It’s a Trap!! Infected Microsoft Word Files Exploiting Unpatched Vulnerability

April 11, 2017

itsatrap.jpegA new virus is ‘in the wild’ that exploits a ‘zero-day’ vulnerability to infect or, worst case, wipe computers. The only known mitigation is to not download or view the infected files.  One may also view the files using ‘Protected View’, which has been reported to work in this case. Opening the file outside of Protected View will infect the system, however.

Note: Disabling ‘Macros’ does not protect against this exploit. The exploit bypasses most system protections, including the tools built into Windows 10.

The infected word document arrives via email.  Once opened, it downloads malicious code from a remote site, and installs various malware payloads. The virus actually opens a ‘decoy’ Word document in an attempt to cover its behavior.

A patch is expected today, but patches are useless if they are not applied. The patch will likely be issued only for Windows 7,8,10.  Older Windows versions will likely still be vulnerable.

At a Glance:

Threat Level:     HIGH
Delivery Method:     Email
Infection Vector:     MS Word Document:  .doc, .docx, .rtf
Infection Type:     Various malware libraries
Vulnerable:     All Windows Versions. All Office versions.

Actions:

1- Communicate and Educate: Make sure ALL users are aware

2- Until patch is applied:  Utilize Protected View to view documents

You (or IT support) may also change registry files to automatically open documents in Protected View.

3- Pay attention to patch cycle. MicroSoft’s standard patch day is today. Make sure patches are applied and operational.

Outside Links:

Ars Technica

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Texas CoA Addresses Electronic Community Property and Invasion of Privacy

August 5, 2016

Reference:

Miller v. Talley Dunn Gallery LLC, 2016 Tex. App. LEXIS 2280

(Tex. App. – Dallas March 3, 2016) (mem. opinion)

(Cause No. 05-15-00444-CV)

Relevant Documents:

Memorandum Opinion:  March 3, 2016, Cause No. 05-15-00444-CV

Texas Penal Code 33

In this case, part of the original trial court’s decision determined that Talley Dunn and the Tally Dunn Gallery LLC had “established a probable right to recover on their claims under the HACA. [Harmful Access to Computers Act]”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 19]

In his appeal, Bradley B. Miller argues that, while he admits that he took screenshots of information contained on the phone, the screenshots do not qualify as “access” and that he had effective consent to do so because the cell phone was community property.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 21-22]

Texas Penal Code § 33.01(1) defines access as:

“to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.”

Neither party disputes that a cell phone is a computer, and the appellate court found that in order to take the screen shots Miller necessarily HAD to access the the computing device, within the definition of the penal code.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 22]

Regarding his argument that he had effective consent to access the cell phone because it was community property, the CoA relied upon the penal code definition of ‘owner’ as:

“a person who:

(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;

(B) has the right to restrict access to the property; or

(C) is the licensee of data or computer software.”

Dunn used the cell phone on a daily basis, had the right to place a password on it (and had), and the court determined Dunn had a ‘greater right to possession of the cell phone’.[March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]  Further, the CoA notes earlier in the opinion that “[N]othing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 20]

Interestingly, the court does not address the multiple licenses that are part of the software and operating system that users have to acknowledge and accept to use a modern cell phone.  I would expect that will start coming up as another layer to the definition of ‘owner’, though.

Accordingly, the CoA concludes that “the trial court did not abuse its discretion by determining appellees established a probable right to recover on their claims under the HACA.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]

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‘Shellshock’ In Plain English: Latest Security Vulnerability is a Big One

September 25, 2014

Many network administrators and information security folks are feeling the effects of the ‘Shellshock’ bug, this morning.  The bug has been confirmed as ‘worm-able’, and proof-of-concept code is already bouncing around.
(source: Errata)

In many ways, Shellshock is worse than Heartbleed.  Here is a quick, plain English breakdown of the vulnerability:

What Shellshock Is:

It’s an attack that does not require the attacker to ‘authenticate’ to the system or server being attacked.  In other words- the attacker does not have to have a username/password, or break passwords.

