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Cyber Insurance Coverage

Cyber insurance and security protection

Engima Forensics CEO & President Lee Neubecker and Tressler, LLP, Cyber Insurance Coverage Attorney Todd Rowe sit down for a video discussion. These experts stress the importance of understanding the full scope of your data risk in case of a cyber attack. Both agree cyber attacks are getting more and more sophisticated and urge every company no matter the size to take the necessary steps to protect themselves before a date breach occurs. Prepare your company by working with computer forensics experts and legal counsel and create a game plan to lessen the potential threat posed by a cyber attack. Tune in to find out more about cyber insurance and maximizing your potential for coverage when a cyber attack strikes.

Evolution of Cyber Insurance and Security

The transcript on Cyber Insurance Coverage follows:

Lee Neubecker: Hello, today I have Todd Rowe on the show. Todd is a specialist in cyber insurance related litigation and data breach litigation Todd, thanks for being on the show.

Todd Rowe: No, thank you, this is great. I appreciate it.

Lee Neubecker: And so, Todd, can you tell us a little bit about how cyber has evolved over the last five years?

Todd Rowe: It’s wide open, I mean, we’ve seen everything. First, I think, when we look at the threats, and the evolution of a cyber threat or a privacy threat, we’ve seen things from the classic data breach, which would have been the target data breaches move into more of a social engineering component and tricking users that way, by emails and things like that. Getting around the technology safeguards a little bit and getting in there and tricking people is the biggest development I think we’ve seen in the evolution of threats.

Lee Neubecker: And, how has coverage evolved for cyber insurance over the last five years?

Todd Rowe: Yeah, I mean, we’ve seen huge leaps in insurance coverage and what the policies look like and what we would call cyber policies. We’ve seen the developments first in what would be considered first party insurance coverage, which would be actually responding to the damage that happens. And then, the third party liability piece, responding and giving a defense in the case of an incident. While we’ve seen a lot of developments, I think, with cyber insurance, we still don’t see the uniform policy language. So, there’s still a lot of uncertainty there, but we’ve seen some big developments recently.

Lee Neubecker: So, when a company suspects that they have a data breach incident, what’s your first role on the ground, talking with the client in terms of what you’re advising them?

Todd Rowe: Yeah, all things being equal, we would have loved to have been in there before there was an incident. Preparation is always the best scenario, and what preparation should look like is a corporation or a business working with forensics and legal and getting a game plan together, assessing what those threats might be, and what to do if there are those threats. But, afterward, hopefully you have the game plan. If you don’t, it’s pretty much all boots on ground, getting in there with forensics and legal, and understanding what the threat was, and making sure that the threat is extinguished, and moving on and notifying people that were involved in the threat.

Lee Neubecker: I know from experience that companies that take the time to proactively assemble their team before something happens, and bring in legal, forensics, and outside help, are often in a much better situation when something goes down. They face less downtime, their business can be back up and running. I think the biggest challenge I’ve seen is when companies have no idea what is legitimately their, what their devices are, because when you’re trying to assess are we still compromised, you need to know what good looks like. And if you haven’t mapped out your organization’s IT resources, that really creates a problem.

Todd Rowe: From our point, there’s always been, it’s been a tough sell to go in and try to get in before there’s an incident. A lot of corporations don’t want to think about something until it actually happens. But, the sort of, the wisdom in getting in there beforehand is getting that game plan together, figuring out what data you’re storing and what data you can get rid of. And so, the more data you can get rid of, the better you do on cutting down your liability in the end. Also, working on technology safeguards and having those in place. So, working with forensics, legal, and even PR a little bit really helps in the long run, no doubt about it.

Lee Neubecker: So, if you have cyber insurance, does that mean that you don’t have to worry about a cyber incident?

Todd Rowe: The thought right now, I think, and it has been for a number of years, is an incident’s going to happen, and it just, you need to go in and do things to prep. And while we were discussing earlier, the preparation that you need to do to get sort of an inventory, cyber insurance is another piece of that preparation that needs to be in place. Once again, working with professionals, insurance professionals, brokers, forensics, legal, on what that cyber product that best suits your needs, is the best situation to have that in place once something happens. It will happen, it’s just a matter of having all the right pieces in place when it does happen.

Lee Neubecker: So, if a company has, is storing biometric information, which could even include video cam footage of a certain resolution, what are some of the unique challenges that are raised by some of the laws here in Illinois and elsewhere?

Todd Rowe: Really, being in Illinois is, and I don’t want to use a cliche, but is on the cutting edge of biometric data. And we have BIPA, which is the Biometric Information Protection Act. And what that does is it protects a lot of things like face scans, and finger and thumbprint templates. And, I think one of the biggest issues we see is recently, now BIPA’s been around for 10 years or so, it’s been around for a long time. But we’re seeing a huge uptick in BIPA cases right now, because a number of businesses went in and put in timekeeping systems for their employees that work on thumb and finger scans rather than the old punch card systems. So, the law didn’t change, but the technology did, and so now, there was warnings that should have been put in place before you take that biometric data with those systems. So, they put the systems in, and they didn’t necessarily have the law in place. That’s a perfect scenario where we could’ve had forensics and legal all working together beforehand to avoid a lot of liability, so.

Lee Neubecker: So, what do you see happening in the future with the insurance coverage laws? Especially, you know, one of the concerns I have is, you know, there’s this act of war exclusion, and if you have cyber insurance and you’re hacked by someone outside of the country, what happens there, is that covered?

Todd Rowe: It depends, really, on the policy form. So, we’ve seen, once again, Illinois is on the cutting edge of that law as well. A lot of insurance policies, CGL, commercial liability policies, and even some cyber policies to some extent, have terrorism or war exclusions, excluding acts of war. And that was fine when we were looking at Pearl Harbor, perhaps, or something like a real act of war where a government might declare war on a country, and some damage that results of that would be an act of war. But, with privacy and hackers, and hackers sitting in nation states, but maybe not being an agent of that nation state. So, the case that we have right now that gives a good example of this is a Zurich case, insurance case with Mondelez, they’re a snack food maker. And, Zurich denied coverage, and it looks like the hacker may have come from perhaps China or North Korea. So, what do you do with that, as far as, if you’re going to exclude coverage for that, nobody’s declared war on any of those countries, so that’s going to be a struggle. And I think that demonstrates some of the strengths and weaknesses of cyber coverage right now, as it stands.

Lee Neubecker: And, what do you see happening, what’s the likelihood that the federal government stops in, steps up to the plate should a major data breach happen that could be considered an act of war?

Todd Rowe: Yeah, I mean, well first off, the government brings up another point, as far as right now as it stands, privacy and data laws, we just have a patchwork of things here in the U.S. Of course, there’s frameworks that have been adopted in, for example, the E.U. with GDPR, and we don’t really have that in the U.S. So, we first don’t really have a clear idea of who would do the response in the government. Would it be the Federal Trade Commission, or who would handle that type of situation? So, we have a lot of state laws, so we have a lot of problems like that. And, we have California, which is adopting some stronger guidelines as well. So, what would happen there as far, it’s going to be really left to ironing things out with the insurers and the insurance. Once again, what a great opportunity to sort of look at this issue before an incident happens. You really wouldn’t want to get into this complex of an issue when you’re trying to respond to an incident. So, another reason is, to go and prep a little bit, would be exactly what we’re discussing right now.

Lee Neubecker: Yeah, I know from experience that clients of ours that have had data breach incidents, if they’re working with someone that’s experienced litigation professional in the area of cyber and insurance, the likelihood that, you know, my firm’s fees get covered goes way up, and there are, there’s a potential for coverage of that forensic response. But ideally, you want to have your own team. You want to be picking your team. You don’t want the insurance companies assigning your people, if you can avoid it.

Todd Rowe: Yeah, a lot of insurers do have panels, and there are a lot of insurers that prefer that, because they don’t know where to go. So, that actually, if there’s an incident, that helps out. But, the best scenarios, and we’ve been involved in a lot of responses, and the best scenario is when we’ve had an opportunity to sit down, and maybe you and I talk, the forensic side of things and the legal side of things, and figuring out exactly how we can cooperate and what that response would look like. So, absolutely, if you can sit down and chat beforehand, you’re going to really save yourself a lot of stress and pressure.

Lee Neubecker: Well, thanks a bunch Todd, for being on the show. This has been great.

Todd Rowe: Absolutely, thank you so much, I appreciate it.

More articles that relate to data breach response and cyber insurance coverage follow:

https://www.thebalancesmb.com/what-s-covered-under-a-cyber-liability-policy-462459

Featured

Cyber Readiness: Power Grid Outages

Cyber Readiness and Power Outages

Enigma Forensics CEO & President, Lee Neubecker and Geary Sikich, President of Logical Management Systems, tackle the strategies you need to know to prepare for a cyber attack. Each describes in detail the importance of cyber readiness starting with power outages.

