After Capital One Ruling, How Will Companies Protect Forensic Reports?

Data Strategy, Security and Privacy Partner Mark Melodia was quoted in a Cybersecurity Law Report article analyzing the effects of a ruling ordering Capital One to release a forensic report compiled after a 2019 data breach. Capital One had argued the report fell under work-product protection, but a federal court disagreed, concluding that it was indistinguishable from what would have been delivered without litigation pending. The article summarizes the case, breaks down the court's ruling and discusses the implications for companies and their lawyers, including how work-product privilege can be preserved moving forward. Mr. Melodia commented that the ruling does serve as a warning to businesses but added that forensic reports like Capital One's will still largely enjoy protection, considering all of the instances when it has been granted.

"The ruling is a warning that businesses cannot count on a series of earlier rulings that shielded forensic reports as privileged," he said. "...[However,] published decisions and publicly available law still clearly favor protection of forensic reports as work product."

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