Defending Work-Product Status and Attorney-Client Privilege of Forensic Reports

Data breach litigation continues to expand with each new state law passed to regulate data storage and disclosures. This context poses particular challenges for protecting the attorney-client privilege and work-product doctrine.

In the wake of cybersecurity, data breach, or data disclosure incident, it is routine to retain outside counsel and third-party forensic experts to investigate. When civil litigation follows, as it often does, courts are more frequently ordering the production of written reports and related communications despite assertions of attorney-client and work-product privilege.

Incident-response and litigation counsel must know how to coordinate with each other to establish and protect work product designation and communication privilege from the earliest possible time.

Listen as this experienced panel of cybersecurity and data privacy lawyers from Squire Patton Boggs, who routinely represent clients in facing these evidentiary issues in the context of data breach responses, remediations, and litigations, walk you through the pitfalls to avoid and offer the best strategies for preserving these privileges.

Expect answers to the following critical questions:

·      Why have courts ordered the production of internal reports, forensic investigations, and related communications?

·      What are the current best practices for preventing disclosure?

·      How can discoverable "facts" be separated from legal advice?

Learning Objectives:

1. Gain an overview of the attorney-client and work-product privilege

2. Analyze recent cases ordering disclosure of forensic reports and communications concerning internal investigations

3. Discuss best practices to preserve the availability of privilege, using data events and cybersecurity as examples

4. Identify how to properly document communication with vendors and outside counsel

5. Review useful strategies for deposition preparation

6. Explore the latest trends in data breach litigation