Be prepared for a cyber attack or power outage

The transcript of the video follows:

Lee Neubecker: Hi, I’m here today with Geary Sikich. Geary is the President of Logical Management Systems. Thank you, Geary, for being on the show.

Geary Sikich: Thank you, Lee.

Lee Neubecker: So we’re here to talk a little bit about cyber attacks on the power grid, and what impacts that could have on businesses and individuals alike. All right, Gary, is the future of war likely to be cyber, in your opinion?

Geary Sikich: Well Lee, I think there’s three aspects of that that we need to look at. There’s what I’ll call a strategic aspect, which in effect, we’re already in a cyber war in many respects. Nation states are using cyber in a lot of different ways. Not necessarily as disruptive as it could be, but it’s got the potential to expand. There’s then another level down from there which I’ll call operational, which is targeting specific locales and areas. And then, what I’ll call a tactical level where you’re targeting individual facilities to include even neighborhoods at this stage. And one of the things I think you’re going to see in the future is that there’s going to be more of a reliance on these disruptions because of the great impact they have on businesses as well as the general population.

Lee Neubecker: Yeah so, one of the things that I had lectured on before was some research that came out of Princeton University on a topic called MadIoT, which relates to manipulation of end user demand by attacking insecure Internet of Things, IoT, devices in homes and whatnot. And essentially, what the researchers found was that by taking over enough routers in homes, you could compromise Wi-Fi devices attached to high-wattage appliances like Internet-enabled microwaves, toasters, heaters, things like that that would draw a lot of current, air conditioning systems and that by attacking adjacent neighborhoods, you could manipulate power demand in one neighborhood such that the power’s going off or down low, and then the adjacent neighborhood causing all these appliances to come on, which by only creating a small disturbance in balance of power, Kirchhoff’s law that dictates the flow of electricity could cause faults in lines as electricity moved from one neighborhood to another in spikes, and that that type of attack could effectively knock out parts of the grid. There are a lot of factors, obviously, that could knock out the grid, but what have you been advising your clients to do in advance of such an outage, to help them mitigate the risk and protect themselves?

Geary Sikich: One of the things we look at with that issue, and it’s a very big issue, and it ties into the areas I previously mentioned, the strategic, operational, and tactical, is to begin to look at how you can be resilient as an organization. So, I’ll give you an example. A colleague who was at a firm in Southern Illinois, they were about to move to a larger building. And one of the things he was charged with was developing the plans and then getting the move set up. They didn’t have a generator, and I highly recommended to him that they get a generator. They decided to do it, and to their benefit, once installed and once they got it in the building, they had a localized power outage which, for them, was a non-event so to speak because the generator immediately kicked on. They didn’t lose any power. As a commodities trading firm, they’re very dependent on the ability to communicate electronically for trade. So when we got to analyzing things, I asked, “What did you think?” and he said, “Well, it cost “probably a quarter of a million.” And then I asked the second question, which I think was more relevant and important as he understood it, “What was the cost in lost trades, if you’d have not “had the generator?” He said, “About $2 billion.” So the immediate impact on these things is that organizations really need to think about how can they secure a power supply for themselves so that they can effectively operate independently of the grid in times of a crisis?

Lee Neubecker: So an adversary of a financial services company could actually cause massive harm by targeting and causing a power disruption, knocking out the trading facilities– GSL Yes. LN:Costing them billions of dollars.

Geary Sikich: Yes. And the interesting part about that is, that when you begin to look at it, it’s not just that immediate impact, it’s the cascading impact that goes throughout the entire system. So you knock out the trading aspect, you suddenly knock out the logistics of movement of products and services, and it cascades throughout the entire system if you will.

Lee Neubecker: So what do you see are the other downstream potential impacts to a prolonged outage?

Geary Sikich: Oh, prolonged outages are one of the concerns that a lot of organizations have. What do I do to keep my business in business if we’re faced with a long-term outage? Natural disasters have shown us that it can take up to and beyond a couple of years to recover. A lot of organizations literally could go out of business as a result of not being able to have the financial resources to weather a storm like that.

Lee Neubecker: Well, this has been great stuff. I really appreciate you coming on the show, Geary. Thanks a bunch.

Geary Sikich: Thank you, Lee, I appreciate it.

Featured

Personal Cell Phone Forensics

Personal Cell Phone Forensics inlcudes social media, business and personal messages, photos, emails and GPS.

Leading computer forensics Expert Lee Neubecker, discusses the complexities of personal cell phone forensics with Debbie Reynolds from Debbie Reynolds Consulting. We both agree the litigation involving cell phones becomes personal and proves difficult to gain possession. Personal and business text messages, social media posts, photos, GPS records, emails, are all weaved together and become part of the discovery equation. eDiscovery in today’s era is incomplete without including data from smart phone including text messages, Skype, WhatsApp, Slack, Signal and other messaging platforms. Learn more about eDiscovery as it relates to personal cell phone messaging systems by watching Reynolds and Neubecker discuss the topic in today’s blog video interview.

The transcript of the interview follows:

Lee Neubecker: Hi, I’m here today again with Debbie Reynolds, and we’re going to talk about something interesting, which every piece of litigation now is getting into. We’re talking about cell phone forensics. What’s been your experience with litigation involving cell phones and discovery?

Debbie Reynolds: Well, whenever they’re cell phones involved eye-rolling begins because people take their cell phones very personally. As opposed to someone’s laptop, which maybe they don’t want to give up, they will fight tooth and nail not to give up their cell phones. And obviously people, they mix work with pleasure and they’re doing different things. They may not want you to see, even if it’s nothing criminal going on, people just feel very tied to their cell phone. The hardest thing is actually getting possession of it and letting them know that you’re not going to look through their juicy texts or their photographs, especially if it’s not an issue in the case.

Lee Neubecker: I know that whenever you need to get into text messages, it becomes a sensitive topic for people. But there are effective ways to get effective discovery without totally trampling over someone’s privacy in many issues involving contract disputes or other civil litigation, what’s important is to identify the relevant custodians. Let’s say we have your cell phone in the conversation with mine, we can then take that, we can create a single PDF document showing each conversation thread and then you could quickly go through it, if it’s your phone in which your attorney identify relevant, not relevant, and then only take the ones that are between the relevant parties and load that up into the review platform.

Debbie Reynolds: Right. And to one thing, one very effective thing that people are doing now, and that’s something that you do, Lee, is where someone, they don’t want the other side to see their whole cell phone so they’ll have a forensic company collect the phone and say, only give them X. That’s actually a very secure way. It gives people peace of mind knowing that they’re not giving everything over, that the forensic folks can actually do some of this pre-work before people actually start looking at things.

Lee Neubecker: Yeah. And like what I’ve done is, they’re not going to pay me to spend time looking at their photos, nor do I want to look at that stuff.

Debbie Reynolds: No. No one cares. I think that’s what people don’t understand. We’ve been working on cases for over 20 years and I really don’t care what’s on the phone or what you said or what videos on there. It really makes a little difference to us.

Lee Neubecker: What I try to do is I try to quickly create almost a summary index of okay, these are the conversation threads. Tell me which phone numbers are relevant, aren’t relevant, who are the relevant parties, and then we can just pull those specific threads out, put them up into the review platform.

Debbie Reynolds: Exactly.

Lee Neubecker: Now, sometimes there’s issues where photos are relevant specifically, if it’s important that you know the whereabouts or someone on a given date and time. Photos often can establish whether or not someone was really at home sick or out on vacation somewhere. There’s embedded GPS data that is recorded into most photos that are taken with smartphones.

Debbie Reynolds: Unless someone decides to strip it out. I think if you don’t do anything to it, it will collect that data. But there are ways to strip that information out. And also, people can turn off GPS tracking on their phone.

Lee Neubecker: Yeah. Well, thanks for being on the show again today.

Debbie Reynolds: Well, thank you for having me.

Featured

What to do about Trade Secret Theft?

Leading computer forensics Expert Lee Neubecker discusses trade secret theft by a departing employee and how that can lead to a competitor gaining an unfair competitive edge. The Chair of Schiff Hardin’s trade secret practice, Matthew Prewitt, emphasizes the importance of working with a computer forensics expert to preserve digital evidence and perform effective discovery that can later be used if litigation is necessary.

The transcript of the video follows:

Lee Neubecker: Hi, I’m here today with Matt Prewitt. Matt is the chair of Schiff Hardin’s trade secret practice, and is an experienced litigator that focuses on the area of trade secret theft. Matt, thanks for being on the show.

Matthew Prewitt: Thanks for having me, Lee.

Lee Neubecker: We’ve had cases we worked on before involving departed employees. Could you tell everyone a little bit about your experience in this area, dealing with trade secret theft?

Matthew Prewitt: Sure, I mean as a trial lawyer, I’ve litigated both sides, sometimes, defending the departing employee, and/or that employee’s new employer, other times representing as the plaintiff, the company that the employee left.