What the attacker can do:

Everything up to full control of the compromised device/system/server.

What Shellshock affects:

Linux, Mac OS/X or any device that uses a ‘Bash’ Linux command-line (most internet connected devices).

If you read that it only affects Linux systems/servers- don’t breathe a sigh of relief just yet!  Most of the ‘Internet-of-things’ devices (Cameras, refrigerators, TVs, etc.) use a form of Linux, and are potentially vulnerable.  In addition, if you are running ‘SOHO (Small Office/Home Office)’ wireless access points, managed switches, and routers, or if you are using a store-bought Firewall/Cable modem then you may be vulnerable.

If you rely on IT support, and they tell you that there is ‘No problem- we don’t allow shell or terminal access to the outside world’, then you need to point out to them that is not the entire attack vector:  Any process, or program that IS accessible, that sends commands to the shell, is potentially vulnerable.  It is not always obvious which programs or services do this, behind the scenes.

So what can be done?

Review and Confirm: Check your systems, servers, and devices to see if they are, in fact, potentially vulnerable.

Patch:  A number of the primary Linux shell versions had patches available within hours.

Keep an eye out for firmware updates for your internet devices: Internet connected TVs, Wifi access points, SOHO-class firewalls, Network storage devices, internet connect cameras, etc.

Kill Non-essentials: Consider turning off, or disconnecting, non-essential ‘internet-of-things’ devices until a patch is available for them.

BE ALERT FOR PHISHING SCAMS:  So-called ‘spear phishers’, and scammers of every ilk, like to use these well-publicized security issues to trick people into downloading malicious programs.  Always deal with a known security site, or directly with the manufacturer.

USEFUL READING:

Patch NOW (the Register)

Shellshock bug (the Mirror)

TECHNICAL: CVE-2014-6271 (NIST.gov)

TECHNICAL: OSS Write-up

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ABA Issues Opinion on Social Media Ethics

May 7, 2014

The most common question in cases involving Open Source Intelligence (OSI) to support an electronic investigation, is: “To what extent may an attorney ethically use social media during case investigation and discovery?”

The question is not at all surprising.  The extent to which we can develop and use information from social sites, and other types of OSI, has a really high “creep factor”.  My answer has always been:  “If a person has given up information and made it publicly available to anyone with a browser and knowledge of where to look, then what’s the question?”.

Two weeks ago, the ABA agreed… mostly.  In the ABA’s “Formal Opinion 466”, issued on 4/24/2014, the ABA states, in part:

A lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.

In summarizing, the opinion states:

In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework.
The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).

While this opinion is specific to jurors, might it also apply to witnesses, attorneys, and other parties to a case?  I would think so.

Link to the ABA Journal’s Final Opinion PDF

Deepweb and Google Cheatsheets Updated

If you are interested in researching OSI (Open Source Intelligence), and are an attorney, you will want to request a login to Vidoc Razor’s RazorSuite.  The RazorSuite includes a connector to conduct your own OSI searches in a fraction of the time, and with more information, than manual techniques.  You can request a login here.

If you prefer to do your own manual work, I have been maintaining two “Effective Internet Search” cheat sheets since 2009. The cheat sheets cover the best sites for developing information manually, as well as how to use Google’s advanced features effectively when performing online searches of people, places, and companies.

Link to the updated DeepWeb Cheat Sheet

Link to the updated Google Search Cheat Sheet

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Weekly Highlights: April 21, 2014

April 22, 2014

FRCP Rule 37(e) (Preservation) is Changing

On April 11th, the Civil Rules Advisory Committee approved a  revision to Rule 37(e) (the section covers failure to preserve Electronically Stored Information (ESI)).  The new draft reads, as follows:

“(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.”

You’ll note that the existing Rule 37e language is nowhere to be found:

“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

You can read the proposed changes on the US Courts site, here.

 Popular Legal Websites Affected by the Heartbleed Flaw

Robert Ambrogi’s blog, “LawSites” had a post listing sites, popular with attorneys, that were affected by Heartbleed.  You can view that site here.  If you don’t know what “Heartbleed” is, you will need to.  You can view the Inforensics Blog post, to catch up.

