A thousand questions immediately flood any lawyer’s mind when they first hear that their client may have been affected by a data breach. How did it happen? What data were affected? Was there any personal information affected, what type, and how much? When did it happen? How much time passed before we discovered it? These are a few of the questions that must be answered—and answered fast—before you can advise your client on the many time-sensitive, high-stakes legal obligations that arise from a data breach.It is increasingly common that lawyers need technical experts to gather and provide the information necessary to answer these questions. Whenever that is the case, there is an argument to be made that attorney-client privilege should attach to the communications associated with the work that these experts perform, including written reports that communicate the results of interviews, forensic exams, and similar investigatory activities. It also may be reasonable to anticipate that a legal dispute will arise from the data breach, in which case materials produced by technical experts may be protected by the work-product doctrine. But neither privilege is absolute, so an organization must take proper precautions during the investigation and response to help shield the… Read full this story
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