CCBJ June 2023 Edition

Corporate Counsel Business Journal

JUNE 2023

VOLUME 31, NUMBER 6

Perception is Reality

ADRIENNE LOGAN JOINS CCBJ TO SHARE HER EXPERIENCES WORKING FOR THE GLOBAL APPAREL COMPANY, AS WELL AS HER VIEWS ON SETTING YOUR CAREER OFF ON THE RIGHT FOOT.

INSIDE

Perception is Reality

Make Way for Allied Legal Professionals

Mentorship, Sponsorship and Allyship

Immigration & Global Mobility

AND MORE!

NETWORK

The participants in the CCBJ Network demonstrate, through their many contributions, their unwavering commitment to the advancement and success of corporate law departments. The engagement and support of these “partners of corporate counsel” assure we continue to develop and distribute the news and information this unique and sophisticated audience relies on to meet the evolving legal and business needs of their organizations.

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American

Clifford

Contract

Mitratech

Thomson Reuters

Weil,

Advisors Contributors

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Please help us improve and expand our services to corporate counsel by sharing your ideas with our publisher, Kristin Calve, at 844-889-8822 or kcalve@ccbjournal.com

Perception is Reality

 Adrienne Logan, General Counsel for Vans, a VF Company, joins CCBJ to share her experiences working for the global apparel company, as well as her views on setting your career off on the right foot.

What led you to join Vans?

I've always loved working for companies with product that I'm excited about. If you look at my history, I've worked for Godiva, Kenneth Cole, and Avon. I like brands that are recognizable, and Vans is iconic on a global scale with deep roots in Southern California, which is where I live now. So that was a big driver.

Now that I’m part of the organization, I can also say the culture at Vans is really amazing. It's inclusive and it’s always pushing the boundaries. That's the context in which our tagline "Off The Wall"—a phrase coined by skateboarders while skating empty pools —was conceived. The message behind it is synonymous with Vans’ mission to empower everyone to be their authentic self through creative exploration. So, I would say that while I had respect for Vans before joining, now that I'm part of the team, I really love the company.

Please tell us about your leadership style and who or what has influenced it?

My leadership style is a mix of supportiveness and accountability. Vans is a fast-paced, demanding environment, and the ethos of the company requires self-starters. If you are on my team and not fulfilling commitments, that’s something we will address fairly quickly. In general, I like to give my team a lot of space and autonomy to get their work done because I think that's where the innovation and creativity come in. I'm open to the possibility that I may not see things exactly

as somebody else does, and that's okay. There are many different ways to get to certain solutions, especially in the law, so I'm very supportive of differing points of view.

What qualities do you look for when you're hiring new people for your team?

As I mentioned, Vans is a fast-paced, demanding environment, and has the ethos of a company that requires self-starters. Because of that, I have fairly high standards, and look for someone who has had a track record of success but also aligns with what I'm looking for and what’s best for the brand. At its core, Vans was built around Van Doren Spirit, derived from founder Paul Van Doren’s

underdog mentality, grassroots approach and tenacity. This sentiment remains a guiding force at the company. To that end, during the interview process, I’m looking for candidates who are prepared to roll up their sleeves and do what needs to be done. So, in terms of personality, I’d say I’m looking for a combination of confidence and humility. And of course, the threshold question is: Does their work experience include the skills we need.

How would you describe the culture of your organization?

I would say Vans is one of the best company cultures I've worked in. There’s a relentless focus on the consumer, and an ongoing respect for the varied work styles, culture and needs of employees. There’s also a very strong focus on financial performance and a clear vision for the future. Vans is one of the biggest brands within our parent company – VF Corp.’s portfolio, so we're very clear about what our role is within the broader organization and what is expected of us. So what I see in terms of both employees and leadership is a really positive mix of accountability and having an environment that is going to make employees productive and keep them satisfied with their jobs. Listening to employees and proactively asking for their feedback, insights, and opinions is an important part of this process.

What is the greatest or most high-impact career advice you've received?

I think it’s “perception is reality.” Even if the feedback you receive does not align with your view and you ultimately decide not to incorporate it, you have to respect the fact that someone else’s perception is their reality. So if someone is repeatedly giving you feedback that you don’t agree with, you have an obligation to figure out what's contributing to that perception, and to address it because it could affect your ability to rise in the organization or be selected for special projects. I think it's very important

to listen to all feedback that you receive; to deepen your understanding of that feedback by asking questions; and to keep in mind that even feedback you don't agree with is part of how your corporate story is being written, so you have to manage to that as much as to those things that ring more true to you.

What changes would you like to see within the legal profession?

I'd like to see a reevaluation of the billing process as it relates to external counsel, as well as the manner in which we have outside counsel pitch us their business. I would welcome innovation especially because businesses— particularly in the retail area— are changing and undergoing significant re-assessment in this post-pandemic world.

Most retail companies are re-evaluating where their key revenue is coming from, reviewing how they speak directly to the consumer, and reimagining how they remain relevant. All of these challenges are yielding innovative solutions. From my perspective, there is a space for our law firms to get more in line with the innovativeness that's taking place within our business organization.

Additionally, I would like to see if there's a different way that law firms can make themselves available to us. Lawyers often ask us to lunch or invite us to attend an event. And while that’s a nicety that enables us to expand our network for potential future partnerships, for me, the most critical component is if the firm is providing great legal work, and can be responsive to our needs. I’m interested in how we can restructure the process to be more inclusive of firms in different regions and of lawyers outside of who we normally do business with. I just think there's a lot of room for innovation, and I would love to see it.

Front

Make Way for Allied Legal Professionals

New Legal Role Designed to Address Affordability Issue

IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, recently released an important new report, Allied Legal Professionals: A National Framework for Program Growth as part of its Allied Legal Professional project. The idea is to standardize a new tier of legal professionals that, if all goes well, will increase options for affordable legal help for the public.

Limited License Legal Technician

Licensed Paralegal Practitioner

Paraprofessional Legal Practitioner

Licensed Legal Technician

Limited Licensed Legal Practitioner

Limited Legal Practitioner

Licensed Paralegal Legal Technician

Limited Legal Advisor

Limited Legal Advocate

Licensed Legal Paraprofessional Legal Paraprofessional

“To hire a lawyer, people either need considerable money or have an income low enough to qualify for the limited legal aid available. The problem is that the majority of people in the middle class don’t fit into either of those categories, making access to legal services incredibly difficult,” says IAALS Director of Special Projects Michael Houlberg. “Even if every lawyer took on pro bono clients, it wouldn’t come close to addressing the need. And IAALS’ research shows that people who need legal help are open to receiving it from qualified and authorized providers who are not lawyers.”

IAALS lays out 18 recommendations, ranging from allowing for in-court representation without attorney supervision (#8) to authorizing ALPs to do transactional work (#4) to ensuring education and training requirements are not so burdensome as to defeat the goal of providing affordable legal help (#11). Notably, recommendation #1 is about titles.

“Thoughtful decisions on titles can help ALPs gain recognition as legitimate legal service providers,” IAALS explains, noting that terms such as “limited” or “paraprofessional” may signal that ALPs are not fully qualified.

3rd Annual

Legal Operations Executive Leadership Forum

Tarrytown House Estate

September 26, 2023

Legal Operations Executive Leadership Forum, created by CCBJ, is designed for law department and law firm operations executives. This will be an interactive, high level gathering exchange led by individuals revolutionizing the role legal operations in today’s corporations.

