After Capital One Ruling, How Will Companies Protect Forensic Reports?

A loss for Capital One may have wider consequences for defendants’ ability to shield breach investigation reports from discovery. This article addresses the implications of a recent Virginia federal court’s decision rejecting the bank’s claim that its attorney-directed post-breach incident report is protected work product, including the decision’s potential chilling effects on companies’ discussions after a breach and steps companies might take to protect forensic reports, with insights from industry practitioners as well as advice on an alternative approach to handling forensic facts. For more on privilege, see “When and How Attorney-Client Privilege Applies to Communications With In-House Counsel” (Jun. 22, 2017).

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