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Lessons From a Year in Crisis: Do’s
and Don’ts of Crisis Management
By: Kaitlyn E. Stone, Michael C. Zogby, and
Claudia V. Garcia
The views and opinions expressed within this article are the authors’ own
and do not necessarily reflect the views of their employers.
Kaitlyn E. Stone is an associate Faegre Drinker’s
Product Liability and Mass Torts practice group.
Kate’s practice includes defense of clients in
various mass tort, intellectual property, and
complex litigation matters, with a focus on
defending the interests of major pharmaceutical,
medical device, and med tech companies, and companies in agribusiness
and chemical industries in product liability cases. She has experience
ranging from individual cases to class actions, and the majority of her
practice focuses on multidistrict litigations and coordinated state
proceedings. Kate also maintains an active pro bono practice, focused
primarily on securing criminal expungement for indigent clients and
veterans in New Jersey.
Michael C. Zogby is a partner and deputy leader of
the nationally-ranked Product Liability and Mass
Torts group at Faegre Drinker. Mike also serves as
co-chair of the firm’s Health & Life Sciences Litigation
team. His trial practice includes the defense of global
clients in highly-regulated industries in cross-border,
products liability, complex litigation, mass tort, and intellectual property
actions filed by consumer and government parties. He counsels clients in
the United States, Asia, and Europe on data privacy, governance,
cybersecurity, and crisis management issues, and he coordinates cross-
border trial strategy and discovery involving multidistrict and aggregate
proceedings. He serves on the faculty of the National Trial Advocacy
College at the University of Virginia School of Law and as a trustee of the
Trial Attorneys of America and Trial Attorneys of New Jersey.2 DEFENSE COUNSEL JOURNAL | JANUARY 2022
Claudia V. Garcia is Corporate Counsel, Commercial
at Exelixis, Inc. In this role, she helps colleagues
navigate the complex legal and regulatory landscape
as they work to develop medicines for difficult-to-treat
cancers. Prior to joining Exelixis, Claudia
represented major pharmaceutical and medical
device companies in products liability cases involving prescription and
over-the-counter medications, medical devices and consumer products.
She received her J.D. From the University of San Francisco School of Law,
and her B.A. from the University of California, Davis.
C
RISIS loves company. Like faced with business crises. We
many of the readers of this share these recommendations as a
publication, we transitioned reference guide as we approach the
from trials and in-person litigation two-year anniversary of many of us
activities to spend the last 18-plus working remotely. These can be
months focusing and counseling on applied to any business or risk
crisis management issues. Unlike management crisis, and they should
others, however, we had occasion be incorporated into our regular
to do so not only in light of the practices and response processes.
COVID-19 global pandemic, but
because we partnered with ten in- I. DON’T Take a One-Size-Fits-
house counsel and forensics/public All Approach
relations professionals throughout
2020 and 2021 to dissect, publish, In a pie chart tracking the
and speak on issues related to general discourse regarding crisis
effective crisis anticipation and management strategies, crisis
resolution techniques, as well as on management plans – or CMPs –
the intersection of crisis, cross- would take up a significant slice.1 In
border disputes, and litigation. the cybersecurity space, via
Through this process, we have Executive Order No. 14028
identified a collection of pragmatic (“Improving the Nation’s
“dos” and “don’ts” for organizations Cybersecurity”), the White House
1 See, e.g., J. Michael Rollo and Eugene L.
Zdziarski, “Developing a Crisis Management
Plan,” in Eugene L. Zdziarski et al., CAMPUS
CRISIS MANAGEMENT (Wiley, 2d. Ed. 2020).Lessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 3
recently tasked the U.S. size-fits-all approach to crisis
Cybersecurity and Infrastructure response planning will not only
Security Agency (CISA) with produce an inadequate strategy for
developing “a standard set of future crises, it will set
operational procedure (i.e., unreasonable expectations for the
playbook) to be used in planning nature of business crises
and conducting cybersecurity themselves.