Kristin Calve CCBJ

Laura Kibbe Unisys

SHO R T TA K E S

AI Journey Gathers Steam

Olga V. Mack, VP at LexisNexis, ruminates on our collective AI journey, confronting lawyers head on with the difficulties ahead. “Even though the developers of AI can’t always accurately predict its capabilities,” she writes, “ABA Resolution 112 requires that lawyers address AI-related ethical and legal issues and know when the risks of using AI outweigh the benefits. Much is in flux, and much more remains to be discovered.” She frets about unintended consequences trailing in the wake of rising AI adoption. To identify and mitigate the potential adverse effects of AI, your AI conversation will likely include a diverse cast from legal ops pros to regulators to outside counsel and clients.

All Aboard the AI Express

AI tools such as ChatGPT are giving in-house counsel the willies as they fret over protecting trade secrets and privileged information. Facing an avalanche of AI apps, it’s tempting to block them all, but that would mean blocking access to the Internet. Not likely. Here’s an alternative: A corporate counsel AI taskforce should proactively recommend or adopt new tools geared to a systems-level approach for improving efficiencies on their work product – before C-suite executives forge a company-wide modernization without participation or buy-in from the legal department. “It’s better to be on the train than run over by it.”

Source: Bloomberg Law

Safe AI Takes Work

Open AI, developers of ChatGPT, released a safety guide of sorts. Clearly designed to soothe a fretful public, OpenAI emphasizes its commitment to keeping AI safe and beneficial. However, Open AI has caveats based on the limits of what they can and can’t do in a lab setting, including predicting how people will abuse AI tools. “That’s why we believe that learning from real-world use is a critical component of creating and releasing increasingly safe AI systems over time,” OpenAI says.

Source: OpenAI

CHATGPT Will Disrupt

ABA Journal legal affairs writer Matt Reynolds says ChatGPT will do many things – help with research, assist with drafting contracts, briefs and pleadings – but it will not steal lawyer jobs. “While ChatGPT can automate certain tasks . . . it cannot replace the expertise and experience of a skilled lawyer,” says Reynolds, who quotes Suffolk Law School’s flesh-andblood dean, Andrew Perlman, who has used ChatGPT to help with legal writing. “We’re not there yet,” he says, “but it’s pretty clear it’s coming very soon, and it’s going to have a disruptive impact on the way we go about our work.”

Source: ABA Journal

CLOs Need a Seat

Two leaders with the Association of Corporate Counsel teamed on this piece to hammer away at a key ABA theme: All GCs/CLOs must have a seat at the table. The absence of the CLO’s voice works against the best interest of investors and other stakeholders, they say, noting that the best way to make that happen is by having them report to the CEO. Boards, institutional investors, CEOs, regulators, and the judiciary should support this as a matter of corporate governance, which sets the right "tone from the top" on corporate culture.

Source: ACC Docket

Intelligence x 4

Stephen Abram, executive director of the Federation of Ontario Public Libraries, blogs about the differences between AI and AGI, starting with psychologists’ four types of intelligence: Intelligence Quotient (IQ) - measure of IQ needed to solve math, memorize, and recall lessons; Emotional Quotient (EQ) – the measure needed to maintain peace with others, be responsible, honest and respect boundaries; Social Quotient (SQ) is the measure of ability to build a network of friends and maintain it for a long time; and Adversity Quotient (AQ), which is a kind of going-gets-tough measure. It requires all four types of intelligence to become a multifaceted, independent leader.

Source: Stephen’s Lighthouse

Source: Wolters Kluwer ELM Solutions

Briefly

Onit Launches Integrated Task Management in Its SimpleLegal Product Line

Cooley Advises Synthesia on $90 Million Series C Financing

Ness Cohen Named New York Office Managing Partner at Clifford Chance

Restructuring Partner Aaron Gavant Joins Barnes & Thornburg in Chicago

Clifford Chance continues global expansion of Energy & Infrastructure practice with launch in Houston

Weil Structured Finance Group Advises Guggenheim Securities on PureWest Energy’s Merger Acquisition Financing

McGuireWoods Advises Summit Park in Sale of Parkline to Trachte LLC

Tarun Warriar Expands Global Special Situations & Private Credit Growth with Akin Gump in Hong Kong

Nicole Milstead Appointed Chief Marketing Officer at Agiloft

Thomson Reuters brings forward vision to redefine the future of professionals with content-driven AI technology

Lighthouse Launches New Managed Review Practice

Barnes & Thornburg Expands To Nashville, Bolstering National Healthcare And Capital Markets Practices

Cooley Advises Snyk on its Acquisition of Enso Security

Energy Partner Chris Bennett joins Weil in Houston

Required Reading

Too busy to read it all? Try these books, blogs, webcasts, websites and other info resources curated by CCBJ especially for corporate counsel and legal ops professionals.

BLOG: MIT Technology Review

As a small team from OpenAI played around with their text-to-image model, they quickly figured out they were on to something special. “As the Open AI team tinkered with the model, everyone perked up. It was very clear that this was it—this was the product,” says Sam Altman, leader of OpenAI. “There was no debate. We never even had a meeting about it.” Nobody, however, could have predicted just how big a splash this product was going to make. “This is the first AI technology that has caught fire with regular people,” Altman says.

ANNOUNCEMENT: Gartner Legal & Compliance

Garter calls on legal and compliance leaders to address exposure to six specific ChatGPT risks, and what guardrails are needed to ensure responsible enterprise use of generative AI tools. The six risks are: Fabricated and Inaccurate Answers; Data Privacy and Confidentiality; Model and Output Bias; Intellectual Property and Copyright; Cyber Fraud; and Consumer Protection. “The output generated by ChatGPT and other large language model tools are prone to several risks,” says Ron Friedmann, senior director in the Gartner Legal & Compliance practice. “Legal and compliance leaders need to ensure their organization’s ChatGPT use complies with all relevant regulations and laws, and appropriate disclosures have been made to customers.”

COLUMN: ABAJournal.com

Nicole Black, Senior Director, SME and External Education at MyCase, a company that offers legal practice management software for small firms, writes here about the intersection of AI and contract management. “The adaptive nature of contract analysis software enables it to continuously learn from newly added contracts, such as nondisclosure or employment agreements,” she says. “If your legal practice involves frequent contract review, it would be a mistake to overlook the advantages that these software solutions offer.” Her non-exhaustive list includes: Spellbook, a contract analysis tool built on ChatGPT4, LegalOn AI Revise; a GPTpowered contract editing tool; Lexion AI Contract Assist, an AI-powered addition to Lexion’s Word plugin using GPT-3.5 to assist in drafting and negotiating contracts; and Ironclad AI Assist, a GPT4-powered redlining tool.

Contributors

Thanks to the law firms, technology companies, alternative legal service providers, management consultants and other supporters of corporate law departments who share their insights and expertise through the CCBJ network. Your participation is appreciated.

Troy Groetken is a Shareholder, Board Member, and Executive Committee member with McAndrews. He has approximately 25 years of legal experience in the intellectual property field and more than 25 years of technical experience in the pharmaceutical, biotechnological, and chemical fields. He is recognized in the IAM Patent 1000: The World’s Leading Patent Professionals and has been listed as one of the Best Lawyers in America since 2012.

Sarah Hawk is a partner with Barnes & Thornburg in Atlanta with a specific focus in Immigration & Global Mobility. Sarah provides crucial immigration counsel to domestic and multinational companies in various industries such as healthcare, financial services, hospitality, higher education, and technology, among others. Sarah brings nearly 20 years of experience helping companies develop and implement immigration policies to secure visas and permanent residence status for executives, managers and critical employees.

