Digistics

People matter; we're not all the same!

2012-01-31T10:49:00.000-08:00

Someone sent me a link to an Information Week commentary, titled Why Bully IT Bosses Lose the Game as seen here: http://www.informationweek.com/news/global-cio/interviews/232500519?cid=nl_IW_btl_2012-01-27_html&elq=c9b9189a1545498186a21649d1a4e2a1

The author mentions the importance of recognizing individuals as distinct entities in groups and not being the kind of boss who applies labels to a group that marks everybody.

My response follows...

Good article! I have had a ton of exposure over the last 3 years to academic views/research on organizational & leadership behavior/psychology/theories that I can attest to what this guy writes. He is right on and there is research to prove it.

A bellwether case that has been studied in countless socio-organizational-psychological classes was that of a test conducted decades ago on how to increase factory production by improving shop floor lighting and other environmentals.

The premise was simple: if we improve lighting (humidity, temp, etc), we expect production to increase.

To test the premise, researchers devised an experiment to determine to what extent, if any, that better environmental conditions on the shop floor could positively affect production by workers. They worked with different shifts and make-up of people to ensure a cross-section of results. They increased lighting; they decreased it; they changed the humidity; they did this and that in a very scientific approach to determine which changes or combination of changes had the greatest effect on production yields. And with each change, the researchers consulted with workers to understand how those changes affected them, often tweaking the process based on worker feedback. The experiment went on for weeks with changes followed by interviews followed by more changes followed by more interviews.

You know what? They were right! Production figures showed a clear correlation to better environmental conditions… or so they thought. What they came to find out later – and this is why the case is mentioned in classes even today – is that the lighting & humidity made little to no difference on production yields.

What made all the difference in the world – the thing that raised production yields and the one thing that had been missing from the shop floor up until then was this: involving workers in the decision-making process + showing a genuine interest in workers and letting them participate in the process + treating workers as people whose input was valued and who could work alongside management to make a positive difference in an organization à all of which raised the self-esteem of workers à which caused them to work harder and find better way to do their jobs à which lead to increased production yields, fewer errors and so on.

The “problem”’ with the experiment as originally intended was that the workers knew they were being studied. The subsequent realization that is was the attention that management and the researchers showered on the workers that increased production went on to revolutionize shop floor processes. It was the first major step in the evolution of organizations that ultimately lead to the Zero-Defect model used in Japan’s burgeoning auto manufacturing business in the 1950’s to TQM in the 1980’s to HPO, Sixth Sigma, etc in the 1990’s and into today.

People are individuals. Groups are individuals who come together for a purpose. Yes, there are group mentalities, but the people are still individuals with individual needs, goals, contributions, etc. And they deserve to be treated and respected as contributing individuals and not lumped into a group that “Bully Bosses” can collectively and conveniently blame for their own failures.

Thanks,
Greg

Being Innovators... or not

2011-06-06T06:24:00.000-07:00

Fellow DIT’ers,

This is long, so if you’re not interested in what innovation really means and what it really takes, I suggest you pass on this email or, if you are interested, read it offline at your leisure. Comments welcome; your innovative ideas are even more welcome!

I’ve heard it said around the office… we (DIT) should be innovators; departments should be looking to us for solutions; we follow more than we lead; departments are creating innovative solutions and we’re not…

Cindy Rohlf may have said it best a couple of years back at the mass “Leon” meeting at the Main St library when she told the IT department, “I don’t look to Engineering for innovation (in IT). I look to you.”

First off, I trust we all agree that we do, indeed, offer innovative solutions on a daily basis. Yet many outside of a small circle of techs may never know about it or be able to fully appreciate it. By the same token, I think we’d agree that we can do better in this area.

Do we even know what innovation is? If so, are we too busy to innovate? If not, how do we become innovators? Do we sit back and wait for a problem and then attempt to offer an innovative solution? Or is it possible to practice innovation and become better at it over time? What do others do?

There is an excellent Information Week article, titled Innovation Atrophy: How Companies Fight It that explores innovation and issues surrounding it.

Article: What is Innovation Atrophy? “A condition where risk taking and daring become so neglected… that IT pros forget how to take a chance on a big, potentially brilliant idea.” (Innovation Atrophy, p. 24)

Employee: Hey, I don’t have time to do that! I’m busy with scheduling, maintenance, project management, programming, and a ton of other things. I don’t have time to “take a chance on a big, potentially brilliant idea”. I’ve got real work to do and zero time to dream!

Man, if we don’t have time to dream about how to make this City better and deliver better services faster and partner with departments for their success, we’re in BIG trouble. If you’re hung up on “dream” word, think of it another way… it’s visioning; taking risks; setting goals for the future; prioritizing our work to those goals, becoming vested emotionally in the success of others, and making a real difference in others we serve.

In fact, the idea of taking “a chance on a big, potentially brilliant idea” is central to the HPO philosophy that the City adopted. Anybody ever heard of a BHAG? Everybody who has attended Leadership Meetings (and maybe HPO training) has heard of it. A BHAG is a Big, Hairy Audacious Goal:

A true BHAG is clear and compelling, serves as unifying focal point of effort, and acts as a clear catalyst for team spirit. It has a clear finish line, so the organization can know when it has achieved the goal; people like to shoot for finish lines.
—Collins and Porras, 1996

What do others do?
Some companies have “innovation teams” staffed with real people whose mission it is to evaluate emerging technologies, dramatically improve business services, solve particularly troublesome problems or just move a company forward in new ways.

