Seattle Washington Building Expert Directory

Attorney-Client Privilege in the Age of Cyber Breaches

October 18, 2021 — Shaia Araghi - Newmeyer Dillion
Investigations and forensic reports relating to a cybersecurity breach may not always be protected by the attorney-client privilege or work product protection. Companies seeking such reports after a data breach must take caution to protect them from a possible waiver of privilege in the event of subsequent litigation relating to a data breach. The following recent cases highlight the potential waiver of privilege in light of the preparation of a forensic report.

In re Capital One Consumer Data Security Breach Litigation, 2020 WL 3470261 (E.D. Va. June 25, 2020)

After a data breach occurred, Capital One retained a law firm that later entered into an agreement with Mandiant for various cyber-related services (including incident remediation), which required that Mandiant provide deliverables to the firm, rather than to Capitol One. In re Capital One Consumer Data Security Breach Litigation, 2020 WL 2731238, at *1 (E.D. Va. June 25, 2020). Plaintiffs sought release of the report created by Mandiant (regarding the factors leading to the breach), arguing that it was prepared for business and regulatory purposes and therefore was not privileged, while Capital One argued that the report was privileged because it was prepared in anticipation of litigation. Ibid. The Court determined that Capital One did not carry its burden of establishing that the report was protected by the attorney work-product doctrine and ordered that Capital One produce the report. Id. at *7. In its reasoning, the Court stated that the fact that there is litigation does not, by itself, provide prepared materials with work-product protection. Ibid. The work-product protection applies when a party faces a claim following an event that may result in litigation, and the work product would not have been prepared in a substantially similar form but for the prospect of that litigation. Ibid.

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Reprinted courtesy of Shaia Araghi, Newmeyer Dillion
Ms. Araghi may be contacted at shaia.araghi@ndlf.com

The ALI Restatement – What Lies Ahead?

July 30, 2018 — Adam M. Berardi & Sara C. Tilitz - Complex Insurance Coverage Reporter
The American Law Institute voted on May 22, 2018 to approve the final draft of its “Restatement of the Law of Liability Insurance.” This was the culmination of an eight-year project that evolved through 29 drafts resulting in a nearly 500-page final product. At least nine courts cited to the Restatement while it was still in draft form. On June 28, 2018, White and Williams LLP had the privilege of hosting a seminar about the Restatement, chaired by the Reporter for the Restatement, University of Pennsylvania Law Professor Tom Baker, and Randy Maniloff of White and Williams, author of “General Liability Insurance Coverage, Key Issues In Every State.” The seminar was geared toward assisting members of the liability insurance community in navigating the key provisions of the Restatement, including how they compare and contrast with existing case law and the role the Restatement may play in courts’ decision-making processes going forward. Reprinted courtesy of Adam M. Berardi , White and Williams, LLP and Sara C. Tilitz, White and Williams, LLP Mr. Berardi may be contacted at berardia@whiteandwilliams.com Ms. Tilitz may be contacted at tilitzs@whiteandwilliams.com Read the court decision
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Design Firm Settles over Construction Defect Claim

July 31, 2013 — CDJ STAFF
A Pennsylvania township has announced that it has reached a settlement with the architectural firm that designed its administration building. Cee Jay Frederick Associates will be paying than $1.05 million to settle claims of defects in the design of the building. West Whiteland’s administration building was completed in July 2007. The first leaks were noticed in November and December 2008. In response, the township stopped payments to the contractor, Magnum, Inc. Magnum sued, claiming that their work was not to blame for the leaks. Magnum joined the township in suing the design firm. Although Cee Jay Frederick Associates will be paying the township to settle the claim, West Whiteland will be paying $75,000 of that back to the firm to settle outstanding bills that had been withheld during litigation. Read the court decision
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Legislation Update: S-865 Public-Private Partnerships in New Jersey Passed by Both Houses-Awaiting Governor’s Signature

