Evaluating Stand-Alone Privilege for Cybersecurity Info

Pepper Hamilton LLP
Contact

Pepper Hamilton LLP

This article was published in Law360 on June 17, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission. The article was also referenced in Law360 on August 5, 2019.

With cybercrime on the rise, organizations have increasingly found themselves subject to litigation or regulatory investigations related to breaches. Documents and information created before breaches, such as security assessments or audits or forensic investigations conducted in the wake of a breach may be subject to discovery in subsequent litigation or investigation.

The Sedona Conference1 has published for public comment a commentary on the application of the attorney-client privilege and work-product protection to information generated in the cybersecurity context.

Sedona concludes that the current approach increases the cost and complexity of cybersecurity by encouraging the involvement of counsel in areas best served by IT experts, while frustrating investigation and remediation of breaches because entities are unwilling to share their investigations with authorities for fear of waiving privilege protection elsewhere.

Sedona offers proposed reforms — a qualified standalone cybersecurity privilege and a statutory selective waiver — in order to better align incentives toward effective and efficient creation and use of cybersecurity information.

In its thoughtful analysis, Sedona highlights an important and growing problem facing every organization — the uncertainty as to whether certain materials will be protected from discovery. That uncertainty, of course, is not limited to cybersecurity information, but extends to other categories of discovery. Does it make sense, then, to single out a single category for reform?

A policy encouraging parties to share investigative reports with agencies, whether regarding cybersecurity information or security or compliance issues, without running the risk of waiver of privilege could have universal benefit. Further, practical considerations of how a novel privilege might be applied in operation cautions restraint as it may multiply, rather than reduce, confusion and inconsistent results.

Sedona’s Survey of the Application of Attorney-Client Privilege to Cybersecurity Information

After reviewing the general framework of attorney-client privilege and the work-product protection, and the corollary principle of waiver, Sedona discusses the major cases that have specifically addressed attorney-client privilege and the work-product protection in the context of cybersecurity information created before a security breach and after a breach.

Application to Cybersecurity Information Created Before a Breach

Cybersecurity information created before a breach may include technical inventories, configuration reviews, vulnerability scans, penetration tests or security-risk assessments. These materials are technical in nature and generally are performed by IT staff or consultants. Counsel may be involved if they are advising the company on its legal obligations, but this work may be part of a corporation’s normal IT governance.

Similarly, policies and procedures addressing cybersecurity information, security exercises and internal audit reports may be conducted without involvement of counsel. Based on the general attorney-client privilege and work-product protection principles, whether or not preincident cybersecurity information is privileged will depend on a number of factors — the first of which is whether counsel was involved. Tests or evaluations performed by IT staff or security consultants that do not involve a lawyer are less likely to be privileged.

Universally, a communication must be made for the predominant purpose of seeking legal advice to be privileged. Technical inventories and tests performed before a breach are predominantly performed for security and business purposes, rather than to seek legal advice, and are unlikely to be privileged. But when documents relate to legal concerns rather than the business itself, courts have found these documents to be privileged.

For example, in In re Denture Cream Products Liability Litigation,2 the court considered the plaintiffs’ challenges to the defendants’ withholding of documents relating to product labeling on privilege grounds. Reviewing the documents in camera, the court found that the documents at issue were not concerned with business or marketing decisions but rather with legal concerns around labeling and potential litigation and so were properly withheld.

Internal audit reports prepared to provide insight to counsel have been held to be privileged, but other courts have found that internal data security reports prepared before any breach were part of business functions and not privileged — even when counsel supervised the reports and later relied on them to provide legal advice.

For example, the court in In re Premera Blue Cross Customer Data Security Breach Litigation (Premera I)3 found that many of the documents Premera sought to withhold as privileged would have been prepared regardless of any breach. Before the breach, Premera had retained the services of a third-party vendor to review its data management system.

Once the breach was discovered, Premera retained outside counsel, who entered into an amended statement of work with the vendor, requiring the vendor to report to counsel. The court rejected Premera’s argument that all work done after that amendment was privileged, noting that the scope of work being performed by the vendor remained unchanged. The court did hold, however, that draft reports sent to counsel for review were privileged.4

Application to Cybersecurity Information Created Post-Security Breach

Sedona suggests that the existing framework of attorney-client privilege and work-product protection may provide more protection to cybersecurity information created after a breach incident, assuming legal counsel is involved. The decisions of the few courts that have addressed the application of attorney-client privilege and work-product protection to cybersecurity information generated after a breach incident turn on several pivotal facts.