Box.com, and Dropbox.com were, according to Ambrogi’s research, affected by the flaw.  If you use these sites, it is a good time to review and change passwords.  Also, read the Inforensics Blog post on Password Re-use.

 

Changing Metadata Leads to Sanctions

You may have missed the following case.  Remember: It doesn’t take an expert to alter data, and attempt obfuscation, just some software from your local Best-Buy:

T & E Inc. v. Faulkner, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014)

In this case, sanctions were sought for alleged manipulation of metadata, in an attempt to hide the existence of a computer that had not been produced.  A successful motion to compel the defendant to produce computers gave a specific timeline for production.  A forensic expert found evidence that, during the time given to produce, the opposing party created a new user profile on a computer, copied data to it, and used a commercial software to alter times on files in order to make the system appear as though it had been in use, in an effort to hide the “real” computer that had been in use.  Spoliation sanctions were awarded in the form of an adverse inference, and $27,000 dollars.

 

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Making Sense of “Heartbleed”: Information Security Catastrophe/Nightmare

April 11, 2014

The term “Internet Security Nightmare” has been used.  This is not an exaggeration, and not an example of hyperbole; Heartbleed is a security catastrophe that cuts a wide swathe across the internet.

If you are not aware of the recently discovered Heartbleed flaw: An extremely critical security flaw has been identified in a cryptographic software component that affects an estimated two-thirds of Web servers, as well as many devices and programs that rely on the software component.  The flaw has been nicknamed “Heartbleed” because of the methodology used to exploit it.  The flaw allows an attacker to retrieve active contents in memory, including private security keys, unencrypted information, and usernames and passwords.

The Heartbleed flaw affects a software module that is in use by everything from routers and web servers, to some phones and devices.

Here are some steps you should take now to give yourself a fighting chance against this flaw:

1) Examine your own practice first:  Are you using hosted email, providing client portals, file upload services, or other web- or internet- enabled services for your clients?  If the services offer SSL, or access using encryption then you need to check with your hosting provider or IT company to confirm that they have patched, or otherwise mitigated the issue.

2) Change your passwords AFTER you have confirmed the service has been fixed: This flaw is being actively exploited.  If you change your password BEFORE the service is fixed, then you are still at risk.  Confirm first, change after.

3) Be aware of “password re-use”:  This flaw has existed for 2 years, and has only now come to light.  Some companies have gone back to review logs, and have found active attacks against this flaw from before March.  If you use the same password in multiple locations, then it is time to change all your passwords.  Recommended reading:   Because One Thing Leads to Another: Data Breach and Password Re-Use

I have included a simple chart below, as an example of high profile services to review (source: Mashable):

Social Networks

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Facebook Unclear Yes Yes “We added protections for Facebook’s implementation of OpenSSL before this issue was publicly disclosed. We haven’t detected any signs of suspicious account activity, but we encourage people to … set up a unique password.”
LinkedIn No No No “We didn’t use the offending implementation of OpenSSL in http://www.linkedin.com or http://www.slideshare.net. As a result, HeartBleed does not present a risk to these web properties.”
Tumblr Yes Yes Yes “We have no evidence of any breach and, like most networks, our team took immediate action to fix the issue.”
Twitter Unclear Unclear Unclear Twitter wrote that OpenSSL “is widely used across the internet and at Twitter. We were able to determine that [our] servers were not affected by this vulnerability. We are continuing to monitor the situation.”Twitter has not yet responded to Mashable‘s request for comment.

Other Companies

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Apple Unclear Unclear Unclear Apple has not yet responded to a request for comment.
Amazon No No No “Amazon.com is not affected.”
Google Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.” Search, Gmail, YouTube, Wallet, Play, Apps and App Engine were affected; Google Chrome and Chrome OS were not.*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Microsoft No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.” Yahoo Homepage, Yahoo Search, Yahoo Mail, Yahoo Finance, Yahoo Sports, Yahoo Food, Yahoo Tech, Flickr and Tumblr were patched. More patches to come, Yahoo says.