The article addresses 4 Steps to Spark Innovation (p. 26-27):

Encourage innovation

Collaborate with partners outside of IT (checkout their ref to newsletters as a way to highlight innovation)

Pick the best ideas to move forward on

Discard the word “fail” and replace it with an attitude to “test and learn”

The article emphasizes the need to know your customers (p. 26). Without knowing how they do things and why they do what they do, innovation may become the equivalent of a high school science project… technology for technology’s sake. If we don’t meet with your partners and become vested in their success, how we even hope to be innovators? And who are our partners? If we have a defined list, maybe we’re limiting ourselves artificially and not thinking big enough.

Learning to fail (the anti-thesis of innovation)
The article stresses the need to know our “appetite for failure” (p. 29). Are we really willing to fail? One only need look at our meetings and how new ideas are received by others to gauge our appetite for failure. When new ideas are presented, do people start shooting them down? Or do we play off each other and attempt to make those ideas better? What happens to us when things don’t work as we expected? Do we gather and learn or start pointing fingers and look for a bus to throw someone under? Your gut is already telling you what our “appetite for failure” is. How do we change that?

If we are reluctant to innovate, it might be due to a lack confidence or because we have become risk-adverse. Going back a year or two ago in an email I sent out…

Another trait of great leadership is the tendency to take risks, but before we go there…

Some schools of thought see failure as a learned response. That is, we learn to fail by associating a certain set of emotions with the concept of failure. And then we do everything we can to avoid those “bad feelings” that we associate with failure – anger/disgust with oneself; a feeling of inferiority; aloneness; lack of confidence; awkwardness. To avoid of those “bad feelings”, we can become risk adverse and sometimes miss out on opportunities that could propel us and others to greater heights.

Thanks,
Greg

A Call to Arms: Why Local Governments should Embrace e-Policy

2011-04-14T16:41:00.000-07:00

INTRODUCTION

This paper offers reasons why local governments should consider adopting policy in response to the Federal Rules of Civil Procedure (FRCP) as amended in 2006 to deal with the discovery (e-Discovery) of electronically stored information (ESI). While FRCP was overhauled again in 2010, this paper concentrates on the original amendments of 2006 to narrow the focus to ESI and e-Discovery.

Though ESI, e-Discovery, and FRCP affect any organization, public or private, the following discussion will focus primarily, but not solely on local government. Additionally, we will explore legal consequences of not having sufficient policy in place by looking at recent court cases.

Related terms and definitions may be found in the appendix.

ALPHABET SOUP

SOX, HIPAA, GLBA, FRCP, OSHA, ERISA… local governments are awash in an alphabet soup of federal regulations, which can force localities to adopt policies and enact ordinances to ensure regulatory compliance. Of all the federal regulations with which local governments must contend, perhaps none are as potentially insidious or as costly to comply with as the Federal Rules of Civil Procedure (FRCP) as amended in 2006 to deal with the discovery of ESI. Specifically, FRCP “govern the conduct of all civil actions brought in Federal District Courts”[1], while the amendments of 2006 address “digital email and data archiving and monitoring”[2]. Furthermore, it is interesting to note that since 2006, “more than 50 court opinions on electronic discovery have been issued”².

Obviously, the FRCP amendments of 2006 are not intrinsically insidious, but until a locality becomes the target of a federal lawsuit, it may not be fully aware of the need for policy to manage electronically stored information. Unfortunately, by the time a federal lawsuit is brought against a locality, lack of awareness or preparedness is no excuse as far as the courts are concerned.

Additionally, requirements for the discovery of electronically stored information may impose new costs on local governments in the following ways:

(1) Development of policies and procedures to manage the lifecycle of ESI.

(2) Technology and staff to help manage the lifecycle of ESI and enforce policies.

(3) Management to bring departments into compliance under a set of unified policies.

(4) Identification of sources of ESI enterprise-wide.

(5) Ongoing education of employees as to responsibilities for the handling of ESI.

Local governments are under additional burdens as mentioned in Kara Millonzi’s booklet on e-Discovery: [3]

· “Lack of Resources” due to budgetary constraints or the lack of political will “to expend available resources”.

· “Public Records Requirements” that create “indirect costs or the personnel costs associated with searching for, retrieving and copying the requested records”.

As costly as full compliance with the amendments of 2006 may be, costs may pale in comparison to litigation costs if an organization is not prepared to address e-Discovery in response to a federal lawsuit. Consider, for example, the case of Murphy Oil v. Fluor Daniel from 2002. During discovery, it came to light that Fluor Daniel had not enforced its own e-Mail destruction policy and that a number of years of e-Mail were available that should not have been had the policy been enforced.[4] Murphy Oil sued for the recovery of e-Mail and the court compelled Fluor Daniel to produce the e-Mail.4 Fluor Daniel calculated the recovery cost to be $6.2M dollars.4 In the end, the court shifted the cost of ESI recovery to the requestor, Murphy Oil, citing court analysis in the case of Rowe Entertainment, Inc. v. William Morris Agency from 2002 as the reason for making the requestor bear the cost of e-Discovery.4

In Rowe Entertainment v. William Morris, “black concert promoters” alleged that they were locked out of events involving “white [music] bands”, claiming “discriminatory and anti-competitive practices” on the part of the William Morris Agency.[5] To decide cost-shifting, the court considered eight factors such as how specific discovery requests were; whether the information was available “from other sources”; total cost; and “the resources available to each party”.5 As to the specificity of the requests, for example, the court reasoned that the “less specific the requesting party's discovery demands, the more appropriate it is to shift the costs”5 to the requestor, which was the final decision of the court.