Stacie LeGrow is Vice President and Deputy General Counsel at Cisco Systems Inc., in Raleigh, NC, where she leads a team of over 50 legal professionals supporting Cisco’s business in the US, Canada and Latin America. Stacie received a BA from the University of North Carolina and a JD from North Carolina Central University. She is originally from Swansboro, NC and currently resides in Raleigh, NC.

Adrienne Logan is currently functioning as Global General Counsel at Vans. As an internal General Counsel with substantial public and private experience, she has been able to provide significant value and experience. Logan brings an unusual perspective to her legal roles in that she has an MBA and accompanying business experience. Logan also has a broad-based legal background, having worked within a law firm, for a federal judge, and in multiple Office of General Counsel roles. Her corporate experience spans several industries (finance, consumer goods and the luxury sector) and a wide range of legal issues such as corporate governance, IPO, M&A, employment law, IP, corporate governance, litigation and many more.

Nordo Nissi is the Head of Electronic Discovery and Litigation Technology in Goulston & Storrs’ Litigation group. Nordo is responsible for all phases of electronic data discovery projects. He has over a decade of experience working with clients across a broad range of industries. Nordo is a member of the Board of Directors for New England Litigation Technology Professionals (NELTP). Prior to joining Goulston & Storrs, Nordo was a Senior Analyst for the Litigation Technology Group at an Am Law 20 firm.

Tracy Wright is a Principal Corporate Counsel at Cisco Systems Inc., in Raleigh, NC. Prior to Cisco, she was a Corporate Compliance Attorney at LabCorp. Tracy received a BA from Trinity college and a JD/MBA from North Carolina Central University. She is originally from Brooklyn, NY and currently resides in Durham, NC.

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Akin Advises Pharmakon Advisors in its $275 Million Debt Facility with Reata Pharmaceuticals

Clifford Chance advises Informa on acquisition of Winsight

Vertica by OpenText and Anritsu Sign New Deal for Next-Gen Architecture and 5G Network Capabilities

Simon Amies Expands Life Sciences Practice at Cooley in London

Weil Advises TPG in its $2.7B Acquisition of Angelo Gordon

Nicole Giantonio joins Epiq as Chief Marketing Officer for Legal Solutions

Mitratech Announces Partnership with Leading CLM Provider, Agiloft Onit Bolsters Portfolio of Legal Workflow Solutions

Clifford Chance advises Alter Domus on its strategic acquisition of Solvas

Thomson Reuters introduces Cloud Audit Suite, the UK’s first fully cloud-based endto-end audit software

Dayan Rosen Boosts Debt Finance, Private Equity Capabilities With McGuireWoods

Weil Advises Providence Equity Partners and Heron UK Bidco on the Recommended Cash Offer for Hyve Group Plc

Pulse

Mentorship, Sponsorship and Allyship

STACIE L E GROW & TRACY WRIGHT CISCO

CCBJ: How did the two of you meet and how has your relationship evolved?

Stacie LeGrow: Our local chapter of the Association of Corporate Counsel invites law students to participate in some of its events, and I met Tracy at one such event. She was a 3L at North Carolina Central University School of Law in Durham, where I had gone. She introduced herself and we started talking about Cisco, the many roles I have had at Cisco and her own career aspirations.

From the start I thought to myself, “This is someone I need in my hiring pipeline.” I just had a feeling she’d be a great culture add to Cisco. And I loved the way that, already as a law

student, she was thinking five steps ahead about her career.

Tracy Wright: Stacie might not remember this, but during our first meeting she said to me, “Are you interested in technology?” and while I had more of a healthcare-leaning focus at the time, I was also smart enough to know that if a lawyer at a leading technology company was asking, my first answer had to be yes, and then I would just have to do my diligence after.

So, I went home that night, and I googled all things Cisco. And over the weekend, I listened to a “How I Built This” podcast about the company. Stacie became my mentor, and we checked in all the time. In every job prior to joining her at Cisco, she highlighted work I should be taking on, agreements I should be reviewing. It didn’t matter the

industry, she was like, “You get your hands on contracts because that’s going to be a valuable asset as we move you into the goal of getting hired at Cisco.” This is not an overnight story because I did not work at Cisco till many years later, but I credit Stacie with preparing me for the opportunity and opening that door.

Something else I also appreciate about our relationship, both professionally and personally is that Stacie is not afraid to give transparent feedback. I need to know my weaknesses because that’s how I grow, so I do appreciate that she’s created that comfortable space for me to get her true opinion on things.

LeGrow: Not all lawyers are that open to feedback or can handle it as well as Tracy. On the other hand, I’ve never had to give her much feedback. I knew Cisco was going to stretch her because her background was in compliance, and she hadn’t done a lot of commercial technology work. When I put her on one of our biggest accounts, I knew she would put in the sweat equity to get up to speed. Tracy was promoted within two years, reflecting the significant impact she was having for her clients, and for our legal team.

Can you describe the difference between mentorship and sponsorship, and what role each plays in professional development and retention?

Wright: I think of a mentor-mentee relationship, it’s really the mentee’s job to stay in touch with their mentor. The mentor must be willing to continue the relationship, but the mentee is the driver of that relationship. Bottom line –I own my career. But mentors also must be honest with themselves to ensure they have the capacity to invest in advising their mentee when asked and the experience and commitment to ensure that feedback is authentic. When I was a student, Stacie would treat me to lunch in the Cisco cafeteria (they have great food!).

Every time I was in a new role, I would reach out to Stacie, and she would provide the necessary feedback, even

though she was incredibly busy. Over time, sponsorship was just a natural transition, but that was because of the work I did to stay in touch with her. I would define a sponsor as someone who advocates and speaks for you when you’re not in the room, and Stacie does that for me. But sponsorship evolved naturally over the course of our building a mentor - mentee relationship.

LeGrow: As we got to know each other better, I just naturally wanted to sponsor Tracy, not only with the ultimate goal of getting her into Cisco—which, make no mistake, was my goal from the very beginning. When Tracy was working at another organization, she was working with a previous colleague of mine. I remember telling him how lucky he was to have her and what an incredible resource she is. To me, even those conversations are a part of sponsorship. Of course, my colleague already knew that, but I think as a sponsor you have an obligation to be active, whereas the mentorship relationship was a little more reactive on my part.

As a sponsor, I felt a real obligation to take what I knew about her strengths and make sure that she was getting the right experience, including positioning her wherever I could and introducing her to people. We would discuss potential career moves and how she could leverage each opportunity to continue to build her skills and experience to reach her goal of becoming an in-house tech lawyer.

Our sponsorship relationship continues to evolve. Tracy was recently nominated as one of our LCLD (Leadership Council on Legal Diversity) pathfinder fellows this year, and while I didn’t have the privilege of nominating her, I was an enthusiastic supporter of that nomination. At the end of the day, I’ve gotten back much more from sponsoring Tracy than I’ve put into it. Cisco has benefited from the great work she’s done for us as well.

Wright: Honestly, as I got to know Stacie, working at Cisco

was secondary. I was so impressed by her background and her career trajectory that it really became a learning opportunity for me to get to know her work. And since our relationship started when I was in law school, I was able to chart my course early on. I still remember saying to her at our first meeting, “I can’t wait to work in tech”.

LeGrow: I wasn’t Tracy’s only mentor, and now that she’s in my reporting line, I’m not really her mentor as much as I am her sponsor. I think that’s also a great message for your readers, and particularly law students. It’s important to have more than one mentor because they can help you with different things that you’re struggling with. I might not be able to help Tracy as a woman of color because I don’t have the same experience. We talk about inclusion and diversity issues all the time, and Tracy’s educated me on her experiences, but sometimes you need more than one mentor and that’s an example why.

