Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
On Jan. 12, 2021, a U.S. district judge for the District of Columbia issued an opinion in Wengui v. Clark Hill, PLC, 440 F. Supp. 3d 30, 33-34 (D.D.C. 2020), granting the plaintiff's motion to compel production of a data breach forensic report and other materials prepared by a third-party forensic consultant. The court ordered production of the forensic report even though the consultant was operating under the direction and control of outside counsel and under an agreement entered into after the discovery of the underlying data breach. The court found that Clark Hill had not established that the forensic report was protected from production by either the attorney-client privilege or work product doctrine, noting that Clark Hill's understanding of the incident seemed to be based solely on the forensic consultant investigation, which would have occurred in the ordinary course of business, and Clark Hill's purpose in hiring the forensic consultant was to obtain cybersecurity expertise, not legal advice.
The Clark Hill opinion is notable because not only does it follow a string of recent opinions that have found data breach forensic reports not to be entitled to work product protection, it also goes one step further to find that a data breach forensic report is not protected by attorney-client privilege. See, In re Capital One Consumer Data Sec. Breach Litig., No. 1:19-md-02915 (AJT/JFA), 2020 U.S. Dist. LEXIS 91736 (E.D. Va. May 26, 2020); In Re Premera Blue Cross Customer Data Sec. Breach Litig., 296 F. Supp. 3d 1230 (D. Or. 2017); In re Dominion Dental Servs. United States, 429 F. Supp. 3d 190 (E.D. Va. 2019). In this instance, the court applied a narrow interpretation of the Kovel doctrine and found that the company's true objective in engaging the forensic firm (that produced the report) was to obtain cybersecurity expertise, not legal advice.
The following is a summary of the Clark Hill opinion followed by some considerations for companies seeking to apply the lessons of the opinion to future data breach investigations, including the importance of: 1) drawing clear lines between ordinary-course investigations to solely understand the nature and scope of the incident and an investigation for legal purposes; and 2) carefully considering the scope, purpose, and audience of any third-party written reports prepared at the direction of counsel. We conclude with suggested best practices for protecting attorney-client privilege and the work product doctrine during the investigation of a security incident.
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?