Since 2002, the pendulum has swung the other way such that today, “the presumption under FRCP is that the party producing the ESI bears the cost”[6] of data recovery as we will soon see in the seminal case of Zubulake v. UBS.

FRCP DRIVES THE NEED FOR E-POLICY

In brief, e-Policy is a set of policies and procedures adopted by public or private organizations that governs the lifecycle management of electronically stored information (ESI). ESI is a term coined in the FRCP amendments of 2006 to describe any data that is created, manipulated, transmitted, stored or destroyed via any electronic means, inclusive of current technologies as well as future technologies.

The FRCP amendments of 2006 affirmed that for federal litigation, “all electronically stored information is subject to discovery”[7], meaning that ESI can be subpoenaed and entered into evidence. Since evidence can either help or hinder one’s legal case, it seems reasonable that local governments take steps to protect themselves; developing e-Policy is one such proactive step.

The genesis of the FRCP amendments of 2006 for e-Discovery “stems from a series of prior decisions in Zubulake v. UBS Warburg”[8] issued between 2003 and 2005. The plaintiff, Laura Zubulake, sued “her former employer, under federal, state and city law for gender discrimination and illegal retaliation”, claiming that “key evidence was located in various e-mails exchanged among employees that now existed only on backup tapes and perhaps other archived media”.[9]

This case established an analytical process to address the issue of cost-shifting for discovery to determine which party should pay costs associated with recovering ESI.9 As we saw earlier, the court used an eight factor test in Rowe Entertainment v. William Morris to determine cost-shifting.5 In Zubulake v. UBS, the court created seven new factors in its determination of which party should pay costs associated with e-Discovery, including the specificity and relevancy of the request and availability of the data elsewhere as in Rowe as well as the total cost of recovery compared to “the amount in controversy”, each party’s ability to pay, the importance of the issues being litigated, and the benefits of the ESI to each party.9 In Rowe, the court found the request for ESI to not be specific enough, therefore justifying cost-shifting to the requestor of the ESI instead of the producer.5 In Zubulake, however, the court found that “Zubulake is entitled to discovery of the requested e-mails so long as they are relevant to her claims, which they clearly are.”9

The employer, UBS Warburg, estimated the cost of ESI recovery to be $175,000 and was subsequently “ordered to produce all responsive e-mails… at its own expense” as well as “e-mails from any five backups tapes selected by” Zubulake.9 Interestingly, in 2005, UBS Warburg was subjected to a $29.3M jury verdict for deleting e-Mail and losing backup tapes in the litigation with Zubulake.[10]

For added protection for parties involved in federal litigation, FRCP offers a safe harbor clause in Rule 37 under the heading of “(e) FAILURE TO PROVIDE ELECTRONICALLY STORED INFORMATION” wherein “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system”.[11] To take advantage of this safe harbor clause, the implication is clear: some combination of policy, technology, and employee education is needed to demonstrate a “good faith” effort on the part of local governments to manage their electronic information systems.[12]

While the safe harbor clause protects local governments that have put forth a good faith effort, the safe harbor clause does not offer protection in the case of spoliation, which is the accidental or intentional deletion of data that has been or will likely be identified as evidence in a legal case. “Courts and regulators” take a dim view of spoliation, which could subject localities to hefty fines.[13] As we will see, an effective e-Policy program can protect organizations from claims of spoliation.

WHAT SHOULD E-POLICY ADDRESS?

Like any policy, e-Policy should establish rules to govern the behavior of employees, define important terms, enumerate penalties for non-compliance, and describe methods for enforcement of directives in the policy. Specifically, e-Policy should “establish comprehensive, written rules and policies that address employee use of e-mail, the Internet, and all other electronic business communication tools – old, new, and emerging” as well as define terms like “business record” and associated record retention and disposition policies.[14] Additionally, e-Policy “should address how often back up tapes are routinely purged, and contain guidance on when such automatic processes should be put on hold with respect to data when litigation can be reasonably anticipated”.[15]

Putting data and processes on hold when litigation is imminent requires a litigation-hold policy, which defines actions that must be taken to protect ESI that may become evidence when a federal legal case arises or is anticipated. Most importantly, a litigation-hold policy that is enforced in a consistent manner is “one of the most effective ways to avoid a spoliation claim”.13

An effective e-Policy program must consider legal issues associated with the management of ESI. As such, “experienced legal counsel” should play a lead role in an organization’s e-Policy program.14 Additionally, relegating e-Policy to a collection of non-binding guidelines and best practices may not offer adequate legal protection in federal court cases.[16] Therefore, resulting policies should be made official by following whatever organizational guidelines are in place.

While the formation of e-Policy is essential to protecting local governments during federal litigation, ongoing education of employees is also key to an effective e-Policy program. Merely documenting elements of an e-Policy without educating employees as to their responsibilities for the creation, storage, and disposition of electronic records may not be enough to satisfy the courts. Local government employees who act outside of policy due to their own ignorance or the lack of enforcement of policy can cause legal problems for their organizations, as we will see shortly. Therefore, localities should demonstrate a commitment to their e-Policy programs by providing ongoing education just as they do for personnel-related issues like workplace diversity and sexual harassment.

In The e-Policy Handbook, Nancy Flynn offers additional considerations for an effective e-Policy program, including e-Policy rules, a list of “Dos and Don’ts”, and sample e-Policies.[17]

WHAT CAN HAPPEN TO ESI THAT MAKES E-POLICY IMPORTANT?

