The First 72 Hours: Critical Steps Following a Data Breach


When it comes to a data breach, what you do in the first few hours and days can mean the difference between containing the risks and losses and losing control of events. As the minutes and hours tick by, the financial and reputational consequences you face may be quickly multiplying. According to the 2019 Cost of a Data Breach Report (Ponemon Institute/IBM Security), the average total cost of a data breach globally is $3.92 million (USD), and in the United States that number more than doubles to $8.19 million. And that doesn’t even begin to account for the potential harm to your public image. It is in the best interests of your company and its employees and customers that you quickly assess the situation, notify the proper parties, and begin the investigation and remediation process. In fact, if you conduct business in the European Union, its General Data Protection Regulation in most cases requires you to report a breach to the supervisory authority within 72 hours of its discovery.

Would you know where to begin? The good news is that you don’t have to. Our Privacy & Cybersecurity team has the experience and resources to help you quickly and effectively respond to a data breach. Our professionals have substantial experience in managing data incident response scenarios, and we can deliver an efficient, disciplined and effective response plan. And we provide our services for a fixed fee, so you know the cost up front.

Here’s how we can help:

Initial Assessment

  • Create and convene (with general counsel/CISO) the incident response team
  • Identify and interview knowledgeable personnel
  • Investigate source, scope and nature of incident, including what was lost
    (physical or data) and if breach was result of third-party service provider failure
  • Investigate if data is accessible/usable (e.g., encrypted)
  • Identify/counsel/verify initial remediation actions taken to immediately limit damage of incident and stop breach
  • Analyze compromised data and determine type(s): PII, PHI, PCI; employee or
    consumer information
  • Assess number and geographic distribution of potentially
    affected individuals
  • Identify and assess short-term reporting and regulatory
    obligations (e.g., HIPAA breach)
  • Counsel on timing of scope of notices
  • Ensure necessary third-party providers are in place
  • Counsel on preservation of evidence (e.g., capturing logs
    that would ordinarily be deleted)

DELIVERABLE #1: Initial assessment of potential reporting/notification requirements
(legal analysis)

Third-Party Provider Assessment 

  • Identify third-party service providers
  • Identify relevant insurance coverage
  • Review with internal risk management personnel
    relevant insurance contracts/coverage
  • Ensure appropriate insurance providers are involved
  • Review relevant services/IT agreements and breach
    provisions; provide initial advice on next steps/remedies

DELIVERABLE #2: Ensure necessary third-party providers are in place

DELIVERABLE #3: Prepare forms or provide notice templates specific to location/jurisdiction/regulatory requirements

Identification of External Resources/Service Providers

  • Initiate retention of notice fulfillment services provider as appropriate
  • Retain forensic resources as necessary
  • Retain crisis communications consultant/coordinate with company PR and investor relations teams

If your organization has suffered a data breach or incident, please contact us at any time (24/7) here and a Thompson Hine cybersecurity attorney will respond to you as soon as possible.

For more information about the critical steps following a data breach, please contact:

Thomas F. Zych, Partner, Chair, Privacy & Cybersecurity

Steven G. Stransky*, Partner, Vice Chair, Privacy & Cybersecurity
202.263.4126 | 216.566.5646
*International Association of Privacy Professionals, Certified Information Privacy Professional/Government (CIPP/G), Certified Information Privacy Professional/United States (CIPP/US)