10 January 2018

Data is the new litigation challenge

General counsel need a deeper understanding of their company's data, as a range of new legal issues - from privacy to antitrust - are on the horizon, according to Crowell Moring's latest predictions for 2018.


Data-change innovation is transforming how companies operate and is a driver for innovation. However, it also carries new and unintended implications for regulatory enforcement, product liability, cybersecurity, and intellectual property, according to Crowell Moring chair Philip Inglima. In the firm's litigation forecast for 2018, the firm says that from blockchain to digital health and particularly autonomous vehicles, companies will have to navigate data challenges. According to partner Paul Rosen, who is the former chief of staff at the Department of Homeland Security, autonomous vehicles raise issues of physical safety, cybersecurity and privacy for starters. 'What happens to the consumer data these connected cars collect and transmit? How detailed is the information? Where and how is it stored? And who is legally at fault if a self-driving car crashed?' He says litigation and the courts will likely provide the answers to many of them.

GCs need a deeper understanding

The sheer volume of data is another issue for GCs to get to grips with. The report says that e-discovery will seek out not just traditional email but location data from phones, activity data from wearable technologies and operational and testing data from drones and autonomous vehicles. According to partner Cheryl Falvey, general counsel need a deeper understanding of what companies should have known if harm is caused and were reasonable steps taken to understand the data and address potential risks. This also applies to supply chain data and tracking goods from around the world. Partner Cari Stinebower says government agencies also have an evolving perspective about what companies 'should know' abut their supply chain. Anti-trust issues are also likely to arise. According to partner Ryan Tisch, 'Some officials have suggested that ownership of large amounts of data could be an attribute of market power, like a dominant manufacturer owning more production capacity than anyone else.' Source: Litigation Forecast 2018

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