Lee Neubecker: So, can you tell people generally what happens when you’re on the side of that had the employee that left? What happens at ground zero?

Matthew Prewitt: Well, ideally, the company would already have in place a structure of trade secret protection, and contractual, policy, and technology protections against unfair competition by the departing employee. So, that framework consists of, typically, a confidentiality agreement with the employee, perhaps a set of restrictive covenants, like a non-compete agreement, and then, hopefully, handbook policies that govern the conduct of the employee. Those will be coupled with restrictions, of course, that integrate with the company’s relationships, with its vendors and customers. Basically what the company ideally should be doing, is sitting down with outside counsel, in-house counsel, IT, and thinking about all the places where the company has sensitive, competitive information, trade secrets, or other confidential information, that are at risk when an employee turns out to be disloyal.

Lee Neubecker: So, when a client calls you, and they suspect that someone took stuff, what do you advise them to do, initially?

Matthew Prewitt: Well, I mean the first is to assess the situation and, that consists of identifying, with these days, almost everything is electronic of course, so, the first part of the assessment is to identify the types of electronic information that the departing employee would have access to. Either legitimately, during the course of that employee’s work, or, by exceeding the policy limits or protections that the company had in place. You’re doing, you’re identifying those areas for two reasons, one, preservation of evidence is very very important. And there’s no way to know what you need to preserve if you don’t know what the employee had access to, or potentially could’ve stolen. And then the other reason is to assess the competitive risk, and to begin to develop a plan for the investigation, and perhaps litigation response if it turns out to be warranted.

Lee Neubecker: And, so, typically, I know part of that initial response, when I’ve worked with you in the past, you want a forensic image made of the employee’s computer, before anyone mucks it up.

Matthew Prewitt: That is a, certainly an important starting point. With the changes in technology, for better or for worse, the places where the relevant data reside and the places that need to be preserved are, are multiplying instead of getting narrower, so, the hard drive of the laptop remains a very important source, because, forensically, it is often times the area that is most susceptible to forensic analysis and investigation. But there certainly are other places, as well. Cloud storage, the company’s computer network, personal email account of the employee, personal phone, company-issued phone, it goes on.

Lee Neubecker: I know when I first started in this area many years ago, the misappropriation was on a CD-ROM, and now, you’ve got smart phones, you’ve got USB drives, but the cloud is a whole other area of concern, because, companies can connect to Dropbox, Box.com, various other place, AWS, and move data to the cloud, so that, that becomes another point of concern in a need to be able to collect and preserve data from sources other than the computer.

Matthew Prewitt: You’re absolutely right, Lee.

Lee Neubecker: So can you tell us any war stories about what, what’s happened in the past when you’ve used forensics to pursue a case, and what kind of result you’ve been able to get for your clients?

Matthew Prewitt: Sure. I mean the forensic examination is really a critical part of a trade secrets case, especially if you’re on the plaintiff side, because, in, when you’re in court, trying to enforce restrictions against a departing employee, the, for better or for worse, the court is typically going to start that process with having, with some sympathy to the departing employee. I mean we are in America, and people are supposed to be rewarded for their ingenuity and hard work, and, employee mobility from one company to another is a basic value of our society. So, showing the court that the employee cannot be trusted to do the right thing, to be an honest and ethical employee at the new employer, at the new, at the competitor that she or he’s goin’ to, is really really important for building an effective non-compete case, or trade secrets theft case as a plaintiff.

Lee Neubecker: So for instance, if your client had a policy of no USB drives, and didn’t use USB drives, but yet, your forensic expert reported that a USB device was plugged into the computer the day before they filed their resignation, and that various files appear to have been copied to that drive, that would be something that would be compelling in support of an injunction, correct?

Matthew Prewitt: It’s certainly a brick in the building that you’re trying, or the story that you’re trying to build from court, absolutely.

Lee Neubecker: So there’s other pieces too, have you had situations where you’ve petitioned the court to allow discovery of that departed employee’s home computer, or the new workplace computer?

Matthew Prewitt: Yes, part of the forensic exercise is demonstrating the need for that discovery. And so, what you’ll want to start with as part of your initial investigation, is to have your forensic expert look for evidence that will show that the employee has used her home computer, has used external devices, has copied to the cloud, and once you can show the migration of data, under suspicious circumstances, off the realm of the company-owned hardware or accounts, then that’s the central starting point for demonstrating the court that you need a more invasive approach into the personal devices and accounts of the departing employee.

Lee Neubecker: Great so, let’s say that the plaintiff attorney has established convincingly with their forensic expert that data was misappropriated, and that the data clearly is confidential, and trade secret-type information. If you’re advising the new company that hired the sales person, and you saw the report and you believed the report to be credible, how might you try to help that new employer end the litigation and get things to a peaceful place?

Matthew Prewitt: Hopefully that they, the new employer has already laid the foundation for that scenario by instructing the employee before arriving, that they should not copy or take things with them, from their previous employment, should not load things onto the company network that are… belong to the previous employer, et cetera. And, to have done that in writing. If that’s happened, that puts the new employer in a potentially awkward spot, because you have an employee who not only has, has taken his former, his or her former employer’s stuff, but then has also disregarded the instructions of the new employer as well. That’s the situation where the new employer may be seriously considering terminating its relationship with the new employee.

Lee Neubecker: I’ve seen that happen, I’ve also seen situations where, the employee who departs agrees to have forensic inspections on his computer, and, signs an agreement that pretty much guarantees that if he’s caught doing something with this, that he’s going to have, face massive legal costs, and admit to wrongdoing.

Matthew Prewitt: That’s where that trust factor or credibility factor, that comes, that’s one example of where it becomes really critical. Not only is the court typically going to be inclined to the defendant departing employee’s situation, and want that employee to be able have gainful employment, many courts are also going to want to give that employee a second chance. And the second chance here is the chance to turn over the, turn over the information, and provide exactly the kind of affidavit or certification you’re referring to.

Lee Neubecker: Great well, I appreciate you being on the show and talking about this topic. It’s one that impacts most businesses, so, thanks again for being on the show.

Featured

EMR Audit Trails

Electronic Medical Record (EMR) Audit Trails are key to effective electronic discovery during medical malpractice litigation. Renowned EMR Computer Forensics Expert, Lee Neubecker interviews Insurance Defense Attorney Bill McVisk who usually helps defend hospitals embroiled in medical malpractice litigation. McVisk discusses common areas of confusion during discovery of patient medical records. Neubecker relays some of his past experiences helping plaintiffs uncover important medical records that are often hidden from plaintiffs during discovery. The two discuss how electronic medical record systems have often made the process of discovery more difficult and confusing to attorneys and litigants.

The transcript of the interview follows:

Lee Neubecker: Hi. I’m here today with Bill McVisk. He’s a patient medical records expert, a litigator. He works with hospitals that are dealing with EMR-related patient medical records and whatnot. I had him on my show today because I want to talk a little bit about electronic medical records. Bill, they said that electronic medical records were going to revolutionize everything and make everything so much better. What’s the reality of what’s happened since we’ve brought about medical records?

Bill McVisk: A lot of EMR has been great. I mean, there’s an ability of doctors to provide records to other people that they couldn’t have done before. There’s the ability, for instance, of a radiologist to look at a film that was taken, and he can be in San Diego, and the patient can be in New York, and it still works. The problems, though, there are some problems. I mean, the biggest problem I see is that anyone who’s ever gone to a doctor’s… the doctors are focused on their computers instead of focusing on the patient. What they’re doing is hitting all sorts of drop-down menus and stuff, and I think we’re losing something from the standpoint of presenting physicians and nurses in malpractice cases. It creates a situation where you don’t really get a sense of exactly what that nurse or doctor is thinking, and so the records just aren’t quite as helpful in medical malpractice cases as they used to be. On the upside, we can read them now, whereas in the past we had to worry about doctors’ handwriting.

Lee Neubecker: Yeah. I know from experience working as a EMR, a patient medical record expert, that discovery can often become challenging. When an attorney is preparing a witness for deposition related to patient medical records, what are some of the things that you look for and care about in that process?

Bill McVisk: Well, the first thing, quite frankly, is to make sure I have the entire record. I can’t tell you how often I’m getting records where I get part of the record, and for some reason, I don’t know if it’s stored on a different server or what, I’m not getting all of the record. I may get all the physician’s part of the record but not the nurse’s part of the record, and obviously, that’s essential. Other problems, like when I’m preparing a witness for a deposition, the big problem is that they’re not used to seeing these records printed out. I mean, in the past, they would look at the chart, it would be exactly the same as the chart they were looking at in the hospital. Now, they are looking at the chart on a computer screen when they’re in the hospital, but when you’re preparing them for a deposition, you’ve got a paper chart, and the paper chart prints out terribly. Every time there’s a slight change of any kind in the record from one minute to the next, the chart prints out the page again and again and again, so there’s all this stuff, and it’s just getting the nurses and the doctors to know where in the chart their entry is going to be makes it a little bit harder.

