ACC Litigation Committee June Newsletter
IN THIS ISSUE...
Message from the Litigation Committee Chair  
Member Spotlight: Ilona Korzha  
Discovery of Social Media in Employment Cases: Laying a Foundation and Sealing the Roof  
What It Means to Advance Your In-house Career: A Discussion With Deborah Ben-Canaan of Major, Lindsey & Africa By ACC Guest Blogger Iiona Korzha  
INTERVIEW FOR THE ACC  
NEW - Join the Litigation Committee's LinkedIn Group!  
Networks
Virtual Library
Renew Your Membership
Update Your Records
Upcoming ACC Programs
Search Back Issues

Webcasts
Updates From ACC Committees

Message from the Litigation Committee Chair

Greetings everyone and welcome to the Litigation Committee’s second newsletter of the year! The Committee has had a busy second quarter in terms of collaborating with ACC Staff, other committee and chapter leaders and our Sponsors to produce the quality programing that you have come to expect from the ACC.  As a result, we have hosted Legal Quick Hits regarding the Latest Trends in Intellectual Property Litigation and BYOD and Avoiding Roadblocks to E-Discovery, as well as a webcast on How to Make Your Case More Attractive to an Appellate Court.  We also have upcoming webcasts planned to discuss Top Issues in Franchise Litigation, Litigation Trends and Class Actions in TCPA and Advertising Cases and several other interest topics throughout the course of 2017.  These presentations were all designed to meet the needs and interests of our members based on valuable feedback that our members provide through the Committee’s annual survey and through comments and suggestions provided by our members throughout the year.  So thank you for your feedback and please keep it coming!

I would also like to note that the Committee experienced a change of sponsors in the second quarter with Integreon joining the Committee in June.  We are excited for the many collaborative opportunities that we are planning with Integreon and can’t wait for our members to start benefitting from those opportunities in the coming weeks.

We were also happy to hear that the ACC’s new set of cyber security guidelines on the basic measures that in-house counsel should expect from the organizations that they hire (Model Information Protection and Security Controls for Outside Counsel Possessing Company Confidential Information) were developed in part from the Litigation Committee’s Cybersecurity Working Group and the 2016 Law Firm Cybersecurity Questionnaire and Guide developed by the that team.  A special congratulations and thanks to Evan Slavitt, Ed Paulis, Jennifer Mailander, Kerry Childe, Mary Clarke, Rachel Reid, and Linda Rush for serving on that team.

The Committee has also spent a lot of time this quarter identifying new ways that we can help serve our members.  We have had many interesting conversations with local chapters to identify opportunities for the Litigation Committee to co-sponsor presentations for our members and we hope to soon have some exciting news for you in this regard.  The Committee has also created a new Litigation Committee LinkedIn Group to help us reach our members and provide another forum for our members to connect with each other.  So please join our Group if you haven’t already done so.  And we plan to continue looking for ways to improve our Committee so please send us your feedback if you have any thoughts or suggestions as to how we can better meet our members’ needs.      

If any of you are interested in contributing to this newsletter or in becoming more involved in any other Litigation Committee activities, please do not hesitate to contact me, any other member of our leadership team or by emailing us at litigation@accglobal.com. We would love to hear from you.   

Last year we passed a milestone by releasing our New to In-House Guide.



[ Return to Top ]


Member Spotlight: Ilona Korzha
Meet Ilona!


1. Did you follow an interesting career path to your current job? 

The path to my legal career was a winding one.  While growing up in Moldova (former Soviet Union), I wanted to study law but the legal profession there was predominately male. Female lawyers or judges were unheard of.  Overcoming the challenge of getting into law school after passing the local entrance exam, I ultimately became one of three females in a class of about 100 freshmen.  Still, the next three years proved challenging since I not only had to study, but also prove that I belonged.

Another complicating factor was ever-increasing poverty in Moldova after the collapse of the Soviet Union. To provide for basic necessities and food for my family, I had to work full time while attending law school at nights.  

