Data breach litigation continues to expand with each new state law passed to regulate data storage and disclosures. This context poses particular challenges for protecting the attorney-client privilege and work-product doctrine. In the wake of cybersecurity, data breach, or data disclosure incident, it is routine to retain outside counsel and third-party forensic experts to investigate. When civil litigation follows, as it often does, courts are more frequently ordering the production of written reports and related communications despite assertions of attorney-client and work-product privilege. Incident-response and litigation counsel must know how to coordinate with each other to establish and protect work product designation and communication privilege from the earliest possible time. CPW's Kristin Bryan, Rafael Langer-Osuna and Ericka Johnson, who routinely represent clients in facing these evidentiary issues in the context of data breach responses, remediations, and litigations, walk through the pitfalls to avoid and offer the best strategies for preserving these privileges.
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