July 02, 2018 — Steven M. Charney & Charles F. Kenny - Peckar & Abramson, P.C.
New Jersey is finally close to being among the many states with broad authority to develop or improve public projects through a Public-Private Partnership (P3) delivery method. This contracting model has stimulated growth and improvements in other States and led to the delivery of projects that may not otherwise have happened. Senate Bill 865 (“S-865”), after undergoing some last-minute amendments in a frenzied legislature dealing with budget and other critical issues, has passed in both houses of the Legislature and is waiting for Governor Murphy’s signature, which is expected shortly. The law will be effective 180 days from formal enactment. The administrative framework is now in place to make Public-Private Partnerships a reality in New Jersey. Reprinted courtesy of Steven M. Charney, Peckar & Abramson, P.C. and Charles F. Kenny, Peckar & Abramson, P.C. Mr. Charney may be contacted at scharney@pecklaw.com Mr. Kenny may be contacted at ckenny@pecklaw.com Read the court decision
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When it Comes to COVID Emergency Regulations, Have a Plan

December 07, 2020 — Christopher G. Hill - Construction Law Musings
As I hope readers of this construction corner of the “blogosphere” know, Virginia adopted emergency COVID workplace regulations effective July 27, 2020, and with enforcement beginning at the end of September. Among the various items found in these regulations are general requirements for all employers, including among others, the requirement to self determine the employer’s risk level and disinfecting requirements. The regulations also have some requirements that seem specially directed toward construction industry employers. These include among them engineering controls and various requirements relating to communications with subcontractors. For a good overview of these requirements, see this great post at the Virginia Bar Association’s construction law blog. One item that is not included in the emergency regulations is a statement that following the regulations immunizes an employer from COVID infection-related lawsuits. For this reason, among others, all construction (and other industry) employers should have a COVID plan that meets the requirements of these regulations at whatever “hazard level” that employer meets. These plans should be written and distributed to all employees and include protocols for workplace/job site screening and what to do if there is a need for contact tracing. I also highly recommend that any plan be created with the help of a good Virginia workplace safety consultant well versed in the COVID regulations. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Transportation Officials Make the Best of a Bumpy 2020

January 18, 2021 — Jim Parsons & Aileen Cho - Engineering News-Record
The year 2020 provided a bumpy budgetary ride for all modes of transportation, and some industry insiders don’t expect airport and transit ridership to return to pre-pandemic levels for years. Agencies are taking lessons learned, coupled with hopes for the new Biden administration, to carry on as best they can. Reprinted courtesy of Jim Parsons, Engineering News-Record and Aileen Cho, Engineering News-Record Ms. Cho may be contacted at choa@enr.com Read the full story... Read the court decision
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Massachusetts Clarifies When the Statute of Repose is Triggered For a Multi-Phase or Multi-Building Project

December 07, 2020 — Jeffrey J. Vita & Anna M. Perry - Saxe Doernberger & Vita, P.C.
Lennar Hingham Holdings, LLC (“Lennar”) built a twenty-eight-building, 150-unit condominium project containing twenty-four discrete phases over a seven-year span. The condominium association subsequently brought an action against Lennar and others alleging design and construction defects to four main components of the common elements: “decks and columns,” “roofing/flashing,” “exterior walls/flashing/building envelope,” and “irrigation system.” In response, the defendants argued that the plaintiff’s claims with respect to six of the twenty- eight buildings were barred by Massachusetts’s six-year statute of repose, G. L. c. 206 § 2B. The United States District Court for the District of Massachusetts previously held that all twenty-eight of the condominium’s buildings should be treated as a single improvement for purposes of application of the statute of repose. Subsequently, the court certified the following question to the Massachusetts Supreme Judicial Court: Where the factual record supports the conclusion that a builder or developer was engaged in the continuous construction of a single condominium development comprising multiple buildings or phases, when does the six-year period for an action of tort relating to the construction of the condominium’s common or limited common elements start running? Reprinted courtesy of Jeffrey J. Vita, Saxe Doernberger & Vita, P.C. and Anna M. Perry, Saxe Doernberger & Vita, P.C. Mr. Vita may be contacted at JVita@sdvlaw.com Ms. Perry may be contacted at APerry@sdvlaw.com Read the court decision
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Homebuilding in Las Vegas Slows but Doesn’t Fall

October 15, 2013 — CDJ STAFF
There was an 18 percent drop in the sale of new homes in September, as compared to the prior month, but that was still 6 percent higher than the home sales of the previous September. So far, August was the briskest month for homes sales in Las Vegas for 2013. Through September, builders have sold 5,653 homes, which is a fifty-three percent increase over the first nine months of 2012. Dennis Smith, the president of Home Builders Research said “that is a very strong annual change that clearly suggests new housing has revered from the recessionary doldrums of the past four years.” Read the court decision
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SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES