November 20, 2019
Scott Stanley joined host Tyler Hatch on The Digital Forensics Files podcast. Tyler quizzed Scott about jury trial selection in civil trials and then asked him about the rationale for class action lawsuits and how they work in the context of privacy and data breaches. Scott noted that class actions are intended to function as an incentive for good corporate behaviour. They are a way to hold corporations accountable for actions that cause loss or damages, even if those losses are small in scale for individuals. Scott gave the example of a minor overcharge on banking transactions. While the error might end up costing an individual consumer a minor sum when multiplied by a bank’s full customer base, the amount can be substantial. So, in the case where the loss is minimal, it is not worth it for an individual to take legal action against a big corporate player with deep pockets and in-house lawyers. Class actions are designed to level the playing field by letting people, who have suffered a common type of loss, band together behind a single (representative) plaintiff to take the action necessary to make a corporation correct the problem and make amends.
In Murphy Battista’s case Scott mentioned the firm’s experience in class actions related to medical devices (product liability), losses related to unusual transactions, and a new class action involving errors in the calculation of veteran’s pension benefits where the firm is co-counsel with several other firms.
Tyler and Scott both referenced the emergence of digital evidence in civil trials. From digital pinging technology that provides location information to social media posts about people involved in a dispute, the importance of digital evidence is definitely on the rise. Similarly, knowing how to find, extract, protect, and present digital evidence is becoming an essential part of a lawyer’s skill set. The data breach at Capital One, leading to the unauthorized leak of confidential consumer information, was one example discussed where digital evidence is critical. Scott made the point that the law around confidential information breaches is not well established, and the lack of litigation around it means that it is not well understood (yet). In these types of cases, it hard to know what the consequence of the breach will be. This missing impact knowledge makes it equally hard to establish proof of losses. Scott noted that there are very few torts that are actionable (meaning you can sue for damages) without proof of loss. In the case of a data breach, like the event that occurred at Capital One, the “wrong” would fall under a new category of torts called privacy torts. Privacy torts need to be associated with proof of damage or loss. So, at this point, it’s not easy to tell what that might be. For example, how do you quantify the loss of identity theft? It’s an emerging area that bears watching.
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About The Digital Forensics Files podcast
The Digital Forensics Files podcast is hosted by lawyer, and CEO of DFI Forensics Inc., Tyler Hatch. The podcast focuses on Canadian digital forensics and includes discussions with industry professionals and end-users of digital forensics services. Conversations focus on the latest developments and news in digital forensics, digital evidence, lawyers who work with digital evidence, privacy, and data security law, and cyber security/incident response.