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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
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Bit Parts
Summary Judgment Denied Defendant in Declaratory Action by Producer of To Kill a Mockingbird Broadway Play Seeking Amateur Theatrical Rights
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Disconnect Between In-House and Outside Counsel
'Disconnect Between In-House and Outside Counsel is a continuation of the discussion of client expectations and the disconnect that often occurs. And although the outside attorneys should be pursuing how inside-counsel actually think, inside counsel should make an effort to impart this information without waiting to be asked.