The lifecycle of ESI marks the states of data from the time it was created, copied, or generated through the time of its use to some terminal state like archive or destruction. Within the lifecycle of ESI, data has a certain lifespan; that is, the length of time that data must be retained. The lifespan varies along a continuum, starting with data that can be destroyed upon its creation and ending with data that must be retained forever. The lifespan of ESI is typically defined by a data or document retention policy as mandated by law or dictated by organizational policy.

Acknowledging the lifecycle of ESI levies certain responsibilities upon local governments to ensure that data is first identified as ESI and then managed as required by internal policy and law for its required lifespan. Specifically, the lifecycle of ESI implies that data than can be destroyed will be destroyed on schedule and that data that must be archived will be archived. Not following retention policy for ESI can result in non-current ESI, which can be as destructive to one’s court case as not being able to produce ESI that courts would reasonably expect an organization to produce.

Employees can easily short-circuit or artificially extend the lifespan of ESI. For example, employees may keep local copies of ESI on computers, smart hand-held devices, or memory sticks at work or at home. Employees may also attach business records to e-Mail and send them out a number of recipients inside and outside the organization. Once ESI is distributed externally, it may be subject to a different e-Policy or lack thereof. Employees may post ESI to the web outside the control of an organization, possibly extending the life of ESI indefinitely. Employees may also prematurely destroy ESI for personal or professional reasons that are not sanctioned by their organization.

Consider the case of the Zurich American Insurance Company as an illustration of what can happen when employees both archive ESI and prematurely destroy ESI, independent of e-Policy. In 2007, Zurich American and two associated law firms were fined $1.25M for a prior bad act on the part of Zurich American.[18] To avoid insurance pay-outs to several lessees of the Twin Towers after the 911 tragedy, Zurich American deleted a policy with endorsements that showed the lessees in question were covered.18 Zurich American then created a new version of the policy less the endorsements to complete the ruse.18 In 2003, a copy of the original policy surfaced, having been stored on an employee’s computer. The judge in the case was quoted as saying that “Zurich eliminated the electronic version of the policy as it existed on Sept. 11, 2001, but fortunately, the policy persisted in paper form in Mary Merkel's files”.18

While Zurich American is clearly a case of fraud on the part of the insurance provider, this case indicates what can happen when there are no controls, workflow, or monitoring associated with the creation and destruction of important business documents, all of which are a necessary part of any e-Policy program. For example, things may have turned out differently for Zurich American had they enforced e-Policy to disallow employees like Mary Merkel from self-archiving business data. Additionally, if Zurich American had enforced e-Policy with tracking and monitoring technology, perhaps they would have never attempted to perpetrate fraud in the first place.

E-POLICY: READY OR NOT

If any of the following issues apply, a locality may be unprepared to fully respond to discovery requests for ESI:

· e-Policy is non-existent.

· e-Policy lacks a litigation-hold policy.

· e-Policy has not been formalized as official organizational policy.

· e-Policy has not been uniformly enforced.

· Procedures and technology do not support the enforcement of e-Policy.

· Employees are not aware of e-Policy and the requirements for compliance.

So, what can happen to a locality that is the target of federal litigation and finds itself unprepared and lacking an effective e-Policy program?

Consider the recent case of Swofford v. Eslinger. In this case, a sheriff, two deputies and their in-house counsel were found personally liable for court fees and costs due to spoliation that stemmed from their claim of ignorance “with the Rules of Civil Procedure governing a litigant’s discovery obligations”.[19] Specifically, “Robert Swofford , a recent multi-million dollar Florida state lottery winner, was shot in his backyard seven times by two sheriff’s deputies in pursuit of burglary suspects”.19

Swofford sued the local sheriff and two deputies “for the use of excessive force and unlawful entry onto the owner's property, in violation of Mr. Swofford's Fourth Amendment rights”.[20] Swofford’s attorney sent letters to the sheriff “requesting that the sheriff’s office preserve all evidence within its possession related to the shooting”, but the sheriff’s in-house counsel ‘did not issue any directives or “litigation hold” memos to suspend all orders, practices, or policies that could lead to the destruction of evidence relevant to the case’.19 As a result, “information was deleted or destroyed in light of the preservation demand letters” and to make matters worse, “the deputies [in question] dismembered their guns, recycled their radios, and destroyed their uniforms”.19 The court decided that “therefore, the award of fees and costs will be imposed jointly and severally against each of the three Defendants and Mr. Lane [in-house counsel], each in his official capacity”.20

Obviously, in-house counsel for Eslinger should have issued a litigation-hold upon notification from Swofford’s attorney to preserve ESI that might be subject to discovery in court. However, it is not clear that had counsel issued a litigation-hold order, the sheriff’s office would have been able to “suspend all orders, practices, or policies that could lead to the destruction of evidence relevant to the case”20 since there was no indication that the sheriff’s office had an e-Policy program in place.

