As we previously reported, the Magistrate Judge in In re: Capital One Customer Data Security Breach Litigation, found that a forensic report that Capital One had claimed was protected by the privilege and work product doctrines needed to be produced because Capital One had not met its burden under the dual-purpose doctrine to show that the report was protected. In re: Capital One Customer Data Sec. Breach Litig. (“Magistrate’s Order”). The forensic report at issue (the “Report”) related to a 2019 data breach where a hacker purportedly accessed and stole highly sensitive customer information from Capital One’s online cloud environment (the “Breach”). Capital One hired outside counsel to investigate the Breach and to help the company prepare for anticipated litigation and regulatory inquiries. To assist counsel’s investigation, outside counsel engaged a cybersecurity consultant (“Consultant”). As developed in the Magistrate’s Order, Capital One had used this same Consultant prior to the Breach in the normal course of its business.
Privilege
Fifth Circuit Confirms that Documents Listed on a Privilege Log Are Not Per-Se Privileged
By Kevin Chung on
If one party in a lawsuit merely identifies documents on a privilege log without detail, does the other party bear the burden of showing that the withheld materials were not privileged, in order get access to those documents? The Fifth Circuit unanimously says no. In EEOC v. BDO USA, LLP, the Fifth Circuit held that records and communications with legal counsel are not automatically protected from disclosure just by virtue of their being identified in a privilege log.
Key Lessons From the Recent Precedential Order by Federal Circuit – Jurisdiction, Mandamus, and Privilege
By Rina Kim on
On November 17, 2016, the United States Court of Appeals for the Federal Circuit published a precedential order denying a petition for a writ of mandamus to overturn a district court’s determination. In In re: Rearden LLC, Rearden MOVA LLC, MO2, LLC, MOVA, LLC, the defendants in the underlying case had petitioned for a writ of mandamus to challenge the district court’s order compelling them to produce allegedly privileged documents.