Apply The Emergency Mind to cyber incident response

My BLG teammates and I take the privilege of guiding clients through the perils of cyber incidents seriously. To honour the privilege, we think deeply about various aspects of our performance, including how we can perform better under pressure. Dr. Dan Dworkis’s book, The Emergency Mind: Wiring Your Brain for Performance Under Pressure is now required reading.

Dr. Dworkis is a professor of medicine and an emergency physician. His book, published in 2021, is part of a project that includes a website, podcast and other supports for individuals and teams striving to perform better under pressure. Dr. Dworkis calls The Emergency Mind a “mental toolkit.” It’s comprised of 25 prescriptions for how to think and act in high pressure situations.

When I picked up The Emergency Mind and started in, I was immediately excited. For me, there’s no greater measure of a text than its relevance, and The Emergency Mind was packed with relevant ideas. I connected with them as a lawyer and an athlete, but drew most insight in respect of my role as a cyber incident coach and team lead. I took some notes while reading, and have turned them into the table below. The left hand column summarizes some key ideas from The Emergency Mind. The Right hand column are my notes (now edited) on their application to cyber incident response.

Practice the discipline of “suboptimal”
Idea: Bad outcomes and mistakes will happen. Identify (label) and accept the mistake, rapidly pivot to face the new reality, and learn from the event. Quote: “Personally, when I perform the labeling part of a response, I begin by saying, ‘Well, this is suboptimal.’ Labelling something as ‘suboptimal’ acknowledges the challenging nature of what is happening without pulling me or my team off-line the way that calling it ‘horrible’ or ‘hopeless’ might.”	Labelling thoughts and emotions is a well-known and effective mindfulness technique. To use it in incident response, one must first acknowledge that incident response can provoke emotion. This is true, especially when things go wrong. Evidence is sometimes deleted, information is leaked or conveyed to third parties prematurely, threat actors do not do what is predicted, and so on. When faced with these problems, the team must resist the urge to dwell on the matter of fault and continue to look forward. Learning comes later in the incident response process, at least after the acute phase has passed. I also appreciate Dr. Dworkis’s use of the term “suboptimal” because it mirrors the typical objective we set in guiding clients through an incident – to “optimize” the course of action in light of business, reputational and legal risks. Use of the terms “optimal” and “suboptimal” highlights the fluid nature of incident response. There are always multiple paths to the end.
Combine action and analysis
Idea: Have and foster an ability to apply the right mode of thinking and action – be it fast or slow. Quote: “When you are not forced to act, jumping into a response without further analysis of the emergency is sometimes a bit like throwing darts without looking at the dartboard. You might hit the board, but because you don’t understand where you are aiming, you’re much more likely to miss the target entirely and waste your darts.”	This is reminiscent of an idea I have shared with associates about practicing law fast and slow, adapted from Daniel Khaneman’s text Thinking Fast and Slow. We need to know when a legal problem deserves a quick handling – enabled by assumptions and qualifications – and when we must buy time for more robust analysis. In incident response, we are primarily in fast thinking, “action mode.” There are moments on calls when you need to pause, draw deep on experience and instinct, and declare how best to proceed. The qualification is implicit, though sometimes we explain that we are making a decision based on “gut.” At the same time, slowing the pace of decision making down is a major responsibility of a cyber incident coach. Dr. Dworkis’s dart board metaphor can illustrate the tendency of many inexperienced incident response teams to rush at the outset of a cyber incident. I’m not counselling inaction, but most teams will benefit from a pause and emotions check at the outset. There is more time available than you feel.
Favour praxis over theory
Idea: Identify solutions that can actually be applied in the moment whether or not they represent theoretical best practice. Favour praxis – the application of knowledge to real life. Quote: “One of the best ways you can start to consider the details of praxis and theory in your field is to explore deeply the actual mechanisms that must function correctly for you to deliver your skill. Get curious about how the sausage is made, so to speak. Lean into learning both deeply in your chosen skills, and laterally into the adjacent skills that help you and your team succeed.”	This is a good one for me, particularly as it pertains to the challenge of analyzing large, stolen data sets. Doing a proper analysis based on e-discovery is plainly the ideal, but e-discovery is expensive and time consuming, and time-to-notify is a very visible fact. Burning weeks and months on e-discovery can spoil an excellent early-stage response, leaving an organization who has spent the time and money to “do the job right” the subject of overwhelmingly negative judgement and outcry. So, before engaging in e-discovery, we build the best possible informal view of the data set, we build towards reasonable assumptions, and we see if classes of individuals can be notified without e-discovery. We help clients weigh the risk of “over notification” against the risk of delay. These solutions are neither precise nor pretty, but can be defensible.