Another example of consequences for a local government that is unprepared to respond to discovery of ESI is the case of Toussie v. County of Suffolk, New York. The County of Suffolk was sued by plaintiffs who asserted “that their civil rights were violated when they were denied the opportunity to purchase certain parcels of real estate at a county auction”.[21] The county was not forthcoming in complying with court-ordered discovery of ESI; specifically, e-Mail. Initially, the county “argued that its employees did not routinely communicate through e-mail” – a claim that was summarily rejected by the court.[22] Next, “the county [unsuccessfully] argued that it lacked the resources to perform the court-ordered search because it did not have an e-mail archival system”.22

In reaction to the county’s stonewalling, the court forced the county to hire a contractor to recover ESI “at a significant cost to the county”.22 Subsequently, the ESI in question was not recoverable because the county had failed to issue a litigation-hold. In response, the court forced the county to pay the plaintiff’s costs associated with preparing for and appearing in court.22

In this case, it appears that Suffolk County did not have sufficient staff to perform the work ordered by the court per the County’s own admission. Instead of accepting this excuse, the court forced the county to hire staff. This is a case of ‘“Lack of Resources” due to budgetary constraints or the lack of political will to expend available resources’ as mentioned previously.3

IN CLOSING: A CALL TO ACTION

Since 2006, “the presumption under FRCP” has been to place responsibility on the producers of ESI to pay data recovery costs associated with e-Discovery.6 As we have seen, costs associated with e-Discovery can reach millions of dollars. Furthermore, being unprepared, adopting an “ignorance is bliss” attitude, or not providing necessary funding to preserve or recover ESI does not provide a safe legal haven.

While localities are under fiscal stress to cut budgets in order to cope with the “new economy”, they must consider the costs of not adopting an effective e-Policy program. If political will is lacking to adopt e-Policy, the safe harbor rule of FRCP may offer enough incentive to motivate decision makers. If costs are preventing the adoption of e-Policy, one need only consider the legal and financial ramifications of not embracing an effective e-Policy program as explored previously in this paper.

Clearly, local policy makers must be made aware of the need for e-Policy and issues related to FRCP and e-Discovery as well as associated costs. To that end, local governments might seek champion-leaders from the ranks of their Legal, Finance, Internal Audit, and Information Technology departments. Champion-leaders should be well-connected to governmental operations and understand the scope of effort needed to bring an enterprise under a set of unified policies governing the management of ESI. Without someone to champion the cause of e-Policy, a wake-up call for local government could come too late in the form of federal litigation and court-ordered e-Discovery.

Bibliography

Altheim M. (2011, March 6). Privacy, European Union Data Protection and EDiscovery: EDiscovery in the US. EDiscoveryMap. Retrieved March 11, 2011 from http://ediscoverymap.com/

BusinessInsurance.com. Zurich, Attorneys Sanctioned in 9/11 Coverage Case, Retrieved March 11, 2011 from http://www.businessinsurance.com/article/20070701/ISSUE0101/100022273

Counsel.CUA.Edu. Summary of Federal Laws: Federal Rules of Civil Procedure Related to Discovery and Electronically Stored Information. Retrieved March 1, 2011 from http://counsel.cua.edu/fedlaw/FRCP.cfm

FederalRulesOfCivilProcedure.Info. Federal Rules of Civil Procedure. Retrieved February 28, 2011 from http://www.federalrulesofcivilprocedure.info/frcp/

Flynn, N. (2009). The e-Policy Handbook, NY: AMACOM.

InBoxer.com. The Federal Rules of Civil Procedure (FRCP eDiscovery). Retrieved March 11, 2011 from http://www.inboxer.com/whitepaper/federal-rules-civil-procedure

McNeill, E. (2010, June 7). Important Evolution in eDiscovery Case Law. Risk Manager. Retrieved March 11, 2011 from http://sandsandersonriskmanager.com/2010/06/07/ediscovery-evolution/

Millonzi, K. A. (2009). Electronic Discovery in North Carolina-A Guide for Public Sector Entities to the Rules and Tools for Litigating in the Digital Age. Retrieved March 11, 2011 from http://www.sog.unc.edu/pubs/electronicversions/pdfs/ediscovery09.pdf

Millonzi, K. (2009, December 17). Local Governments and their “In House” Counsel Not Immune from E-Discovery Sanctions. Coate’s Canons: NC Local Government Law Blog. Retrieved March 11, 2011 from http://sogweb.sog.unc.edu/blogs/localgovt/?p=1523

Murphy Oil USA, Inc. v. Fluor Daniel, Inc., U.S. Dist LEXIS 3196 (E.D. La.) (2002). Retrieved March 9, 2011 from http://www.lexisnexis.com.proxy.lib.odu.edu/hottopics/lnacademic/

Rowe Entertainment, Inc. v. William Morris Agency, Inc., U.S. Dist LEXIS 488; 51 Fed. R. Serv. 3d (Callaghan) 1106 (2002). Retrieved March 15, 2011 from http://www.lexisnexis.com.proxy.lib.odu.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T11485195426&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T11485195431&cisb=22_T11485195430&treeMax=true&treeWidth=0&csi=6323&docNo=8

Swofford v. Eslinger, U.S. Dist. LEXIS 111064 (M.D. Fla., Sept. 28, 2009). Retrieved March 11, 2011 from http://www.lexisnexis.com.proxy.lib.odu.edu/lnacui2api/mungo/lexseestat.do?bct=A&risb=21_T11456787360&homeCsi=6323&A=0.9678833208671207&urlEnc=ISO-8859-1&&citeString=2009%20U.S.%20Dist.%20LEXIS%20111064&countryCode=USA

Toussie v. County of Suffolk, U.S. Dist. LEXIS 93988 (E.D.N.Y. Dec. 21, 2007). Retrieved from http://www.lexisnexis.com.proxy.lib.odu.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T11456906926&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T11456906931&cisb=22_T11456906930&treeMax=true&treeWidth=0&csi=6323&docNo=1

USCourts.Gov. Federal Rules of Civil Procedure, Retrieved March 1, 2011from http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Criminal%20Procedure.pdf