To determine whether the communications at issue were made for the predominant purpose of seeking legal advice, the court in In re Target Corp. Customer Data Security Breach Litigation5 considered whether the investigation and report would have been conducted in the absence of potential litigation.

In response to the subject data breach, Target retained outside counsel who recommended that Target establish a data breach task force to coordinate activities on behalf of Target’s counsel to provide legal advice. Target’s outside counsel retained Verizon Business Network Services Inc. to “enable counsel to provide legal advice to Target.”6 Another separate Verizon team was retained to conduct a separate investigation into the data breach of behalf of several credit card brands. Target only claimed privilege and work-product protection for the correspondence with and report from the data breach task force and the Verizon team retained by counsel.

The court noted the two-track investigation and held that Target demonstrated that the work of the data breach task force was focused on informing counsel about the breach so that the attorneys could provide legal advice and prepare to defend the company, not for remediation of the breach.7

In contrast, however, the court in Premera I rejected Premera’s argument that all work done subsequent to the amended statement of work was privileged, noting that the scope of work being performed by the vendor remained unchanged, distinguishing In re Target Corp. Customer Data Security Breach Litigation and In re Experian Data Breach Litigation.8 Accordingly, the few cases that have explicitly addressed the attorney-client privilege/work-product issue in cybersecurity information have been very fact-specific and not wholly consistent, turning on the courts’ view of who retained the vendor, the vendor’s scope of work and the nature of the work.

Application of the same principles has led to differing results in non-cybersecurity information situations as well, depending on the jurisdiction and court. For example, in evaluating whether communications with a public relations firm should remain privileged pursuant to what is known as the Kovel doctrine,9 the courts in Behunin v. Superior Court10 and BouSamra v. Excela Health11 said that the parties asserting privilege did not prove that disclosing the privileged documents was necessary for rendering legal advice and determined that disclosure to the public relations firm waived the privilege.

In contrast, in Grand Canyon Skywalk Development LLC v. Cieslak,12 in which counsel for the Hualapai Tribe hired a public relations firm “to protect the name of the tribe and make it look more reasonable in the eyes of the public,” the court concluded that there was “little doubt” the firm should be treated as a functional employee.13 Likewise, courts faced with arguments that communications between counsel and an independent consultant “landman” and between counsel and a human resources consultant arrived at opposite conclusions in Endeavor Energy Resources LP v. Gatto & Reitz14 and Scott v. Chipotle Mexican Grill Inc.,15 respectively.

Waiver by Voluntary Disclosure

Pursuant to the existing framework, disclosure to third parties may waive protection, depending in part on the jurisdiction. For example, even disclosure within a company may result in waiver depending on the applicable law. In “control group” jurisdictions, only communications between those in the control group and counsel are protected, so disclosure to an IT analyst could possibly be construed as a waiver. In contrast, in non-control group jurisdictions, it is unlikely that disclosure to IT specialists or other employees investigating and handling a breach would be found to be a waiver.

Typically, disclosure to a person or entity in pursuit of a common legal goal or concerning a matter of mutual legal concern will not constitute a waiver.16 Accordingly, disclosure of privileged cybersecurity information generated post-breach to other entities sharing a common interest, joint defense or joint representation, such as insurance brokers, affiliates or parties whose data may have been involved in the security breach, will not waive the attorney-client privilege or work-product protection under most situations.

Sedona perceives a particular threat to protection when parties are requested or forced to provide cybersecurity information to law enforcement or other agencies. Some courts have endorsed the concept of a “selective waiver” when reports generated by counsel, even with the assistance of third-party vendors, are disclosed to an agency but continue to be protected by attorney-client privilege or work-product protections for other purposes.17

Other courts, however, have rejected the limitation, holding that disclosure to an agency, even if pursuant to a subpoena, waives the attorney-client privilege.18 Assuming there has been a waiver, the parties are at the mercy of the jurisdiction and particular court as the court must then decide the scope of the waiver, and whether the broader subject matter waiver applies.19

Outside the cybersecurity information field, courts continue to analyze the extent of disclosure of non-cybersecurity information internal investigation reports to regulatory agencies or in discovery to determine if waiver has occurred and, if so, the scope of that waiver. In Banneker Ventures LLC v. Graham20 and Wadler v. Bio-Rad Laboratories Inc.,21 the courts found subject matter waiver because the companies had selectively used or produced portions of the internal investigation report and interview notes.

