Tips for Quickly and Effectively Responding to and Handling a Data Breach

Data breaches have become a common occurrence, and any organization, regardless of location, size and industry, can be attacked. In the wake of a public announcement of any data breach, litigation is sure to follow. Many organizations may also face scrutiny from government regulators, which creates additional burdens. Data breaches are typically a double whammy for companies: first, they are a victim of the breach; then, they must defend themselves against litigation and government investigation. This article summarizes key steps and recommendations for responding to and handling a data breach quickly and effectively.

Involving Counsel Early and Often

When a data breach is first discovered, there will be a great deal of urgency and uncertainty. The first priority is to contain the breach and attempt to understand the scope, including the data system(s) affected and the harm caused. Most federal and state governments require organizations to self-report a breach as soon as possible, so it is important that organizations have well-thought-out strategies in place to enable quick assessment of the breach, execute internal response efforts, and make immediate key decisions and disclosures. As such, many organizations establish data breach plans and conduct tabletop exercises at regular intervals. This planning should, and typically does, involve experienced discovery counsel to assist with establishing a strategic plan to identify, preserve, and collect, as needed, relevant information that will be implicated after a data breach, including discovery required for resulting data breach–related lawsuits. When a breach occurs, the discovery counsel will be able to assist immediately as they are already aware of the company's data landscape and content, security practices, and personnel.

Legal Holds: Don't Wait for the Lawsuit

Since litigation is likely to follow a reported data breach, companies should consider issuing a legal hold as early as possible. Although issuing a legal hold may not seem to be a top priority, doing so will emphasize to company employees the importance of preserving critical data. For example, system logs provide key information about a data breach but often have short retention periods, so disabling and preserving the implicated system logs is essential immediately after a breach. These logs contain information that is not only critical to diagnosing and responding to the breach but may also be valuable in future litigation or government investigations related to a breach.