Zubulake v. UBS Warburg LLC, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 2003 U.S. Dist. LEXIS 7939 (S.D.N.Y., May 13, 2003). Retrieved March 11, 2011 from http://www.lexisnexis.com.proxy.lib.odu.edu/lnacui2api/results/docview/docview.do?docLinkInd=true&risb=21_T11455910828&format=GNBFI&sort=BOOLEAN&startDocNo=1&resultsUrlKey=29_T11455910831&cisb=22_T11455910830&treeMax=true&treeWidth=0&csi=6323&docNo=7

Appendix

Terms and Definitions

Business Record: Any “document (electronic or paper) that provides evidence of business-related activities, events, transactions, negotiations, purchases, sales, hiring, firing, and so on”. [23]

FRCP: “Federal Regulations for Civil Procedure govern the conduct of all civil actions brought in Federal District Courts”. 1 Authorization for the U.S. Supreme Court to set rules for the FRCP is found in Title 28 of the U.S. Code.

ESI: Electronically Stored Information is not limited to business records and includes any data that is posted, downloaded, transmitted, uploaded, stored, backed up, or acquired by instant messaging (IM) chat, texting, e-Mail, voice, blog, social network, scanning, picture or video messaging, or any other current or future electronic means.[24] Current electronic means includes cell phones, smart phones, scanners, digital copiers, IPODs, IPADs, computers, cloud-based systems, databases, financial systems, memory cards, and so on.

e-Discovery: The legal discovery by electronic means of ESI as defined by the amendments of 2006 to the FRCP, for use as evidence in a federal court case.

e-Policy: A set of official policies governing the handling of ESI from creation through disposition. e-Policy must be combined with “employee education “and “supported with discipline and technology tools… to effectively minimize electronic risks and maximize compliance” with internal business practices as well as FRCP requirements.12

[1] FederalRulesOfCivilProcedure.Info, 2011

[2] InBoxer.com, 2011

[3] Millonzi, K.A., 2011, p. 29-30

[4] Murphy Oil USA, Inc. v. Fluor Daniel, Inc.

[5] Rowe Entertainment, Inc. v. William Morris Agency, Inc.

[6] Altheim, 2011

[7] Flynn, 2009, P. 5-6

[8] McNeill, 2011

[9] Zubulake v. UBS Warburg LLC

[10] Flynn, 2009, p. 24

[11] USCourts.Gov, 2011, p. 59

[12] Flynn, 2009, p. 233

[13] Flynn, 2009, p. 22

[14] Flynn, 2009, p. 240

[15] Counsel.CUA.Edu, 2011

[16] Flynn, 2009 (implied)

[17] Flynn, 2009, p. 233-283

[18] BusinessInsurance.com, 2011

[19] Millonzi, K., 2011

[20] Swofford v. Eslinger

[21] Toussie v. County of Suffolk

[22] Millonzi, K.A., 2011, p. 29

[23] Flynn, 2009, p. 15

[24] Flynn, 2009, p. 15-16

Leadership in Local Government

2011-01-16T09:14:00.000-08:00

What follows is a series of emails I sent out in hopes of inspiring some interest in and discussion on the concept of "leadership" in the public sector. If nothing else, this is a statement of my philosophy on leadership in the public sector. Your comments are welcome as well.
#1 =====================================
Fellow ITMT’ers,
I won’t take up discussion time in our meetings which are long enough as-is, but for those of you who have an interest in leadership and what makes a great leader tick, I invite you to consider what follows and respond back with your input and ideas.

Leadership, no matter what you think it is or isn’t, is nothing without people, dialog, ideas, and free and open communication. If you want to expand this discussion, please send this and your response to other team members.

Introduction
I believe that if we are interested in leadership, we must be willing students/lifetime learners, and try to understand what constitutes great leadership and internalize whatever nuggets of gold we uncover to become better parents, people, friends, leaders, and public service employees.

Let me get one thing straight - I’m not trying to teach leadership; I’m studying it, trying to learn from it. I am no more qualified to teach leadership than I am to teach the welding of critical components for manned spacecraft. In fact, there are competing schools of thought on leadership, one of which suggests that leadership cannot be taught; that the qualities of leadership are innate (see “Great Man” theory of leadership below).

However, as a *willing student*, I feel it is our duty as public service leaders (all of us in DIT) to continue to develop our all of our skill sets, one of which is leadership, which may be easier observed than defined. In fact, leadership may be easier detected from its absence rather than its presence.

So, where does leadership come from? Is a person endowed as a leader by upper management? That is, can upper management hire someone and say you are now the leader? Isn’t leadership really the same as authority? And aren’t all managers leaders? Or is leadership conferred upon the leader by those being lead? If so, what does it take from a leader for people to willingly follow?

And what is the purpose of leadership? Is it to transform an organization? Is it to anticipate crisis, establish the culture of an organization or to “employ and use the whole person” for the betterment of the organization? Is the purpose of leadership to persuade others “to seek objectives that are worthy of their best efforts”? Likely, leadership is all of the above -- and more!

Jim Collins – Good to Great
Please consider the following article by Jim Collins, author of Good to Great, the principles of which underpin the City’s HPO model. In this article, published in the Harvard Business Review, Collins enumerates the qualities of a “Level 5” leader.

