(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; also concluding a non-testifying expert's disclosure did not waive the expert's protection; "Genesco next asserts the attorney client and work product privileges to bar Visa's discovery requests for Sisson's [Genesco's General Counsel] deposition and his records and communications during his investigation of the cyberattack and Visa's assessments and fines. Attorneys' factual investigations 'fall comfortably within the protection of the attorney-client privilege.'. . . This privilege extends to the Stroz firm [outside consultant who assisted inside counsel and outside counsel Kilpatrick Townsend & Stockton in investigating a cyberattack on Genesco's computer system] that assisted counsel in his investigation."; "For most actions, this Court requires a privilege log, but a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant. Moreover, Rule 26(b)(4)(D) does not require a privilege log, only information that 'describes the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Rule 26(b)(5)(A)(ii) also does not require a privilege log."; "'Moreover, to disclose the details for a privilege log of documents exchanged between Sisson and Stroz would infringe upon Genesco's counsel and his consultant's mental processes that are entitled to absolute protection in this Circuit. . . . Thus, to require a privilege log for the assertion of these privileges for Genesco's counsel and his agent, the Stroz firm, would itself violate the work product privilege.'"; "These privileges arise from the relationship between Genesco and the Stroz firm for which Genesco's affidavits are appropriate and sufficient to enable the Court to decide whether the privilege attaches."; "This Court and other courts require a privilege log for most cases, but here given the international scope of this controversy and the circumstances of the retention of a consultant computer expert to assist Genesco's counsel in a complex computer investigation, this action fits squarely within Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. Given that this controversy involves Genesco's retail establishments through the world, the individual listing of each document to Genesco's counsel for determining privilege seems impracticable and unnecessary to decide this privilege issue in light of Upjohn. The Court, however, will require a privilege log for any document that was prepared by a Genesco employee, but was not addressed directly to Genesco's counsel as such factual circumstances fall outside of Upjohn. Genesco also cannot withhold documents prepared in its ordinary business, as reflected by the Court's ruling that remedial measures that Genesco took in response to Trustwave's report must be produced because the Trustwave [outside forensic investigator of cyber attack] report reflects that those measures were undertaken in the ordinary course of business, not for Genesco's counsel."; "Based upon Precision of New Hampton [Precision of New Hampton. Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847 (N.D. Iowa June 5, 2013)], the Court concludes that there is not any waiver of the attorney client privilege. Assuming a waiver based upon disclosure of the Stroz report, the limitation on the nontestifying expert consultant would still bar the Stroz discovery,as that protection arises under Rule 26(b)(4)(D) that serves different purposes and does not permit of waiver. Precision of New Hampton. Inc., 2013 U.S. Dist. LEXIS 79847, 2013 WL 2444047, at *3 ('where a party enjoys protection under Rule 26(b)(4)(D), the protection is not subject to waiver.').")
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2014-01-01 |
Federal |
TN |
B 6/14 |