Email

Was it affected? Is there a patch? Do you need to change your password? What did they say?
AOL No No No AOL told Mashable it was not running the vulnerable version of the software.
Gmail Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.”*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Hotmail / Outlook No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Mail Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.”

Stores and Commerce

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Amazon No No No “Amazon.com is not affected.”
Amazon Web Services(for website operators) Yes Yes Yes Most services were unaffected or Amazon was already able to apply mitigations (see advisory note here). Elastic Load Balancing, Amazon EC2, Amazon Linux AMI, Red Hat Enterprise Linux, Ubuntu, AWS OpsWorks, AWS Elastic Beanstalk and Amazon CloudFront were patched.
eBay Unclear Unclear Unclear “The vast majority of our services were not impacted and our users can continue to shop securely on our marketplace.”
GoDaddy Yes Yes Yes “We’ve been updating GoDaddy services that use the affected OpenSSL version.” Full Statement
PayPal No No No “Your PayPal account details were not exposed in the past and remain secure.” Full Statement
Target No No No “[We] launched a comprehensive review of all external facing aspects of Target.com… and do not currently believe that any external-facing aspects of our sites are impacted by the OpenSSL vulnerability.”

Banks and Brokerages

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Bank of America No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
Chase No No No “These sites don’t use the encryption software that is vulnerable to the Heartbleed bug.”
E*Trade No No No E*Trade is still investigating.
Fidelity No No No “We have multiple layers of security in place to protect our customer sites and services.”
PNC No No No “We have tested our online and mobile banking systems and confirmed that they are not vulnerable to the Heartbleed bug.”
Schwab No No No “Efforts to date have not detected this vulnerability on Schwab.com or any of our online channels.”
Scottrade No No No “Scottrade does not use the affected version of OpenSSL on any of our client-facing platforms.”
TD Ameritrade No No No TD Ameritrade “doesn’t use the versions of openSSL that were vulnerable.”
TD Bank No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
U.S. Bank No No No “We do not use OpenSSL for customer-facing, Internet banking channels, so U.S. Bank customer data is NOT at risk.”
Wells Fargo No No No No reason provided.

Government and Taxes

Was it affected? Is there a patch? Do you need to change your password? What did they say?
1040.com No No No “We’re not vulnerable to the Heartbleed bug, as we do not use OpenSSL.”
FileYour Taxes.com No No No “We continuously patch our servers to keep them updated. However, the version we use was not affected by the issue, so no action was taken.”
H&R Block Unclear No Unclear “We are reviewing our systems and currently have found no risk to client data from this issue.”
Healthcare .gov Unclear Unclear Unclear Healthcare.gov has not yet responded to a request for comment.
Intuit (TurboTax) Yes Yes Yes Turbotax “has examined its systems and has secured TurboTax to protect against the “Heartbleed” bug.” Full Statement
IRS Unclear Unclear Unclear “The IRS continues to accept tax returns as normal … and systems continue operating and are not affected by this bug. We are not aware of any security vulnerabilities related to this situation.”

Other

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Dropbox Yes Yes Yes On Twitter: “We’ve patched all of our user-facing services & will continue to work to make sure your stuff is always safe.”
Evernote No No No “Evernote’s service, Evernote apps, and Evernote websites … all use non-OpenSSL implementations of SSL/TLS to encrypt network communications.”Full Statement
LastPass Yes Yes Yes “Though LastPass employs OpenSSL, we have multiple layers of encryption to protect our users and never have access to those encryption keys.”
Netflix Unclear Unclear Unclear “Like many companies, we took immediate action to assess the vulnerability and address it. We are not aware of any customer impact.”
OKCupid Yes Yes Yes “We, like most of the Internet, were stunned that such a serious bug has existed for so long and was so widespread.”
SoundCloud Yes Yes Yes “We will be signing out everyone from their SoundCloud accounts … and when you sign back in, the fixes we’ve already put in place will take effect.”
Spark Networks (JDate, Christian Mingle) No No No Sites do not use OpenSSL.
Wunderlist Yes Yes YesYes “You’ll have to simply log back into Wunderlist. We also strongly recommend that you reset your password for Wunderlist.”Full Statement