Yet in In re GM LLC Ignition Switch Litigation,22 the court concluded a company did not waive attorney-client privilege or work-product protection of interview materials relating to an internal investigation, even though a written report on the investigation was produced to the plaintiffs in a multi-district litigation as part of discovery and also submitted to Congress and the U.S. Department of Justice after a product recall.

Likewise, in Freedman v. Weatherford International Ltd., when a company disclosed to the U.S. Securities and Exchange Commission details and factual conclusions regarding an audit committee investigation, the court declined to hold in related litigation that there was subject matter waiver as to all other investigational documents.23

Proposed Reform

To address the growing importance of cybersecurity to society, Sedona proposes two reforms designed to realign incentives.

First, Sedona proposes a qualified stand-alone cybersecurity privilege modeled on the work-product protection. This privilege would protect materials prepared in anticipation of, or in response to, a cybersecurity threat, subject to an exception when a party can show substantial need and cannot obtain the materials elsewhere. The scope of information protected under the qualified stand-alone privilege would be narrow, limited to the mental impressions, conclusions, opinions, assessments, evaluations or theories of a person or its representative concerning cybersecurity.

Second, Sedona proposes a statutory selective waiver that would enable a litigant to disclose cybersecurity information to law enforcement or other agencies without waiver of protection otherwise.

Because the stand-alone privilege would apply only to “materials prepared in anticipation of or in response to a cybersecurity threat,” parties seeking to shield prebreach cybersecurity information will bear the burden of establishing the existence of a “cybersecurity threat.”

Parties seeking discovery of prebreach cybersecurity information, then, would argue the cybersecurity information is standard monitoring and auditing of the company’s security safeguards, and not created in response to a particular threat; similarly, companies seeking to shield the cybersecurity information may overreach, designating nearly all such activities as performed in anticipation of a cybersecurity threat.

Courts would need to decide how immediate the threat must be for the privilege to apply. If steps taken in response to the shielded audit or assessment prevent a breach, would the materials still be protected? Additionally, courts would have to determine what constitutes “mental impressions, conclusions, opinions, assessments, evaluations or theories” of nonlawyers.

While the attorney-client privilege and work-product protection have been tested and refined over decades, application of a novel privilege would necessarily be in a vacuum. Inconsistent applications by courts would risk multiplying uncertainty, spawning subsidiary litigation over whether a communication or document qualifies as cybersecurity information, or whether a communication is, in fact, an opinion rather than a mere recitation of facts.

Further, because cybersecurity information might also arguably be protected by the traditional attorney-client privilege or as attorney work product, courts would have additional opportunities to reach inconsistent results. Further, the creation of a new basis upon which a party may withhold information may spawn additional discovery disputes.

Operation of the proposed statutory selective waiver may be more straightforward assuming sufficient justification for the disclosure of the cybersecurity information to law enforcement. However, the temptation to cite any favorable action by the agency as a defense in ensuing litigation might result in an unfair advantage for the party seeking to shield the cybersecurity information.

In the traditional privilege analysis, courts considering the issue have relied heavily on considerations of fairness, looking at whether one party has selectively disclosed information for strategic advantage, unjustly turning the shield of privilege into a sword against an opponent.24 In the absence of specific guidelines as to how the proposed statutory selective waiver will work, the courts will be creating new law in a vacuum.

Conclusion

Unquestionably, the current framework of case law and rules governing attorney-client privilege and work-product protection results in disparate rulings depending on the jurisdiction and court not only for cybersecurity information but also other information.

To secure protection for cybersecurity information would be a step in the right direction, but would only address one aspect of the larger issue. Attorney-client privilege and work-product protection of cybersecurity information, like that of any category of documents or information, is fact-specific and turns on a number of factors, many of which simply do not fit the way that companies conduct their IT infrastructure activities.

