±Forensic Focus Partners

Become an advertising partner

±Your Account


Username
Password

Forgotten password/username?

Site Members:

New Today: 0 Overall: 35535
New Yesterday: 0 Visitors: 140

±Follow Forensic Focus

Forensic Focus Facebook PageForensic Focus on TwitterForensic Focus LinkedIn GroupForensic Focus YouTube Channel

RSS feeds: News Forums Articles

±Latest Articles

±Latest Webinars

HR Investigations - Privilege

Discussion of legislation relating to computer forensics.
Reply to topicReply to topic Printer Friendly Page
Forum FAQSearchView unanswered posts
 
  

tracedf
Senior Member
 

HR Investigations - Privilege

Post Posted: Apr 09, 16 22:15

I have a question about privilege as it relates to forensic work. I'm interested in answers from people working in the U.S. and California especially.

In a conversation with an HR director I used to work with, she told me that she did not contract directly with the forensics firm that she used but worked through a law firm so that the work would be protected by privilege. I know that she had direct communication with the forensics firm and that, at least in some cases, they sent the results of the investigations directly to her. Wouldn't this prevent privilege from applying?

For those of you who have been hired by law firms to work on internal investigations or other client matters, what are the typical ground rules? To what extent can a consultant work directly with the client and maintain privilege?

I'm looking for general answers; this isn't for a specific case/situation.

-tracedf  
 
  

UnallocatedClusters
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 10, 16 08:13

tracedf,

A couple of thoughts:

1) Just by virtue of having a 3rd party forensic professional collect one's electronic evidence does not waive a privilege claim one's attorney has over communication that can be deemed privileged (work product) with one's self.

Forensic professionals would, in my opinion, fall into the category described below as "those
to whom disclosure is reasonably necessary for the transmission of
the information". Most litigants do not own Cellebrite software, so it is often necessary to engage a forensic professional to extract (and thus be exposed to) the evidence.

CALIFORNIA EVIDENCE CODE SECTION 952. As used in this article, "confidential communication between client and lawyer" means information transmitted between a client and
his or her lawyer in the course of that relationship and in
confidence by a means which, so far as the client is aware, discloses
the information to no third persons other than those who are present
to further the interest of the client in the consultation or those
to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the
lawyer is consulted, and includes a legal opinion formed and the
advice given by the lawyer in the course of that relationship.

(http://www.leginfo.ca.gov/cgi-bin/displaycode?section=evid&group=00001-01000&file=950-962)

2) A Forensic Expert cannot claim privilege protection to their own written reports that contain the forensic expert's work product.

This is why it is so critical for forensic professionals to take great care in controlling the written records they make. Pick up the phone if in doubt and discuss one's thoughts with counsel.

An attorney, though, does not waive their own privilege claim over work performed by a forensic expert at the attorney's direction. This means an attorney can probe or investigate various thoughts/strategies with the help of a forensic expert, without fear of waiving their work-product.

The forensic expert themselves have no ability to claim privilege over their own work product they perform at their own direction, for example.

This is why many experts will use tags such as "Interesting" versus "Hot/Important" as they can expect to be deposed and asked why the expert marked something as Hot, for example.

If one marks evidence as interesting, "interesting" could mean something purely neutral.

When clients engage me, I typically am asked to create 3 party agreements with the attorney as the Customer directing my work that the litigant Payor is responsible for paying for; this can enhance an attorney's claim over work I perform. Having said that, I am still extremely strict and disciplined in creating paper trails.  
 
  

jaclaz
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 10, 16 13:37

- UnallocatedClusters
Pick up the phone if in doubt and discuss one's thoughts with counsel.

Which, given the known security/privacy of phone calls, would translate - I believe - into "Pick up the phone, fix an appointment with counsel, then meet him/her in person to discuss the matter" Wink .
Or is this too much tin-foil-hattish? Question

jaclaz
_________________
- In theory there is no difference between theory and practice, but in practice there is. - 
 
  

CFEx
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 11, 16 20:42

- tracedf

In a conversation with an HR director I used to work with, she told me that she did not contract directly with the forensics firm that she used but worked through a law firm so that the work would be protected by privilege. I know that she had direct communication with the forensics firm and that, at least in some cases, they sent the results of the investigations directly to her. Wouldn't this prevent privilege from applying?
-tracedf



That is true. I work for a Legal Department and even with a team of lawyers, the company hires outside law firms to ensure legal (attorney-client) privilege.

Last year, we had a large, complex case and hired a law firm; they in turn brought their own forensic consultants. In general, a counsel has to direct the work; this is what ensures legal privilege. Some of the mechanics include:

sending you an email asking you to do forensics
Counsel is present in phone calls (interviews with witnesses, etc.) even if they do not say a single word
Labeling all communication/prepared documents as AC/Privileged
Including counsel in all email communication (just to preserve privilege)

The forensic consultants can work directly with the HR director, as long as the Counsel is copied in all communication, or participates in meetings between HR director and forensic consultants.

You may wonder why hire an outside counsel when you can work directly with consultants. In essence, that's the common practice because an outside counsel can "advise" the client on specialty practice areas or law, that internal counsel may not know about.  
 
  

tracedf
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 11, 16 21:15

- CFEx
In general, a counsel has to direct the work; this is what ensures legal privilege. Some of the mechanics include:


This is what I was trying to get at although I didn't articulate it well. My concern was that bypassing the attorneys would prevent privilege from applying. I'm not sure if the attorneys were copied on emails, but I know (because I was in the room) that they were not a part of many of the calls. Thanks for the insight.

-tracedf  
 
  

UnallocatedClusters
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 11, 16 23:47

"My concern was that bypassing the attorneys would prevent privilege from applying."

Can the 3rd party forensic vendor waive the outside counsel's privilege claim over the 3rd party forensic vendor's work by unilaterally forgetting to cc outside counsel on a an email sent to the corporate client?

I do not personally cc outside counsel on every single email I send on a project in order to save the corporate client 15 minutes increments of billable hours that reading every email would generate $$$.

For project-material emails, I definitely do always CC outside counsel.

For example, when I am working on site collecting file servers and it is time to go to lunch, I might email or text the corporate client IT professionals I am working with where the best local lunch spot might be.

traced_f: What you are asking is actually a legal (rather than a technical) question that only qualified lawyers are capable of answering. My understanding is that it is the outside counsel's privilege claim to waive, not client nor the 3rd party forensic vendor's claim.  
 
  

tracedf
Senior Member
 

Re: HR Investigations - Privilege

Post Posted: Apr 12, 16 00:48

UnallocatedClusters,

It is ultimately a legal question. I was trying to get more general information and was curious what others had run into and what pitfalls I should avoid. My takeaway from this is that there is risk in not keeping the attorney in the loop and that I should clear communication protocols with the attorney.  
 

Page 1 of 1