Wright: Also, as our working relationship has evolved, it has allowed me the space to reach out to other people outside the organization. Cristina Fernandez and Kim Maney, two lawyers here in the RTP have also been fantastic mentors and sponsors to me. Where I wouldn’t necessarily go to my VP, Stacie, to talk about certain things out of respect for the reporting line, I can reach out to Kim for example, and say, “Okay, here’s where I am at Cisco. Here’s what I’m thinking. How do I posture this?” And she’s been a great sounding board.

So having different people in your network that will champion you and with whom you can have candid conversations is also very helpful. Please share some high-impact talent development initiatives that you’ve been a part of or have observed over your careers?

LeGrow: One thing I would talk about at Cisco is our legal intern program, LEAP, which stands for Legal Experience

Acceleration Program, and I give huge credit for its development to our chief legal officer, Dev Stahlkopf. It was one of her goals when she joined Cisco. It’s a novel program for 1L students in their first summer, building toward an inhouse position upon graduation.

Historically, few corporate legal departments have been prepared to comprehensively train lawyers straight out of law school. The conventional wisdom has been to wait till they’ve been practicing at a law firm for five years or so and then bring them in-house. The advantage of LEAP is they get a jump on their in-house career. Not everybody wants to start their law career at a law firm. It’s great for us because by the time they start full-time, they’ve had great grounding in many of the issues that come up in-house. We’re only in our second programming year, but it’s been a fantastic experience.

The program also reflects our inclusion and diversity goals, in that it allows us to build relationships with a broader range of law schools, including HBCU schools. Tracy and I are graduates of North Carolina Central University School of Law, an HBCU located in Durham.

Wright: I agree. I’m on the LEAP committee and what I’ve found impressive is that the committee is truly diverse. My perspective was welcomed, and I found that to be really refreshing. We have a fantastic incoming class and outstanding returning students. I’m very excited

Stacie LeGrow is Vice President and Deputy General Counsel at Cisco Systems Inc., in Raleigh, NC, where she leads a team of over 50 legal professionals supporting Cisco’s business in the US, Canada and Latin America. Stacie received a BA from the University of North Carolina and a JD from North Carolina Central University. She is originally from Swansboro, NC and currently resides in Raleigh, NC. Reach her at stlegrow@cisco.com

to witness their careers because I think we did a great job of interviewing and hiring strong, diverse talent.

Another opportunity I would also credit to Dev is introducing the LCLD program to Cisco Legal. I was a 1L mentee in that program when I was in law school, which helped me meet other lawyers in the area. Years later, full circle, I was nominated for the 2022 LCLD Pathfinder fellowship. I was given the opportunity to attend sessions on leadership, building career goals and managing up. Also being an LCLD Pathfinder alumni is a gift that keeps on giving. I’ve met some amazing diverse lawyers on this journey with whom I’m still friends today. Providing lawyers of color in your organization an opportunity to meet and network of other diverse lawyers is invaluable.

What’s the key to successfully developing and rolling out enterprise-wide initiatives? How do you develop support from the executive team management and the rest of the staff?

LeGrow: We’re lucky at Cisco because I feel that from the C-suite on down we haven’t had to fight for that support. In fact, top leadership has been real champions of inclusion and diversity. Cisco’s purpose is to “power an inclusive future for all” and I really feel like we’re trying to live up to that idea, especially in our legal department. When we started our LEAP program, we had a lot of guidance from Dev, but we were also encouraged to experiment. One of our executive sponsors is

Graham Allan, a senior vice president and deputy general counsel for strategic programs & legal operations. He gave us the permission to empower our team of volunteers, who’ve helped us put together and continue to run the program together and make the day-to-day decisions. Graham also encouraged us to gather feedback from the interns about what makes a really interesting, differentiated and competitive program for them.

I would also advise staying in touch with the students that you are serving and always being mindful that while these interns are going to add a lot of value to your organization over the years, you’re also giving back to the communities in which you live, work and play.

Wright: I agree. If an organization is focused on developing support from the executive team management on diversity and inclusion initiatives, there are also studies that show that diversity sparks innovation, an increase in customer base, and strong collaboration. It should be a no-brainer that this focus benefits employees and the organization.

What are some obstacles one should anticipate in DEI?

Wright: I am not a DEI expert, but there are people in the legal space that are, and it is very important to tap their expertise. We have in-house DEI professionals at Cisco who have helped define what it means to recruit diverse candidates for our LEAP program. To me, diverse backgrounds also include for example, first-generation college/law students, evening students working full-time jobs and students who are single parents attending law school full-time. Those backgrounds are career assets because juggling day-to-day life and law school is the very definition of hustle and grit.

But what I have found is that sometimes those same students are not aware of the power that they harness. Stacie and I feel it’s important to engage students who may not be applying for the LEAP program because they’ve

Tracy Wright is a Principal Corporate Counsel at Cisco Systems Inc., in Raleigh, NC. Prior to Cisco, she was a Corporate Compliance Attorney at LabCorp. Tracy received a BA from Trinity college and a JD/ MBA from North Carolina Central University. She is originally from Brooklyn, NY and currently resides in Durham, NC. Reach her at tracwrig@cisco.com

already counted themselves out. They’re closing the door on an opportunity before they’ve had a chance to see where it might take them.

I don’t know if that answers the question of roadblocks in an organization, but I do think if you’re going to recruit diverse candidates, it is important to understand the individual fully. And sometimes, they are not someone who has had a “straight line” path. It’s important to take the background of a diverse candidate that into consideration.

LeGrow: If you’re in a smaller organization, or a small law firm, without a DEI professional, educate yourself about it. There are tons of material out there. Don’t assume you know what DEI looks like. As a white woman, my thinking on that has really evolved over time, in part because of my relationship with Tracy. So, keep an open mind about it. The other challenge for companies of all sizes is getting beyond “check the box.” At a certain point, it’s not just

about how many people of color, or how many people are neurodiverse or differently abled, there are in your organization. It’s about whether inclusion and diversity are part of your organization’s DNA? We’re on that journey and I’m proud of the progress we’re making.

Wright: We’re fortunate to have Social Impact and DEI leaders like Brian Tippens and Gloria Goins at Cisco, but even if you don’t have a DEI team, you can still advocate in ways that will help get you to the goal.

What are some long-term planning tactics that you would recommend, and the critical KPIs that organizations can benchmark against? I think Cisco is ahead of the curve and could help influence the way others are building their programs.

LeGrow: I would have to defer on that one to some of our professionals who work in the DEI field. But, as I stated previously, don’t focus on “checking a box”. Focus on engaging

with your employees, have candid discussions on metrics with DEI experts and execute your initiatives with intention.

Wright: Cisco provides you the opportunity to bring your full self to work – it is a key part of the culture here. Who I am is celebrated. This type of environment is invaluable to people of color in corporate spaces.

Please share any resources with our readers who are interested in getting more involved in mentorship, sponsorship, and other DEI initiatives.

Wright: I can’t speak highly enough about LCLD, which welcomes senior leaders and young lawyers alike. The website offers a wealth of information on leadership and diversity and provides opportunities to get involved with

mentorship opportunities and meet other diverse lawyers. LeGrow: Many companies and law schools have affinity groups, and they are a great resource. From a recruiting perspective, they’re a great way to get candidates for your hiring pipeline. We have a ton of affinity groups at Cisco and most of them are active and growing. If you’re a smaller company and don’t have any, start one at the grassroots level. It can be a powerful way to achieve proximity to others who share your experience. Even if you’re not a person of color and want to join a Black affinity group, you can do that and it’s a great way to get close to and understand the experience of someone who may not look the same as you.