In Collins’ world, there are levels of leadership – a hierarchy (also described in the article), with the pinnacle of leadership at level 5 where a leader embodies a “paradoxical mix of personal humility plus professional will” (Collins, p5). Additionally, Collin’s concepts of the “hedgehog” and “flywheel” are presented as is the “bus” analogy of getting the right people on and off the bus; again, all components underlying the City’s HPO model.

http://hbr.org/hb-main/resources/pdfs/comm/microsoft/level-five.pdf

Some of Collin’s points on considering “people first” and getting “the right people on the bus” (Collins, p6) implies a deep understanding of people, their motivations and their strengths, which further implies a heavy dose of relationship building.

The Dance of Leadership
The idea of building relationships to bring out the best in everybody around you (the leader) is exquisitely illustrated in the book The Dance of Leadership – The Art of Leading in Business, Government, and Society by the husband and wife team of Robert and Janet Denhardt, professors at Arizona State University.

In this book, the Denhardts use the analogy of professional dance and choreography to illustrate tenets of leadership. These tenets point in one direction – relationship building and creating “an emotional connection” with others in the organization through humility (“know thyself”) and empathy (know others) in order to bring out the best in others. A particularly poignant quote from the book is: “Management works within a world of order and regulation, while leadership works within a world of openness and change”.

Additionally, the Denhardts mention that (super) leaders have a good sense of:

Space --> ability to understand entire environment within which one operates; see the “entire game field”

Time --> ability to choreograph “ever-shifting, evolving relationships among people”

Timing --> ability to tune into the rhythmic patterns of human interaction and shape them to set the tempo of an organization

Energy --> coming together of “time and space, pattern and purpose”

Other theories of leadership?

Neither Collins nor the Denhardts have a lock on leadership theory as there are any number of leadership theories out there like:

Informal, self-leadership theory

“Great Man” theory – leaders are born, not made

Transactional leadership (carrot and the stick) v. Transformational Leadership

Charismatic leadership theory

And more…

Discussion items?

What does leadership mean to you – on the job, at home, and at your place of volunteerism?

As a leader should we seek our own advancement and by doing so, advance the organization… or should we seek the advancement of others and be willing step into the shadows more often? Why or why not?

What is this “humility” trait? Is it innate or can we say that we are humble and really mean it… or try to learn to be humble?

Why do leaders need to build relationships and emotional connections with others in the organization? And how does one do that? Is this what “trust” really is – relationships founded on mutually beneficial premises?

How can we become better leaders? What do we need to do within ourselves, the way we treat others, the way we view the world? What needs to change and how?

How does motivation and organizational theory play into all of this?

Thanks, Greg

#2 ======================================

Another trait of great leadership is the tendency to take risks, but before we go there…

Some schools of thought see failure as a learned response. That is, we learn to fail by associating a certain set of emotions with the concept of failure. And then we do everything we can to avoid those “bad feelings” that we associate with failure – anger/disgust with oneself; a feeling of inferiority; aloneness; lack of confidence; awkwardness. To avoid of those “bad feelings”, we can become risk adverse and sometimes miss out on opportunities that could propel us and others to greater heights.

If failure is learned and past failures make us risk adverse, how do we overcome that?

First, “know thyself”. Great leaders are introspective and understand their limits and strengths. Of course, this requires some degree of humility, which is another leadership trait.

Second, great leaders don’ take risks blindly or recklessly. They are typically able to see the entire environment or “playing field”, if you will. With that larger, more inclusive view, they are better able to visualize the way things could be across an organization and see the steps needed to get there.

Third, great leaders take a holistic view of the organization and understand the value of human relationships as the glue that binds an organization together. And they are able to orchestrate those relationships to change the direction of the organization. At that point, risk taking becomes a natural course to follow to push the organization to new heights.

Thanks, Greg

#3 ===================================

Fellow ITMT’ers,

I'm not suggesting anybody go (unless you want to); only citing what follows for the population they are targeting…

Knowing that some of you are fans of Covey’s 7 Habits of Highly Effective People, I thought you might find this interesting; it’s a symposium to discuss how Covey’s organization is trying to embed an offshoot of the 7-Habits principles into the classroom for kids in an effort to unleash leadership tendencies at an earlier age.

This whole leadership thing is huge, certainly at the grad/college level and, as we know, it forms the backbone of any HPO model out there with empowerment, decentralized decision making, discretion, etc. Now, kids are getting exposed to it. I’m not sure where I stand on the ability of people learning to be “great leaders” later in life, but starting with kids… the sky’s the limit because kids haven’t yet learned to fail like us oldsters, if you know what I mean. Interesting concept to teach/explore leadership with kids... parents interested in exploring this further might want to attend the symposium or stop by here http://www.theleaderinme.org/ for more information.

Thanks, Greg #4 ================================

Fellow ITM/LT’ers,

All of us – ITL/MT and DIT staff – need to change the way we think of ourselves and each other. I’m not talking about a momentary agreement to forgive and forget, to try to trust, to change outside behavior while leaving internal motivation unchanged. I’m talking more about a personal, transformational change that, if it were possible to do so, would be like taking off your old self and putting on a new self – a new self that you designed to be better, stronger, more determined, more open, and more driven to succeed and help others succeed.

Making a change like that comes down to making a choice. Choice, however, demands options from which to choose. Discussing “confidence” is just one option in our “choice bucket” to allow us to rethink who we are, why we do what we do, and how we might want to do it from here on out.