vulnerability and incident response Crises are fluid, and the best
activity.” 2 In November 2021, the crisis management plans are
CISA published the Federal flexible and made to change in
Government Cybersecurity Incident response to the nuances of a given
and Vulnerability Response problem. Rigidity is the enemy of
Playbooks, once again putting crisis effectual crisis management.4
management planning documents CMPs with built-in flexibility,
in the forefront of minds adaptable to the particular variety
considering crisis response of challenges that may arise for a
techniques. 3 While it is true that given company, are key. Multiple
the importance of planning for avenues of action, some to be
crises cannot be overstated, the implemented parallel to others and
phrase “crisis management plan” some to serve as alternative options,
suggests that with enough foresight, are part of an effective CMP, which
focus, and resources, a company should set forth the list of viable
may divine one plan ready to be options that may best respond to a
implemented at the first hint of any particular crisis. Each crisis is
crisis to neutralize the threat unique, and the company’s
entirely. approach to managing the crisis
However, don’t think that a should be specifically tailored to the
single crisis management plan will problem presented. Put another
do the trick for each and every crisis way, crisis management should
on the horizon. Adopting a one- always be bespoke – not off the rack.
2 Exec. Order 14028, 86 Fed. Reg. 26633 bility_Response_Playbooks_508C.pdf
(May 12, 2021), available at (“[p]reparation [a]ctivities” include
https://www.whitehouse.gov/briefing- “[d]ocument[ing] incident response plans,
room/presidential-actions/2021/05/12/ including processes and procedures for
executive-order-on-improving-the- designating a coordination lead” and
nations-cybersecurity/. “[p]ut[ting] policies and procedures in
3 See Cybersecurity and Infrastructure place to escalate and report major incidents
Security Agency, Federal Government and those with impact on the agency’s
Cybersecurity Incident and Vulnerability mission”).
Response Playbooks, at 7 (Nov. 2021), 4 See generally Anne H. Reilly, Preparing for
available at https://www.cisa.gov/sites/ the worst: the process of effective crisis
default/files/publications/Federal_Govern management, 7 INDUSTRIAL & ENVIRONMENTAL
ment_Cybersecurity_Incident_and_Vulnera CRISIS Q. 115 (1993).4 DEFENSE COUNSEL JOURNAL | JANUARY 2022
II. DO Anticipate & Avoid CEO, when he stated that
“the Gulf of Mexico is a
Planning for a crisis is only half very big ocean. The
the battle – and a reactionary amount of volume of oil
approach might eliminate options and dispersant we are
or put you behind in the response putting into it is tiny in
plan. The best crisis-related relation to the total water
strategies involve anticipation of volume.” Normalcy bias
potential catastrophes as a means [was] further exemplified
of avoiding them altogether. by the response of the
Anticipation and avoidance are the Costa Concordia crew.
hallmarks of premier crisis After the ship struck the
management.5 rock near Giglio Island,
Without intention, the human passengers were
mind is not inclined to see, let alone reportedly told to return to
foresee, problems. Thanks to a their staterooms. About an
phenomenon known as normalcy hour passed before the
bias, the mind has a tendency to order to abandon the ship
expect things to continue to occur in was issued, possibly
the future as they typically have in contributing to the loss of
the past—to assume that matters thirty-two lives as well as
will proceed “normally.”6 This bias the $570 million vessel.
may lead one to underestimate both Thus, normalcy bias will
the likelihood of a crisis occurring, delay critical actions and
and how bad the disaster may be place the response team
when it does arise.7 We are familiar behind the power curve; a
with examples of normalcy bias position from which it is
from recent history and popular unlikely to recover.8
culture. For example,
Normalcy bias was
demonstrated by the
statements of BP's ousted
5 See John F. Savarese, Handling a Corporate QUINNIPIAC L. REV. 489, 501 (2012); see also
Crisis: The Ten Commandments of Crisis Barry Ravech, Book Review, On Being
Management, 27 REV. BANKING & FIN. SERVS. Certain: Believing You Are Right Even When
(2011) (“Many crises can be anticipated, at You're Not, 93 MASS. L. REV. 364, 367 (2011).
least generally.”). 7 See David B. Graham and Thomas D. Johns,
6 See LEONARD MLODINOW, SUBLIMINAL: HOW The Corporate Emergency Response Plan: A
YOUR UNCONSCIOUS MIND RULES YOUR BEHAVIOR Smart Strategy, 27 NAT. RESOURCES & ENV'T,
(2012); Linda Ross Meyer, Suffering and at 6 (2012).
