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Are Your Post-Breach Forensic Reports Privileged?
The Central District of California recently joined the small growing list of courts that have held forensic reports created by outside security companies following a data breach are protected from disclosure in civil litigation in certain circumstances. In the case In re Experian Data Breach Litigation, 15-01592 (C.D. Cal. May 18, 2017), Judge Andrew J. Guilford held that a forensic report created by the security firm Mandiant at the direction of Experian's outside counsel, Jones Day, qualified as trial preparation material (or “work product”) under Federal Rule of Civil Procedure (FRCP) 26(b)(3) and denied a motion to compel its production. Experian is only the third case to result in a ruling addressing these important questions. While all three rulings protected forensic reports from disclosure, the analysis in each case was highly fact-dependent. Judge Guilford's reasoning in Experian addresses several key issues not directly raised in those other cases and sheds light on several others.
The Experian Case
In September 2015, Experian discovered that an unauthorized third party had accessed one of its systems. Experian promptly retained an outside legal firm, Jones Day, to investigate and advise on the legal implications of the breach. Jones Day hired the security firm Mandiant to conduct a technical analysis of the incident.
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Major Differences In UK, U.S. Copyright Laws
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.
The Article 8 Opt In
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.
Strategy vs. Tactics: Two Sides of a Difficult Coin
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.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.