The growing prevalence of viruses, adware and spyware can create exposure to legal liabilities not previously envisioned. Fortunately, there are some steps that can be taken to help minimize the risk of such liabilities.

Anti-virus software can help ward off viruses. However, this solution is not always 100% effective, and at times, it may be necessary to rewrite a hard drive. Such a hard drive might contain information that is related to potential or actual litigation claims. If that information is not preserved, it can be argued that valuable evidence has been spoliated, which can lead to serious court sanctions.

Thus, it is important in this context to image the hard drive prior to the rewrite. Electronic discovery firms, such as Fios, Inc., can perform such imaging, and while doing so, can scan for viruses, and for authenticity reasons, will log files which have cleaned and will maintain before and after copies of each file.

Adware is made up of files that are processed and pushed to an individual's computer for the purpose of attracting visitors to a particular Web site. These files can show up in the form of popup screens or as hijacking redirection to a different Web site than the actual search initiated. Adware can have legal implications.

An employee could be sitting at his desktop conducting appropriate Web searches for business reasons when all of a sudden explicit adult material pops up on his screen. This could be observed by others. Perhaps the employee would be terminated from employment, which could lead to a wrongful termination lawsuit filed by the employee. Or, perhaps other female employees would file a hostile workplace lawsuit against the company for supposedly allowing male employees to view such material on company time, when the male employees did not seek out this material in the first place.

Spyware sends out reports of keystrokes and other information to the originating computer to monitor what a user is doing. In given instances, a company might seek to protect what it considers to be its trade secrets. However, to the extent spyware caused sufficient information underlying those secrets to walk out the company's door, and if the company did not undertake adequate steps to prevent this from happening, the company might face an argument that its supposed trade secrets no longer are truly secret, and thus, the company no longer can seek to enforce the confidentiality of that information.

The laundry list of potential legal liabilities stemming from viruses, adware and spyware goes on and on.

To defend against potential charges of inappropriate conduct and negligence when it comes to these matters, the following steps at least should be considered: firewall protection with unused ports closed, monitoring of outgoing port traffic, pushing virus and spyware protection to desktops, current use of security patches, maintaining documented escalation procedures for attacks, discouraging use of downloaded screensavers, discouraging use of ad supported software, drafting licenses and contracts to assigning responsibility to suppliers to maintain the health of interfacing systems, and the development of chain of custody procedures to preserve information that could be altered or lost.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .

Reprinted here with permission from USAToday.com.