Litigation readiness: the key to navigating the aftermath of a cyber incident 

The reality of post-incident litigation

A cyber breach can trigger a cascade of legal ramifications for your organisation. Not only will your operational resilience be tested and your teams working at capacity to limit the immediate damage, but your reputation will suffer if the data of your stakeholders is put at risk or exposed on the dark web as a direct result of the incident. 

If that happens, your clients and suppliers may seek legal recourse. Class action lawsuits against you can emerge in the wake of a cyber-attack or data breach, compounding the pressure on your board. This potential for litigation post-incident underscores the necessity for proactive preparation. 

I always highlight the importance of timely data preservation to clients. It’s important to understand that, in key jurisdictions, relevant evidence including communications before, during, and post-breach, need to be preserved as soon as litigation can be reasonably contemplated.  

Further to that, during an incident it’s important to establish communications protocols with legal counsel and incident response (IR) providers to ensure the most effective use of protections such as legal professional privilege. The last thing you need after a data breach is more of your sensitive information entering the public domain. Although the use of privilege in such scenarios is increasingly under scrutiny, engaging early with counsel and ensuring your teams have knowledge of the necessary protocols.  

Doing so could help avoid situations such as that stemming from Capital One’s 2019 data breach. The US Magistrate Judge John Anderson ordered Capital One Financial Corp. to disclose an IR report to the plaintiffs in a lawsuit following the breach. The judge found that a statement of work (SoW) made directly with the IR provider did not establish litigation privilege. The judge’s opinion in the case underlines the importance of establishing such engagements with careful consideration towards appropriate legal privilege. 

As the landscape of privilege in relation to cyber security incidents is under intense scrutiny, it’s important to seek out appropriate and up-to-date legal advice in relevant jurisdictions.

Key steps to litigation readiness

1. Comprehensive data mapping 

Why it matters: Knowing the location and accessibility of your data is crucial. Data mapping helps identify where all your sensitive information is, enabling quick and accurate responses during any litigation that may follow a cyber incident. 

Implementation

•  Inventory all data:  Catalogue all types of data your organisation handles, including personal, financial, and operational data. 
• Identify data locations: Map out where data is stored, whether on-premises, in the cloud, or managed by third parties. 

Benefits

• Efficient data retrieval: Streamlined processes for locating and retrieving data during legal proceedings. 
• Compliance assurance: Data mapping exercises can be beneficial in meeting regulatory requirements in areas such as data privacy, operational resilience and cyber security. 

2. Robust legal hold policies 

Why it matters: Legal hold policies ensure that relevant data is preserved in the event of litigation, preventing accidental deletion or alteration. This is critical for maintaining the integrity of evidence. 

Implementation

• Policy development: Create a comprehensive legal hold policy that outlines procedures for data preservation and that is integrated with existing legal and retention policies. 
• Integration with all departments: Collaborate between departments, particularly IT and compliance functions, to ensure technological capabilities support the legal hold requirements. 
• Employee training: Educate staff on their roles and responsibilities under the legal hold policy. 

Standards and policies for managing eDiscovery 

Why it matters: Establishing standards and policies for the eDiscovery process is essential for ensuring consistent, defensible practices during litigation. This includes the management of data collection, processing, and review, as well as vendor management. 

Standardised procedures: Develop clear procedures for data identification, collection, processing, and review to ensure consistency and reliability. 

Vendor management: Implement rigorous criteria for selecting and managing vendors involved in the eDiscovery process, ensuring they meet your organisation’s standards and compliance requirements. 

Policy documentation: Maintain detailed documentation of all eDiscovery processes and policies to provide transparency and accountability. 

Thomas Murray offers expertise in both immediate incident response and long-term litigation readiness. Our comprehensive services ensure that your organisation is prepared to face legal challenges effectively. 

• Data mapping and analysis: Ensures all data is accurately mapped and managed. 
• Legal hold implementation: Develops and integrates robust legal hold policies. 
• eDiscovery standards: Helps establish and maintain eDiscovery standards and policies, including vendor management and data processing protocols. 

Navigating with confidence

Litigation readiness is an indispensable aspect of modern cyber incident management. By investing in comprehensive data mapping, establishing robust legal hold policies, and setting standards for the eDiscovery process, organisations can navigate the legal aftermath of cyber incidents with confidence.  

We can help you with all aspects of digital forensics and eDiscovery, ensuring that your organisation can effectively manage both the technical and legal challenges of cyber incidents. Preparedness not only mitigates risks but also fortifies an organisation's general state of resilience, ensuring a robust defence in the face of legal challenges.