Managing a Data Breach Defensibly
October 26, 2020
In-house legal teams need a process for response and proper notification when data breaches occur, and they will occur. There were more than 3800 data breaches in the first half of 2019, double the number in the same time frame the year before. A company has about a 30 percent chance of experiencing a breach in a given year, so if yours has gone four years without one you’re living on borrowed time. Recent case law indicates that maintaining attorney/client privilege in respect to information about a breach can be difficult. A white paper published by Exterro provides some tips about privilege, information protection in general, and a brief look at a problem Capital One experienced in March 2019, when an unauthorized person gained access to customer information. Among the many lawsuits that were filed because of the breach was one in which a motion to compel production of the company’s cyber-forensic report was made. Capital One claimed the report was privileged because it was requested by a law firm in anticipation of exactly the kind of litigation they were involved in, but the court ruled against them.
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