ACC panel “Playing in the Big (Data) Leagues: Consumer Data Mining, Data Privacy and Compliance,” included lawyers from MentorPrize, Microsoft, the NFL’s Jacksonville Jaguars, Voya Financial, and Ogletree, Deakins, Nash, Smoak & Stewart. Their recommendations for collecting data included:

  • Collect only what you need
  • Keep it only as long as you need it
  • Identify what you collect
  • Define usage accurately
  • Provide clear and comprehensible notice

2. Heed big data privacy best practice #1: binding corporate rules.

Protecting data as it crosses international borders presents special challenges, and binding corporate rules—information governance standards developed originally for EU data transfers—can help ensure data privacy. Rachel Reid, senior counsel and chief privacy officer at Voya Financial, offered these rules as a best practice, but she cautioned that companies should check with counsel, given the rapidly changing legal landscape.

3. Heed big data privacy best practice #2: encryption.

The “Playing in the Big (Data) Leagues” panel discussed data privacy best practices at length, but Microsoft corporate counsel Charlie Bingham had very concise advice: encrypt your data.

4. Be careful with publicity in a crisis.

The session “Crisis Management and the Role of In-house Counsel” included speakers from FleishmanHillard, ISK Americas, United States Steel, and the Canadian-based international law firm, Gowlings. Chris Nelson, senior vice president and partner at FleishmanHillard, warned of the “Streisand Effect,” referencing Barbra Streisand’s $50 billion lawsuit against coastal erosion researchers for violating her privacy by photographing her seaside mansion. Before Streisand sued, the photo had been downloaded six times—including twice by her lawyers. However, in an illustration of the law of unintended consequences, in the month after Streisand filed suit, the photo was downloaded 420,000 times.

Gowlings partner Todd Burke added a legal ethics angle to the legal publicity issue, noting American Bar Association (ABA) Model Rule of Professional Conduct 3.6 limits what legal teams can say to the press and the public about pending trial matters.

5. Don’t be over-inclusive when protecting privilege.

Mary Blatch of ACC, Mark Hopson of Sidley Austin, and Stephen Marzen of Bechtel Corp. gathered to discuss the protection of the attorney-client privilege and the work product doctrine. Among some of the best practices they offered were:

  • Don’t label everything “Privileged and Confidential”
  • Don’t assume a privilege label will guarantee protection
  • Remember that merely copying in-house counsel on an email won’t necessarily protect the communication, and using a “reply all” on those emails could endanger privilege

6. Make sure a lawyer is present to protect privilege.

Still, attorney-client privilege does have an important place in litigation. The privilege panel also cautioned against the dangers of clients talking to each other without a lawyer present. Citing the legal treatise Regulation of Lawyers, the panel noted that communications between clients without a lawyer present are not privileged. Thus, lawyers should tell their clients not to discuss matters amongst themselves without a lawyer present to ensure those communications are protected during discovery and litigation.

7. User-generated content can be friend and foe.

The session “User Generated Content: Friend or Foe?” included speakers from MillerCoors, MolsonCoors, entertainment company Lionsgate, and SAG-AFTRA, the labor organization created by the merger of the Screen Actors Guild and the American Federation of Radio and Television Artists. Not surprisingly, the panel focused on intellectual property issues, and Rachel Kimbrough, senior vice president for business and legal affairs at Lionsgate, illustrated how user-generated content can be both friend and foe. Kimbrough noted that unauthorized user-generated art about films, such as her studio’s film, The Hunger Games, can trigger copyright issues, but she noted some of the art is really good, and you may want to license it, adding, “Some of our most lucrative licensees are former infringers.”

 

David Horrigan is kCura’s e-discovery counsel and legal content director. An attorney, law school guest lecturer, e-discovery industry analyst, and award-winning journalist, David has served as counsel at the Entertainment Software Association, reporter and assistant editor at The National Law Journal, and analyst and counsel at 451 Research.

 

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