Tag Archive for: ESI

SEC Cybersecurity Regulations

Balancing Risk and Compliance: The Implications of SEC’s New Cybersecurity Regulations

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Balancing Risk and Compliance: The Implications of SEC’s New Cybersecurity Regulations

Insights

SEC Cybersecurity Regulations

CSO Online

Balancing Risk and Compliance: The Implications of SEC’s New Cybersecurity Regulations

August 22, 2023

 

By Daniel Garrie, Jennifer Deutsch and Bradford Newman

The US Securities and Exchange Commission’s aggressive new rules mark a profound regulatory shift in how businesses are now required to manage their cybersecurity risks.

Corporate cybersecurity is becoming a non-negotiable priority. How companies prepare for and defend themselves against cyber intrusions has profound implications for their operations, reputation, and bottom line. Companies have historically underestimated the magnitude of cybersecurity risks, and in the view of the US Security and Exchange Commission (SEC), they have consistently underreported material losses caused by cyber intrusions.

Things have changed. The SEC has just taken steps to ensure that public companies are not just aware of their cybersecurity risks but taking steps to manage them on behalf of their shareholders and promptly report what in practice will be the vast majority of incidents.

THE NEW SEC SECURITY REGULATIONS

The SEC’s new rules are aggressive and intended to enhance accountability and transparency, require covered companies to disclose material cybersecurity incidents within four business days and mandate periodic disclosure of a company’s cybersecurity risk management, strategy, and governance in annual reports. This represents a profound regulatory shift in how businesses are now required to manage their cybersecurity risks and is a testament to the growing recognition of cybersecurity as a core component of adequate corporate compliance.

The newly introduced Form 8-K Item 1.05 mandates companies disclose “material cybersecurity incidents” and “material aspects of the incident’s nature, scope, timing and impact on operations, revenues or stock price. New Regulation S-K Item 106 requires companies to provide detailed disclosures about their cybersecurity risk management, strategy, and governance. In particular, the SEC now requires companies to describe their processes for “assessing, identifying, and managing material risks from cybersecurity threats, as well as whether any risks from cybersecurity threats, including as a result of any previous cybersecurity incidents, have materially affected or are reasonably likely to materially affect the registrant.”

To read the full article, go to CSO Online

 
Revisiting Proportionality Under Rule 26(b)(1)

Revisiting Proportionality Under Rule 26(b)(1)

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Revisiting Proportionality Under Rule 26(b)(1)

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Revisiting Proportionality Under Rule 26(b)(1)

Daily Journal

Revisiting Proportionality Under Rule 26(b)(1)

November 1, 2021

 

By Daniel Garrie

The 2015 amendment to Rule 26(b)(1) of the Federal Rules of Civil Procedure is about continuity. That’s because the proportionality analysis under Rule 26(b)(1), since it became effective in 2015, has always been a reflection of legacy, not change. Accordingly, the “new” Rule 26(b)(1) mandates consideration of six proportionality factors and eliminates the “reasonably calculated” language that many civil litigators considered a tacit endorsement of overly broad, unduly burdensome, and oppressive discovery.

To the casual observer viewing this amendment in substantive and temporal isolation, the change might appear pioneering. But five of the six proportionality factors had been in existence, albeit under Fed. R. Civ. P. 26(b)(2)(C), for decades. And while the “relative access” factor was technically new in 2015, it was added “to provide explicit focus on considerations already implicit in … Rule 26(b)(2)(C)(iii).” “New” was the fact that these factors had been elevated to the primetime of Rule 26(b)(1), thereby resolving any doubts about their rightful role in shaping the scope of discovery on a case-by-case basis.

Today, with several years of refocused proportionality analyses under our collective belt, we present several principles and practices that have been, and remain, critical to your client’s chance of achieving proportionality in discovery, whether your client’s name appears above or below the “v.”

Each of these ideas enjoys long-standing support in the law, and their utility warrants our attention today more than ever before —particularly in light of challenges presented by discovery of electronically stored information (ESI). Though the concept of proportionality in civil discovery is decades-old, its application in every case will be unique. For this reason, each proportionality analysis under Rule 26(b)(1) will, by necessity, render everything old new again.

To read the full article, go to JAMS