Wright: There’s also your local bar. The North Carolina Bar Association has excellent programs, one being Minorities in the Profession, which host panels for young lawyers to learn about the profession.

LeGrow: Several years ago, in the wake of the George Floyd murder, we started a social justice reading group at Cisco based on the ABA’s reading list. It was a global initiative and about 10 groups, all within legal, were assigned readings and then came together to discuss. I learned things touching on issues of diversity that I never knew. It’s a great way for you to get up to speed on some of the issues around social justice around the world.

Wright: I agree. I enjoyed having allies from, and being an ally to, colleagues from a wide variety of cultures and ethnicities. It created a safe space for us to have candid conversations. It was a 12-week program, but some groups kept meeting!

One book I’d recommend is The New Jim Crow by Michelle Alexander. Another is The Color Of Law by Richard Rothstein.

LeGrow: The Warmth of Other Suns by Isabel Wilkerson was life-changing for me. It’s not an easy read, but I would definitely recommend it. 

Immigration & Global Mobility

SARAH HAWK BARNES & THORNBURG

Sarah, thank you for joining us today to share updates on immigration and global mobility with our readers. To kick off the conversation, in the current U.S. immigration climate, what are two top concerns of employers?

1) U.S. employers are racing the clock to reach compliance.

The first area of concern relates to compliance. The I-9 flexibility rule, announced in March 2020 at the start of the pandemic and updated in March 2021, is expiring next month. This rule allowed employers to review documents remotely for completion of the Form I-9, Employment Eligibility Verification, which must be completed by US companies for all new hires. Now, the flexibilities induced by the COVID-19 pandemic are ending, and a final grace period has been extended to employers. July 31 is a big deadline facing U.S. employers to return to in-person verification and update any I-9s for employees hired after March 20, 2020, if they have not done so already. Employers have until August 30 to review their I-9 forms for compliance, a process that includes meeting with employees in person to review employment authorization and identity documents, updating their Forms I-9 as needed. After more than three years of remote I-9 flexibilities, reaching compliance through in-person meetings will be a tough feat for larger corporations.

2) U.S. employers are faced with skills shortages without a way to fill the gaps.

Second, at Barnes & Thornburg, we’re seeing a high demand for talented applicants with degrees in STEM (Science, Technology, Engineering, and Math) fields to fill clients’ positions in IT, finance, and notably, healthcare, a sector with a low unemployment rate. Many of these sectors have historically relied on the H-1B nonimmigrant visa category, but it has become increasingly difficult to secure the numerically limited H-1B visa in recent years due to an increase in submissions in the annual lottery. The

H-1B lottery for fiscal year 2024 had over 780,000 H-1B registrants for 85,000 available H-1B slots, compared to over 460,000 available in the FY 2023 lottery, a 61% increase. Compared to 26.9% for 2023, the selection rate for 2024 was only 14.6%. Given the statistical challenges of securing an H-1B visa on behalf of employees, U.S. employers are unable to easily fill the gaps in the workforce.

Speaking of ways to fill workforce gaps, let’s talk about Deferred Action for Childhood Arrivals (DACA), which was introduced by an executive order during the Obama administration. This program is still a piece of the pie, so to speak, of employer action and obligations, but how big of a piece is it for large U.S. employers?

It isn’t a very big piece at the moment, but it certainly could be.

Since its inception, DACA has been important to employers as an estimated sixty percent of these individuals, often called DREAMers after the Development, Relief, and Education for Alien Minors or “DREAM” Act, are in the labor force.

There could be over 600,000 of these so-called DREAMers, but right now, we're in limbo as we await legislation to be passed. The Dream Act of 2023 has bipartisan support, having been introduced by Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) but it has been difficult to pass anything related to immigration because of the many issues we're seeing at the border and because of misperceptions or misunderstandings concerning the contributions of DACA recipients to our economy.

Polls show that most Americans are in favor of some type of DACA relief for these individuals because they've been vetted via background checks, fingerprinting, verification of educational credentials, and more. These individuals are adults and working, many in critical industries, such as healthcare, including nurses and first responders, as well as in education with an estimated 15,000 teachers in DACA status. They've resided in the U.S. for many years and, for

most, the U.S. is the only home they know. For these reasons, it really doesn't make sense to deny them an opportunity to continue living and working in the U.S.

For context, the proposed Dream Act of 2023 would create a conditional permanent resident status valid for up to eight years for DREAMers that would provide protection from deportation, work authorization, and permission to travel outside the U.S. There is some contention regarding healthcare insurance for these DREAMers that has become the subject of ongoing litigation, and we may not know until the case reaches the U.S. Supreme Court next year whether DACA will become an actual program under the rule of law. Until then, DACA recipients remain in limbo.

For now, the U.S. Citizenship and Immigration Service (USCIS) is not accepting new DACA applications, but those who have been approved under the previous program are eligible to renew their Employment Authorization Document (EAD) card and maintain DACA status, allowing them to avoid deportation and apply for employment authorization on a yearly basis.

It sounds like DACA has made a positive impact on the U.S. in general, but please tell us more about the pros and cons. Specifically, what are the economic benefits and downsides to extending work authorization to those eligible for DACA?

I've read some reports that DREAMers, by virtue of their ability to work and be consumers in the U.S., would bring billions of dollars to the economy. That’s billion with a B! Also, many DREAMers are working in industries facing unemployment rates of 5% or less, highlighting the critical need for such individuals.

While we await legislative action, how does the current “limbo” state of DACA affect employer practices?

Companies have to balance it all very carefully: abiding by employment laws when hiring individuals and longterm planning for their workforce. For those who have valid work authorization, employers are limited in their inquiries regarding the employee’s status and cannot

make assumptions about whether the individual’s DACA status is going to be available in the next year or two. On the other hand, employers must be realistic about what they can do as an employer and how to make informed operational decisions.

Many employers in the tech sector are pushing for DACA relief since they have so many employees whose status would be impacted by any kind of DACA program, whether it allows them to stay in the U.S. or not. With this in mind, employers need the government to address the issue one way or the other so companies will know whether and how they can lawfully employ these individuals.

Turning back to all categories, are there popular U.S. immigration options that companies can leverage to fill open positions?

NAFTA and, more recently, the USMCA for Canada, Mexico, and the U.S. have been very helpful in terms of global mobility options for those countries. The U.S. also has treaties with other countries, such as Australia, Singapore, and Chile, who are eligible for their own quota of H-1B workers, a carve-out of the lottery system.

We’re also seeing many H-1B employees affected by mergers and acquisitions. An H-1B visa holder can continue employment without interruption following a merger when the new employing entity qualifies as a “successor in interest” and agrees to take on certain responsibilities and follow specific steps prior to the close of the deal. We’re assisting employers with this to take advantage of a continuation in H-1B status for employees.

When there isn’t a viable U.S. immigration option to leverage to fill vacancies or extend work authorization for existing employees, how do employers respond?

Across the globe, there are companies who are asking the following questions: Where can we find talent if we can't find it in the US? Do we have offshore units in other parts of the world to help supplement our US workforce?

For example, I have a client that is looking to offshore its labor needs because it can't find enough STEM individuals in relevant fields. It is considering India, South Africa, and Canada.

