how do you handle a data breach case as a lawyer

The ABA states, “When a data breach occurs involving, or having a substantial likelihood of involving, material client confidential information a lawyer has a duty to notify the client of the breach.” This step is essential because the client should be allowed the opportunity to be involved and make decisions relevant to the breach.

Full Answer

What if your law firm has a data breach?

Because of the nature of a law firm’s data, many never reported breaches. But, now nearly every state has laws making it mandatory for businesses, including law firms, to notify all clients that a potential data breach might have happened and they ought to check their financial information and credit information.

How to identify a data breach?

• Unusually high system, disk or network activity, especially while most applications are idle.
• Activity on unusual network ports or applications listening to unusual network ports.
• Presence of unexpected software or system processes.

More items...

What to do in a data breach?

• Step one: Don’t panic It’s understandable if you’re concerned about what happens next. ...
• Step two: Start the timer By law, you've got to report a personal data breach to the ICO without undue delay (if it meets the threshold for reporting) and within ...
• Step six: If necessary, act to protect those affected

How to deal with a data breach?

• Using data encryption – if you handle highly sensitive data, encryption is a good preventive measure.
• Multi-factor authentication – MFA is the best way to prevent your organization from external attacks. It provides an additional layer above the regular passwords.
• Training employees – employees significantly contribute to data breaches. ...

How do you respond to a data breach incident?

How to Respond to a Data BreachStay calm and take the time to investigate thoroughly. ... Get a response plan in place before you turn the business switch back on.Notify your customers and follow your state's reporting laws. ... Call in your security and forensic experts to identify and fix the problem.

What is the first step when dealing with a breach of data?

Once a data breach has occurred, the most important step is to... Put in place and follow your data breach plan. Typically, the first step in that plan would be to contact the response team and have them respond accordingly.

What are the four actions that companies should perform after a data breach?

5 Steps to Take After a Small Business Data BreachStep 1: Identify the Source AND Extent of the Breach. ... Step 2: Alert Your Breach Task Force and Address the Breach ASAP. ... Step 3: Test Your Security Fix. ... Step 4: Inform the Authorities and ALL Affected Customers. ... Step 5: Prepare for Post-Breach Cleanup and Damage Control.

Who is legally responsible for a data breach?

data ownersUnder current law, the data owners—the firm or organization that is storing user data—are responsible for data breaches and will pay any fines or fees that are the result of legal action.

How do companies handle data breach?

Take a three-pronged approach. The FTC advises businesses to take a three-pronged approach in responding to data breaches. The objectives are to: 1) secure the company's systems, 2) fix the vulnerabilities that may have caused the breach in order to prevent further attacks, and 3) notify the appropriate parties.

How do you conduct a data breach investigation?

7 steps for responding to and investigating a data breachDetect the data breach. ... Take urgent incident response actions. ... Gather evidence. ... Analyze the data breach. ... Take containment, eradication, and recovery measures. ... Notify related parties. ... Conduct post-incident activities.

Are you entitled to compensation for a data breach?

It is possible to make a data breach claim for compensation but you must be able to provide evidence that you have suffered damages and stress as a result of the data breach. The current period for making a data breach claim is 6 years, 1 year if it involves a breach of Human Rights.

What happens after a data breach?

Cybercriminals sometimes store your information to use months, or even years, after a breach. This might give you a false sense of security that you won't become a victim of identity theft. Cybercriminals may pool your information to gain access to even more of your accounts.

What describes the immediate action taken to isolate a system in the event of a breach?

Incident response is an organized approach to addressing and managing the aftermath of a security breach or cyberattack, also known as an IT incident, computer incident or security incident. The goal is to handle the situation in a way that limits damage and reduces recovery time and costs.

Can you sue over a data breach?

If your company has a data breach on your network, your client may sue you if it causes harm to their business. And if your client suffers a data breach on their network, they may also hold you accountable.

Can data breaches lead to legal proceedings?