Judging in the Princess and the Pea, 30 8 Id. (internal citation omitted).Lessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 5
Research suggests approxi- team members overcome normalcy
mately 70% of people will succumb bias, enable the organization to
to this bias in a crisis situation.9 identify and analyze potential
Identify strategies that enable threats before they occur, and vet
you to forecast potential issues for the strength of the solutions
your company. The bad news on created to address and avoid
this front is that there is no crystal them.10
ball for future threats or Extensive literature exists on
catastrophes. The good news is anticipatory tools available to
there are no shortage of tools businesses. For example, red
available to companies seeking to teaming – a collection of flexible
mine for potential threats looming cognitive processes aimed at asking
in the distance. These anticipatory better questions, challenging
exercises may help a company’s explicit and implicit assumptions,
9 See Amanda Ripley, How to Get Out Alive, prevents them from envisioning
TIME 58, 60 (May 2, 2005); see also Haim catastrophe.
Omer and Nahman Alon, The Continuity • Most people are willing to run
Principle: A Unified Approach to Disaster and the risk of incurring a large but
Trauma, 22 AM. J. COMM. PSYCH. 273 (1994). low-probability loss in the future
10 Recently, Edwin Deitel considered what rather than accepting a smaller,
“[d]ecision-makers must [do to] surpass sure loss now.
common judgment biases,” including:
• People tend to hold positive J. EDWIN DEITEL, DESIGNING AN EFFECTIVE
illusions that lead them to CORPORATE INFORMATION, KNOWLEDGE
interpret events in an egocentric MANAGEMENT, AND RECORDS RETENTION
manner and to undervalue risks. COMPLIANCE PROGRAM, § 14:19. “Anticipating
• People have a natural tendency and Preventing Crises” (West, Aug. 2021).
to discount the future, which For “organization[s] to avoid predictable
reduces their willingness to surprises”, the author recommended:
invest now in order to prevent a • Scan the environment and
disaster that may be quite collect information regarding all
distant and vague. significant threats.
• Most people will discount the • Integrate and analyze that
need for fundamental change. information from multiple
• People tend to ignore errors of sources within the organization
omission or the harm that comes to produce insights that can be
from inaction, and pay greater acted on.
attention to harm that comes • Respond in a timely manner
from action. and observe the results of the
• People tend to try and maintain response.
the status quo, creating a barrier • Reflect on what happened and
to the concrete and often large- incorporate lessons learned into
scale changes that are needed to the institutional memory of the
head off predictable surprises. organization, in order to avoid
• People tend to have optimistic repetition of past mistakes.
illusions about the future that Id.6 DEFENSE COUNSEL JOURNAL | JANUARY 2022
and developing alternatives to Whatever the name, or present
challenge existing policies or popularity, the bottom line on
procedures – has garnered anticipatory tactics is: Choose the
attention during the pandemic. 11 one that will best help your
The concepts of either expanding particular business forecast
the exercise with a blue team (a potential future problems.
team designed to defend existing
policies and procedures against the III. DON’T Think Crisis Happens
red team’s attacks), or condensing in a Vacuum
the exercise with a purple team
(utilizing the same team to act as When faced with a looming
both attackers and defenders of threat or high-stakes disaster, it can
policies, seeing all sides of the be easy to get lost in the
relevant issues) are also gaining in catastrophe and lose sight of the
popularity. This collection of larger picture. But crises do not
tabletop exercises encourages a respect geographic boundaries,
business team to approach and—as the COVID-19 pandemic
potential problems from has demonstrated—the worst
unexpected angles and identify any catastrophes often spread across
and all possible solutions to them. multiple locales.