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Weekly Highlights: December 6, 2013

December 5, 2013

Hacker Server Storing Two Million Pilfered Passwords

(From: Ars Technica)  Researchers have unearthed a server storing more than two million pilfered login credentials for all kinds of user accounts, including those on Facebook, Yahoo, Google, Twitter, and a handful of other websites.  While some have initially stated that the password compromises were primarily against the Netherlands, further research showed that the reason for the Netherlands showing so prominently was because the information was filtered through “Command and Control” bots.

Article is HERE.

Lawyer Can’t Grill ISP Over Online Defamation

(From: Courthouse News)  A California-based lawyer alleged defamation and copyright infringement with respect to the use of his photo without permission.  The lawyer filed suit against the ISP, and the Judge, while refusing to dismiss on the basis of safe harbor, granted the ISP’s motion based on the lawyer’s failure to show copyright ownership.

Article is HERE.

A Spurned Techie’s Revenge: Locking Down His Ex’s Digital Life

(From: Ars Technica)  Revenge porn is just the tip of the iceberg when it comes to cyber-domestic abuse.

Article is HERE.

Encryption Made Easy: A Primer for Mac Users

(From: Law Technology Today) This article describes the steps to encrypt documents, folders, hard drives, external drives, and backup devices using Mac OS X Mountain Lion.  Most capabilities described in this article can be found on other versions of OSX, as well.

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Weekly Highlights: September 17, 2012

September 17, 2012

Things You Might Have Missed Last Week

(Highlights in legal, forensics, and electronic discovery news for the past week)

Interesting Electronic Evidence Cases

Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)

The defendant inadvertently produced almost 350 pages of email. Even though, after in camera review, the court found that many of the produced materials were “within the ambit of attorney-client privilege”, the court found that privilege had been waived.

Weekly Highlighted Article

From E-Discovery Beat:

Experts Consider E-Discovery Implications of New ABA Ethics Rules Amendments

From BowTieLaw.com:

Forensically Examining a Lawyer’s Computer

Electronic Evidence News

Twitter Gives Occupy Protester’s Tweets to U.S. Judge

Court Issues 20-Year Product Injunction in Trade Secret Theft/eDiscovery Sanctions Case

Samsung Flexes Litigation Muscles at Apple Ahead of iPhone 5 Launch-Again

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Weekly Highlights: September 10, 2012

September 10, 2012

Things You Might Have Missed Last Week

(Highlights in legal and electronic discovery news for the past week)

Interesting Electronic Evidence Cases

Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)

The defendant was seeking to compel production of discovery in (among other things) “all social media content involving [Plaintiff] since July 1, 2008” related to the Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”.

Magistrate Judge Paul Papak (Oregon) found:

“I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms. I therefore fashion a single order covering all these communications.”

Link to Opinion PDF

Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012)

The Defendant in this case was sanctioned for the loss of relevant emails due to Defendant’s failure to follow-up with employees to ensure compliance, and the Defendant’s failure to halt the email system’s auto-delete function.  Sanctions included an adverse inference that allowed the jury to presume that the missing evidence was relevant and favorable to the Plaintiff.

Link to Opinion PDF

Weekly Highlighted Case

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

This case can be very useful when dealing with social media electronic evidence matters.  It was utilized by the Oregon magistrate in the above listed case (Robinson v. Jones Lang LaSalle Americas) when forming his opinion.

The defendant in this matter was seeking production of claimants’ social networking site profiles, as well as other communications from social sites used by the claimant.

Last May, the Great State of Texas saw a similar matter that relied, in part, on the EEOC case:

IN RE MAGELLAN TERMINALS HOLDINGS, L.P. AND MAGELLAN MIDSTREAM HOLDINGS GP, LLC 
Link to PDF Document

Electronic Evidence News

State Bar of Texas Alert Says ‘Scam Artist’ Stole Nonpracticing Lawyer’s ID for Fake Website

West Let Off the Hook on Web Malpractice Claim

OJ Simpson Prosecutor: Johnnie Cochran May Have Tampered with Bloody Glove

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Changes to FRCP 8, 26 and 56 Just Around The Corner

November 16, 2010

December 1, 2010 marks the date that some important changes to Federal Rules of Civil Procedure will take effect.

