Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 7 37 courses in law schools as part of the cur- riculum. "Certainly, in medical malpractice, you have some lawyers who have gone to medical school or have taken the time to learn how certain drugs interact," he says. "I think there's a parallel there in law and cyber-terrorism." With that growing awareness and maturity, says Barry Sookman, senior partner with McCarthy Tétrault LLP's Toronto office and former co-chairman of the firm's Technology Law Group, lawyers are looking forward to the third phase of cyberbreach: the aftermath. "In the 'before' phase we tell clients to follow best practices, to have a plan in place," says Sookman. "Because what happens in the 'during' and the 'after' phase depends on what you do in the 'before' phase." There's also the challenge of multiple jurisdictions, each with differing disclo- sure demands, he says: "So you need to know which jurisdictions you need to respond to first, and at what level." With the issue front and centre at the board level, there are resources being deployed to that initial phase, which, as everyone agrees, will mitigate the liabili- ties and fallout from the other phases. "When it happens it's like being in the middle of a crisis," he says. "So you want to ensure you've enlisted people with experience who can make decisions calmly and know what to do at every turn." Demonstrating due diligence is criti- cal. When Home Depot's network was targeted by malicious software using access credentials stolen from a third- party vendor over five months in 2014, some 56 million customers' credit card details were stolen. Two years later, there was a US$19-million settlement. More to the point, though, last November, Home Depot successfully repelled a class action D&O suit from derivative shareholders who took a hit when the stock fell. In his ruling the judge found the plaintiffs did not estab- lish that the board consciously failed to act. While pace of the cybersecurity upgrades was questionable, it was a busi- ness decision and plans were in place and action was being taken, the court found. Sookman adds that rulings like this and others are why litigators are finding slim pickings in the wake of a cyber- breach, because due diligence reduces damages, so there's less chance of a big payday. If you handle the first two phases according to plan, he says, then the third phase is about getting proactive. Looking forward, he says, those companies that have followed prudent counsel and done their homework are also better posi- tioned not just to fight off lawsuits but to proactively go out and undo some of the brand and reputational damage. "They're not doing it now, but I think they should go out and demand that information leaked and posted on the Internet from a cybersecurity breach be taken down and de-indexed from search engines," he says. "It isn't rocket sci- ence and many of the media companies — those protecting copyright of music, movies or other content — do it now." ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to- date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. More detail and a wider scope of legal contact information for Ontario: • Over 26,800 lawyers listed • Over 8,500 law firms and corporate offices listed • Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts, including a section for federal government departments, boards and commissions • Ontario courts and services, including a section for provincial government ministries, boards and commissions • Small claims courts • The Institute of Law Clerks of Ontario • Miscellaneous services for lawyers NEW EDITION Perfectbound Published December each year On subscription $82.50 One time purchase $86 L7796-5932 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) ONTARIO LAWYER'S PHONE BOOK 2017 ntitled-7 1 2017-01-11 12:34 PM

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