Forensic Analysis and Privilege in the Wake of a Data Breach
In the wake of a data breach, counsel will often require the assistance of a forensic firm in order to provide legal advice to their client. The forensic analysis—which is often memorialized in a report to counsel—is crucial for counsel in understanding what occurred and formulating legal strategy relating to potential litigation and breach notification issues. For the same reasons, details of those forensic analyses and any related investigative reports are very likely to be the subject of a discovery request from plaintiffs if and when litigation ensues. Indeed, the requests for such reports are frequently a flashpoint in litigation that can determine the strength or weakness of the plaintiff’s case. Defendants typically object to producing these reports on the grounds that they fall under the attorney-client privilege and work-product protection.