In Genesco, Inc. v. Visa U.S.A., Inc., No. 13-0202 (M.D. Tenn. Mar. 10, 2014), the court held that a non-testifying consultant’s report was privileged, and that affidavits in lieu of a traditional privilege log were sufficient to assert privilege. This case involved a dispute following a data breach.  Plaintiff hired two consulting firms.  The first consulting firm was hired pursuant to a contractual obligation with defendant, and the firm’s report was produced to defendant.  At the same time, plaintiff’s general counsel engaged outside counsel and a second, non-testifying forensic consulting firm, Stroz Friedberg, to provide advice regarding the data breach and the first consultant’s report.  Defendant subpoenaed Stroz for all documents relating to the engagement.  Plaintiff’s general counsel submitted a detailed affidavit explaining Stroz’s role and the legal purpose of the engagement, but plaintiff did not submit a traditional document-by-document privilege log.  Defendant argued that plaintiff waived privilege by failing to provide a traditional privilege log.  The court held that discovery of the Stroz materials was governed by Fed. R. Civ. P. 26(b)(4)(D), which requires a showing of exceptional circumstances before a party may discover materials prepared by a non-testifying consultant.  The court found that defendant did not make the necessary showing.  In addition, the court held that the plaintiff’s affidavit provided sufficient information to assert privilege over the Stroz work product, and requiring a document-by-document log in this complex, international computer investigation would risk revealing opinion work product and was impracticable and unnecessary to present privilege issues for review by the court and defendant.