Cyber investigations and privilege: Court finds forensic report not protected

Last week, the U.S. District Court for the Eastern District of Virginia ordered Capital One to produce a forensic investigation report in multidistrict litigation arising out of the cyber incident Capital One announced in July 2019. The court found that the report was not protected by the work product doctrine because Capital One failed to show that "but for" the litigation the report would not have been prepared in substantially the same form. The opinion offers some lessons for companies entering into arrangements with forensic experts in advance of cyber events.

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