Lee Neubecker: Yeah. I have experience working with that, and I know that HIPAA requires that every instance of that medical record, pre-editing and post-editing, that that data be preserved and discoverable, but in reality, a lot of the software packages, they only have reports that run the last version, so to get into the true audit trail, you often have to get into the database backend to get access to that information.

Bill McVisk: Well, and I think audit trails are the other aspect of things that makes it a little bit harder in this situation. In the past, we basically, I could give the original medical record to the plaintiff’s attorney to inspect. If somebody had erased something or done something like that, it’d be pretty obvious. I would hopefully know about it before the plaintiff’s attorney would know about it. Then I’d deal with that. But, it may not be obvious now because people can go in, change records, and now, if an audit trail is suddenly showing me, “Oh, my god, somebody was in and did something “to the record,” and it’s two or three weeks after the treatment was over, or, say, two or three hours after a terrible incident occurred, that’s going to make it look concerning. So I think from our standpoint, it’s a matter of making sure healthcare providers are aware of how to do it in a way that isn’t going to look like you’re trying to fake or lie.

Lee Neubecker: And there’s a big difference between accessing a medical record, and editing it.

Bill McVisk: Right.

Lee Neubecker: That’s where sometimes attorneys on both sides become confused about the significance of what’s happening with the patient record.

Bill McVisk: Right. I mean, records get accessed all the time. Maybe it’s to prepare for a deposition. You have to access the record to look at it. Maybe it’s because there’s followup treatment and you need to access the record. That happens all the time, but sometimes, on these audit trails, it’s not always easy. Is this just an access, or is somebody going in and changing something?

Lee Neubecker: And there’s a whole other layer, too. I know from my experience working with many of the packages that the hospitals often use systems that have something known as sticky notes, where they can put comments about a patient. There’s a wide perception that those notes aren’t discoverable. Just because the software doesn’t have a report that will run it, doesn’t mean that if someone like me is coming in, and I get access to the backend database, those comments about the patient and whatnot become apparent. But unfortunately, it’s difficult to get at that data if you don’t know what you’re looking for.

Bill McVisk: And that creates a real problem if you’re defending the hospital, because if I don’t know about these sticky notes in the beginning, first of all, I’m not going to be thinking, “Oh, my goodness.” Then, if you come and discover them, it obviously is going to be, “Oh. I was trying to hide those notes,” or, “The hospital was trying to hide those notes,” which is always the worst thing you can do as a defendant in litigation. And they’re clearly, if there’s something about a patient in those notes, it’s almost never privileged, it is discoverable, and it should be provided immediately.

Lee Neubecker: Also, you know, there’s a tendency I see for the hospitals to try to cover things up. Do you think that there’s some value in bringing in, when you’re defending a hospital, your own forensic expert to dig around and find out what’s really happening?

Bill McVisk: See, I don’t think the hospitals are intentionally trying to cover stuff up. I really don’t think that’s, I’ve almost never seen that happen. There may be, you know, one or two, but in most of these cases, I think the hospitals are trying to find out what the truth is. That being said, the hospital may not be aware that some of these things, because the risk management for the hospital might not be fully aware of all of the situations that are involved in electronic medical records, and yes, at that point, it may be a good idea for me just to have somebody like you go through those records, let me know. Before I produce them to the plaintiff, I would like to know what’s out there.

Lee Neubecker: It would probably be a lot more useful for you to get just a listing of the changes on the record so you’re not looking at the whole document, but maybe here’s a first instance, and then change one, change two, change three, so you can see before text, after text.

Bill McVisk: Sure.

Lee Neubecker: That’s the type of thing that, unfortunately, there’s not canned reports that are in the software that do that. I think that could be by design of the software makers because they don’t want to make it worse for their clients, the hospitals, but it’s certainly possible that it’s just something that was never asked for.

Bill McVisk: That’s quite possible, and I don’t know any of these software makers, but to me, it would be really helpful to know what those are. Of course, that does make it more discoverable, easily discovered by the plaintiff’s attorneys, but on the other hand, I as a defense attorney need to know about it, and if there’s a change that’s improper, I need to know about it right away.

Lee Neubecker: Yeah. What kind of problems can occur when different providers have different EMR systems?

Bill McVisk: Well, that can create problems of a number of ways. Sometimes, the software of one hospital doesn’t communicate with the software of another. There have been situations, for instance, where a physician enters an order for something to happen, and then because of the software problems, it doesn’t get to the provider who’s supposed to do it, and they don’t know that they’re supposed to do it. That creates serious problems for patient care. And similarly, it’s like, if a hospital is discharging a patient to a nursing home, and they want the nursing home to have a certain specific type of care regimen afterward, that can create problems if they don’t communicate well.

Lee Neubecker: Well, thanks a bunch, Bill, for being on the show. I appreciate it.

Bill McVisk: Lee, thanks so much.

Related Links on the Web:

Featured

Cook County Clerk on Election Security

Enigma Forensics’ CEO Interviews Cook County Illinois Clerk Karen Yarbrough on election security. The two discuss progress made in securing the vote against cyber attacks over the last several years.

Clerk Yarbrough has been working to streamline and improve the efficiency of the Clerk’s office while ensuring that the next 202o election is protected against rogue nation states that may want to compromise our next election cycle.

Watch the video below by clicking the image.

Transcript of the interview is as follows:

Lee Neubecker: I am here today with Karen Yarbrough she is our Recorder of Deeds and Clerk in Cook County here in Chicago.

Clerk Karen Yarbrough: Well not quite Recorder of Deeds anymore Lee, I am now the Cook County Clerk and will be taking over the Recorder of Deeds office in about a year. We actually went to the voters and the voters decided that they were going to do a consolidation of the two offices and so I will pick up the Recorders job in about a year.

Lee Neubecker: So you must have a lot of integration going on with technical resources.

Clerk Karen Yarbrough: You can imagine, and yes we do. I have a very capable staff and we’re trying to get our arms around you know in the clerk’s office there are a number of duties and responsibilities we have elections of course, we have vital records and then we also are involved with taxes, and so I’ve been in this job since December. And what I’m trying to do now is get ready for 2020 and the big election for sure. But also we are absorbing the duties of the recorder of deeds. Big undertaking.

Lee Neubecker: So with all the talk of election hacking and whatnot by different nation states and foreign entities. What kind of things are you involved with, with Cook County with helping to defend against the voting system being attacked the next election cycle?

Clerk Karen Yarbrough: Well for starters Lee, our approach is a multi-leveled risk management approach. We know that there’s no system is foolproof. I mean you know it’s not a perfect system. No system is. Knowing that, we tend to look at every aspect of our system. We have these guiding principles. Defend Detect and Recover. What that simply means is we have a plan we have a plan A plan B all the way to Z.

Lee Neubecker: So its more than just putting your head under the covers.

Clerk Karen Yarbrough: Oh, no, no, no. I noticed when we were in the Recorder Deeds office our systems were attacked on a daily basis. People scraping our sites and in all of these kinds of things. So I am aware of this business of you know people trying to steal data and and what-have-you. But the elections are absolutely positively important. People need to understand that their vote does count and it will count. All the noise we’re hearing from Washington DC really makes people nervous.

Lee Neubecker: What kind of hings have happened to help make sure that wasn’t going to happen. Let’s say if the computers all get zapped to make sure that votes that are casted get counted.

Clerk Karen Yarbrough: Well first of all I have a team of experts. On staff. We’re sharing a gentleman with the city of Chicago who is at the top of the food chain when it comes to people who know about this kind of thing. Having those people on board working with the city of Chicago, we also have a two-factor login authentication of course the firewalls VPN and dedicated private data networks. Then we’re going to be able to lock down our systems both on the hardware and software lock them down before and after elections. So those are the kinds of things that we’re doing. And I think we’re going to be ready coming 2020.

Lee Neubecker: I understand that you’re currently doing some projects to seek outside computer forensic experts. What is your office looking for assistance with right now?

Clerk Karen Yarbrough: I think we’re putting something right now, I might want to defer to John Mirkovic who’s with me here today, on how that’s going. John’s been with me since I was actually in Springfield as a legislator and he has been working on the Blockchain Initiative and certainly this, and so, if you would, could you defer to him, so he can talk about what we’re doing there because John keeps up with this more than I do.

Lee Neubecker: Sure absolutely. What, in the event that a data breach were to happen, what kind of things are in place to make sure that you can recover and get back?

Clerk Karen Yarbrough: Sure. Okay having those plans certainly are important. But you know the Cook County just spent 32 million dollars on new voting equipment. That voting equipment that we have it’s almost like going back to the future,you know all the talk about, you know,voting on the internet and all these kinds of things,up come at some time, at some point in the future. But today we need to know that those votes are safe. So with the system that we have now. I don’t know if you remember,but you would have a system where you have on the side this kind of ticker tape thing that would show you how you voted.

