Today, the Information Commissioner’s Office (“ICO”), the UK data protection authority, released for public comment its draft “Regulatory Action Policy,” a document in which the ICO seeks to set forth its objectives in taking regulatory action, present its new investigatory and enforcement powers, and explain how it aims to use them. The comment period will close on June 28, 2018.

With three weeks remaining until the General Data Protection Regulation (the “GDPR”) (Regulation (EU) 2016/679) takes effect, this draft document provides organizations with a much needed insight into how the ICO plans to proceed in the age of new data protection compliance realities. In addition to the GDPR, the ICO will be enforcing the upcoming update to UK’s national data protection law, the UK Data Protection Act 2018 (the “DPA”), which is still working its way through Parliament, but should be in place by May 25, 2018, as well as other established data protection legislation.

The “Regulatory Action Policy” explains that ICO will have the power to issue “urgent” information notices that will require a response within 24 hours, take notice recipients who fail to comply to court on contempt charges, inspect and assess compliance without notice, administer fines by way of penalty notices, and prosecute criminal offences in court. The ICO’s powers to prosecute failures to provide information and its ability to go to court to request a warrant to search premises will come from the DPA, not GDPR.

The DPA also will permit the ICO to issue “assessment notices” to data controllers and processors to allow the ICO to investigate whether the controller or processor is compliant with data protection legislation. The notice may require the organization to give the ICO access to premises and specified documentation and equipment. An “urgent” assessment notice may require access to non-domestic premises on less than 7 days’ notice, which in effect will allow the ICO to carry out a no-notice inspection. An organization that receives an “urgent” information notice, assessment notice, or enforcement notice may petition the court to overturn the urgency of that notice. Under the DPA, destruction or falsification of information the ICO is pursuing in its notice constitutes a criminal offence. However, similarly to the U.S. evidence spoliation principles, it appears that loss of information through routine operation of automated processes may be a defense to criminal charges.


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Seyfarth Shaw Offers Data Privacy & Protection in the EU-U.S. Desktop Guide and On-Demand Webinar Series

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4%

Seyfarth eDiscovery Partner Richard Lutkus, along with William Lederer from Relativity and Patrick Zeller of Gilead Sciences, Inc., will host a panel discussion titled “Brave New Words: Cloud Data Collection, Processing, and Hosting” at this year’s RelativityFest on October 24, 2017.

This session will provide attendees with information about new data collection methods with tools

Seyfarth eDiscovery attorneys Jason Priebe and Natalya Northrip will present “A Practical Roadmap for EU Data Protection and Cross-Border Discovery” at this year’s RelativityFest on October 24, 2017.

This presentation will provide attendees with practical tips for leveraging the new Sedona International Principles to help in your compliance with stringent GDPR requirements, and in seeking

Is your organization ready for the new EU General Data Protection Regulation?

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4% of their global annual

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?

Our experienced eDiscovery and Information Governance (eDIG) and Global Privacy and Security (GPS) practitioners will present a series of four 1-hour webinars in August through October of 2017. The presenters will provide a high-level discussion on risk assessment tools and remediation strategies to help prepare and reduce the cost of EU GDPR compliance.
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The 2017 edition of The Legal 500 United States recommends Seyfarth Shaw’s Global Privacy & Security Team as one of the best in the country for Cyber Law (including data protection and privacy). In addition, based on feedback from corporate counsel, the co-chairs of Seyfarth’s group, Scott A. Carlson and John P. Tomaszewski, and

In January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation (Transitional Edition). This publication updates the 2011  International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor.  It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018.  Many of these developments are consistent with the focus on “proportionality” of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.

Given the complex and dynamic EU data protection  landscape – where the new Privacy Shield has not been tested, and before the GDPR has even taken effect, – WG6 has aptly designated this as a “Transitional” edition.  This edition provides interim best practices and practical guidance for courts, counsel and corporate clients on safely navigating the competing and conflicting issues involved in cross-border transfers of EU personal data in the context of transnational litigation and regulatory proceedings.  Following are the publication’s Six Transitional International Litigation Principles:


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Earlier this month, the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), has announced a Health Insurance Portability and Accountability Act of 1996 (HIPAA) civil money penalty of $3,217,000.00 against Children’s Medical Center of Dallas (Children’s), a pediatric hospital that is part of Children’s Health, the seventh largest pediatric health care provider in the nation. OCR based this penalty on its finding that Children’s failed to comply with HIPAA Security Rule over many years and that Children’s impermissibly disclosed unsecured electronic protected health information (ePHI) when it suffered two data breaches that were reportable to OCR.

The Breaches

  • On January 18, 2010, Children’s reported to OCR the loss of an unencrypted, non-password protected BlackBerry device at an airport on November 19, 2009. The device contained the ePHI of approximately 3,800 individuals.
  • On July 5, 2013, Children’s reported to OCR the theft of an unencrypted laptop from its premises sometime between April 4 and April 9, 2013. The device contained the ePHI of approximately 2,462 individuals.

Because Children’s devices were unencrypted, Children’s was obligated to report their loss, along with the unsecured ePHI they contained, to the HHS. Had Children’s devices been encrypted, it could have taken advantage of the “safe harbor” rule, pursuant to which covered entities and business associates are not required to report a breach of information that is not “unsecured.”

The Investigation

  • OCR’s investigation revealed that, in violation of HIPAA Rules, Children’s (1) failed to implement risk management plans, contrary to prior external recommendations to do so, and (2) knowingly and over the course of several years, failed to encrypt, or alternatively protect, all of its laptops, work stations, mobile devices, and removable storage media.
    • OCR’s investigation established that Children’s knew about the risk of maintaining unencrypted ePHI on its devices as far back as 2007.
    • Despite this knowledge, Children’s issued unencrypted BlackBerry devices to nurses and allowed its workforce members to continue using unencrypted laptops and other mobile devices until 2013.

The Takeaways
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Last month, The Sedona Conference released the public comment version of The Sedona Conference Data Privacy Primer, a comprehensive catalog of U.S. data privacy issues, legislation, and resources, designed to provide “immediate and practical benefit” to organizations and practitioners dealing with privacy issues. The Primer is a work product of The Sedona Conference Working