Decide not to decide
Idea: Do not waste your decision-making resources. Devote them to the most important and difficult decisions. Quote: “During an emergency, the most critical decisions are those that irreversibly (or at least strongly) commit your team to a particular mental model or course of action.”	No cyber incident coach is happy to be brought into a matter and paired with an incident response forensics vendor who has already been retained. That single decision bears more on the outcome of an incident than any other in my view. This is because we must trust the chosen vendor, especially regarding the scope and depth of the investigation. There is a limited ability to consider and discuss the scope of forensic evidence collection, and deference to a vendor’s standard practice is the norm. These practices vary, and over and under scoping an investigation can have highly negative consequences.
Practice Wabi-sabi
Idea: Employ the Japanese concept of wabi-sabi, which emphasizes the values of simplicity, imperfection, and transience. Quote: “… if you deny that situations change, you create a potentially dangerous schism in your universe and the reality around you. As this gap increases, the solutions and plans you had generated before reality changed will be rapidly ineffective.”	My strong preference is to contact a threat actor early because it is a fast way to gather reliable information and because it is a means of enhancing control and keeping the primary adversary in view. Threat actors – perhaps frustrated by repeated engagement with organizations who are more interested in investigation than payment – have adopted countermeasures, becoming very stingy with their information. We also recently provided counsel on an incident in which our client had reliable intelligence that a threat actor would be slow to publish in the absence of contact, which meant it could delay a reach out while remaining in control. This perfectly illustrates Dr. Dworkis’s point. The Wabi-sabi way demands detachment from a tactic we have so often helped clients deploy to a successful end.
See the forest and the leaf
Idea: Default to an attention span that is zoomed in, but don’t lose sight of the whole field. Quote: “… emergency medical providers often find themselves handling multiple sick patients simultaneously. In these circumstances, it might not be possible, or desirable, to completely restrict your focus to a single patient. Here, communication and delegation are key, and cognitively offloading some of your thinking to skilled team members helps you deploy your focus where you need it most.”	At any given time, we will be working with ten to twenty clients who are responding to incidents – our patients. As a team lead, my attention is drawn most to those clients with incidents in the acute phase, which lasts from one to three weeks. Beyond that, incidents move into a slower phase that involves e-discovery, notification and reporting. We delegate much of the work in that phase to an excellent team of associates. These associates have a greater degree of technical knowledge about the latter phase of incident response than the partners who act as leads. Given the money spent on e-discovery and notification, the latter phase of incident response is not low risk, but it does move slower, and tasks can be delegated effectively with good communication. Good communication requires a lead to “run the board” regularly – re-building a view of all cases – and making course corrections before small latter phase problems grow.
Harness the wisdom of the room
Idea: To the extent possible, rely on information and knowledge from every individual on the team. Quote: “As a leader, you will frequently feel tension between your need to process multiple points of view and to move forward rapidly with a plan. At some points during a crisis, your emphasis should be on action and execution of your plan. At others, the emphasis might be on unifying your team’s vision through open discussion.”	Dr. Dworkis recommends asking the team, “What are we missing? What have we not tried yet?” I’ve done more of this questioning at his urging, and like how it affects the team dynamic. It’s an acknowledgement that incident response is complex, that there are few clear answers and that the perspective of the team matters. It’s an invitation to humility, and a humble crises leader is a good crises leader.

Preparation and performance under pressure go hand in hand, and we all know that preparation for cyber incidents is a critical best practice. My urging to cyber responders (lawyers and non-lawyers alike) is to expand your scope of preparation to encompass performance under pressure. This will help you develop fundamental skills and behaviors to that will have an impact on your and your teams’ performance. Reading The Emergency Mind would be a great start.

