In November 2019, WG11 published its Commentary on Application of Attorney-Client Privilege and Work-Product Protection to Documents and Communications Generated in the Cybersecurity Context (the "Privilege Commentary"). Since the release of the Privilege Commentary, there have been significant new caselaw developments addressing attorney-client privilege and attorney work product in the context of litigation related to cyber incidents. There has also emerged additional focus on certain specific areas of legal response to cyber incidents that implicate such privileges and that merit additional guidance to practitioners that were only touched on or were outside the scope of the original Privilege Commentary. The drafting team is tasked with drafting a second edition of the Privilege Commentary to address both the emerging caselaw and such additional focus areas.
A preceding brainstorming group constructed an outline on this topic that was the subject of WG11 membership review and comment and the focus of a session at the last WG11 Meeting in April 2021. In producing its draft, the drafting team should refer to the roadmap for this second edition of the Privileged Commentary laid out in the brainstorming group outline subject to the following guidance:
(1) Review and summarize principles - both common and divergent - that emerge from the recent set of judicial opinions and provide guidance to practitioners and clients on practical steps that they can follow to harmonize their actions with the courts' guidance. One area for such practical guidance would be with regard to dual-track investigations (i.e., one that is at the direction of and reporting to counsel and one that is not). Another area for consideration is the relationship between the Plaintiffs' burden of proof in cyber litigation and the potential limit on the ability of Plaintiffs/regulators to obtain information sufficient to meet such burden where the relevant factual information and privileged work product are intertwined.
(2) Review and address the following additional focus areas: (a) entity specific guidance on the extension of privilege in the cybersecurity context including with regard to insurer/insureds, service providers/vendors, joint defense groups/joint common interest groups, agency/affiliate relationships, and communications between different/unrelated companies on areas of mutual interest/risk; and (b) exploration of the difference between business and legal advice, including, but not limited to, in the context of PR work in response to a cyber-incident.
(3) In regard to the qualified cyber-security privilege set forth in the first edition of the Privilege Commentary, consider the questions posed in Parts III.C.ii.3.b(1) and (2) of the Brainstorming Group outline.
(4) The drafting team should not proceed with Part III.C.i of the Brainstorming Group outline, related to the scope of data breach discovery, at this time.
Drafting Team - Member Expectations
- Drafting team members are expected to make the following commitments:
- Total time commitment is 12-15 hours per month, including actual drafting, review and drafting team meetings
- Drafting team members are expected to regularly participate in drafting team meetings – drafting team leaders will take attendance for all meetings, and track meeting participation and contributions during drafting team meetings
- Drafting team members will be expected to draft or assist in drafting portions of the document and/or perform research as needed – drafting team leaders will track contributions to the drafting and/or research
- Drafting team members are expected to review all team drafts that are circulated, and comment and edit as necessary
- It is critical that all team members are active, engaged participants in the drafting efforts, in order to produce high-quality work product in a limited timeframe. If the participation requirements outlined above are not something that you can commit to at this time, we recommend that you postpone pursuing a spot on a drafting team until you are able to make these commitments. There will be more WG11 drafting efforts in the near future. Additionally, we will likely have more well-qualified, well-rounded applicants than we have spaces available for this drafting team. As a result, we may have a ranked waiting list. If during the drafting effort, a team member is not able to maintain the commitment required of team members, we will replace that member, if necessary.
Drafting Team - Selection
In order to apply for the drafting team, you must be a member of WG11. If you are interested in applying for the drafting team, but are not yet a member of WG11, please become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG11. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or +1(602) 258-4910. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG11. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or +1(602) 258-4910.
As the drafting team will only have 8-10 members, the Steering Committee will need to be very selective. But all WG11 members, however, will have a chance to review and comment on the draft that the team produces.
Factors in Drafting Team Selection
- Expertise
- Years of Experience
- Participation on the corresponding brainstorming group
- Did you join - and contribute - to the preceding brainstorming group?
- Balance
- As we work to achieve consensus-based documents, it is important that a wide range of perspectives and backgrounds are represented. Accordingly, in selecting drafting team members the Steering Committee will work to ensure these perspectives are fairly represented. Please keep in mind, however, we do not seek differing perspectives so that one may advocate on behalf of a particular perspective or constituency. We seek differing viewpoints, backgrounds and experiences in order to build a consensus-based document that is beneficial to all stakeholders
- Perspectives we seek to have represented on the drafting teams include, among others:
- In-house counsel
- Outside counsel
- Counsel for consumers
- Jurists
- Regulators
- Technologists
- Experts
- Corporate decision-makers
- Service providers
- Should you ultimately not be selected for the drafting team, it may simply be the result of too many applicants representing a particular perspective, and not at all based on a lack of qualifications
In order to be considered for the drafting team, please provide separate answers to each of the questions below, and submit to Michael Pomarico at [email protected] by Thursday, August 12, 2021. Please be brief when answering the questions – no more than 50 words per answer to a question, please.
- (1) What is your profession and expertise?
- (2) How many years of experience do you have?
- (3) What organization do you work for?
- (4) What qualifications or experiences make you particularly qualified to serve on this brainstorming group, and why?