Premortems, thinking about a Don’t forget to think about the
CMP’s solutions to a given problem bigger picture. The company’s
from the hypothetical vantage point present crisis may presently be
of assuming the solutions have occurring in the United States, but
already failed, are also gaining might it or the company’s response
traction, as are a variety of thereto have implications for the
approaches to trend forecasting. 12 company’s parent or affiliates in
These may also enable a company Europe or Asia down the road? The
to predict potential catastrophes business’s current catastrophe
coming down the proverbial pipe. might involve an incident at a single
Finding strategies to guide your facility requiring the roll-out of
company in its efforts to anticipate human resources support on the
crises is not especially challenging. ground, but might it result in later
The challenge lies in selecting the litigation implicating other
right strategies for your company. departments within the business?
11 See, e.g., UNITED STATES DEPARTMENT OF 12See generally David Gallop, Chis Willy and
DEFENSE, RED TEAMING, PAST AND PRESENT – John Bischoff, How to Catch a Black Swan:
CASE STUDIES: FIELD MARSHAL SLIM IN BURMA, Measuring the Benefits of the Premortem
T.R. LAWRENCE IN WORLD WAR I, OPERATION Technique for Risk Identification, 16 J.
IRAQI FREEDOM, DECISION-MAKING THEORY, ENTERPRISE TRANSFORMATION 87 (2016).
CHALLENGING ORGANIZATION’S THINKING (2017).Lessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 7
As the COVID-19 pandemic has departments and with varying
illustrated, a variety of litigation can backgrounds, to stand at the ready
and will arise from a large-scale to tackle crises. The team’s purpose
crisis. The year 2020 saw a wide is to shepherd the business’
array of litigation filed, including by response to a problem at both
customers against cruise lines, macro and micro levels. To do so,
patients against nursing homes, the team must be prepared to coach
employees against employers, and the organization’s individual
patrons and employees against employees through the problem,
restaurants and bars.13 while simultaneously steering the
A true crisis will feel all- company’s ethos, and perhaps even
encompassing and likely its clients or customers, through the
overwhelming, but do not permit process.
this sensation to produce tunnel Who should be on the team?
vision. Crises, and a company’s Like all aspects of crisis
response to them, have a tendency management, the team’s members
to birth new and related problems. should be tailored to the needs of
Always consider the problem and the company and the kinds of crises
its solutions in the context of the that confront it. The most
larger business plan, client successful team will capitalize on
concerns, and the company’s global the diverse skills of their
priorities. organization’s talent – derived both
from in-house and outside
IV. DO Pick the Right Players vendors.14 Popular players include
members from the following
Crisis anticipation strategies departments: in-house counsel,
and CMPs are only as good as the internal corporate communications,
team that executes them in real administrative support, human
time. These theories and ideas need resources, and IT. Also keep in
to be animated by a carefully mind data preservation
selected group. requirements and the importance
Be sure to assemble the right of documenting steps taken to serve
team, with members from multiple as breadcrumbs if you need to
13 See Amanda Robert, What Types of https://www.law.com/2020/12/29/lawsu
Lawsuits Were Filed Over COVID-19 in 2020?, its-filed-in-2020-over-covid-19-were-
ABA JOURNAL (Jan. 4, 2021), available at diverse-but-limited/.
https://www.abajournal.com/news/articl 14 See Sujin Jang, The Most Creative Teams
e/law-firms-schools-identify-lawsuits- Have a Specific Type of Cultural Diversity,
filed-over-covid-19-in-2020; Amanda HARVARD BUS. REV. (July 24, 2018)
Bronstad, Lawsuits Filed in 2020 Over (“Culturally diverse teams, research shows,
COVID-19 Were Diverse, but Limited, can help deliver better outcomes in today’s
LAW.COM (Dec. 29, 2020), available at organizations.”).8 DEFENSE COUNSEL JOURNAL | JANUARY 2022
retrace your steps or justify reasons missed opportunities present the
for action. richest ground from which to
In addition, you should cultivate a greater understanding of
encourage and benefit from the the crisis and the company’s best
diversity within your organization. response to it.