The changes will affect the following:

1. Rule 8:  General Rules of Pleading  (Last amended Aug. 1, 1987)

2. Rule 26:  Duty to Disclose; General Provisions Regarding Discovery (Last amended Dec. 1, 1993)

3. Rule 56: Summary Judgment (Last amended Dec. 1, 2009)

As an expert witness, Rule 26 is the change that has most impact to me and how I interact with my cases and my clients.  For this reason I have focused on outlining the more significant changes.  I have provided a link to the full House Document 111-111 at the bottom of this post.

The biggest change is in the wording and interpretation of Rule 26(a)(2)(C) regarding disclosures of draft copies and communication of the expert witness.  While the previous 1993 interpretation meant that all drafts, notes and communications are to be disclosed, the new Rule 26 fixes this interpretation.

Citing the “profoundly practical” argument for extending work-product protection to certain communications and all drafts of the written report, the Civil Rules Committee went on to point out the loss of “robust communication” between the attorney and the expert [1] (we all know the wild gyrations we take to avoid discoverable material) , the “tortuous steps to avoid having the expert take any notes”, and the “often futile” attempts to show that the expert was unduly influenced by the retaining lawyer. [2]

On a real-life level, I never take notes unless they are to document methodology, and unless given specific permission I avoid email and other written communication to my retaining attorney.  Report generation (unless it violates a specific order) means that I generate a report without saving it and have a remote viewing session with my retaining attorney.  This tends to create:

  • Extra phone calls to verify recollection of information,
  • Unnecessary phone tag,
  • Additional report generation time, and
  • A decrease in the retaining litigant’s view of the efficiency and effectiveness of the process.

Here are some of the highlights of the Rule 26 changes that fix the above issues:

  1. 26(a)(2)(B)(ii) has been amended to read that disclosure is to include all “facts or data considered by the witness in forming” their opinions.  This changes the previous wording of “the data or other information” verbiage that was used to imply all communications, written notes and drafts.
  2. The “Time to Disclose Expert Testimony” has been shifted to 26(a)(2)(D) and specifies the time limit for rebuttal evidence for both 26(a)(2)(B) and 26(a)(2)(C).  The new 26(a)(2)(C) deals with witnesses that are not required to provide a report.
  3. 26 (b)(4)(B) protects “drafts of any report or disclosure required under 26(a)(2), regardless of the form in which the draft is recorded.”  Essentially this makes the verbiage change in 26(a)(2) explicit.
  4. 26 (b)(4)(C) provides protection for “communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications”.  There are three types of communications that are exempted from this protection, though:
  • Communications that relate to compensation for the expert’s study or testimony;
  • Communications that identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed (emphasis added)
  • Communications that identify assumptions that the party’s attorney provided and the the expert relied on in forming the opinions to be expressed (emphasis added)

In short – better communication, less wild gyrations by the experts and their retaining attorney and shorter deposition without all the attempts to show undue influence. I was excited to see this discussed at Sedona and am thrilled to see the results just around the corner.

The only thing I will miss is the competitive advantage actually knowing FRCP gave me in this area vs. the numerous experts that didn’t seem to take the time.

The benefits, though, definitely outweigh this one advantage.

The link to the Supreme Court’s Approved Rules page is here:

Approved Rules Page

Direct links to the component PDF documents are below:

Rules (Clean Version)

Excerpt of the Judicial Conference Report

Excerpt of the Report of the Advisory Committee on Civil Rules

[1] 111th Congress, 2d Session House Document 111-111, page 35
Civil Rules Committee Report 5/8/2009, page 3

[2] 111th Congress, 2d Session House Document 111-111, page 25
Excerpt From The Report of the Judicial Conference 12/18/2009, page 3

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