Ok, back to the topic of “confidence” – having it ourselves; extending it one another; inspiring it in others – please consider that: confidence goes hand-in-hand with respect and trust, which leads to the following implications… Nomenclature: If Love implies Commitment and Commitment implies Sacrifice, then Love --> Commitment --> Sacrifice • Respect…

If I have confidence in you --> I respect you --> I will build you up to others; I will listen when you speak and strongly consider your opinion --> I will care about your success --> DIT’s organizational effectiveness will be enhanced --> the City’s effectiveness will be enhanced

If I have no confidence in you --> I do not respect you --> I will talk down about you to others --> your effectiveness will be undermined --> DIT as a whole will be diminished --> our mission will be compromised --> the City will suffer with unchecked decentralization, increased costs, poor morale, widespread distrust, etc.

• Trust…

If I have confidence in you --> I trust you --> I place my success in your hands --> I will care about your success --> DIT’s organizational effectiveness will be enhanced --> the City’s effectiveness will be enhanced

If I have no confidence in you --> I do not trust you -->I will not seek your success --> your effectiveness will be undermined --> DIT as a whole will be diminished --> our mission will be compromised --> the City will suffer with unchecked decentralization, increased costs, poor morale, widespread distrust, etc.

Thanks, Greg

#5 ====================

Fellow ITLT’ers,

This is my agenda item for the next ITM/LT meeting. Please consider the following concept on “confidence” and think about answers to the discussion questions at the bottom. This is intended to get us thinking; we will not solve this problem in a few minutes at a weekly meeting, but it may trigger ideas of how to follow through later on.

Confidence as a Leadership Trait

Although “confidence” is only one aspect of effective leadership, it is an important one. Leaders must have confidence in themselves to inspire confidence in others. Leaders must believe in their mission and the organization’s ability to carry it out. Confidence cannot be boisterous, cocky, conceited, arrogant, or without substance. If the confidence is genuine and deeply held, people will follow even if they don’t know the all the details. 1. Confidence in my leadership ability:

I know where I’m going and why and I’m confident I’ll get there.

I am confident in my mission. My vision/direction is clear and it has been articulated to others, so they, too, know what it is.

I am confident making decisions and in the decisions I make; they are considered and are intended to benefit the City as a whole.

I am confident that the organization (perhaps just DIT, for now) and I are on the same page.

2. Confidence in staff:

I am confident in my staff, the services they provide, and their competency to get us there.

If we on the ITM/LT do not exude confidence, how can we expect anyone in DIT, much less the rest of the City, to willingly follow?

Discussion items:

Should the department expect the ITM/LT to provide leadership and direction?

Fact: I have been told by several staffers that they look to the ITM/LT for leadership and direction.

Do you agree that confidence is a key to effective leadership? If not, why not?

How can we attain a strong level of confidence that will inspire others?

Starting point: change our name and the way we think about ourselves… perhaps the ITMT should be ITLT?

Other ideas…

Thanks, Greg

Mallomars - food of the gods!

2009-01-30T11:16:00.000-08:00

In my years of being a junk food aficionado, I had never tried a Mallomars cookie until this past weekend when, in my local bulk food buyer's paradise, I bought a box of 3-packs.

I've always liked marshmallow and anything, so I thought I'd give 'em a try, thinking they had to be as good or better than MoonPies, which I enjoy slightly microwaved.

On the way home, I cracked open a box of Mallomars and took my first bite. Ughh, they use real freakin' chocolate... the cookie actually tastes like rich chocolate. I can only feel the marshmallow; I can't taste it!

I'm not anti-chocolate since I like Snickers Bars, but for combination cookies, I think I prefer the no-taste, fake chocolate stuff they put over MoonPies to the real chocolate on Mallomars.

Apologies to choco-holics everywhere, but chocolate is just a wrapper for me, not the main course.

After I got home, I tried another couple of Mallomars. I didn't like them any better. I was bummed out and then I got a crazy idea... what if I microwaved them? It works for MoonPies, why not Mallomars?

Cautiously, I put a Mallomars on the spin plate in the microwave and turned it on. In 4 seconds, I heard a little pop and looking through the glass window, saw that the Mallomars had separated some and the marshmallow was puffing out a bit. I stopped the microwave immediately and took out the Mallomars.

I popped the thing in my mouth - and bada-bing - I was in mega-calorie heaven!

Those little chocolate-enrobed puffs of marshamallow were so good, I ate another half dozen par-boiled in the same manner. Well, at 70-100 calories each and already having a few before microwaving them, I was probably well over 1,000 calories of Mallomars in essentially one sitting.

I forced myself to put the box away until I could let some time pass and justify doing it all over again.

Later that week, a cable channel was running a history of special seasonal treats, featuring my new favorite - Mallomars, which are sold only during the colder months of the year to purportedly avoid melting in transit during the hot summer months.

Sounds reasonable, eh? But with modern enrobing, it's easy to formulate the chocolate to withstand transit temperatures and with air conditioned trailers, it's even easier.

So why would a cookie maker use an outdated gimmick like chocolate melting in the hot summer months to limit the sales period? Same reason that Girl Scout cookies are not available year-round - to drive sales through the roof.

Take a popular product and make it unavailable for much of the year and you are practically guaranteed a bonanza when you release it for a season.

Who would have thought a chocolate-covered marshmallow cookie could have so much marketing genuis behind it?

Ah, but what else did I learn besides a lesson in Marketing 101 and the fact that Mallomars are the best food on the planet?

Nabisco should do more to promote this delectable treat

Buy 2 boxes the next time

Only microwave one Mallomars at a time since doing more than that makes 'em pop at different times, melting the chocolate all over the place

Wait until the kids leave the house for awhile before I pop more Mallomars