In particular, Canada has become a hot spot for transferring talent, and we're now being asked by our global clients to provide both U.S. and Canadian immigration services. This is largely driven by the challenges involved with the numerical limitations of the H-1B lottery, which has become so statistically challenging that many talented foreign students who attend U.S. universities, earning master’s degrees and even PhDs, are leaving the U.S. if they’re not selected in the H-1B lottery. In many instances, they’re going to Canada.

Regardless of whether employers are considering outbound or inbound immigration, what are a few of the greatest challenges in the global mobility sphere in 2023?

In short, there are a lot of moving parts with global mobility, exacerbated by post-pandemic issues with processing delays at the consulates and U.S. agencies.

Facing backlogs when securing a visa appointment

With few exceptions, employees coming to the U.S. for the first time must secure a visa appointment at the U.S. consulate abroad to receive a visa stamp. Largely due to the COVID-19 pandemic and staffing challenges, the visa appointment backlog increased in recent years, and the consulates have not fully caught up to the demand

There are still some technical procedural issues that we're seeing post-pandemic and consulates worldwide are facing significant backlogs.

for visa appointments. This affects many immigrant and nonimmigrant visa categories, and we're seeing a high demand for visa appointment. Of note, India's backlog is projected to last another year, causing our clients have to keep checking the system for any missed appointments so they can seize the slot.

These procedural issues and delays that we're still seeing post-pandemic also affect employees who have been working in the U.S. since the onset of the pandemic without traveling internationally. Now, these individuals want to travel back to their home countries to visit family and loved ones but need a visa stamp before reentering the U.S.

As for those individuals who are waiting to get a visa appointment, we have to counsel them specifically. With respect to some professors, research scientists, physicians and the like, we have been able in some cases to request an expedited appointment. Similarly, we can help facilitate expedited visa appointments for employees of companies with critical needs.

Delays once in the U.S. In addition, we are seeing some backlogs once the individual arrives in the U.S. While nonimmigrant visa holders are technically work-authorized once they get their visa stamp and enter the U.S., the Social Security Administration has been

backlogged with the Social Security number (SSN) process, which is often required to add an individual to company payroll systems. We're seeing a delay of four to six weeks, or even as long as two months, to get a SSN. Some companies use the workaround of entering a “dummy SSN” and correcting the SSN on the back end for W-2s and W-9s once issued, but others require a Social Security number before placing the employee on payroll.

With so many moving parts, who is the best “captain of the ship” to navigate through the sea of immigration and global mobility?

We encourage employers to have a point person for immigration. Sometimes, it's a member of the Human Resources department, and other times it's someone in executive management or a member of the legal team. It really depends on the company.

Immigration counsel works closely with the company, in conjunction with the foreign national employee, to secure and extend an employee’s ability to lawfully work in the U.S. Immigration counsel relies heavily on consistent communication with the company, and such lines of communication must also be open to the foreign national.

To provide an example, the foreign national employee should be responsible for the employer of a work site change. The H-1B program regulates the work site location, and if an employee needs to move out of state or has other work site issues, they need to notify the employer to amend their H-1B before they can make the move. Having a point person or designated department can streamline this process.

We find that when companies invest in the personnel dedicated to the company’s immigration matters, they are able to build a robust immigration program together with immigration counsel that meets the needs of the company. 

Sarah Hawk is a partner with Barnes & Thornburg in Atlanta with a specific focus in Immigration & Global Mobility. Sarah provides crucial immigration counsel to domestic and multinational companies in various industries such as healthcare, financial services, hospitality, higher education, and technology, among others. Sarah brings nearly 20 years of experience helping companies develop and implement immigration policies to secure visas and permanent residence status for executives, managers and critical employees. Reach her at sarah.hawk@btlaw.com

Protecting Trade Secrets in Life Sciences and Pharma

CCBJ: To start off, please tell us what a trade secret is and how it differs from a patent or trademark.

According to the US Patent and Trademark Office (USPTO) a trademark is “a word, phrase, symbol or design that identifies your goods and services.” Identifying specific products or services as coming from a specific source distinguishes them from the product or services of other companies. If you see big golden arches, you know that’s a product from McDonald’s. Similarly, the unique contoured shape of a Coca-Cola bottle also indicates brand identity and qualifies as “trade dress,” which refers to the various elements used to package a product or service.

Patents or more specifically “utility patents”—the most common type—are issued by the USPTO for the “invention of a new and useful process, machine, manufacture or composition of matter, or a new and useful improvement thereof,” to protect the interests of the inventor by excluding others from making or selling the patented product during its patent term. For a patent to be issued, you have to meet the three requirements of patentability— novelty, non-obviousness and utility—and two subrequirements, which are true requirements under 35 US Code §112—enablement and best mode. There’s also a written description requirement so after the patent expires, the patent can be used to teach the public how to implement the invention.

Just as trademarks can have a certain lifespan if you don’t file your Section 8 and 15 Declarations demonstrating your continued, appropriate use of your trademark in commerce, patent protection lasts for 20 years after the filing date of the patent application.

A trade secret differs from both of the above. It has three components: (i) information whose (ii) economic value derives from not being generally known by others and

(iii) reasonable efforts have been taken to protect the trade secret. In other words, you’re required to do all you reasonably can to conceal the information from which you derive independent economic value from the public. Trade secrets can include a vast amount of information and know-how: from early-stage inventions and manufacturing processes that cannot be protected through patents to lists of suppliers and clients.

What’s nice about a trade secret is there’s no expiration. If you can maintain the secrecy around that information, including taking reasonable steps to prevent unauthorized use or disclosure of such information by employees and business partners, then it can go on and on and on for an infinite period of time.

People tend to like trade secrets, but the difficulty is twofold. First, you’ve got to maintain the secrecy, which is not always easy to do. Secondly, what if somebody reverse engineers? Reverse engineering is when somebody didn’t get the trade secret, directly or indirectly, by inappropriate means, but came up with their own technology which encompasses the trade secret. That is completely legal to do.

There’s always a risk of somebody taking a look at your technology—say you put a product out on the market— breaking it down and then figuring out the trade secret by reverse engineering, or if they’ve come up with something completely on their own (independent development) that is like the trade secret. Neither is illegal as long as they haven’t acquired the trade secret by inappropriate means.

How important are trade secrets in driving a company’s value? Why is protection of trade secrets such a critical challenge for companies in the life sciences and smallmolecule pharma space?

When a trade secret becomes public, it can be used by somebody else legally. As a result, the value of the trade secret obviously goes down. Plus, you don’t have the means

to protect it that is available to patents, trademarks and copyrights. We recommend to our clients that they look at multiple ways to protect technology that may be difficult to patent, such as, say, a design patent that can’t satisfy the requirement that it be primarily ornamental. In such a case, a trade secret program may be best suited.

Take the recent decision by the Supreme Court regarding life science cellular products in the case of Amgen Inc. v. Sanofi. Amgen lost because it did not provide sufficient information in its patent specification to enable its claims. What it said was, “We’re going to claim that our technology is what attaches, how it attaches, functionally attaches to a certain segment of DNA called epitope. What they did there was define the claims by how something functions. The Supreme Court came back and said, “You can have functional claiming, but the requirement to disclose information about that is quite high. You have to give quite a bit of information so that someone of ordinary skill in the art when they read that patent can make and use the invention without undue

experimentation.” Amgen lost lots and lots of money relating to that technology because they didn’t have a different way to claim it, at least in those patterns.

