Hiding Data Behind Attorney-Client Privilege

Interesting advice:

He cites a key advantage to bringing in lawyers up front: “If you hire a law firm to supervise the process, even if there are technical engineers involved, then the process will be covered by attorney-client privilege,” Cunningham said. He noted that in a lawsuit following a data theft, plaintiffs usually seek a company’s records of “all the [data-security] recommendations that were made [before the breach] and whether or not you followed them. And if you go and hire technical consultants only, all that information gets turned over in discovery. [But] if you have it through a law firm, it’s generally not.”

Gregory Engel has some good comments about this:

This isn’t a “prevention initiative” for data security, it’s a preemptive initiative for corporate irresponsibility.

I’m not sure it will work, though. I don’t think you can run all of your data past your attorney and then magically have it imbued with the un-subpoena-able power of “attorney-client privilege.”

EDITED TO ADD (10/22): This talk from Defcon this year is related.

Posted on October 21, 2007 at 6:39 AM • 27 Comments