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Increasingly for in-house counsel, it's obvious that the company needs to have its data secured. It's also become clear that law firms and third-party vendors say they're going to be secure, though in some circumstances, the promise may not reflect the reality. So what are in-house counsel to do to ensure data security?

The answer is likely conducting a data security audit of a company's law firms and third-party data holders. However, for those who haven't conducted these sort of audits before, the task can be daunting. In a poll of the audience at the “Auditing Your Litigation Support Providers” webinar conducted by the International Legal Technology Association (ILTA) on Sept. 27, 40 percent of in-house counsel attendees did not know to what percentage of outside counsel they had sent security assessments.

But that's OK, said webinar panelist Ishan Girdhar, CEO of data security company Privva. He outlined seven steps to implementing a vendor risk management program for the first time:

  1. Create and assign team;
  2. Identify all vendors in the supply chain;
  3. Catalog vendors by criticality;
  4. Create the right questions based on risk and role;
  5. Score results and communicate with business units;
  6. Translate areas of risk into contract terms and conditions and update outside counsel guidelines; and
  7. Automate reassessment for continued compliance.

What's important, he noted, is to make sure these programs are based off a company's own risks, with their assessments tailored based on context. “What may be determined as a risk for one law firm and one corporate legal department may be different from calculating a risk score for another,” he explained.

Plus, especially when implementing a plan from the beginning, Girdhar added, implementation needs to be a collaborative process. “You don't want your vendors to think that if they answer a risk assessment in a negative fashion, they're going to lose business.”

As the lead of Walmart's Discovery Operations Group, fellow webinar panelist Amy Sellars has seen these types of assessments grow in importance. But even so, she was surprised when 79 percent of attendees said in a poll that given the hypothetical choice, they would rather hire the second-best attorney for a job where data was assured to be secure, rather than the best attorney where they could not have that assurance. “I'm pleased to see that,” she added, “because it stresses that the importance of security is rising.”

She said that many legal departments today conduct these sorts of reviews for third parties that handle data, but often, law firms may not be included in that mix, because of personal relationships, differing views on the role of law firms, or other considerations.

But law firms are perhaps the most important groups to audit, because of the nature of information they hold. When conducting her own assessments, Sellars said, her concern is the day-to-day: “At the end of the day, my concern is just the habits of people handling our matters.”

She broke this down further into four distinct buckets:

  • Email and document storage habits, such as looking at privileged documents on mobile;
  • Where and how they access data, like using Starbucks open Wi-Fi;
  • How paper-dependent the firm is, tracking what they print out and what's happening to that paper; and
  • Whether they have a security consultant.

Altogether, the goal is to have a pervasive security culture throughout an organization. “If you raise their awareness, that will have an impact on the focus they give security, the budget they give security, and their habits. If you don't care about security, they won't care about security.”

Indeed, Sellars noted that practices are not policies. The panelists on the webinar all said they had seen situations where security was promised through a particular policy, but on closer inspection, those policies were not carried out.

“Often people tell me, 'We have this policy, we have that policy.' That's great. If you don't enforce those policies, it's almost as bad as not having the policy at all,” she added.

That's why, said Tara Emory, director of consulting at Driven, it's important to go through a survey exhaustively, including physical security, personnel security, and network security in some fashion.

And it's likely that the partners will not be perfect, Emory explained, but that's not the goal of these security assessments. “It's doubtful you'll have vendors that are perfect shining stars … but you need to know if they're good enough.”