Perseverance has helped me many times in my career and life.  Once I immigrated to the United States, I had to complete a bachelor’s degree before re-enrolling into law school. Learning English, working full time while attending first college and then law school in the evenings while working full time and raising a young child, would not have been possible had I not learned to be gritty in my earlier years. 

2. What attracted you to in-house practice and why do you enjoy it?

While in college and law school, I worked at a number of companies and knew I had an interest in business, corporate culture, and working as a part of a team to accomplish a company’s goals. Once I started practicing law, I became very interested in how law fits into the bigger picture of business strategy. What I discovered was that in-house counsel work is incredibly fast paced, in a dynamic environment, and covers a wide variety of business proposals and discussions.  In order to be an effective counsel to your business client, you need to be adept, capable of spotting issues and have a deep understanding of a business’s objectives.   

3. What are your general responsibilities in your current role?

My current practice includes a mix of litigation and counseling.  I am a litigator by training, and managing litigation in-house feels natural, but with the added twist of seeing everything through a business lens. Counseling, on the other hand, was a skill I acquired in-house. I learned early on that the only way to have your business client follow your advice is to earn their respect - which you cannot do if you are risk averse, do not understand the business, avoid responsibilities, and/or are afraid to assist in decision-making or problem-solving.

4. What are some of your interests or hobbies outside of work?

My outside interests revolve mainly around raising two sons.  Due to a big age difference, they have different needs and demands on my time.  My 16-year-old, a high school junior, requires a lot of mental effort on my part and support as we prepare a transition to college and independent life.  My little one, who is a ball of energy and a very curious toddler, demands a lot of physical effort. My other interests include personal finance, reading, travel, and hiking. I also have a list of places I would like to visit since traveling is something my husband and I enjoy tremendously.  We have a family map with pins indicating the places we have been and places we are going to next.


[ Return to Top ]


Discovery of Social Media in Employment Cases: Laying a Foundation and Sealing the Roof
Abraham N. Saiger, Jackson Lewis P.C.

Increasingly, pretrial discovery in employment lawsuits include social media postings by the parties and others. In the U.S. alone, hundreds of millions of social media users regularly send messages and share and post content on platforms such as Facebook, Twitter, LinkedIn, Tumblr, Instagram, Pinterest, YouTube, and MySpace. Although courts may take different approaches to determining the relevancy, discoverability, and admissibility of social media in any given case, the issue is nearly always on the table.

There is no shortage of articles discussing the many legal, practical, and ethical issues relating to this topic. This piece focuses on two narrow issues: (1) a proactive option for preventing the spoliation of social media evidence; and (2) a defensive benefit to serving narrow, focused social media discovery requests on the plaintiff.

(1)  Laying a foundation: Take proactive steps to protect against spoliation of evidence, and potentially improve the quality of future discovery responses, by sending a preservation letter that instructs the plaintiff’s counsel to obtain a report of the plaintiff’s entire social media archive.

At the outset of litigation, defendants often send the plaintiff/plaintiff’s counsel a preservation letter that reiterates the plaintiff’s obligation to preserve all potential relevant documents and materials, including Electronically Stored Information (“ESI”) and social media content. To further reduce the chances of spoliation of social media content, those letters could direct the plaintiff/plaintiff’s counsel to immediately download and save complete user reports and archives for each of the plaintiff’s social media accounts.