Lee Neubecker: Paper audit trail.

Clerk Karen Yarbrough: Okay yeah well nobody noticed it. I mean I shouldn’t say nobody. But many people didn’t notice that with the new equipment, and we piloted it actually in your suburb and a couple of others. So we ran it through, and people loved it. It was so simple. So you know, you vote, you can either vote, the same way you vote now. So you could use your stylus or what have you. You place your vote, but then it’s going to shoot your ballot out to you. You’ll be able to hold that in your hand. You’ll be able to see if everything you voted for is there. And then you, not somebody else, but you will be able to post and cast your ballot.

Lee Neubecker: So the key thing is, well while the votes are being stored electronically there’s also be printed, they’re also being verified in a print out, that people can see. And then they can take it over and feed it and then scan it so you have another level of detection done, you’ve got the paper vote locked up in a box.

Clerk Karen Yarbrough: Exactly. And let’s say you mentioned something about the whole system blowing up. Okay so if the whole system blows up we still have that paper ballot locked away so that if we have to go back and let’s say everything blew up and people are running all around, with what have you. We can go and retrieve those documents and by hand we can actually,you know, count those those votes, so people should feel confident.

Lee Neubecker: It’s a great Improvement.

Clerk Karen Yarbrough: It is.

Lee Neubecker: I was brought in to consider bidding on the suburban voter audit project for the forensic project. At the time, what I was concerned about, is there wasn’t a simultaneous printout. And at certain points in time, the votes only existed electronically in storage media. They would be transferred to a consolidator that would transmit it. There was a potential at the time, that someone could have a USB device preloaded with 118 votes but in a different distribution. They could swap that device out and put it in the consolidator. But that doesn’t doesn’t exist now with the new equipment.

Clerk Karen Yarbrough: Not at all. So we’re happy about that. Let me tell you, we’re happy about that. The voters who voted in the last election, both the voters and our folks who run the elections, the judges, and what have you, just absolutely love the new system. They liked the fact that they were going to have that ballot in their hand. We shared with them, what happens now? I said well your votes are going to be counted. I said well what if? That’s the same questions that you ask. Well what if? Well we’ve taken all those precautions. But, Lee, I know, like you know, while you have a better mousetrap today, you always have to stay on your P’s and Q’s. The young man I was talking about Raoul, is his name, we share with city Chicago, everyday he’s checking our system, right now, we’re just about we’re ready to go. I think if we had to have an election today, we could have that election and have the confidence that we need to know that we’re going to have a good election, it’s going to be safe, people are going to feel good about how they’re gonna be able to cast their ballot. I’m just excited about the whole thing.

Lee Neubecker: I appreciate everything you’re doing to help secure the vote in Cook County and all your effort to streamline the government.
Clerk Karen Yarbrough: Well thank you so much for the invitation to come on. I’m just thrilled and I know that you’re a real geek and you know all of this stuff. But thank you so very much for having me on.

Lee Neubecker: Thank you Karen Yarbrough!

Watch the second part in this two part series on Cook County Election Security.

Featured

Great Lakes Forensics has acquired Enigma Forensics!

Great Lakes Forensics
Enigma Forensics, Inc.

Our office has moved to:

53 W. Jackson Boulevard, Suite 304
Chicago, Illinois 60604

You may reach us by telephone at 888-503-0665

The Cost Benefit of Hiring a Computer Forensic Expert

Computer Forensic Experts will help you win your case

Data Diva Debbie Reynolds and Enigma Forensics’ CEO Lee Neubecker discuss what to look for in selecting a computer forensics expert to assist with preservation, litigation and eDiscovery.

The transcript of the video follows

Lee Neubecker: Debbie, thanks for being on the show again today. I’m here with Debbie Reynolds, she is Eimer Stahl’s data protection officer and she also is the director of their eDiscovery subsidiary. Thank you for coming in and being on the show.

Debbie Reynolds: Thank you, it’s always a pleasure, Lee.

Lee Neubecker: So, today we’re going to talk a little bit about the differences between eDiscovery and computer forensics and when it’s necessary to bring in an expert to actually be the testifying expert or to handle more sensitive issues, and what you look for when you’re pulling in a computer forensic expert to assist one of your projects?

Debbie Reynolds: Well, it’s never not a good idea to bring in a forensic person, so I try to get someone who’s a professional in forensics on every case that we have, so, just depends. Some big corporations, they actually have people, ’cause they do so much litigation, they have people who are captive to their organization that do it. More times than not, they either farm out that work, to a company like Lee’s company, or they come to me, they ask me for recommendations. Just depends on where they are, what their ability, who’s available. For me, it’s really important that I work with people that I trust, smart people like Lee, who knows what they’re doing. Me, I tell people, I don’t chase company names, I chase the talent, so, I’ve had situations where I’ve had an investigator or forensic person go from one company to the next, and as a stipulation of us working with them, that case went with them ’cause they had the knowledge, so for me, the thing that I look for is a company, again, people that I know and trust, people that I know are smart that know what they’re doing, people who can really present themselves, ’cause a lot of times you’re going into a situation, you’ve not met these people, you’re going in there, touching their data, people are very sensitive about it, IT people can be very territorial, so having someone who can really put people at ease and be very professional in a situation where it’s semi-hostile, where you know that the IT guy takes pride in what he’s doing, thinks he’s the expert, so you have to kind of disarm that person.

Lee Neubecker: How often are IT people hostile?

Debbie Reynolds: Oh, 1000% of the time. They’re always hostile in some way, some are more passive aggressive than others, but you know, this is their baby, you have to work with them to get access to the data, and a lot of times they feel like, well why can I do this?

Lee Neubecker: And part of the problem, when I’ve worked with the IT people, usually they’re defensive because they’re having extra work to do.

Debbie Reynolds: Oh, absolutely.

Lee Neubecker: And they’re involved in litigation, so what I try to do is I try to sit down with them and say, “hey look, “this is my role, I need to understand enough of your stuff “so that you don’t have to talk to the attorneys, “and then I can buffer you from that so that you can “do your daily work,” and when they hear that, it helps them to understand, okay, you’re here to save me from a deposition.

Debbie Reynolds: Oh, absolutely.

Lee Neubecker: Then they’re more relieved, more willing to work with you.

Debbie Reynolds: Absolutely. I think the challenge is to get, when you start a litigation, companies, in order to try to save money, that’s where they want to save money. They don’t want to spend money on a forensic person, but if I compare cases against one another, two cases are very similar, one they had a forensic person, one who doesn’t, the one that has a forensic person, down the line, their case is more smooth, ’cause we don’t have a lot of questions about who did what, what is where, we don’t have a question about who needs to sign affidavits, who needs to go to court, all that stuff, so all that headache down the line is eliminated when we bring in someone. And I’ve had people on our cases tell me, who’ve decided that they didn’t want to bring in someone, they said no, but bad decision, we should have really brought in someone.

Lee Neubecker: In my opinion, I think it’s important to know who the person to be responsible for that data, if they’d never testified in court before, that’s a potential problem, and a lot of times people don’t ask those questions. Other things like, do they have some type of certification that shows that they mastered the field of computer forensics? And did they have to take a exam that was proctored by some independent party to assess that so that you know that your person truly has the knowledge, they didn’t just attend a class and got a certificate, because that’s a little bit of a difference, and there are many people, though, that I’ve encountered, that haven’t had the formal certifications, and they’re very bright, but when you’re putting the people up, they’ve got to survive a challenge against their admissibilities expert, if they don’t have cases of record, if none of the judges know who the person is, those things are definitely problems.

Oftentimes, I’ve seen new experts get up and make basic beginner mistakes where they let the attorney override what their report is, they let the attorney write the affidavit for them, and then it gets stretched too far, and then there might have been many good things that they had to say, but all of it goes out the window because they didn’t know how to manage the hard, nose-driven litigator that wants that report to be aggressive, so you have to listen and understand those driven litigators, but you also have to protect them from killing the case, and they assume that whatever expert you put there has those skills and a lot of them don’t know when they’re getting into trouble, and they need to be able to stand up for themselves, and do it professionally, and objectively.

Debbie Reynolds: Absolutely, absolutely. A lot of times, they don’t know what they don’t know. We had a person that actually went out and got a cell phone for a case, and we were like, we don’t want anyone to touch it, we want the forensic people to look at it, or whatever, he thought, oh well you know, I’m smart, I know how to do this stuff. Not that he wasn’t smart, but this was not his area of expertise, and he turned this phone on, and basically, the person who had the data on the phone, had sent a command to the phone to be erased, so when they turned it on, it wiped out all the stuff.

Lee Neubecker: So they didn’t put it in a Faraday bag?

Debbie Reynolds: No, they didn’t put it in a Faraday bag, they didn’t put it in airplane mode, they went to Walgreens, got cords, stuck the cord in the thing and turned it on, and that was it.

