This client alert is based on a longer article Patrick Emerson McCormick wrote for the Conference on Consumer Finance Law Quarterly Report.
Attorney-client privilege protects confidential communications made for the purpose of seeking or providing legal advice. The Supreme Court rejected a rigid control-group test and held that employee questionnaires and interview notes directed by corporate counsel were privileged—though the privilege protects communications, not underlying facts. The privilege may extend to third-party agents whose participation is necessary to enable counsel to render legal advice. Privilege attaches only to communications seeking or providing legal advice; business, technical, or operational advice does not qualify, even when attorneys are involved.
Attorney work product is a related but distinct protection for documents prepared in anticipation of litigation. One critical distinction: privilege can be waived by disclosure to any third party, while work product is typically waived only by disclosure to adverse parties.
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In the event of a data breach, a company typically requires the legal advice of counsel to navigate its obligations and potential liabilities. This frequently requires the assistance of a digital forensic investigator or other technical consultant. Whether the resulting work product and communications are protected from production is a fact-specific inquiry.
Synthesizing recent case law, courts regularly consider seven factors: (1) when the client hired outside counsel; (2) whether the client or counsel hired the consultant; (3) whether there was a pre-existing relationship with the consultant; (4) the content of the work product; (5) whether there was a parallel, non-privileged investigation; (6) to whom the work product was distributed; and (7) how the client utilized the work product. Each factor warrants careful attention.
Read more at JDSupra.
