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Data Storage

Due to the growing prevalence of data breaches and ransomware attacks, courts have been forced to interpret and nuance privilege in the context of post-breach forensic reports. One major consideration in the context of data breach litigation strategy is how to protect forensic reports prepared by outside forensic firms from discovery in civil litigation. If the forensic report is discoverable, it could be used by the opposing party and ultimately become part of the public record in litigation.

Companies and organizations generally want to maintain privilege over forensic reports because of the likely value to potential plaintiffs. In particular, forensic reports typically identify the likely method by which a threat actor accessed a company’s IT environment. In doing so, the report generally highlights critical vulnerabilities in its IT environment. Such information may identify areas in which a company failed to maintain industry standards, thereby potentially breaching its contractual and fiduciary obligations to protect sensitive information.

Courts continue to wrestle with applying conventional legal notions of privilege to novel fact patterns, often resulting in inconsistent or disappointing court decisions. Courts have held that, in certain circumstances, such forensic reports are protected by both attorney-client privilege and work product protection. Although there are few cases discussing these doctrines in the context of forensic reports, the cases provide guidance on what a company or organization can do to bolster claims that its post-breach forensic reports are shielded from discovery in civil litigation.

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