Photo of Jose Abarca

Jose Abarca

Subscribe to Jose Abarca's Posts

Jose Abarca counsels companies on the many issues that could, and sometimes do, end up in court or before government agencies.

As a litigator, Jose has represented numerous companies in matters ranging from ownership disputes to bet-the-company litigation. In the energy, infrastructure and natural resources practice areas, Jose focuses on resolving disputes involving engineering, procurement, master services, purchasing, development, and construction agreements.

Jose also assists clients in responding to cybersecurity incidents. As part of his cybersecurity practice, he works with technical consultants to conduct root cause analyses, counsels clients on their obligations to consumers, employees, and regulatory bodies, and helps design and implement written information security programs that meet relevant industry standards.

Contact:Read more about Jose Abarca

Digital transformation,[1] the process of leveraging technology, people and processes to innovate, requires an “all-in, ongoing commitment to improvement.”[2] But the main drivers of digital transformation – data and profits – don’t always mesh seamlessly.

As shown by recent class actions filed against Blackbaud and Morgan Stanley, and a settlement with the New York Attorney General by Dunkin’ Brands, digital transformation has numerous cybersecurity issues that present legal obligations and potential liability.

Blackbaud

In May, Blackbaud, Inc., a company that provides cloud software services to thousands of non-profits including hospitals, suffered a ransomware attack.[3]  In July, it began informing its users of the attack, many of whom used Blackbaud to process personal and sensitive information.

On August 12, the first of many lawsuits was filed against Blackbaud.  Among the allegations in the lawsuit, Blackbaud is accused of failing to properly monitor its computer network and systems, failing to implement policies to secure communications, and failing to train employees.

The five years prior to the attack are telling.  In that timeframe, Blackbaud underwent a digital transformation that involved acquiring numerous other software platforms including a predictive modeling platform, and a software provider focused solely on corporate giving.

Since the ransomware attack, Blackbaud has published cybersecurity improvements that support adherence to industry standards for incident management, employee training, systems and network testing, risk assessments, application security, encryption, and end-user authentication.[4]
Continue Reading Digital Transformation – Cybersecurity Lessons from Recent Lawsuits

Digital transformation refers to the process of leveraging technology, people and processes to innovate or stay competitive.  The main driver of this process is often data.  For a vivid illustration see Data Never Sleeps, an infographic released by Domo, a leading business analytics company.

While executing digital transformation the right way can lead to…

March 2020 will long be remembered as the month and year of en masse shutdowns.  But the pandemic has done little if anything to slow new cybersecurity and data privacy laws.  As highlighted below, regulations for one have been submitted (CA), another has gone into effect (NY), and yet another has been proposed (CA).

California Consumer Privacy Act (“CCPA”) Gets Confirmed by State Attorney General

After nine months, a lot of public input, and three proposed drafts, the regulations for enforcement of the CCPA have been submitted for approval.  The final text of the regulations demonstrates how granular enforcement could be.  Here are five examples:

  1.  A business’s required privacy policy must include the date it was last updated.
  2. A business must provide at least two methods for consumers to send requests for deletion of their information.
  3. A service provider can retain, use, or disclose information in certain circumstances, such as to detect security incidents even after a deletion request.
  4. A business must confirm within 10 days that it has received a request to know what it has collected from consumers.
  5. A business must have a documented policy for verifying the identity of a person making a request related to their personal information.

Continue Reading Coast to Coast and Back Again – Cybersecurity and Data Privacy Rules

Last July, Capital One announced that an outside individual gained unauthorized access to information belonging to 100 million individuals in the United States and approximately six million in Canada.[1]  Within days, lawsuits were filed nationwide asserting an assortment of claims relating to the data breach.

Last week, in a class action filed in Virginia a federal magistrate ordered Capital One to provide its incident report for the data breach to counsel for the plaintiffs.  Capital One had contended that the report is protected attorney work product and that it shouldn’t have to.  The Virginia court disagreed, for reasons that are instructive.

When an Incident Report Is Not Attorney Work Product

Since 2015, Capital One had retained Mandiant to provide various cybersecurity services.  The data breach occurred in March 2019, but it was not confirmed until July 19 of that year.  A day later Capital One retained outside counsel which then retained Mandiant to assist with its investigation on July 24.  Then, on July 29 the public was notified about the data breach.

The issue the court decided last week was whether the Mandiant incident report was privileged and therefore protected from disclosure by the work product doctrine.[2]  This doctrine generally preserves the privacy of attorneys’ case materials, but it has limits.  To guide its decision in Capital One the court stated:

In order to be entitled to protection, a document must be prepared “because of” the prospect of litigation and the court must determine “the driving force behind the preparation of each requested document” in resolving a work product immunity question.[3]

Applying this standard, the court believed the incident report would have been prepared anyway even if the data breach had not occurred and determined that it needed to be disclosed.  In reaching this conclusion, after “considering the totality of the circumstances,” the court found these facts compelling:
Continue Reading Court Orders Disclosure of Capital One’s Incident Report

A “novel” virus is one that has not been previously identified, according to the Centers for Disease Control and Prevention.[1]  In 2000, like the COVID-19 virus that was officially named on February 11, 2020, the ILOVEYOU virus became a global pandemic for data systems.  Within days, millions of computers were infected as the virus compromised files and caused widespread email outages.  The virus appeared in inboxes as fake messages with infected attachments:

Since then, scores of novel viruses have been deployed as destructive malware.  The ILOVEYOU virus, MyDoom worm, SOBig spam, and WannaCry ransomware alone are said to be responsible for $95 billion in financial damages.  As a result, anti-virus software has become a multi-billion-dollar, must-have computer program, and cybersecurity has become a multidisciplinary industry fighting an evolving threatscape.
Continue Reading Is Your Incident Response Plan Ready for Novel Computer Viruses?

About the Global Privacy & Security Blog

Learn More

Contracts, laws and regulations require privacy compliance, and good business practices demand it. This blog is designed to inform our clients and readers about developing privacy issues and regulatory updates, and provide alerts on cyber security stories and data breaches that impact various data privacy and security requirements.