Remain mindful of your personnel’s Many organizations find
diverse backgrounds and postmortems to be a useful tool in
experiences when assembling your analyzing a crisis in hindsight. Use
teams. A team with varying of tools like this one ensure analysis
experiences and viewpoints will of the past problem is productive
come together to produce crisis and thorough, instead of an exercise
management approaches that are in mere Monday morning
culturally sensitive and, therefore, quarterbacking.
more effective.
VI. DO Partner for Success
V. DON’T Fix it and Forget it
When crisis strikes, it is
While it may be tempting to say important to look for the hands
that nothing positive emerges from reaching out to help. Assembling
a business crisis, there is always the right team internally is
one silver lining: Each crisis important but does not complete
presents an opportunity to learn. the roster of crisis team players.
The only thing worse than a crisis is Do not hesitate to bring in
facing the same crisis twice without outside help to support crisis
proper preparation. management operations. Consider
Don’t fix a crisis and forget collaborating with external vendors
about it. When the storm clouds in order to increase the value of
clear, dig into what happened so as crisis response or anticipation
to mine the situation for enhanced efforts. The company may elect to
institutional knowledge. Study the include outside legal counsel,
problem, including what worked security vendors, forensics, and IT
and what did not work when it support as applicable. The
came to solutions, in order to be participation of experts and
better equipped to tackle this issue vendors from outside the
or a similar issue in the future. In organization diversifies the crisis
fact, especially study the failures. response or anticipation team’s
While the temptation will exist to perspectives, inviting outside
celebrate the victories over the opinions regarding the business
catastrophe – and positive strategies and potential threats to
reinforcement for these successes the company, into the analysis.
is encouraged – missteps andLessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 9
When assembling the right qualifies as a crisis or the perceived
team, we strongly recommend the scale of the problem. Culture also
team include outside counsel, influences how people convey
external public relations firms, stress through communication and
forensics, and external IT support behavior in connection with a crisis
as needed. In addition, consider event and influences one’s
whether subject matter experts are interpretation of what it takes to
needed to support the team’s make him or her feel safe in a
efforts and whether involvement of catastrophe. As discussed in
a medical adviser, privacy expert, or “Cultural Approaches to Crisis
cybersecurity analyst is warranted. Management,” which is featured in
the Global Encyclopedia of Public
VII. DON’T Undervalue Culture Administration, Public Policy, and
Governance, there is a connection
Business crises often implicate between cultural competency and
or affect a company’s bottom line, resiliency. A crisis management
but don’t neglect the human plan equipped with cultural
element involved in these problems awareness and respect for diversity
and don’t underestimate the will enable a business to thrive
importance of values and when it comes to addressing the
experiences outside the United other complications that arise in an
States. emergency. Diversity should be a
While the concept of crisis is a consideration in all crisis response
universal one, culture plays a planning, and an inherent piece of
significant role in disaster the framework used to develop
response.15 Catastrophes, espe- those plans, too.
cially cross-border ones, are likely
to involve employees or clients VIII. DO Polish Your Crisis
from multiple cultures. When a Communications
crisis strikes, people react and
recover within the context of their Some of the most high-stakes
individual backgrounds, viewpoints, communications a company
and values. Culture influences how engages in occur during times of
one assigns meaning to a given crisis. Prompt and frequent
crisis, and it may even affect what communication is essential when
15 Richard Levick, Litigation unspoken yet outsized influence on almost
Communications in the Information Age: all high-profile matters. . . . Great leadership
What Every Lawyer, General Counsel, comes from those who understand and
Communications Officer, and Board Member appreciate that the culture of the market
Should Know, 38 OF COUNS. 6 (2019) where the crisis arises has to be the culture
(“Culture dictates outcomes” and “has an of the crisis team.”).10 DEFENSE COUNSEL JOURNAL | JANUARY 2022
managing a business crisis. What is will limit the means by which your
said, how it is said, and when it is organization may communicate
said are of the utmost importance at with employees, clients or
times like these. customers. Some crises will limit or
Keep the company’s ethos and eliminate your ability to transmit
goals front of mind when crafting crises communications in-person,
crisis communications. Engaging even when a face-to-face
an outside vendor may prove useful interaction might prove the most
to help draft the appropriate meaningful way to transmit your
messaging, avoiding landmines in company’s message. Be prepared
word choice and tone. Remember to navigate the challenges inherent
that audience considerations are to limited communication methods
key: In times of crisis, the right and to maximize the benefits of
communications to clients may those communications channels
differ from the right messaging to still available to your organization.
