Data privacy lawyers and cyber security incident response professionals are losing sleep over the growing number of federal courts ordering disclosure of post-data breach forensic reports. Following the decisions in Capital One and Clark Hill, another district court has recently ordered the defendant in a data breach litigation to turn over the forensic report it believed was protected under the attorney-client privilege and work product doctrines. These three decisions help underscore that maintaining privilege over forensic reports may come down to the thinnest of margins—something organizations should keep in mind given the ever increasing risk of litigation that can follow a cybersecurity incident.
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