Several social media platforms allow for quick and easy collection of the user’s content. For example, Facebook users can log on to the website, request a “Download Your Info” report that contains their entire user file/history, and Facebook will immediately email a ZIP-file containing the report to the user. Similarly, Twitter and LinkedIn allow users to “Request Your Archive” and receive a file by email containing all of their activity, posts, comments, contacts, and more. Courts are increasingly familiar with these reports, and recognize that they can be obtained quickly, easily, free-of-charge, and can serve as a valuable preservation tool. See Rhone v. Schneider Nat’l Carriers, Inc., Case No. 4:15-cv-01096-NCC, 2015 U.S. Dist. LEXIS 53346, at *8-9 (E.D. Mo., Apr. 21, 2016) (finding that “the process for providing a ‘Download Your Info’ report … requir[es] Plaintiff to execute several simple commands while logged into her Facebook account” is not burdensome, and “may afford Plaintiff the ability to recover any, even innocuous, information that may have been deleted”);Appler v. Mead Johnson & Co., LLC, Case No. 3:14-cv-166-RLY-WGH, 2015 U.S. Dist. LEXIS 128182, at *10-11, (S.D. Ind., Sept. 24, 2015) (downloading complete Facebook profile is “undeniably simple…. The process takes a few minutes, and one simply waits for a download to complete, at which time one receives an email. There is essentially no cost involved….”); Voe v. Roman Catholic Archbishop of Portland, Case No. 3:14-cv-01016-SB, 2015 U.S. Dist. LEXIS 182641, at *9-10 (D. Or., Mar. 10, 2015) (ordering the plaintiff to “download his entire Facebook profile and provide the profile to his counsel, to preserve the account for additional review,” in response to the defendant’s concern that the plaintiff may assert new claims later in the case).

Although it is highly unlikely that the plaintiff will be required to produce the entire report during discovery, this request puts the plaintiff and the plaintiff’s counsel on notice that the defendant is serious about reviewing the plaintiff’s social media. Additionally, it may prevent any attempts by the plaintiff to modify or delete content. This request also may lead to the plaintiff’s counsel playing a more active role in reviewing the plaintiff’s social media content once formal discovery commences, and may result in more accurate and higher quality responses to the defendant’s interrogatories and document requests than if the plaintiff handles the discovery searches and tasks on his own.

Prior to sending the preservation letter, collect as much of the plaintiff’s publicly available social media content as possible. Once the social media issue has been raised, it is likely that the plaintiff will immediately enhance the privacy settings on all of his social media accounts.

(2)  Sealing the roof: Serving narrow social media discovery requests on theplaintiff should increase the likelihood of the defendant obtaining useful information and decrease the odds of the defendant receiving, and being forced to comply with, overbroad requests.

Much has been written about the benefits of propounding narrow, focused social media discovery requests. To the extent possible, interrogatories and document requests should be closely tied to the specific allegations in the complaint, the alleged damages, and the relevant time frame. Such requests are more likely to generate useful responses from the plaintiff and will be viewed more favorably by courts considering a motion to compel. This is especially true if the defendant presents evidence (such as printouts of the plaintiff’s publicly accessible comments or photos) that indicate relevant, responsive social media content exists.

Narrow requests also may make it more difficult for plaintiffs to blow the roof off social media discovery by demanding overbroad social media discovery from defendants. Plaintiffs routinely turn around and serve defendants with nearly identical, mirror-images of the discovery requests that the defendant served on the plaintiff. In such cases, the court may grant the plaintiff the same amount of discovery as the defendant, often using the defendant’s own arguments against the defendant.

In Appler v. Mead Johnson, for example, the plaintiff alleged that she was fired because of her alleged disability (narcolepsy). 2015 U.S. Dist. LEXIS 128182, at *1-2. Approximately one week after the court granted the defendant’s motion to compel production of nearly all of the plaintiff’s social media activity (id. at *13-16) the plaintiff successfully moved to compel significant social media discovery from two decision makers involved in her termination: the plaintiff’s former supervisor and a human resources representative. Appler v. Mead Johnson & Co., LLC, 2015 U.S. Dist. LEXIS 133769, at *11-13 (S.D. Ind., Oct. 1, 2015). Among other things, the plaintiff sought copies of any online postings, messages, status updates, tweets, replies, groups joined, or messages that “[r]eveal, refer or relate to any mental state pertaining to Plaintiff or people with disabilities generally.” Id. at *4. Even though the decision makers had already testified under oath, and continued to assert, that they never posted anything on social media relating to the plaintiff or people with disabilities, the court permitted the plaintiff’s counsel to review their social media accounts for such content. Id. at *12. The court reasoned that: (1) plaintiffs in discrimination cases “must establish motivation and opinion based on indirect and circumstantial remarks”; (2) even if the decision makers did not recall making any outrageous statements online, “a collection of more innocuous [social media] content might still be relevant to the Plaintiff’s case (e.g., sharing an article questioning the existence of sleep disorders, posting disparaging comments about people who sleep later in to the day, or complaining about Plaintiff in private messages)”; and (3) the existing protective order was sufficient to safeguard the decision makers’ privacy interests. Id. at *11-13.

