Privilege Under Pressure: The Shifting Data Breach Investigation Landscape

Go-To Guide:

• Recent case law shows skepticism by some courts when evaluating whether forensic reports prepared after a data breach are protected under privilege, with some courts questioning privilege over communications with the client and counsel where the forensic firm is copied.
• Companies may consider reviewing their practices for managing breach investigation communications and information sharing.
• To preserve confidentiality, companies should consider managing who receives breach investigation updates and how they are delivered.

Over the past few years, the rate of notable data breaches has risen considerably, and along with that rise has come an increase in class action litigation. In a world where any company can be the next victim of a breach, business leaders and their legal counsel should consider in advance how to protect privilege and minimize risk in post-breach investigations. But certain recent federal district court decisions have made