personnel. While a single, blanket
press release may prove useful in IX. DON’T Only Think About
terms of communicating promptly, Crisis in a Crisis
consider whether multiple
communications tailored to each The temptation exists to only
audience might best convey the think about a crisis while in a crisis.
company’s position in the crisis. It is easy to focus entirely on the
Geographic considerations may problem while it occurs.
influence communications choices, Alternatively, there may be a desire
too.16 When addressing an emer- to anticipate other possible crises
gency in multiple locales, it is while another one is still ongoing,
critical that oral and written simply because the urge to avoid
communications be available in all disasters altogether is so great in
languages spoken by the company’s that particular moment. On the
workforce and clients.17 other hand, it may be harder to
In addition, consider not only encourage the organization to
the content of crisis dedicate time and resources to
communications, but also the considering crises in times of calm.
channel. As witnessed during the Don’t be complacent or
COVID-19 pandemic, some crises distracted. In this context, timing
16See United States Department of Health 17 See also Y. Siew-Yoong, J. Varughese and
and Human Services, Substance Abuse and A. Pang, Communicating Crisis: How Culture
Mental Health Services, Center for Mental Influences Image Repair in Western and
Health Services, DEVELOPING CULTURAL Asian Government, 16 CORPORATE
COMPETENCE IN DISASTER MENTAL HEALTH COMMUNICATIONS: AN INTERNATIONAL JOURNAL
PROGRAMS: GUIDING PRINCIPLES AND 218, 236 (2011) (“[i]n a crisis, it is not what
RECOMMENDATIONS, 17-19 (2003). is spoken—it is how it is spoken”).Lessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 11
matters. Focusing wholly on the Be ready for the changes, and ready
crisis at hand until it is under to change with them.
control, and analyzing crisis The COVID-19 pandemic
management issues in times of calm, provided a recent example of the
are precisely the separate and importance of agility in a crisis.
distinct strategies needed to ensure Consider the industries, including
a company escapes a present many companies and
catastrophe with minimal damage manufacturers in the
and is ready for the next challenge. pharmaceutical, medical device,
When assembling annual budgets consumer products, machine, and
and calendars, consider the best life sciences industries that pivoted
time for your organization to tackle to producing personal protective
crisis management issues. While no equipment (“PPE”) in response to
crisis can be conveniently the pandemic. On March 17, 2020,
scheduled, companies can elect the U.S. Secretary of the
when they will dedicate time, Department of Health and Human
personnel and resources to Services issued a declaration under
anticipating or planning for crises. the Public Readiness and
Emergency Preparedness Act
X. DO Pivot, Pivot, Pivot (PREP Act) extending immunity
from liability for claims of loss
One of the many challenges in a caused, arising out of, relating to, or
crisis is the inability to settle in. resulting from the administration
Effective crisis management is or use of certain countermeasures,
guided by an approach that is such as respirators and masks, used
malleable and adaptable to the sea to combat or reduce the spread of
changes inherent to largescale COVID-19. On March 27, 2020,
disasters. President Trump signed the
Be ready to pivot, and pivot Coronavirus Aid, Relief, and
again as needed. If a plan is not Economic Security Act (CARES Act)
successfully addressing a problem, into law, which provided
change it. If a team addressing a emergency assistance to those
disaster is incomplete, add affected by the global pandemic by,
whomever you need to the group. If among other things, incentivizing
a communication issued about the businesses to manufacture
crisis has not landed right with the respiratory protective equipment
intended audience, try again through extension of certain
quickly. Be prepared to assess the liability protection to
situation and make informed but manufacturers of certain devices
quick decisions in real time. Agility used in the fight against COVID-19.