Lee Neubecker: So then that becomes some spoliation claim against–

Debbie Reynolds: It was spoliation, yeah. Everyone thinks, oh I have a cell phone, so I can do this, and it’s like no. I think people need to understand that what you guys do is very different than what we do in eDiscovery and what a normal person who’s doing IT can do, ’cause you have a different aim in my mind, and you understand spoliation of evidence, and how to get data in the right formats, where another person would not know that ’cause that’s not their background, that’s not their training and that’s not the purpose of what they’re handling data for.

Lee Neubecker: Well I really thank you for being on the show, again, to talk about this, it’s great. I look forward to seeing you again soon.

Debbie Reynolds: Fantastic, thank you!

Lee Neubecker: Thank you.

Are computer bots making decisions about insurance claims and healthcare coverage?

Insurance Claims and Healthcare Coverage are ‘bots’ making the decisions?

Enigma Forensics CEO Lee Neubecker and David Bryant from Bryant Legal Group discuss computer “bots” used by insurance companies as a way to underwrite policies and making insurance claims decisions. Bots are now determining how a given claim should be scored. See how ediscovery plays a role in getting success for your client.

The transcript of the video follows

Lee Neubecker: I’m here today with David Bryant from the Bryant Legal Group and we’re going to talk a little bit about health insurance claims in his work, helping people get the coverage they deserve.

David Bryant: Nice to be here, Lee, thanks for taking the time to stop by. We’re seeing a very significant shift in the insurance industry with respect to claims adjudication and claims determinations. One way of looking at how this change is happening is to look at the dollar volume that’s being invested into underwriting insurance policies and making claims decisions. The first metric I’d like to share with you is there is a company out of Europe that did some research on money flowing into what’s now called Insurance Tech, and approximately two billion dollars went into the Insurance Tech arena in 2016. This money is being deployed into not only underwriting, but how claims are made and I think everyone out there is familiar with Watson and the new term artificial intelligence. And how that’s playing out in the insurance industry is that a lot of claims decision-making is being taken out of the hands of individuals and being given to what we’ll call “bots”, robots, or termed a “bot” in tech speak. So these algorithms which will be designed by very bright people, such as yourself, to determine what a given claim should be scored. And if there’s a certain score, then a claims individual will be required to deny that claim. This is problematic for some of the insurance companies because if it’s discovered, through the discovery process, it can wind up hurting them in litigation for bad faith denial of a claim.

Lee Neubecker: So, David, can you tell me a little bit about what you do at the onset of one of your case matters to help make sure that you could argue your case in court?

David Bryant: So there’s really two phases to insurance claims. There’s the appeal process and then there is court. If your claim is denied I can always sue an insurance company in court. Typically that’s in Federal Court. I primarily practice in Federal Court but I do State Court as well. So once I wind up in a court setting I will send a litigation hold letter to the general counsel of the insurance company and that letter secures that all of the data in its electronic format is preserved. So if I want the emails on a particular claim individuals hard drive, that information should be present when I request that information by way of that litigation hold letter. When I do discovery in Federal Court we’re looking for electronically stored information. I’m not looking for paper any longer because we’re looking to get the metadata that’s embedded in that electronic information so we can find out who looked at it, when it was looked at, when it was altered. So, Enigma Forensics having the skill set to be able to determine who touches electronic files, who views electronic files, we will bring in your firm in those circumstances when we want that type of information in litigation. Lee Neubecker: So can you give me an example of when you’ve had to rely upon our computer forensic services for us to help you out with a matter and how that played a role in getting success for your client?

David Bryant: So we handle primarily health insurance and disability insurance claims on behalf of individuals and physician groups. So one of the matters that you handled for us dealt with a disability insurance claim and we were looking for certain key words and key word phrases that were on the server or hard drives of the particular individuals at the insurance company. Being able to cull through all this data is a Herculean task and would be extremely expensive for the defendants. So the defendants will typically go to the Court and say, “Judge, this is going to cost us way too much “money and interrupt our normal course of business. “We don’t want, Mr. Bryant, to have access “to this information or put us through the trouble “and cost of doing it.” I brought in your firm and your services and you were able to explain to the judge that you could do a search of all of the information held by the insurance company and find these key words and submit them to the Court in-camera, so there was no privacy concerns, and report to the judge what your findings were. The case soon settled thereafter.

Lee Neubecker: They usually do. Well thank you for being on the show today. If you need to reach David, his info is on the screen. Thank you.

Artificial Intelligence (A.I.) and Machine Learning: Medical Standards and Regulations

How technology and artificial intelligence improves transparency in the medical industry.

Enigma Forensics, Lee Neubecker reviews with Eric Fish, the Federation of State Medical Boards, Senior VP of Legal Services, about the positive impact of artificial technology and machine learning on medical standards and regulations. Find answers how this technology will improve the patient experience in the future.

The transcript of the video follows

Lee Neubecker: Hello, I’m here today with Eric Fish, Senior Vice President of legal services. He’s with the Federation of State Medical Boards and he’s going to be talking to us a little bit today about his organization and how they’re using technology to change how things work.

Eric Fish: Thank you, well the Federation State Medical Boards is the organization that represents the 70 state medical and osteopathic boards who are charged by state law to regulate the practice of medicine within the various states, in that we help build standards for regulation, best practices. We also work with states on our data and other things that are exchanged that really help improve the regulation of medicine for the patient, the end user of medicine.

Lee Neubecker: Eric can you tell us a little bit about how artificial intelligence and machine learning are impacting your organization and membership?

Eric Fish: Well, Lee, we’re actually at a, what I believe to be, a crossroads of cultural, social, and technological change that are really going to change the way that we have to look at regulation for the public benefit. There’s going to be a lot more data on patient/provider interactions. There is also going to be much more data consumed by state regulators to see which of these interactions comply with the standards. One of the things that I see developing out of this A.I. and machine learning is that we’re going to be creating much more data that can be mined as a regulator to see what interactions are good and which interactions are bad.

Lee Neubecker: Eric can you tell us a little bit about how A.I. and machine learning are being implemented to improve transparency?

Eric Fish: Well, one of the things that’s going to occur, I believe, is that as patients and providers start turning to algorithms to help with that continuation of care. Really the people who implement these systems have to prove up to the regulators how these comply, how these algorithms, how other things are going to comply with the standards that are there. Artificial intelligence has been in medicine for a long time. Machine learning is a little bit new, where we’re taking some of the discussions and building a knowledge base that’s then going to be applied to the patient experience and regulation isn’t standing in the way of these things. The regulations are there so that they are done the right way and in comply with the standards and being transparent on that beginning end is a really great step toward complying with regulations and making the regulatory process better.

Lee Neubecker: Great, and so, you told me that your organization runs some services that consumers might want to be aware of. What are those and what are they used for?

Eric Fish: Well, one of the things that we do on behalf of our members is collate all the disciplinary and regulatory actions that are taken against a provider, and we have a service called Doc Info, where a member of the public can go look to see if an action has ever been taken against their physician. We have access to all 900,000 plus licensees and their information, and it’s really a great service and use of data that we’ve collated and given out to the public.

Lee Neubecker: Great. Well thanks for coming on today. I know you’ve brought your colleague, Mike Dugan. Who’s going to talk for a little bit. Thanks again for coming to the show.

Eric Fish: Thanks, thank you.

Lee Neubecker: I have Eric’s colleague, Mike Dugan, he’s the CIO of the organization, and Mike can you tell me a little bit more about some of the things that you’re doing to improve the quality of the data and integrity of the information?

Mike Dugan: Sure, surely, thank you. We, in many ways, we are a data aggregator and this involves a credentialing process for physicians so we pull data from national data sources, we pull data from institutions to verify physicians’ identity as well as their credentials, so the training and process that they have done. Historically, these have been very manual processes, but we’ve implemented technology to add additional data sources and also give us flexibility in how we consume data. Historically, it’s been a very structured we need a file in this format and our technology is still evolving, but we’re working it to give us the flexibility to work with any data source available.

Lee Neubecker: What are the concerns that your members have regarding data breaches and the potential complications resulting from them?

Mike Dugan: Well, I think they worry about that quite a bit and if anyone in technology who deals with identity and has information, if you’re not worried about data breaches then you’re missing the point and perhaps should be in another line of work. So, we are given the trust of the physicians and our member boards that when they give us their data that it will be protected and that it will be safeguarded, and we work very hard to do that, proactively. So I think that in this environment and this day and age, that is an activity and a task that we will do, it will never go away. It will be ongoing and we will have to adapt if there is new ways that are found to hack information, we always will have to improve our data security.

Lee Neubecker: Well thanks a bunch for being on the show. I appreciate you taking time.

Mike Dugan: Okay, thank you, thanks for having us.

Defend Trade Secrets Act of 2016

Learn more about the Defend Trade Secret Act

Enigma Forensics CEO & President, Lee Neubecker discusses the of the Defend Trade Secrets Act with Trademark Attorney Brian Michalek.

