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Maintaining Attorney-Client Privilege and Work Product Protections over Forensic Reports in Light of 'Wengui v. Clark Hill'
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.
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