The Appler rulings highlight some of the dangers of broad social media discovery in employment cases. Not only can overly broad social media discovery cut both ways, but it may intrude upon non-litigants’ privacy and unfairly prejudice the defendant’s case by opening the door to otherwise impermissible fishing expeditions. Indeed, according to Appler, if a supervisor has shared or commented on articles that are politically or socially charged (which, nowadays, is increasingly common), a plaintiff can argue that the posts and comments are evidence of bias. The court in Smith v. Hillshire Brands warned against this exact scenario when it denied the defendant’s overbroad social media discovery requests in an employment discrimination case. The court stated:

[I]f the court were to accept defendant’s position on the scope of the relevant discovery, defendant would likely be unhappy with the ramifications. For example, every Facebook post of every Hillshire manager and supervisor involved in the decision to terminate plaintiff could be deemed relevant because it might show discriminatory pretext.

Case No. 13-2605-CM, 2014 U.S. Dist. LEXIS 83953, at *14 (D. Kan., May 16, 2014). This treatment of decision makers’ posts would stand in sharp contrast to the more sympathetic approach that many courts take with regard to plaintiffs’ attempts to cultivate a desirable public image on social media. See, e.g., id. at *17; Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 115-17 (E.D.N.Y. 2013) (holding that routine posts are not relevant to claims of emotional damages because social media users often craft a desired image to display to others, and a severely depressed person may choose to post only about their good days).

By being precise and focused with social media discovery requests, defendants can effectively obtain information relevant and helpful to their case, while limiting their potential exposure to costly, time-consuming, and potentially damaging fishing expeditions by plaintiffs.
[ Return to Top ]


What It Means to Advance Your In-house Career: A Discussion With Deborah Ben-Canaan of Major, Lindsey & Africa By ACC Guest Blogger Iiona Korzha

Guest blogger: Ilona Korzha is counsel at Sprint Corporation. She is also co-chair of the ACC Career Development Committee. She can be reached at ilona.korzha@sprint.com or ilonakorzha@yahoo.com. The materials contained herein represent the opinions of the author and should not be construed to be the views or opinions of Sprint Corporation.

I spoke with Deborah Ben-Canaan, partner and head of the Washington, DC in-house practice for Major, Lindsey & Africa, a leading global legal search firm. She provided great insight into determining career goals and what it means to advance your career in-house.

What does it mean to advance an in-house career? Is there one general formula for moving up and growing professionally?

It depends on what advancement means to you. For some people, this means a higher compensation; for others, it’s a different title or broader skill set or leadership role. You need to carefully think about what advancement means to you and how you want to grow professionally. Different answers will take you down different career paths.

How does one advance their career in a corporate legal department since they tend to be flat with fewer turnovers?

You need to start by asking yourself what it is you want. Depending on the answer, there are a variety of different paths available to you. For example, you might choose to broaden your practice by acquiring more skills and volunteering to take on more responsibilities. By taking on more things, you can become indispensable to the organization. On the other hand, you might consider moving outside of legal and transitioning into compliance, government relations, or human resources. If your goal is to look for a better title, broaden the scope of responsibilities, or have more people reporting to you — and you aren’t getting that in your current organization, you may need to consider looking elsewhere. And keep in mind that sometimes the next step is not a bigger company, but a bigger role in a smaller company.

Since we are talking about a title, how important is one?

Once again, this depends on your goal. A title is less important if you want to stay within your current organization and continue your professional growth by acquiring new skills, expanding your practice, getting leadership opportunities, and being compensated fairly. However, if you are looking to switch jobs, you want to consider the title and the significance of the role within the new company. A vice president in one organization means something completely different than that same title in another organization.

