{"id":148938,"date":"2020-11-02T08:42:15","date_gmt":"2020-11-02T08:42:15","guid":{"rendered":"http:\/\/dominiclevent.com\/blog\/?p=148938"},"modified":"2020-11-05T11:54:35","modified_gmt":"2020-11-05T11:54:35","slug":"top-five-tips-to-protect-privilege-in-a-data-breach-litigation-mediation-arbitration-cana","status":"publish","type":"post","link":"https:\/\/dominiclevent.com\/blog\/top-five-tips-to-protect-privilege-in-a-data-breach-litigation-mediation-arbitration-cana\/","title":{"rendered":"Top Five Tips To Protect Privilege In A Data Breach – Litigation, Mediation & Arbitration – Cana…"},"content":{"rendered":"\n
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\nCanada: <\/span><\/p>\n

Top Five Tips To Protect Privilege In A Data Breach<\/h2>\n

\n
\n
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25 October 2020<\/p>\n

Blake, Cassels & Graydon LLP<\/p>\n<\/div>\n<\/div>\n

<\/a><\/div>\n<\/div>\n<\/div>\n

To print this article, all you need is to be registered or login on Mondaq.com.<\/p>\n

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When your organization is addressing a cyber-attack or other
\ndata breach, protecting privilege is crucial. In the aftermath of a
\ndata breach, events can move very quickly. However, appropriate
\nsteps should be taken to ensure that the privileged and
\nconfidential documents generated in your breach investigation and
\nresponse stay that way. Shortcuts taken for expediency’s sake
\ncan lead to problems later, particularly in the event of
\nlitigation. Protecting privilege is important to preserve the
\nconfidentiality of your discussions with counsel and other
\ndocuments generated in your breach response, to guard against the
\nrisk of such materials being producible in future litigation.<\/p>\n

Here are our top five tips for protecting privilege in the
\ncontext of a data breach:<\/p>\n

    \n
  1. \n
      \n
    1. Avoid using your
      \norganization’s computer systems if they are
      \ncompromised.<\/strong> If there is reason to believe that your
      \norganization’s internet technology (IT) infrastructure remains
      \ncompromised, you should not use it to communicate (internally or
      \nexternally) about the breach. Otherwise, any privileged
      \ncommunications could be intercepted by the threat actor,
      \nexacerbating the data breach. Instead, consider using phone calls
      \nor a secure and uncompromised external email address to communicate
      \nregarding the breach response.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n
        \n
      1. \n
          \n
        1. Engage legal counsel as soon
          \nas possible.<\/strong> A data breach should be treated as a legal
          \nincident for the organization, with counsel involved from the
          \noutset of the response. Internal counsel should be notified right
          \naway of a breach. In the case of a significant breach, it also may
          \nbe prudent to retain outside litigation counsel immediately. This
          \ncan help bolster claims for solicitor-client privilege because it
          \nunderscores the legal, as opposed to business-related, nature of
          \nthe advice being given. It also emphasizes the litigation-oriented
          \nobjectives of any forensic expert reports into the data breach,
          \nbolstering a claim for litigation privilege. Solicitor-client and
          \nlitigation privileges can apply with respect to in-house counsel,
          \nbut only when in-house counsel is providing legal rather than
          \nbusiness advice. Because in-house counsel often provide both kinds
          \nof advice in the aftermath of a data breach, privilege claims
          \ninvolving internal counsel may be more closely scrutinized by the
          \ncourts in the event of a dispute.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n
            \n
          1. \n
              \n
            1. Structure retainers with
              \nthird-party consultants with privilege in mind.<\/strong>
              \nCommunications with and documents generated by an external forensic
              \nexpert hired to investigate the data breach can be privileged,
              \nprovided that the retainer is structured appropriately. For
              \nexample:<\/p>\n
                \n
              • \n
                  \n
                • Where possible, external counsel and the organization should
                  \nretain the third party jointly<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
                    \n
                  • \n
                      \n
                    • Even if the organization has an ongoing relationship with the
                      \nconsultant, a separate retainer or statement of work should be
                      \nentered into with respect to the breach to distinguish the
                      \nprivileged work from any other non-privileged work<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
                        \n
                      • \n
                          \n
                        • The terms of the third-party retainer should reflect the legal
                          \nnature of the advice given and that all communications and
                          \ndocuments relating to the engagement should be marked and treated
                          \nas privileged by all involved<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
                            \n
                          • \n
                              \n
                            • The third-party adviser should take instructions from, and
                              \nreport to, counsel (and ideally external counsel<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n
                                \n
                              • \n
                                  \n
                                • Payment to the third-party adviser should be recorded and
                                  \ntreated as a legal expense (for example, paid out of the
                                  \norganization’s legal budget)<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n
                                    \n
                                  1. \n
                                      \n
                                    1. Control dissemination of
                                      \nprivileged material in your organization.<\/strong> Privileged
                                      \ncommunications should not be copied or disseminated more widely
                                      \nwithin your organization than is necessary. It will usually also be
                                      \nprudent for internal or external counsel to be copied on
                                      \ncommunications regarding the breach, although doing so does not
                                      \nautomatically cloak those communications with privilege. All
                                      \ncommunications and any notes or other documents regarding the
                                      \nbreach or reflecting privileged advice should be marked as
                                      \n“privileged and confidential.”<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n
                                        \n
                                      1. \n
                                          \n
                                        1. Beware of divulging
                                          \nprivileged material externally.<\/strong> Some regulators may have
                                          \nauthority to compel your organization to produce privileged
                                          \ndocuments, such as a forensic investigator’s report. When
                                          \nresponding to these demands, it should be stated expressly that
                                          \nyour organization does not intend to waive privilege through such
                                          \ndisclosure. Voluntary disclosure of potentially privileged
                                          \ninformation to law enforcement should be approached with caution.
                                          \nThe organization should also avoid inadvertent disclosure of
                                          \nprivileged information, such as in pleadings and other legal
                                          \nfilings, which may imply waiver of privilege. If disclosure of any
                                          \nprivileged information is truly necessary, the disclosure should be
                                          \nas narrow as possible, and it should expressly be stated that no
                                          \nwaiver of privilege is intended.<\/li>\n<\/ol>\n<\/li>\n<\/ol>\n

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                                          \u00a9 2020 Blake, Cassels & Graydon LLP.<\/p>\n

                                          The content of this article is intended to provide a general
                                          \nguide to the subject matter. Specialist advice should be sought
                                          \nabout your specific circumstances.<\/em><\/p>\n<\/div>\n<\/div>\n

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