Making Sure Attorneys Protect Your Company's DataPrint
Companies need to pay attention to the technology their attorneys use to house their confidential information and make sure they use that tech in the right way.
Baseline: Do you think this case will set a precedent?
Simon: The word “precedent” has both a common meaning and a very specific meaning in the law. In the common parlance, this case is likely to set a precedent in that the case has garnered a lot of publicity and highlighted a major mistake by lawyers. Judges are also likely to hear about this case and consider the carefully thought-out ruling by the judge when they are confronted with a similar situation. These kinds of issues are very new, and judges need help in deciding how they should rule in the cases that come before them.
In legal terms, a “precedent” means a judicial decision that other judges must follow according to our system of justice. In the strict sense of this word (in the legal definition), this case is not “precedent” because it was written by a judge at the trial court level, not the appellate or Supreme Court levels (the only courts that can set precedent). But just because judges aren’t forced to follow the letter of a decision that is not legal precedent, it doesn’t mean that they won’t be highly likely to want to follow it.
Baseline: Will this affect the U.S. only? What’s the legal situation in other parts of the world?
Simon: That’s a very complicated question, so let’s boil it down to this: Other countries also have rules about protecting the confidential information of clients, even though those rules are quite often very different from U.S. rules. But I can’t think of any place where attorneys are not expected by their clients to protect their confidential information to the utmost. Thus, accidentally handing critical confidential information to the other side in litigation—particularly in a way that makes it impossible to get that information back—is going to be a potentially career-limiting act pretty much anywhere.
So, no matter where they are in the world, attorneys handling confidential client information need to take the proper steps when sharing that information, whether online, in emails or in some other way.
Baseline: How can companies protect themselves from having their attorneys accidentally turn over confidential information to the other side?
Simon: Companies need to pay attention to the kinds of technology their attorneys use and take steps to make certain they use it in the right way. Clients need to ask hard questions of their lawyers to make sure their attorneys aren’t likely to repeat the kinds of mistakes we saw in this case.
It is likely that the attorneys here were just trying to save time and money by using an unsecured file-sharing site, but they had a duty to protect the confidential information of their clients. The attorneys could have used the free technology in the right way (by encrypting the files and the communications about where to find them), but all it would have taken is one mistake, one instance of not following those rigid rules, to cause disaster.
It would have been much better for them to use more fool-proof systems designed to protect against disclosure of confidential information—even if it cost the client some money—because that is the reasonable cost of being careful and prudent attorneys.
Companies need to demand that their attorneys use the right technologies—ones that will keep them from making careless mistakes that can cost the case.
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