Since different companies have different title structures, how can someone find out where the new job they are interviewing for fits in?

The best approach would be to ask about the structure of the organization during the interview. This will give you an idea of where this position fits into the department and organization as a whole then you can determine if this job is a wise move for your career.

If the path someone wants to take is a leadership one, what type of skills do they need?

Being able to demonstrate that you have business and financial acumen and are able to think strategically — along with possessing actual leadership and management experience — will position you for success as a leader.

How does one obtain those skills while in their current position, especially if these are not in their current job description?

Volunteer to do more within your own organization. For example, if you are a litigator but are looking for contract drafting experience, ask to shadow your transactional colleague and then ask to assist with a smaller transaction. Also, look for learning opportunities externally. If you are interested in board governance experience, volunteering for a nonprofit board or becoming a president of your HOA are two examples of things you can do. For financial acumen — and even business skills — take classes or find a mentor in your finance group that will answer your questions. The more proactive you are in seeking knowledge, the more likely your leadership will take notice of the steps you are taking to advance yourself.

To help with professional advancement, should one proactively look for a sponsor?

Absolutely! A sponsor is someone who proactively touts your accomplishments and helps you identify new opportunities. Finding one is a natural process. You need to align yourself with the right person, identify a need, and become indispensable to that person. You should also consider finding a mentor, which is different from a sponsor, who may be outside of your legal organization and who will help you develop professional relationships.

Is there anything our readers should consider before starting on the road to career advancement?

In thinking about your career advancement, you should always ask yourself why you want to advance and what your goal is. Is it because you think you have to move up? You might be assuming that everyone wants to be a general counsel, but not everyone wants to be or should be one. And, that’s OK! It is OK to excel as a corporate counsel, to work part time or even move into a non-legal position. You need to answer what advancing means to you personally, then the path will become clear.

I hope you enjoyed a peek into our conversation. As you begin on your path to career advancement, keep the following in mind:

1.    Find ways to broaden you skill sets and volunteer to do more within your organization to show your initiative and interest in advancing.

2.    Keep your resume up-to-date and maintain a running list of your accomplishments, which will help when you need to demonstrate all the hard work you have done.

3.    Always take a recruiter call because the conversation will either help you appreciate your current position or introduce you with a new, better opportunity
[ Return to Top ]


INTERVIEW FOR THE ACC
Data Privacy and Cybersecurity Some Solutions Can Be Simple, But They Require Attention Beyond Your Perimeter

Chris Quirk, Esq. of ARC MidAtlantic Excess & Surplus, Inc. sat down with Fernando M. Pinguelo, Esq. (CIPP)* to discuss some of the more prevalent data privacy and security concerns facing organizations.

Q: How do you manage to address data protection and cybersecurity legal needs of your clients whose operations involve varying types and degrees of sensitive information?

A: For me, it always starts with what I call “learn the client.”  The best way to begin to address these needs is to acquire knowledge of the client that enables me to assess its current state of affairs and greatest needs.  That’s not as easy as it may sound, and the exchange may take months of persistent interaction to achieve.  But I am able to attain that level of intimacy with the business operations of clients methodically, and with laser precision. I attribute that skill to my nearly twenty years of experience as a trial lawyer handling crisis litigation where there’s little room for inefficiency and error. 

Q: What are you seeing that often gets either overlooked or understated when it comes to data protection and cybersecurity?

A: One issue that I see time and time again, but that sometimes gets lost in the headlines, is physical security.  Paper files and physical media used to store and transfer sensitive data such as hard drives, laptops, smartphones, and flash drives must be secure at all times.  Typically, physical security means housed under lock and key, both in the office and in transit, and secure disposal. For example, the Federal Trade Commission has pursued enforcement actions against pharmacy chains for throwing pill bottles with sensitive information, such as patient names and medication information, into unsecured, publicly-accessible trash dumpsters.  Interestingly, one of these actions was sparked by media reports about the practice.

