Part One: Simple Steps To Secure Your Client During Litigation

September 11, 2012

In the past year, there has been a distinct uptick in cases involving data breach and key logging malware- especially in family law cases. This uptick is not by anonymous, random third parties, but rather by the actual litigants in a case.

Part of the reason for the uptick is that “bugging” someone’s computer  or cell phone (electronic intercept) has gotten significantly easier. Most people can handle installing software.  Likewise with breaking into someone’s webmail, banking, or other online accounts.

Here are steps your client can take, right now, to protect their information and communications:

  • Create a List of Electronic Assets – Experience shows that, without a list, things will be overlooked.  Have your client list out cell phone, webmail, social network, and online banking accounts. In the same manner, have them list out things like wifi and home network assets.  This list is the starting point.
  • Change Passwords and Password Recovery Questions – Simply changing passwords is not enough. Password recovery questions (“What is the name of your favorite pet?”) are an easy way for someone who is familiar with your client to gain entry to their online resources.
  • Avoid Password Reuse – Using the same password for everything is a recipe for disaster. Understandably, it can be an inconvenience to use different passwords everywhere, but there are ways to make meaningful passwords that are easy to remember. Here is a full write-up on password reuse.
  • Review WiFi Security – If the opposing side in a matter was the one that set up the home wireless network, then all they need to do is be within range to join back on the network and gain access to systems or to “sniff” and view network traffic (including your client’s passwords, communications, etc.).
  • Review Joint Cellular Accounts – Depending on the carrier, joint cellular plans can give the opposing party access to endpoints in voice and text communications. Some carriers may actually have access to the content of text messages online. While TRO and data protection may prevent a direct change to the account or plan, your client may consider using a pay-as-you-go plan.

These are some simple steps that can be taken with minimal cost, and yet they will provide an immediate boost to your client’s security stance.

Tomorrow: Part 2- Simple Steps In Case of Breach

If you or your client feel that there has already been a breach, or you are facing a particularly aggressive or knowledgeable opposition, you may consider inquiring about our Client Information Security package (CISP).

The CISP is a flat-rate, full assessment of your client’s information security and includes a drop-in firewall with logging and 24/7 monitoring for intrusion attempts, malware activity, and other breach behavior.  Vidoc Razor not only will assess the security of your client, but fixes the issues identified.  All hardware is provided by Vidoc Razor.

You can find more information by clicking HERE.


Quick Tips For Preserving Social Media

June 6, 2011

There is no arguing that social media sites are a boon for information related to a case, and not just for Family law, but also for corporate litigation as well.  We have had tremendous success with using social sites to tie component pieces of  a hard drive or cell phone investigation together.

The proliferation of social websites like Facebook can create discovery issues, though: How do you properly preserve a social site?  How do you deal with the opposing side arguing that the request to preserve is “overly burdensome”?

In this article I will walk you through three of the most popular social media sites and some techniques to preserve them easily.

1: Facebook (www.FaceBook.com):  Facebook is probably the easiest site to preserve.  The user can simply go to “Account Settings”, scroll down to “Download Your Information”, and click on “learn more”.  From the Facebook description:

“This tool lets you download a copy of your information, including your photos and videos, posts on your Wall, all of your messages, your friend list and other content you have shared on your profile. Within this zip file you will have access to your data in a simple, browseable manner.”

Once the user clicks “Download”, FaceBook will aggregate the information and email a link to the download.  Depending on how much information is there, this can take several minutes or even hours.

2: LinkedIn (www.LinkedIN.com):  LinkedIN is a site geared more towards a professional profile than Facebook.  We have been successful in using it to uncover additional email addresses, business documents, associations and affiliations primarily in Corporate cases, but it has factored into family law cases before.

The good news is that, while the Facebook preservation method is only useful if you are the specific user, LinkedIN can be documented for the profile information of other users.  The bad news is that it is slightly more complex than Facebook to preserve (but not much more!).

The easiest way to archive a LinkedIN account is to already have one yourself, or to create one.  NOTE: If the person you are archiving has LinkedIN’s upgraded service, or has agreed to let others see when they view a profile, they will be able to see that you viewed their profile.  I’m not going to encourage you to break the Terms of Service by creating an archive account, but that is one way to get around this.

Next, you will want to navigate to Profile-> Profile Organizer.  This is actually a paid service offered by LinkedIN, but usually it has a free 30-day trial.  More importantly, the free trial does not require a credit card.

Once you sign up for the Profile Organizer, you will be able to search for specific individuals, companies, etc.  When you find a profile you can save it to your organizer, archive it, and print it to a PDF.

3: Twitter (www.Twitter.com): Unlike the others, Twitter doesn’t have an actual built-in archiving functionality.  Twitter DOES have a great advanced search function that you can access at: search.twitter.com

Once on the Twitter search site, look for the “Advanced Search” link.  This will allow you to drill into searches by user, dates, topics, specific words or phrases, locations, etc.
Once you have search results, you can print to PDF, save the list, or use the nifty RSS link in the upper right called “Feed for this query”.


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


Crimes Against Children Research Center: Trends in Arrests of “Online Predators”

April 2, 2009

The Crimes Against Children Research Center has released a new report noting that the types of online sex crime  offenses haven’t changed much, but the profile of your average online predator has been shifting.

I have read the actual report as well as the methodology (methodology available here, report available here) and, while I am no expert in report methodology, I can not spot any serious flaws.  This seems to be a well thought out study that avoids the typical hysteria and FUD that is oh-so-common in this type of work.

Some notable findings:

  • Online sex crimes only account for 1% of all arrests for sex crimes committed against children and youth.
  • Most of the arrests involved solicitation of undercover officers and not actual youth.
  • The percentage of internet users ages 12-17 rose by 20% between 2000 and 2006, at the same time there was a 21% increase in arrests of offenders who solicited youth online for sex and a 381% increase in arrests of offenders who solicited undercover officers.
  • There was a significant increase in arrests of offenders between the ages of 18-25.

There were some distinct differences between this report’s findings and my own perceptions:

  • Most offenders were open about their motives in their online communication with youth.
  • Only 4% of those arrested (in total) were registered sex offenders.
  • The majority of contacts did not occur through social network sites (social network sites accounted for just over 30%).

For those that have kids or are involved in family law, internet crime or data forensics and investigations this is likely to be an interesting read.

Any further comments and observations would be great too!