Many data breaches have spawned multi-plaintiff or class action lawsuits by customers whose PII was accessed by unauthorized third parties as a result of the breach.

What is the penalty for data breaches?

If the data happens to be 'sensitive personal data', then section 91 of the New DP Act ups the ante such that, if mere 'harm' is caused to a data principal, the punishment could be imprisonment for a term not exceeding 5 (five) years and/or a fine which may extend up to Rs. 3,00,000 (Rupees three lac).

How to stop a breach of security?

Step 2. Take Action.

When to report a breach to the ICO?

Its good practice, as far as the ICO is concerned, to report the breach to them as soon as you can, particularly if the breach in question is of a serious nature, i .e. if a lot of data is released or if the data is particularly sensitive.

Do you have to notify your regulatory body of a breach?

There is also always the risk that someone else will notify them for you so you need to be a step ahead. Depending on your sector, it may be a legal requirement that you inform your regulatory body, if you have one, of the breach; those in the healthcare sector are subject to particularly strict reporting rules.

Is a data breach completely out of your control?

The data breach might have been completely out of your company’s control, but more often than not, there has been some action, or inaction on the part of one of your data processors or employees, which had led to the data breach.

1: Fail to plan equals plan to fail

Have a plan in place for what is going to happen if there is a breach, and what has been done to prevent it. Without a plan, it will be difficult to comport yourself if and when a data breach occurs.

2: Big problems first, small problems later

Creating a perfect security plan is a good idea. However, perfect is far from practical and could stop or delay the implementation of a security plan — something the the Federal Trade Commission frowns upon, especially if a data breach occurred during that time.

3: The criticality of the tone at the top cannot be overstated

Upper management must show by example to employees and vendors alike that complying with training requirements and security standards is an important company objective.

4: You cannot prevent idiocy, but you can train

The members of the Data Privacy and Security Practice at Mintz Levin find it impossible to prevent people from doing things — like clicking on links — they shouldn’t. Larose and Leary stress that training will lessen mistakes and raise employee consciousness.

5: Make good email practices your fight song

From a litigator’s perspective, good email practice is of ultimate importance, especially for the company’s legal and compliance officers. Incriminating emails when making decisions about data security or worse yet when a breach occurs can skewer or crucify the company.

6: Say what you mean and mean what you say

A policy that is not followed is excellent fodder for cross-examination for regulatory insight, because they know things are in place, you know what to do, yet are not doing them.

7: Avoid inconsistencies wherever possible

The left hand needs to know what the right hand is doing. This is another area where litigators and plaintiff lawyers will try and take advantage.

Why do law firms have data breaches?

Because of the nature of their work , law firms have quite a bit of confidential information regarding their clients.

What laws are required for a data breach?

Depending upon the type of confidential information that was breached, there may also be privacy and statutory laws that require specific actions, such as HIPAA and the Gramm-Leach-Bliley Act. Law firms should familiarize themselves with the relevant laws and be prepared to review and comply with them in the event of a data breach.

What should a law firm's notification include?

Any notification should include a description of how the law firm will be addressing the data breach, whether it is possible to recover the information and how that will be accomplished, and the firm’s plan to increase data security.

Should attorneys research technology?

Attorneys and their staff should research the appropriate technology and best practices, and update their methods as appropriate. Unfortunately, despite efforts to keep confidential information safe, it is more and more likely that law firms will experience a data breach.

Who is Ellen Lockwood?

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.

How many states have passed laws requiring private entities to notify individuals of security breaches of personally identifiable information?

All 50 U.S. states have passed legislation requiring private or governmental entities to notify individuals of security breaches of personally identifiable information. Data breach litigation is on the rise, particularly with expansive new laws like the California Consumer Protection Act.

What happens if you receive a notification from a lawyer?

If you received a notification from a lawyer, there will be a link to a class action lawsuit page where you may submit your claim to compensation. In other cases, you may only suspect a data breach and will need the help of your own lawyer to investigate the matter further.