In any data breach/incident or, frankly, any other situation that could reasonably lead to litigation or generate a response that is in “anticipation of litigation or for trial” it’s important to remember the general rule (subject to various exceptions and circumstances) that having your in-house counsel (or The SmartedgeLaw Group or other law firm as your outside general counsel) vet and hire the outside forensics, accounting or other consultant experts may enable you (again subject to certain carveouts) to protect from disclosure or discovery any results gleaned from them that are discussed with your in-house counsel or The SmartedgeLaw Group in the formulation of legal advice.
A recent case we’re following as it chugs along, Genesco v. VISA et al., recently issued an opinion on Jan. 17, 2014, that highlighted how important it can be to involve an attorney in the hiring of outside experts and consultants. The Court, in carefully examining applicability of the attorney-client privilege, work-product doctrine and the non-testifying expert privilege, concluded that:
“The work product privilege also attaches to an agent’s work under counsel’s direction. United States v. Nobles, 422 U.S. 225, 238-39 (1975)“and that the outside consulting firm’s findings, provided to Genesco’s general counsel for the purpose of providing legal advice, were privileged materials that VISA could not access.
