September 18, 2020

Boies Schiller confronts Media on Sony data breach


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David BoiesBy Nathalie Pierrepont, From The Am Law Daily

has hired Boies, Schiller & Flexner to clamp down on media companies that have republished confidential—and at times embarrassing—information leaked about the company through a hacker. But its efforts may be in vain.

The cyberattack on the Japanese entertainment company by a group that calls itself the Guardians of Peace has uncovered information about Sony’s employee salaries, health records, movie stars’ fees and internal email exchanges.

Since the news of the breach broke on Nov. 24, ’s founder David Boies has struck back, sending a letter on Sunday to the legal departments of various media outlets demanding that they refrain from publishing any information obtained from the hackers and to destroy existing copies.

The letter said Sony “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the stolen information, and to request your cooperation in destroying the stolen information.” Failure to comply means Sony “will have no choice but to hold you responsible for any damage or loss,” it reads.

Press coverage of the internal documents and data—including racially-charged email banter between Sony executive Amy Pascal and producer Scott Rudin—has crippled the entertainment company in recent weeks. However, reining in news outlets doesn’t seem to be a promising way to lessen the blow.

Cahill Gordon & Reindel litigation partner Floyd Abrams, who has authored two books on the , says the letter from Boies is an “across the bow sort of threat.”

“I think they’re making the best legal case that they can, but it’s not a strong one,” he says.

He continued: “I think that the legal risks to continue to publish articles based on the newly released materials are minimal,” adding that things would be different if the publishers were somehow connected to the hacking.

Boies Schiller did not respond to request for comment, nor did Sony’s general counsel Nicole Seligman.

In an email to The Am Law Daily, Kurt Opsahl, deputy general counsel for the Electronic Frontier Foundation, pointed to Bartnicki v. Vopper 2001, a case involving a radio commentator who received a tape recording of an illegally intercepted conversation, played parts of the conversation on his program and was sued based on a claim that the interception and use of the conversation was illegal.

The Supreme Court decided that the radio station was not liable because the broadcaster wasn’t involved in the illegal interception and the communication was a matter of public concern.

“While a newspaper may choose not publish some information based on the privacy interests and its own standards, it’s hard to see how a paper may be required to destroy the information consistent with the First Amendment,” Opsahl says, adding: “It is unfortunate that Sony got hacked, and lost control over its internal information. But the solution is not to muzzle the press.”

By notifying various media outlets that the material is not intended to be public, Sony may be able to argue a legal theory that’s based on the use of private information. However, as David Schulz, name partner at Levine Sullivan Koch & Schulz who has spent his career defending journalists and news organizations on issues of libel, privacy and access, says the theory is rarely applied to news gathering.

“To the extent that organizations are publishing true newsworthy information that they have legally obtained, they have a legal defense,” he says. “The potential for liability for accessing the information under an intrusion theory or some other type of news gathering claim is perhaps more of an open question.”

Heather Dietrick, president and general counsel of , which received the letter from Boies Schiller, said in an email to The Am Law Daily that Gawker has published “very newsworthy documents, including documents that expose how such a widespread security breach could have happened”—an issue she noted “deserves much further public scrutiny.”

Dietrick added that Gawker Media has “carefully selected and reported on a handful of other documents that have been revelatory with respect to certain major figures in the entertainment industry and we’ll continue to report on what’s so squarely in the ambit of public concern.”

Bloomberg, The New York Times, Re/code and The Hollywood Reporter also received the letter from Boies Schiller. Bloomberg’s general counsel Richard DeScherer, who left Willkie Farr & Gallagher with a handful of attorneys in 2012, and The New York Time’s in-house attorney Kenneth Richieri did not respond to The Am Law Daily for requests for comment.

Though sibling publication Corporate Counsel on Friday reported on email leaks involving Leah Weil, the general counsel of Sony Pictures Entertainment, the company’s film division, parent company ALM Media did not receive the letter from Boies Schiller on Sunday.

Boies Schiller’s efforts to quell the media’s coverage of Sony’s hacked data puts it at odds with some of the more friendlier roles the firm has assumed with the press. Boies himself emerged as a media darling during Bush v. Gore, in which he advised presidential candidate Al Gore in the disputed 2000 election. He stepped under the media spotlight during his battle to overturn California’s ban on same-sex marriage in 2009. That same year, he and the firm supported the Committee to Protect Journalists, and in 2012, he chaired the organization’s International Press Freedom Awards.

And it doesn’t end there. His colleague litigation partner Jonathan Sherman has pushed to open the federal courts to TV cameras, and he was the lead counsel on behalf of Court TV in litigation challenging the constitutionality of New York’s statutory ban on television cameras in the state’s courtrooms in 2003.

Sony has been investing in data security for at least a decade. The Washington, D.C.-based lobby shop formerly known as Quinn Gillespie & Associates, which was founded by Jack Quinn, a former White House counsel to President Bill Clinton, and Ed Gillespie, a top political strategist and former chairman of the Republican National Committee, has been advocating for Sony on data security issues since 2003, according to Senate lobbying records. A recent filing revealed that Sony has paid the lobbying firm, which is now called QGA Public Affairs, $90,000 this year, or $30,000 per quarter, to lobby on data security, privacy legislation and cybersecurity issues.

Sony has also paid Am Law 200 firm Brownstein Hyatt Farber Schreck $150,000 this year, or $50,000 per quarter, to advise on tax reform, tax treaties and corporate inversion legal issues. As it happens, Marc Lampkin, one of the lead Brownstein Hyatt lobbyists working for Sony, joined the firm from QGA Public Affairs two years ago.

John Roos, a former CEO of Wilson Sonsini who left the firm five years ago to serve as President Obama’s ambassador to Japan, is an independent member of the board of directors at Sony.

Photo by Jason Doiy

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