RE: Pen test - Attorney client Privilege?

["Craig Wright" <cwright () bdosyd com au>]

Not all communications are considered privileged

Not all privileged conversations can be kept from the court

There are cases where so called "privileged" information can be made
available in discovery. It depends on the nature of the information.
Often this will be delivered to the court and the judge will decide if
it should remain closed

A Pen test is highly unlikely to remain in this form

Discovery could request the reports directly from the Pen Tester - thus
by passing privilege any way.

-----Original Message-----
From: Paul Robertson [mailto:compuwar () gmail com] 
Sent: 19 October 2005 11:01
To: Lyal Collins
Cc: rob havelt; pen-test () securityfocus com
Subject: Re: Pen test - Attorney client Privilege?

On 10/19/05, Lyal Collins <lyal.collins () key2it com au> wrote:
> I'm not a lawyer either, but see a couple of interesting twists to 
> this approach, in some situations.

I'm still not a lawyer...

> In the case of the credit card PCI standard, evidence of 
> vulnerability/pen-test activities need to be made available to the 
> accredited PCI auditor (for mid-large sites, anyway).
>
> Taking this to one possible extrapolation, will the lawyers be 
> providing relevant statements regarding conduct of tests to the PCI 
> auditor who then relies upon these statements for their own legal 
> indemnity in making statements towards the site's PCI compliance?
>
> Are the lawyers going to make assessments as to the meanings and 
> outcomes of the pen/vuln testing to PCI or other auditors?
> Does this make lawyers involved in liability to one or more third 
> parties with whom the law firm (usually) has no commercial, 
> contractual or legal relationship (e.g. Acquiring Bank, Card Scheme,
PCI Auditor)?
> Would/could this cause the confidentiality shield to be punctured?

Yes, it would.  According to my research, disclosure to any 3rd party
not directly involved in the litigation or pre-litigation process on
behalf of the client or the client's counsel invalidates privilege.

Paul
--
www.compuwar.net

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