Cybersecurity & Privacy

Expert Analysis

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• Ginsburg's Passing Could Usher In A Narrower TCPA

  

  Justice Ruth Bader Ginsburg's broad commitment to the class action vehicle is unlikely to be shared by a Trump-appointed U.S. Supreme Court justice, suggesting a continued shift toward a narrower application of consumer protection statutes like the Telephone Consumer Protection Act, says Eric Troutman at Squire Patton.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• Class Arbitration May Meet Its Demise At High Court This Term

  

  While the Second Circuit’s 2019 opinion in Jock v. Sterling Jewelers and the Ninth Circuit’s recent decision in Shivkov v. Artex exemplify how two interrelated inquiries have rescued class arbitration, the U.S. Supreme Court will likely address the issues this term and extinguish the practice, say attorneys at McGuireWoods.

• White House Due Process Memo Could Reform Enforcement

  

  A little-noticed memo recently issued by the Trump administration in response to the pandemic, directing federal agencies to provide greater due process to individuals and companies under regulatory investigation, represents a long-overdue sea change in the way justice is carried out in enforcement proceedings, say Joan Meyer and Norman Bloch at Thompson Hine.

• Uber Exec's Charges In Data Breach Case Reveal Novel Risks

  

  After the recently announced felony charges against a former Uber executive for failing to inform the Federal Trade Commission of a data breach, there are several action items general counsel should now consider to guard against this disturbing new risk of individual criminal liability, say attorneys at V&E.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.

• Comparing Recent State Data Breach Law Updates

  

  Public and private entities should revisit their incident response plans to ensure compliance with and understand the differences among heightened data breach notification requirements that five states and Washington, D.C., added or amended this year, says Jane Petoskey at Polsinelli.

• 5 Info Blocking Compliance Challenges For Health Providers

  

  With the compliance deadline for the U.S. Department of Health and Human Services' new information blocking regulations approaching, health providers should identify and address processes that are particularly likely to constitute information blocking, including those concerning patient access to minors' and other providers' records, say attorneys at Davis Wright.

• Opinion

  Lawyers Must Act To Preserve Democracy This Election

  

  COVID-19 concerns and glaring gaps in registration threaten to dampen voter turnout in the 2020 election, so attorneys should take on the problem by leveraging their knowledge and resources in seven ways, says Laura Brill at Kendall Brill.

• How To Effectively Defend Witnesses In Remote Depositions

  

  When a witness is isolated from the defending lawyer during a remote deposition, carefully planning the logistics and building witness confidence are critical to avoiding damaging admissions, say Jessica Staiger at Archer Daniels and Alec Solotorovsky at Eimer Stahl.

• Discarded Phone Rulings Misapply 4th Amendment Case Law

  

  Recent Nevada and Louisiana state court decisions, allowing police to conduct warrantless searches of cellphones deemed abandoned, are part of a growing trend of state and federal courts not following the U.S. Supreme Court's Fourth Amendment jurisprudence that should concern criminal defense attorneys, privacy rights advocates and employers, says Brandon Boxler at Spencer.

• Whether And How To Compel Remote Arbitration

  Excerpt from Practical Guidance

  

  As the pandemic delays in-person arbitration hearings, mediator and arbitrator Theodore Cheng provides arbitrators with a checklist to examine the rationale and authority for compelling parties to participate in remote hearings.

• Basic Mandamus Questions Support DC Circ.'s Flynn Ruling

  

  The D.C. Circuit's decision allowing a trial judge to continue his inquiry into the U.S. Department of Justice's request to abandon its case against Michael Flynn is not difficult to digest when one focuses on the two basic mandamus elements, says Douglas Lang at Dorsey & Whitney.

• The Unique Challenges Of Protecting A Law Firm Brand

  

  Recent law firm trademark disputes highlight how the tension between legal ethics rules and trademark law can make it difficult for firms to select brands that are distinctive and entitled to protection, say Kimberly Maynard and Tyler Maulsby at Frankfurt Kurnit.