In the life sciences/cellular space, a major issue is

how to describe technology that is so new. You want to describe it with structure—the structure of the cell, the DNA, the mRNA, the antibody—it’s properties, characteristics and so forth, but what if the technology just isn’t there yet? That is especially true with respect to mRNA and CRISPR outcomes. Describing that technology is very difficult. Since we can’t really describe it in a way that is likely to meet patentability requirements, the better solution may be to keep it as a trade secret.

In other words, sometimes a trade secret is better if the technology is particularly unique in the way that we derive, process or even utilize it. In the diagnostic space, it’s very difficult to get a method patent through under 35 US Code §101 for patent eligibility. As a result, a number of

companies have decided that, based upon their technology, algorithms, reagents and so forth, it’s better to just have a trade secret program and license it out in certain modalities, where the licensee gets certain things but other things remain trade secrets. We have contracts and monitoring programs in place to do that with third parties.

There can be another cost to a trade secret: having to do all the manufacturing, commercialization, etc., on your own because you believe the more people who know about the trade secret, the more difficult it would be to keep it secret. However there are certain situations where you can have a trade secret and work with third parties under certain confidentiality agreements, joint development agreements, collaboration agreements and the like to maintain your trade secret protection.

With respect to life sciences in particular, how do trade secrets contribute to company’s value?

The value of a trade secret is that if you can protect it, you’re the only one that’s deriving economic value from it. Your competitors don’t have access to that information. They can’t go read your patent and then decide “we want to license that.” Yes they’re paying, but they’re also making money off of those products if they’re selling or sublicensing them.

A lot of banks know that if you have a product you can protect and can illustrate that you’re doing so through a trade secret program, that you have a significant economic competitive advantage over others.

A trade secret program starts with identifying your business’s trade secrets, and then putting in place a strong program to protect them. We help companies install such a program at whatever level is appropriate for them, and advise them on how to maintain it. We find that if you have a good trade secret program for information that can be properly defined as such, and you take steps to keep it secret by limiting access to

those that really need to know within your executive teams, research, manufacturing, teams and supply chain partners—controlling who gets what, when and how— then you can derive economic value from it for an infinite period of time.

Then the ultimate goal is: Can you improve that technology and keep that improvement secret as well? In doing so, in essence, you’re leap-frogging your value from trade secret one to trade secret improvement two to trade secret improvement three, etc., and you don’t have an expiration like you do with a patent, where you have to publicly disclose it. All you have to worry about is maintaining and monitoring your trade secret and keeping it secret. You will also want to watch the industry to see: 1) is it going away from you? and 2) that others aren’t reverse engineering. To reiterate, if you can maintain your trade secret, there is true value in utilizing this means to protect your innovations.

The banks respect that so if you can do it properly, you can see additional investment that you can put towards your commercialization efforts, manufacturing efforts, R&D efforts and so forth. A lot of trade secret programs are feeder programs into other programs that are additional sources of income, usually with utility patents, design patents, trademarks, R&D value, et cetera. Trade secrets can be a good springboard to other things.

How can companies go about establishing an effective trade secret protection program?

I would highly recommend that they interact with an intellectual property attorney who has significant trade secret experience because they may have to do a trade

What’s nice about a trade secret is there’s no expiration...it can go on and on and on for an infinite period of time.

secret audit to identify protectable trade secrets and whether they are still secret. If they’re not—if they’re too easy to reverse engineer, becoming public or already public— protecting them is going to be difficult.

But, if there is technology that can be set up as a trade secret and the audit supports that, we advise companies on how to set up a trade secret program, how to make sure all their teams understand the program, how to implement the program, and how to maintain the program. From the executive team all the way down to anyone who might have even a slim chance of interacting with trade secrets (i.e. R&D teams, commercial teams, marketing teams), the program should be set up so that it can truly adjust as necessary based upon which team is interacting with the trade secret.

We also advise companies on how to maintain their trade secrets when somebody comes onto their property, how to handle information being provided for review, how to manage technical discussions to make sure that trade secrets do not become part of it, how to handle confidentiality situations, not just with NDAs, but other measures to ensure that if you ever have to bring a claim of "misappropriation," you can prove careful management of the secrecy, including with respect to related or interrelated information.

Because trade secrets are tricky and you want to make sure you define them correctly and then protect them correctly, engaging a seasoned intellectual property attorney is highly recommended. Many missteps can happen that could cause you to lose your trade secret if you’re not thinking about several dynamics.

Can you expand on how a pharma or life sciences company can protect its trade secrets?

First of all, define what you think may be a trade secret. Is it a certain type of cellular or small molecule technology that is difficult to define? To reverse engineer? To understand?

Is the technology very cutting edge and maybe so new that, because of the difficulty in describing, installing, applying or manufacturing it, other protections where you have to disclose and you have to give enough information, e.g., utility or design patents, are not available? If so, then trade secrets would be something that life science programs, small molecule pharma programs and other pharma and diagnostics programs, would find most suitable.

Just look at the case law. It’s currently very difficult in the United States to get patent protection on diagnostics. In light of the significant headwinds that you would have to face, it may be better to find other ways to protect that technology. Sometimes it may not be the whole device that needs protection, but some subcomponent that’s critical to the device or system that could be protected as a trade secret. There are opportunities in the diagnostic space worthy of consideration. Reagents are one example, as are certain types of algorithmic outcomes, that may not be suitable for patenting.

The same thing is true in the life sciences space. Cellular material is so cutting edge that it’s often very difficult to describe with all its nuances. Trade secrets are one way to protect your technology as you continue development. They can provide value to drive commercialization or investment strategies until you form enough information such that you can consider other types of intellectual property protections. 

Troy Groetken is a Shareholder, Board Member, and Executive Committee member with McAndrews. He has approximately 25 years of legal experience in the intellectual property field and more than 25 years of technical experience in the pharmaceutical, biotechnological, and chemical fields. He is recognized in the IAM Patent 1000: The World’s Leading Patent Professionals and has been listed as one of the Best Lawyers in America since 2012. Reach him at tgroetken@mcandrews-ip.com

The Perils of Informal, Online Communications

NORDO NISSI GOULSTON & STORRS

CCBJ: Nordo, please talk a little bit about your background and what brought you to your current role.

In college, I was an undergraduate philosophy major, and law school seemed like the next logical step. Before taking that route, some family friends suggested that I dip my toes in the water first. At the time, many major New York City law firms had paralegal training programs. I applied for several and ended up at Skadden, Arps, where I learned what the practice of law is really like.

First, I worked in general litigation, and then mass torts. This was 2007, which was around when e-discovery was born and technology-assisted review was being introduced. It was an exciting time to be in this space. Rather than attending law school, I pivoted into the e-discovery world, where I’ve remained ever since.

I joined Goulston & Storrs in 2018 to help the firm build their e-discovery practice. Over the past four years, we have built a modern, flexible, and cost-efficient e-discovery offering for our clients.

How have communication modes in companies evolved, and how has that affected the cadence of the way people collaborate?

Historically, people would write formal memos that would be circulated via interoffice mail. It required a significant time investment to draft, revise, and then finalize the memo which would eventually be circulated in paper format and retained as an official record of the business. In the event of litigation, these paper documents would be accessed and reviewed. As time went on, the volume of paper became quite unwieldy. I've heard war stories from my more senior colleagues about being in warehouses for days or weeks, navigating paper cuts and unexpected creatures, like spiders, emerging from boxes stored offsite.

Then, in the '90s and early aughts, employees started using email to communicate more frequently, quickly, and

informally. For most of my career, emails have been the primary focus of e-discovery, but recently there's been a trend towards messaging and chat tools. I think that's happened for several reasons.

