Capital One Ordered to Release Forensic Report on Data Breach

A United States Magistrate Judge for the Eastern District of Virginia has ordered Capital One, the national bank, to release its forensic report on a data breach that occurred in 2019. The data breach affected about 100 million Capital One customers, and exposed sensitive financial data including Social Security numbers and information about credit card transactions. The decision may have a significant impact on many companies who wrestle with protecting the sensitive data of their customers.

In the case In re: Capital One Customer Data Security Breach Litigation, E.D. Va., No. 1:19-md-02915, Capital One is being sued over the data breach that exposed its customers’ sensitive financial information. As part of that litigation, the plaintiffs attempted to gain access to a forensic report compiled by an independent investigator, who had been hired by Capital One to provide data security. However, Capital One refused to hand over the report, claiming it was privileged material protected by the “work product” doctrine, which prevents the disclosure of materials created in the process of preparing a legal defense.

However, the U.S. Magistrate has ruled that the report does not constitute material protected by the “work product” privilege. In finding against Capital One, the court noted three things: first, that Capital One had a non-privileged Statement of Work with the investigator prior to the data breach; second, that a separate tri-party agreement reached after the data breach to investigate the breach was essentially identical to the terms of the Statement of Work from before the breach; and third, and perhaps most importantly, the data report was going to be prepared regardless of whether Capital One faced litigation. As a result, Capital One could not credibly claim that the report was prepared as part of its litigation defense and, thus, was not privileged work product.

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