The transcript of the Defend Trade Secrets Act 2016 video follows:

Lee Neubecker: I’m here today with Brian Michalek. He’s a trademark and IP attorney. Brian tell us what you’ve come on the show to talk about today?

Brian Michalek: Yeah, well first of all thanks for having me Lee. I appreciate you coming down here and spending some time with me today. You know what I wanted to talk about today is kind of some new applications of the Defend Trade Secrets Act. Which is, it’s about two years old now but it’s basically a federal cause of action concerning trade secret law.

Lee Neubecker: And what this means basically is if you’re an employer and you have someone who stole trade secrets, it offers you an opportunity to file in federal court as opposed to the state courts statutes.

Brian Michalek: Yeah, I think that’s right. And kind of taking like a step back, you know prior to 2016, what we had when we were talking about trade secret law were really a bunch of different states that had their own specific type of trade secret statutes. Some of these statutes were in fact pretty similar and shared a lot of consistencies but there were others that kind of had their own nuances and what that meant was that trade secret jurisprudence wasn’t completely harmonized. And it made it a lot more difficult to account for situations where we often encounter in the digital age where misappropriation of trade secrets happens across state lines or if we have a scenario where an individual who misappropriates a trade secret, resides in one state and the server in which they access to take the trade secret is in another state. We found that there was a lot of clunkiness with trying to figure out which state law would apply and how we could best go forward to making sure that the owner of the trade secret could get restitution appropriately. So, really what we have now in 2016 is a federal cause of action as you stated correctly that allows us to go straight into the federal courts and manage trade secret litigation from that vantage point. And I think it’s important to say also, that what we’re having is not a federal law that preempts state law but it supplements it. So, both can be acted upon.

Lee Neubecker: So, here in Illinois we have the Computer Fraud and Abuse Act that is often one venue. Why would someone who’s contemplating filing litigation against an employee who stole trade secrets here in Illinois. Under what circumstances would they want to try to pursue the Defend Trade Secret Act, a federal option as opposed to the Computer Fraud and Abuse Act.

Brian Michalek: Yeah, well it’s really going to depend on the particular fact scenario. That’s an issue here. The Computer Fraud and Abuse Act, you know, that generally is tailored to somebody who goes into a computer without authority to do so or oversteps their bounds and oversteps their access. So, it’s a little bit of a different cause of action but then again, there are situations where you have a fact pattern where an employee could run afoul of both statutes. Both the Computer Fraud and Abuse Act as well as the new federal Defend Trade Secrets Act.

Lee Neubecker: So, what are some of the advantages for someone who perceives a claim using the Defend Trade Secrets Act?

Brian Michalek: Yeah, I think there several advantages. I kind of hit on some of them earlier when we’re talking about the kind of this discord among different state laws and how they’re actually applied to certain fact patterns. But one advantage is that you get access to the federal court system. Previously when you have a state law you can do some things to get the claim into federal courts but it takes a little bit more, little more effort and you often times need to show that there’s diversity or you need to tack on a federal cause of action like the Computer Fraud and Abuse Act in order to do so. Right now with this cause of action, we’re actually allowed to file in federal court right from the get-go. And you know, there’s certain bit of strategy and advantage for employers to do that from an efficiency standpoint, from a practicality standpoint which allows to redress this misappropriation as soon as possible because you know, we’re dealing with a situation many times that when you have a trade secret that’s misappropriated, you need to act very quickly. Otherwise it can be disseminated and ultimately lost if things aren’t done to stop that.

Lee Neubecker: I understand the Act requires you to present your case of sorts as to why there’s an urgency to seize this information, when you’re trying to get the evidence. What would you try to do before you file your case to bolster your chances of getting a judge to grant you relief in terms of obtaining your trade secrets and getting that information back?

Brian Michalek: Yeah, that’s a good question. I think what you’re getting at is the defend Trade Secrets Act has a very special and new kind of prong to it. It’s a mechanism for a civil seizure and what that basically says it gives the court the power to and it’s ex parte I should say. So, it allows you if you feel that your trade secret is misappropriated to go to the court ex parte and explain to the court why you need redress and you need to, you know get your trade secret back or have it deleted of someone’s computer who misappropriated it or whatever recourse is appropriate. Now, this is new to the 2016 statute but there are some very specific hurdles that you need to get over. The statute itself says that this is really only for extraordinary circumstances and you have to show that other equitable means would not serve your interest like a preliminary injunction or a temporary restraining order. So, it is kind of a special remedy that’s offered and I think you know, we’ve had the statute for about two years now and there’s only been a handful of cases. There’s one in particular where the judge in fact did grant a civil seizure order and one of the reasons was because they found that failure to do so would cause the trade secret to be disseminated and ultimately lost. And really the next step there is to get the Federal Marshal Service involved and they will go in and actually reclaim that trade secret or delete it or make sure that appropriate recourse is made.

Lee Neubecker: Now, when you’re filing, would you encourage your clients to have an independent forensic analysis done with affidavit to support their claims? Do you think that would help the likelihood of actually getting that relief?

Brian Michalek: It’s again, it’s going to depend on the situation but I think kind of what you’re getting us is when you’re dealing with something that is taken from a computer. You know, we’ve dealt with situations where and I think these are becoming more and more common in the digital age, where an employee will do something with his computer before he quits and goes to competitor, he will transfer a file or copy a file or do something he’s not supposed to and the employer finds out and if they believe that there is some type of misappropriation or the employee took something that he worked here or she was not supposed to you know, they may have cause of action under this this federal action. And to your point, a lot of times doing a dealing with computers you do have to get a forensic expert involved so that you can actually know what was happening because people sometimes thinks that they can delete something or they can transfer it or hide it and you know, I’ve dealt with this enough times and I know you too, you have to Lee is that, you know, it’s very, very difficult to actually cover up your tracks unless you really know what you’re doing and that’s really where a forensic expert can help. Is when somebody tries to cover up their missteps, their tracks and if you get the right expert involved early, then you can at least have that evidence to really show the fact that or what was going on and why you are entitled to remedy under this federal act.

Lee Neubecker: And so Brian can you tell everyone some of the benefits, financially filing under this act?

Brian Michalek: Well, I think what you’re referring to is this act has one other wrinkle. It’s known as the whistle blower provision and basically it allows employees to blow the whistle and disclose what could be a trade secret and very limited fashion, if they believe that there is some wrongdoing. On the flip side of things, employers if they want to take full advantage of this act and maybe receive attorney’s fees should they win or exemplary damages in certain situations. They’re now tasked with including this whistle blower provision in employee agreements. Meaning they have to make note of it and specifically instruct the employee that this is an option and the mechanisms for which apply.

Lee Neubecker: So, the fully benefit from those people should revisit their paperwork, their confidentiality agreements and whatnot with their vendors and employees. Is that something that you could assist people with?

Brian Michalek: Yeah, absolutely. That’s something that we’re happy to talk with you about and if need be, we’re going to help and assist.

Lee Neubecker: Great, well thanks for being on the show.

Brian Michalek: All right thanks so much.

Lee Neubecker: Take care.

Data Breach Response

A forensic expert will help you avoid a data breach and save you money.

A planned data breach response is imperative and will save millions of dollars in litigation and forensic fees. Enigma Forensics CEO & President, Lee Neubecker engaged in a video discussion with Privacy Expert, Jackie Cooney from Paul Hastings Law. These experts provide solutions for many clients who seek operation privacy and cyber security. A planned data breach response can save companies millions of dollars.

The transcript of the video follows

Lee Neubecker: So, I’m here with Jackie Cooney from Paul Hastings, and she’s their privacy expert here. Can you tell me a little bit about your practice and how you help your clients?

Jackie Cooney: Sure, so I am the senior director of the Privacy and Cyber Security Solutions Group, here at the law firm. We’re kind of a unique part of the law firm, in that we’re very much integrated into the legal practice, but what my group does is really provide solutions for clients to operationalize privacy and cyber security requirements.

Lee Neubecker: So what happens when a company suspects they have a issue? What do you typically advise your clients to do if they’re concerned about a potential breach?

Jackie Cooney: A potential breach, so that’s a good question, and I get these calls actually pretty frequently, maybe even on a weekly basis. Hey, we think something has happened to our data, what do we do? And there’s a few threshold questions that I ask. Number one, do you have cyber insurance, and have you called your cyber insurance company? Because often cyber insurance companies will cover you, but only if you use their counsel and you use their forensic experts. So, it’s important for you to understand what your coverage is there. Now, if you don’t have those kind of limitations, or you don’t have cyber insurance, and hopefully most of your clients do have some coverage, or if Paul Hastings is on the approved list of those cyber insurance vendors, then we go onto step two. So, that first question, 30 seconds, one minute, do you have cyber insurance, have you called them yet? And what I typically like to do is say, okay, give me the two-minute version of what happened, and then I can pretty quickly decide, okay, this is a purely cyber incident or this is a cyber incident that has some privacy implications. And then there are questions that go from there. And, of course, if there’s something that has privacy implications, that there’s a lot of regulations that you have to worry about that require notification, too.