is a virtue when faced with a crisis. In response, U.S. companies that are12 DEFENSE COUNSEL JOURNAL | JANUARY 2022
not typically in the business of that cybersecurity, compliance, and
manufacturing PPE pivoted to data privacy top the list of most
produce and distribute this much- important issues for businesses. In
needed equipment. This example 2021, for the first time, the majority
illustrates how regulatory change of participants indicated that
may precipitate an opportunity to cybersecurity is a greater concern
pivot during an ongoing crisis. than compliance issues. In fact,
53.6% of participants indicated
XI. A Trend Emerged in a Year of they believe that data privacy
Crisis protection rules pose one of the
biggest challenges to their
A trend emerged in the last year: organizations.
doing business in the remote
environment. Many of us have
worked, or are continuing to work, DATA PRIVACY
from home or elsewhere beyond
the confines of the office. While CONCERNS
shifting to find success in the
remote work model was essential
for most businesses during the
COVID-19 pandemic, it also have data privacy
given rise to a shift in priorities and protection
potential concerns – namely, 47% 53% rules will
cybersecurity and data privacy pose one…
issues.18
The last year has put an
especially bright spotlight on these
issues, but this is not to suggest
these are new concerns. For the Derived from the Association of
third consecutive year, in the Corporate Counsel’s 2021 Chief Legal
Association of Corporate Counsel’s Officers Survey.
2021 Chief Legal Officers Survey,
which gathered responses from In addition, nearly 80% of
nearly 1,000 in-house counsel participants said they are at least
across 21 industries and 44 somewhat concerned about
countries, participants indicated changing data privacy laws in the
18 See Lakshmi Hanspal, Cybersecurity is Not Cybersecurity a Top Priority for Boards and
(Just) a Tech Problem, HARV. BUS. REV. (Jan. 6, CFOs, HARV. BUS. REV. (Jan. 28, 2021),
2021), available at https://hbr.org/ available at https://hbr.org/sponsored/
2021/01/cybersecurity-is-not-just-a-tech- 2021/01/how-to-make-cybersecurity-a-
problem; Mark Hughes, How to Make top-priority-for-boards-and-cfos.Lessons From a Year in Crisis: Do’s and Don’ts of Crisis Management 13
jurisdictions where they do (“HSDs”). In the wake of the hack,
business, while 18% said they are HSDs were no longer to be e-filed
“very concerned” about this issue. via the CM/ECF system, and instead
were to be filed in paper format or
via a secure electronic drive, like a
CHANGING thumb drive, to be stored in a stand-
alone system by the court.
DATA PRIVACY With the expectation that, at
least to some degree, the work-
LAWS from-home model will persist in the
wake of the COVID-19 pandemic,
at least companies must be laser-focused
on cybersecurity. The importance
18%2% somewhat
concerned of vigilance on this front cannot be
very overstated. And, as courts begin to
80% concerned open and we again begin to focus on
litigation, in the legal department,
consider whether your
organization’s workforce, now
Derived from the Association of
scattered across various
Corporate Counsel’s 2021 Chief Legal
Officers Survey.
geographies, may give rise to
unique litigation issues related to
While issues related to personal jurisdiction.
cybersecurity and data privacy are
not new, they have become XII. A Theme Emerged in a Year
especially important in the remote of Crisis
work environment. Ransomware
attacks were on the rise last year A theme emerged in the last
across all sectors and are becoming eighteen months: when in crisis –
more sophisticated by the day. even when we are all in the same
High profile hacks have become a crisis – a company’s best
fixture in the evening news, with emergency response strategies will
hacks seen in major industry be personalized to the organization.
leaders, like Colonial Pipeline in In 2020 and 2021, as the globe
May 2021, to the federal court weathered the same health crisis,
system in January 2021. The latter those organizations that invested in
prompted the U.S. Department of tactics specific to their needs, their
Homeland Security to issue an weaknesses, and their strengths
emergency directive and announce found success. A crisis’s impetus
new procedures for the filing of may be the same for many, but your
highly sensitive court documents organization’s best response must14 DEFENSE COUNSEL JOURNAL | JANUARY 2022 narrowly-tailored to your business. Applying a working understanding of crisis management tactics, like this quick reference guide, and adapting it to account for your organization’s particular position- ing in the marketplace is the first step to cultivating a robust crisis management strategy.
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