On May 26, the District Court found In Re: Capital One Consumer Data Security Breach Litigation that a report prepared by Mandiant concerning the Capital One data breach was not protected by the work product privilege and must be turned over to the plaintiffs, on the grounds that it was not substantially different from a routine security investigation, even though it was commissioned by outside counsel. Jeffrey Heuer suggests measures to take to avoid this situation, such as reviewing past work relationships to ensure that post-breach engagements are not too similar to routine work, and even hiring separate firms for litigation and breach mitigation.