Lee Neubecker: So, can you tell me a little bit more about some of the new regulations that face companies that operate in the U.S., related to data breach requirements

Jackie Cooney: Sure.

Lee Neubecker: and responsibilities?

Jackie Cooney: So, in the United States, if you’re talking about a U.S. company that operates only in the United States, and those are becoming fewer and fewer. Most companies are international, or becoming international, or have an international market. But if you’re talking about a incident that happens in the United States, U.S. only, it’s important to remember a couple of things. Depending on the type of information, there might be federal laws that are implicated. So, if it’s financial information, there’s requirements for reporting under Gramm-Leach-Bliley. And if it’s medical information, specifically, protected health information, if your an insurance carrier or health care provider, there might be reporting under HIPAA. And even if you don’t fall under any of those federal statutes, there are 50 states that all have different breach notification requirements. And, for instance, there are 14 that have medical information as the threshold for having to notify people for breaches. So, it’s important to understand, in the United States, because we’re sectoral, and because our laws are federated among the states, that there are a lot of different places where you might have to notify. If it’s international, of course, the thing on everybody’s mind right now, is GDPR, the General Data Protection Regulation, which has breach notifications requirements in there and they’re pretty onerous. Here’s the thing, companies have a responsibility, not only to provide you with things like a privacy policy that tells you what they do with your information, but they also have a responsibility to not do things with your data that you wouldn’t expect, even notwithstanding the privacy policy. They shouldn’t be doing things that violate your trust.

Lee Neubecker: Well, you explained that very well. I thank you for being on the show today and this was really informative.

Jackie Cooney: You’re welcome.

Lee Neubecker: Thanks.

Internal Trade Secret Management Defend Trade Secret Act of 2016

Enigma Forensics CEO & President, Lee Nuebecker welcomes Attorney Mark Halligan as they discuss internal trade secret management.

Lee Neubecker and Mark Halligan

The transcript of the video follows

Lee Neubecker: Hello, I’m here today with author and attorney Mark Halligan from Fisher Broyles, and he’s going to talk a little bit about his books today. Mark, how are you doing?

Mark Halligan: Very good.

Lee Neubecker: Thanks for being on the show.

Mark Halligan: Thank you, thanks for inviting me.

Lee Neubecker: So you were approached about writing a book a while back on the Defend Trade Secrets Act. Can you tell everyone a little bit about what your book covers and why it’s relevant?

Mark Halligan: Well, the Defend Trade Secrets Act of 2016 is a watershed event in intellectual property law and it’s the culmination of, you know, years of work on my part to emphasize the need for a federal civil course of action. In most cases, the victims are corporations and they should access to the federal courts.

Lee Neubecker: Okay. In what cases would the Defend Trade Secret Act apply?

Mark Halligan: Well, in any case involving the alleged misappropriation or the actual misappropriation or threatened misappropriation of trade secrets, you now have access to bring a private civil course of action. That is subject matter jurisdiction in the federal courts nationwide.

Lee Neubecker: So now, you’ve written a second book more recently, The Trade Secret Asset Management 2018 book. Can you tell people a little bit about what that’s about?

Mark Halligan: Well, that’s the next phase in trade secrets law. That is the internal act of management by companies of their trade secret assets, which involves identification, classification, protection, and valuation. And in order to be able to use the Defend Trade Secrets Act and be able to allow this intellectual property right to thrive and grow, now with federal protection in the courts, you have to have internal systems in place for these trade secret assets.

Lee Neubecker: So do clients sometimes contact you before employees leave and take things to proactively try to make sure their stuff’s in order?

Mark Halligan: Well, unfortunately, companies wait until the horse is out of the barn and then they scramble to retain outside counsel and then I scramble around trying to determine what the trade secrets are and what the evidence and misappropriation is. And we’ve seen this play out in major cases now, most recently in the Waymo case out in California, where everybody is running around trying to determine what’s at issue in the case. So it’s better to do that ahead of time with internal management.

Lee Neubecker: So clients that are proactive and they get an assessment of what their assets are beforehand, do they tend to spend less money when they become embroiled with litigation if they’ve done that?

Mark Halligan: Yes, yes, absolutely. If you have internal active trade secret management, you are able to identify within a matter of seconds literally the trade secrets that are in issue and the evidence that the employee had access to those trade secrets, or the former employee.

Lee Neubecker: Now, you have some proprietary program you developed that deals with that, correct?

Mark Halligan: I do. The name of the program is The Trade Secret Examiner and it was introduced, commercially deployed version, I believe version four or version five, last August. And it is a revolutionary new platform to assist companies in the identification, classification, protection, and valuation of trade secret assets.

Lee Neubecker: So if someone is watching this video at night and they’re an executive of a company and they lost their head of sales and marketing, what steps should they take immediately to help protect their company and their client base?

Mark Halligan: Well, if they have been engaged in internal trade secret asset management, then I would expect they have a trade secret incident response plan that can be activated immediately and a SWAT team, which is essentially outside counsel ready to go to the courthouse, you know. And if they do not have those procedures and mechanisms in place, then they call me and I head out to the company with a yellow pad and a pen, and start to interview witnesses to see if I can determine what the trade secrets are and what the evidence and misappropriation is.

Lee Neubecker: So once you have reason to believe that some of your clients’ data was inappropriately taken and misappropriated, what do you do first to get ready for court after you’ve taken those notes? What do you prepare, have the data prepared for your TRO?

Mark Halligan: Well, again, from a forensics standpoint, the first thing you need to do is cordon off the area where the defendant worked or had computers and you get EnCase images of the computer to preserve the evidence. You certainly don’t want to have the IT department flailing around inside the computer because you know, that will change the evidence.

Lee Neubecker: You know, it was interesting, Mark. One of my colleagues Alex Gesson had done some research and what he realized is that companies that use tools such as FTK Imager, when you capture the forensic image of a hard drive device, it records a serial number for that device that is not detected when you do forensic analysis to see if devices were plugged in. In actuality, there’s two serial numbers on a hard drive and only one of the two serial numbers is the one reported and they’re not always consistently detected. So we agree with you on that, using EnCase to make the forensic image. EnCase actually, at the time of imaging, EnCase will capture the serial number that can be detected in the registry. So what we’ve discovered is that people who haven’t used EnCase, they later on do this analysis to see, was the thumb drive plugged into the computer, and they can actually have a false negative because they didn’t appropriately image the media at issue.

Mark Halligan: Well, that’s fascinating and that shows you how critical it is to do the forensics correctly at the very beginning of the case. It could be case-determinative.

Lee Neubecker: So you’ve done the forensics and you’re going into court. What are you hoping to prove when you’ve done the computer forensics? What type of things are you hoping to be able to express in the form of an affidavit or support for your motion?

Mark Halligan: Well, a trade secret misappropriation case involves the actual or threatened misappropriation of trade secrets. So what you’re trying to do is protect these fragile assets. I mean, a trade secret, once lost, is lost forever. So you are attempting to stop the bleeding, plug the dyke, get an order that there is to be a preservation of evidence. Also, stop the continuing misappropriation activity or if it has not occurred yet, through injunctive relief, set up a wall to prevent the misappropriation of trade secrets, and to the extent possible, prevent its dissemination to other computers in the United States or to other parts of the world.

Lee Neubecker: Well, Mark, can you tell me any war stories about your use of computer forensics and what happened going into court?

Mark Halligan: Well, I think what I have seen in some occasions and I represented a major company in a case involving very serious acts of trade secret misappropriation and alleged foreign economic espionage. You know, the federal courts want to protect the privacy rights of individuals with electronically stored information, so there’s always this tension between, you know, the plaintiff seeking to prove up its trade secret case or misappropriation of trade secrets with the defendant’s interest in protecting the privacy of files and things that are on the computer. So oftentimes, the court requires search terms and you start off the case by looking at whether or not these search terms pop up on the computers. In a case that I was involved with, when those search terms were plugged in, we found that a file destruction software program had been run.

Lee Neubecker: Oh, that never happens.

Mark Halligan: And that the clock had been changed. And with that kind of evidence before the judge, we were then given access to the entire computer. No more search terms. And when we got access to the entire computer, we found out other third parties that were involved and of course, the case expanded to involve other defendants, other entities. But it all happened with the finding on the initial search terms of indicia of a file destruction software being run.

Lee Neubecker: Well, thanks a bunch for being on the show today, Mark. This was great stuff.

Mark Halligan: Thank you.

Lee Neubecker: People need to reach you, they can see the link to your website.

Mark Halligan: Thank you.

Lee Neubecker: Thanks a bunch.

Mark Halligan: Thank you very much, take care.