First, there's been a generational change. Millennial and Gen Z employees are big users of text messaging for personal matters, and they've brought these habits with them to the office. The COVID-19 pandemic also played a major role. Many firms were not equipped for remote work, and as employees transitioned to working from home, many started using their personal devices and/or off-channel messaging apps. Finally, our new hybrid work environment has also played a role; people need new ways to communicate with their colleagues, and therefore a lot of firms are experimenting with new tools.

Would you agree that it’s important to remind employees that all corporate communications may be discoverable, and that is not safe to assume that text and chat messages will not appear in an investigation or litigation?

Absolutely. It's important for corporations to be aware of these new channels of communication because their employees are likely using them, whether they're sanctioned or not.

There's an ongoing sweep by the SEC of private fund managers to deter misconduct and compel enhancements to recordkeeping practices or face severe penalties. Last September, 16 Wall Street firms admitted wrongdoing and agreed to pay penalties totaling more than $1.1 billion for recordkeeping failures. In connection with this enforcement campaign, the SEC also noted that they've run into multiple instances where the failure to retain offchannel, chat, or text messaging communications has made their investigations more difficult. It's important for all corporations to take note of these actions by the SEC, the CFTC, and other government agencies.

Even if a company is not a regulated entity, all corporate communications may be discoverable in civil litigation. Some employees may have the incorrect belief that only

email is discoverable, assuming "if I say something in a text message, no one will ever see it." But that's not a safe assumption. Employees should be reminded that all communications— no matter the channel—can appear in an investigation or litigation, and that they should take the same care when communicating on these platforms regarding business matters.

The adage, “don’t post anything online that you wouldn’t want to see on the front page of a newspaper,” applies even when text messaging or communicating on a chat platform like Slack or Teams. We've recently seen examples of employees using poor language in what they thought were private communications. A recent complaint by the CFTC against the digital asset exchange platform Binance referenced a lot of these off-channel messaging, text messaging, or chat communications. Some of Binance’s employees used these tools to map out a strategy to subvert U.S. regulations. The communications also revealed the employees’ awareness that the terrorist organization Hamas was using Binance’s platform, and that Russian customers were “here for crime.” These communications not only put Binance in a more difficult situation when trying to defend the lawsuit, but have created a lot of negative publicity for the company.

Another example of employees failing to take care in chat communications would be election-tech company

Dominion Voting Systems’ defamation suit against Fox News, where we saw a lot of the text messages and other digital communications leak or otherwise made public. The tenor of some of these—especially text message communications—were likely a major factor in Fox News agreeing to settle for $787.5 million. This is a prime example of how the informal communication style of these messaging apps can be problematic for corporations and why employees should take care when communicating on these platforms regarding corporate matters.

Most companies have policies in place to separate personal and professional communication, but how should a company go about enforcing said policies?

I'm not a practicing attorney, so I can't advise companies on policies. But it's a great question. Delineating between personal and professional communicating is always going to be tricky, but there are ways to do it. For example, some companies have a two-phone policy, so if employees need to message for professional reasons, it should be done on the company device. But what happens if there’s also a personal relationship with a professional contact, and what starts off as a personal communication about Memorial Day weekend plans transitions into the professional? Companies should enact policies and provide training and direction to their employees that govern this and similar scenarios.

It’s also worth noting that policies alone aren’t enough to protect companies. Going back to the aforementioned SEC enforcement actions, while many of these companies had policies, they didn't have the procedures in place to ensure compliance. Corporations should not only consider developing policies and training aligned with all laws and regulations relevant to their business, but they should also consider implementing practices to ensure that employees are compliant.

At the same time, companies aren’t looking to be too extreme with their policies if it's not necessary. There’s a delicate balance. Companies should think critically about the regulations that are applicable to their industry or sector and develop the appropriate policies to ensure compliance. Additionally, it's beneficial for employees to have a transitory communication method that may not be retained. Having documented guidance on official communications that will be retained as formal corporate records is necessary for all companies, but having some more temporary, informal tools where data is retained for a short period of time— again, if allowable—can be beneficial.

As said at the outset, with the transition to remote work, we need new ways of communicating. Sometimes an employee just needs to say, "Hey, I'm going to be five minutes late for this call," or to check in with someone about ordering lunch, or, to ask a colleague whether they’re going to an event. These are non-critical communications that may not need to be retained, depending on industry standards or, again, specific regulations imposed by the government.

What are your thoughts on document retention/legal hold options available within the new chat tools?

A lot of these tools have come a long way. Several years ago, while at a previous firm, I was involved with a second request where the client was using Slack. At the time, the messaging app did not have a great e-discovery component to its offering. Now, depending on one’s subscription level, there's quite a robust offering in terms of hold and export. The same goes for Teams. Microsoft has done a great job building Teams into the Office 365 Litigation Hold or

Microsoft Purview environment. Zoom Chat and other tools have also come a long way.

In addition to updating policies, companies should make sure they are subscribed to any chat product they are utilizing at an appropriate level. For example, if Slack is the preferred chat tool, companies should ensure that their subscription meets a level of e-discovery functionality needed if litigation arises. They don't want to be stuck using a free version or lower subscription tier and find themselves in a position that requires enhanced support and features that are not available.

Another potential pitfall is that companies often apply their legal holds too broadly. That approach can be hard to unwind, so lifting the hold is often difficult. It usually makes more sense to be more targeted and not implement holds for entire organizations; think critically from the beginning and only issue the hold to people who interacted with the matter; and find some space between the entire organization and the team that worked on the transaction or relevant matter. 

Nordo Nissi is the Head of Electronic Discovery and Litigation Technology in Goulston & Storrs’ Litigation group. Nordo is responsible for all phases of electronic data discovery projects. He has over a decade of experience working with clients across a broad range of industries. Nordo is a member of the Board of Directors for New England Litigation Technology Professionals (NELTP). Prior to joining Goulston & Storrs, Nordo was a Senior Analyst for the Litigation Technology Group at an Am Law 20 firm. Reach him at nnissi@goulstonstorrs.com

It's important for corporations to be aware of new channels of communication because employees are already using them.

The Tarrytown House Estate

CCBJ is proud to announce the 5th Annual Women in Business & Law, Nov. 13, 2023, 2022, at The Tarrytown House Estate in Tarrytown, NY. Back again for the 5th time, this right-sized, in-person event allows for crucial education, mentoring and networking as well as pending CLE-eligibility.

LEGAL TECH STARTUP SPOTLIGHT

CEO: Matt Spiegel

HQ: San Diego, CA

# of Employees: 50

Total Raised: $14.64M

Post Valuation: $56.00M

Growth Rate: 1.62% (97th %ile)

@Lawmatics

www.lawmatics.com/

Description:

MEDIAN 15.9x

SIZE MULTIPLE

Developer of marketing automation and CRM software designed to help lawyers operate efficiently and increase client intake. The company's software automates the process from lead to client, customs forms to gather important info, sends text messages and emails to engage leads, and offers custom reporting and dashboard, including ROI analysis and email marketing suite to engage contacts and clients, enabling law firms to follow up to their new potential clients immediately and increase client base.

Most Recent Financing Status

The company raised $10.00 million of Series A venture funding in a deal led by Ankona Capital on December 15, 2021, putting the company's pre-money valuation at $46 million. Bridge Investments, Interplay Ventures, Coppice Capital, The Legal Tech Fund, Eniac Ventures, Forefront Venture Partners and Revel Partners also participated in the round. The funds will be used to continue building its legal CRM, client intake, and marketing automation platform that gives firms the tools to streamline the business end of their firm.