I’d encourage you to read David Fraser’s blog post from last weekend – The value of legal privilege: Your diligent privacy consultant may become your worst enemy.
David’s basic point is sound: structuring a security or privacy expert retainer to support a privilege claim can prevent your own expert’s advice from being used against you. Most often this is done by having legal counsel retain an expert in anticipation of litigation and for the dominant purpose of litigation, with instructions and conclusions going strictly between counsel and expert.
David explains a scenario in which an organization retained an expert to advise on some form of due diligence connected to a subsequent security incident. The expert was apparently quite candid in its written advice, outlining a security problem that amounted to what David compares to a “dumpster fire.” The organization responded partly but not wholly to the expert’s recommendations. That expert’s report will therefore become, as David says, the plaintiff’s Exhibit A.
Being faced with your own expert’s advice is very bad, hence the soundness of David’s point. My additional point: legal privilege is no solution to a bad client-counsel-expert relationship.
The views on what is a reasonable investigation or remediation in the data security context can vary widely between equally qualified experts. Too often, perhaps driven by conflicting interests, security experts recommend what’s possible and rather than what is “due.” A breach coach can help address this problem, identifying trusted experts and working with them to reach a shared and acceptable understanding of the due diligence required in responding to a security incident. With such a relationship, departing from an expert’s recommendations (even though they are privileged) represents a real and meaningful risk. The facts – i.e., the things done based on an expert’s recommendations – are never privileged. If litigation ensues those facts will be picked apart by other experts, and you want the good ones to view the facts the same way as you and your trusted advisor.
Experts that are prone to floating long lists of options need to be retained under privilege because they are dangerous, but even under privilege their advice is worth little. The prescription: do everything you can to build a great client-counsel-expert relationship. Use a breach coach. Keep a roster of trusted experts on retainer. Don’t use experts retained for due diligence advice to do the very remedial work they recommend.