Jena M. Valdetero and Emily S. Taetzsch emphasize that federal courts have increasingly narrowed protections for forensic reports in data breach cases. Through analysis of recent cases, including Capital One and Leonard v. McMenamins, they outline essential strategies for maintaining legal privilege, such as limiting communication participants, controlling documentation circulation, and ensuring proper engagement letters are drafted. The article calls for companies to rigorously assess communications, and consider legal protections during breach investigations, especially when sensitive data is involved.
"Assume privilege will not apply to communications with a forensic firm."
"Ensure the engagement letter between counsel and the forensic investigator clearly sets forth the risk of litigation because of the breach."
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