The Minnesota magistrate judge presiding over discovery in the litigation seeking to hold Target Corp. liable for the retailer’s 2013 data breach issued an order denying the motion by a plaintiff class of about 9,000 banks to compel production of certain documents relating to Target’s internal investigation that were withheld on privilege grounds.
Target withheld production of the details of its investigation conducted by a “Data Breach Task Force” (DBTF) under the attorney-client privilege or work product doctrine, due to the extraordinary nature of the breach that placed it outside the “regular” business functions or “ordinary work”. Instead, Target argued, the communications were privileged because the DBTF “facilitated Counsel’s investigation and provision of legal advice.”
On October 23, 2015, Magistrate Judge Jeffrey Keyes issued an order largely denying plaintiff’s motion to compel. Judge Keyes explained that Target effectively established that the purpose of the DBTF was to educate its lawyers so that they could provide legal advice. The case is In re: Target Corporation Customer Data Security Breach Litigation, No. 0:14-md-02522 (D. Minn.). Read more at our client alert available here.