Sedona highlights an issue that troubles all litigants no matter what the subject matter, and so perhaps reform efforts would better be directed more broadly. Similarly, clear guidance and uniform protection against waiver resulting from cooperation with law enforcement agencies across all subject matters would serve the public good.

 

Endnotes

1 The Sedona Conference comprises jurists, lawyers, academics and other experts dedicated to the advanced study of law and policy with the mission to move the law forward in a reasoned and just way.

2 In re Denture Cream Products Liability Litigation, No. 09-2051, 2012 WL 5057844, at *15 (S.D. Fl. Oct. 18, 2012).

3 In re Premera Blue Cross Customer Data Security Breach Litigation, 296 F. Supp. 3d 1230 (D. Or. 2017).

4 Id. See also In re Premera Blue Cross Customer Data Security Breach Litig. (Premera II), 329 F.R.D. 656 (D. Or. Feb. 6, 2019) (court clarified documents to and from attorney seeking legal advice, or drafted at attorney’s request, would be privileged).

5 In re Target Corp. Customer Data Security Breach Litigation, 2015 U.S. Dist. LEXIS 151974 (D. Minn. Oct. 23, 2015).

6 Id. at *6.

7 Id. at *11.

8 In re Experian Data Breach Litigation, 2017 U.S. Dist. LEXIS 162891 (C.D. Cal. May 18, 2017) (where Experian immediately hired outside counsel post-breach, who then brought the third-party vendor on to investigate and assist counsel in providing legal advice, report and communications were privileged).

9 United States v. Kovel, 296 F.2d 918, 922-23 (2d Cir. 1961) (holding that when an expert is necessary for counsel to provide legal advice, the privilege may extend to communications with the expert).

10 Behunin v. Superior Court, 9 Cal.App.5th 833, 215 Cal.Rptr.3d 475 (App. 2d Dist. 2017), review denied, 2017 Cal. LEXIS 4395.

11 BouSamra v. Excela Health,167 A.3d 728 (Pa. Super. 2017), petition for allowance of appeal granted, 179 A.3d 1079 (Pa. 2018).

12 Grand Canyon Skywalk Dev. LLC v. Cieslak, Nos. 15-01189, 13-00596, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015).

13 Id. at *39-40 (court found “no evidence that [the public relations firm] undertook to provide general public relations services to the Tribe” beyond the legal dispute.)

14 Endeavor Energy Resources LP v. Gatto & Reitz, No. 2:13CV542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. 2017) (contract landman “easily qualifies” as the functional equivalent of an employee, noting landman was routinely performing same work as employees).

15 Scott v. Chipotle Mexican Grill, Inc., 94 F. Supp. 3d 585 (S.D.N.Y. 2015) (report provided no specialized knowledge that attorney could not have acquired or understood on his own; defendant’s own HR team could have performed analysis).

16 Sedona Commentary at 34 (citing In re Teleglobe Commc’ns Corp., 493 F.3d 345, 370 (3d Cir. 2007)).

17 See Diversified Indus. v. Meredith, 572 F.2d. 596 (8th Cir. 1978).

18 See In re Columbia/HCA Healthcare Billing Practices Litig., 293 F.3d 289, 307 (6th Cir. 2002) and cases cited and discussed therein.

19 Premera I, 296 F. Supp. 3d at 1249; see also comments to Fed. R. Civ. P. 502 ( “subdivision (a) provides that if a waiver is found, it applies only to the information disclosed, unless a broader waiver is made necessary by the holder’s intentional and misleading use of privileged or protected communications or information.”).

20 Banneker Ventures, LLC v. Graham, 253 F. Supp. 3d 64 (D.D.C. May 16, 2017).

21 Wadler v. Bio-Rad Laboratories Inc., 212 F. Supp. 3d 829 (N.D. Cal. 2016).

22 In re GM LLC Ignition Switch Litig., 80 F. Supp. 3d 521 (S.D.N.Y. 2015).

23Freedman v. Weatherford International Ltd., 2014 U.S. Dist. LEXIS 102248 (S.D.N.Y. July 25, 2014).

24 Compare Banneker Ventures, n.19, with In re GM LLC Ignition Switch Litig., n.22.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.