Timothy Dickens, left, and Philip Yannella, right, of Ballard Spahr. Courtesy photos
In recent years, several federal courts have rejected claims of attorney-client and work product privilege in connection with forensic analysis post-data breach. Whereas in the past, parties assumed that such reports would be protected from discovery in data breach lawsuits or regulatory investigations, recent decisions suggest that courts do not automatically assume that forensic experts are retained for legal purposes following a data breach, complicating companies’ incident response processes.
There are, however, steps that companies and lawyers can take to bolster claims of privilege relating to forensic examinations. This article will analyze two recent cases to identify pitfalls and outline current trends used by companies and their lawyers to try to protect forensic findings and communications.
Recent Cases
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