Court of Appeal for Saskatchewan reformulates guidance for ownership of lawyers’ files

On August 10th, the Court of Appeal for Saskatchewan held that the Saskatchewan Court of Queen’s Bench erroneously ordered “solicitor’s notes and inter-office memoranda” to be produced to a client because this categorization was over-broad. It reviewed the Canadian law and held that the authoritative text from Cordery’s Law relating to Solicitors is often misunderstood and unquestionably applied to provide lawyers ownership of their “working file.” It re-stated the test as follows:

Documents in existence prior to the retainer and provided by the client to the lawyer remain, in the absence of some proof to the contrary, the property of the client.
Documents prepared by a lawyer for the benefit of the client belong to the client. This would include, for instance: legal research memoranda; pleadings, briefs and other documents filed in court; witness statements; and notes of conversations with the client, other counsel or third parties concerning matters that relate to the substance of the file or to the business of advancing the file toward a conclusion.
Documents prepared by a lawyer for their own benefit or protection belong to the lawyer. This would include, by way of example, things such as accounting records, conflict searches, time entry records, and financial administration records like draft statements of account and cheque requisitions. Internal communications and notes concerning administrative matters such as the role that various lawyers and staff will play on the file may also fall into this category.
That said, documents will often be prepared for, or will serve, more than one purpose. For example, a file note setting out instructions received from a client will both benefit the client by helping to ensure that their wishes are clearly understood and benefit the lawyer by memorializing the mandate received from the client. In such circumstances, the predominant purpose should be controlling. Any doubt about the predominant purpose should be resolved in favour of the client with the result being that “documents prepared for the benefit of the lawyer” is likely to be quite a narrow class of material in most files. In this regard, one helpful way to assess if a document belongs to the client may be to ask whether, when it was created, a new lawyer taking over the file at that time would have wanted to have had the document in order to properly and efficiently manage the file and advance the client’s interests. If the answer is “yes”, and particularly if the client paid for the time involved in generating the document, then it should be seen as belonging to the client.
The fact that the client has been billed for the time involved in preparing a document will be a significant factor, but not necessarily a decisive one, weighing in favour of the conclusion that the document belongs to the client. In this regard, it is difficult to see how a document prepared for the benefit of the client and for which the client was billed would not be the property of the client. However, that said, I doubt that the same is true with respect to documents prepared for the benefit or protection of the lawyer. For example, and without endorsing this sort of billing practice, if the lawyer happens to record and charge out the time involved in doing a conflict of interest check to confirm that they can act for the client, the document reflecting the result of that conflict of interest check would nonetheless belong to the lawyer.
The burden of showing that a document in a file is the property of the lawyer should rest with the lawyer. They will understand the circumstances in which the document came to be created and will be in possession of the information about who it was intended to benefit.

Note the imposition of a predominant purpose test and a form of presumption in the fourth bullet above, which is at the crux of the Court’s decision.

CPC Networks Corp. v McDougall Gauley LLP, 2023 SKCA 90 (CanLII).

Federal Court of Appeal modifies test for application of open courts principle to administrative tribunals

On July 27th, the Federal Court of Appeal held that the Parole Board of Canada erred in denying the media access to recordings of its hearings.

The matter was about an application for copies of recordings of parole hearings involving notorious convicted criminals Paul Bernardo, William Shrubsall and Craig Monro. The Corrections and Conditional Release Act provides for parole hearings that the Supreme Court of Canada has said are inquisitorial in that the Board is bound to consider all evidence put before it in conducting a form of risk assessment. The Act also gives the public a presumptive right to attend hearings. The media can therefore (presumptively) attend and report on hearings, though the Act deems personal information in the recordings (and other documents on the record) not to be publicly available for for the purpose of the Access to Information Act and the Privacy Act.

The CBC relied on the open courts principle, though the Court ultimately determined the matter on administrative law grounds. It held the Board unreasonably reckoned with the odd scenario – that the media had already heard and reported on everything recorded even though it was deemed not to be publicly available – and erroneously refused to disclose the recordings “outright” based on an unreasonable amplification of the privacy risk. It suggested that there may be some privacy risks in providing access, but that they could be satisficed by imposing conditions on storage and republication.

As for the open courts principle, the Court accepted the following Board argument against application:

The Board says that it is not because its proceedings are inquisitorial – not adversarial – in that the Board is engaged in a risk assessment process in the course of which it receives information from Corrections Canada and submissions from the offender and victims. The offender is not opposed by a representative of the state, as is the case, for example, in a sentencing hearing. Similarly, the offender’s counsel, if they have one, has a limited role in Board hearings.

It also, however, modified and expanded the test for application, noting that the test should focus on the degree to which a tribunal presides over an adversarial proceeding rather than the procedural trappings of the proceeding. It explained:

It appears that, whatever other distinctions may exist between different kinds of administrative tribunals, the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle. It is the fact of adjudicating competing interests that imposes the duty of fairness and impartiality which gave rise to the description of some tribunals as quasi-judicial. In Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, such tribunals were described as adjudicative tribunals. The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.

The Court ordered the matter to be returned to the Board for reconsideration.

Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166 (CanLII).