Q: What are some key takeaways we can learn from that example?

A: While we are all familiar with statistics about how businesses are becoming nearly paperless, paper files continue to exist and those with sensitive information should be safely secured and properly disposed such a by shredding the documents.   Decommissioned tangible media should be pulverized. Another technique would be to use available technology to wipe data from devices intended to be repurposed to make the data unreadable.

Q: How else are you seeing businesses being exposed to cyber harm and liability?

A: Increasingly, I see vendor vulnerabilities impacting the businesses that these vendors serve.  Recent publicized data breaches and enforcement actions illustrate this troubling concern. On one end of the vendor data breach spectrum, you have cybercriminals who penetrate high-profile targets by exploiting these targets’ weakest vendors who often lack the same tech security and resources that their customers employ.  Targets in the music and film industries have seen their extensive vendor chains compromised, including through the use of ransomware attacks, which caused their own intellectual property to be stolen because of the vendors.   But even at the other, less sophisticated, end of the spectrum we see great risks of exposure as reflected recently in an enforcement action filed by state regulators in New Jersey. 

Q: Tell me more about the state enforcement action you reference.

A:   In February 2017, New Jersey’s largest healthcare provider agreed to pay $1.1 million and improve data security to settle with the New Jersey Division of Consumer Affairs (DCA) over allegations of privacy lapses concerning personal information of policyholders contained on two laptops stolen from the insurer’s headquarters. While the settlement was not an admission of guilt and the provider was quick to point to the fact that not a single confirmed incident of identity theft was traceable to the two stolen laptops, it agreed to the settlement after a DCA investigation concluded that the provider’s failure to comply with federal healthcare data security standards threatened to expose private information of its members because, while the data on the stolen laptops was password protected, the data were not encrypted as required by law.

What makes the example notable to me are the underlying circumstances that led up to the theft and how a subsequent investigation exposed other vulnerabilities beyond those caused by the two stolen laptops. The provider was in the process of renovating its offices and relocating employees. The DCA’s investigation revealed that during the weekend of the theft, numerous personnel from outside vendors performing renovations and moving services, including thirty-two moving company employees and 266 other contractor employees, had restricted but unsupervised access to the areas from which the laptops were stolen.  Someone cut the cables securing the two laptops to employees’ workstations during that time. 

And what started out as an investigation into two stolen laptops, expanded to include inquiries into the provider’s entire data management system which exposed other alleged violations of state and federal laws.

Q: What are some key takeaways we can learn from this New Jersey enforcement action example?

A: Even seemingly sufficient physically secure features such as cables securing laptops can be rendered ineffective by other lapses in security, such as failing to supervise crews of outside vendors during a renovation and move.  Thus, vendor monitoring remains important.

Also, not all vendors – and employees too, for that matter – need the same level of access to your data so be sure to limit access accordingly.  For example, I have seen in-house and outside marketing teams be given access to sensitive data where there was absolutely no connection between the data and the performance their tasks.  Finally, employees should be educated on vendor cybersecurity and the unique circumstances posed by those relationships, including considerations beyond those found in the contract.

* Fernando M. Pinguelo, Esq. (CIPP) is a trial lawyer who devotes his practice to complex business disputes and “crisis litigation” with an emphasis on cyber/privacy, intellectual property, media, and employment matters in U.S. federal and state courts across the country and primarily in New Jersey and New York.  Notably, Chambers & Partners listed him as a Recognized Practitioner in the forthcoming 2017 Chambers USA: Privacy & Data Security guide.

To learn more about this topic and receive a complimentary copy of Fernando’s book chapter “Chapter 17 - Electronic Data, Cyber Security & Crisis Management” in eDiscovery for Corporate Counsel (Thomson-West 2017), email him at fernando@CyberJurist.com

 


[ Return to Top ]


NEW - Join the Litigation Committee's LinkedIn Group!

Be in the Know and Network on LinkedIn!

The Litigation Committee now has a LinkedIn group. To request to join, please go to: https://lnkd.in/d2U5Qju 


[ Return to Top ]