yangerlawblog

Archive for August, 2011|Monthly archive page

On Governor Delete, The Stink Eye and Raising Your Bar

In Uncategorized on August 20, 2011 at 9:54 am

               You may have heard that Gov. Rick Scott’s transition team was recently found to have brazenly trashed…or, err…mistakenly deleted a trove of public records, actually email communications.

               Oops.

               The emails likely detailed much of the team’s discussion of hiring decisions, Cabinet vetting and policy development during that crucial period between his election and unlocking the front door of the Governor’s Mansion. We’re talking 40 to 50 email accounts. That’s accounts, not individual emails. Easily thousands of pertinent, perhaps sensitive, communications governed by Florida’s public records law.

               Oh, the fun we could have ranting about conspiracy theories, pervasive hubris and a continuing pattern of disdain for the rule of law and the sun shining on their cozy cabal. “Public record laws? Pfffft!”

               But that’s not where we’re headed today. Giving the bumblers the benefit of the doubt, there are lessons in the good Governor’s stumble. I mean, think about it. If this could happen to an apparently sophisticated staff of nationally credentialed professionals who retained an assumedly seasoned and competent private vendor to handle email organization and retention, what does that say about you and your company?

               The whole “back-up” thing is important, sure. We’ve all lived through the gut wrenching realization that our computer has puked, sending us into an apoplectic daze while the IT X-Men copter in to the rescue. But there is a collateral legal issue perhaps equally important and more to the point of the stink Gov. Scott has found himself in over this issue:

               Um…email retention policies.

               Wait, wait! Don’t leave, please. I know it ain’t sexy but I assure you it is necessary. Like a Level One Trauma center, you don’t need it until you need it, and then, thank the lord, you’ve got it nearby.

               See, there is this thing called spoliation of evidence (please no emails about how to spell “spoil,” the word really is spoliation) and if you get caught doing it, well, just take out your wallet and start spilling the Benjamins. Of course, if you plan on never suing anyone, getting sued, thinking of getting sued or don’t consider there’s the slightest chance you may end up in a courtroom wondering why Juror #6 is giving you the stink eye, then read no more.

               But talk to the president of Residential Funding Corporation who jeopardized a favorable $94 million judgment a few years ago after they couldn’t produce emails requested, properly, by the other side and the judge rightly told the jury they could infer that the emails would have been adverse to Residential’s interests. Stopped yawning yet?

               Or ask UBS Warburg, LLC how a $29 million employment discrimination verdict tastes after the judge instructed the jury they could infer bad intentions when UBS cavalierly failed to produce emails that should have and could have been produced.

               Yeah, oops. Again.

               The lesson is that if you even sniff legal trouble on the horizon and hit the delete button, even accidentally, you’re as good as cooked. Like other systems you use to make sure your machines stay greased and your widgets keep flying off the loading dock, this is simply a must do. A “Duh!”

               Bragging to your golf foursome about your organized, comprehensive and monitored electronic document retention system may get you laughed off the first tee but being able to prove it to that juror with the stink eye may just buy you greens fees for life.

               Sure, you could rationalize and say if it can happen to the Governor it can happen to anyone. But don’t you want to set your bar a little higher than that?

               All the best.

               Bill Yanger

Not In My World

In Uncategorized on August 2, 2011 at 10:33 am

               So, yippee and hurrah! Congress gets its deal done.

              

               The House passed the debt ceiling bill, or whatever one chooses to label it, yesterday and the Senate will do so today. And how proud they must be. It reminds me of a harsh but particularly prescient quote from writer and tweaker of the high and mighty Mary McCarthy back in the 50’s:

               “The American, if he has a spark of national feeling, will be humiliated by the very prospect of a foreigner’s visit to Congress—these, for the most part, illiterate hacks whose fancy vests are spotted with gravy, and whose speeches, hypocritical, unctuous, and slovenly, are spotted also with the gravy of political patronage, these persons are a reflection on the democratic process rather than of it; they expose it in its process rather than of it; they expose it in its underwear.”

               Okay, so I doubt one has much of a shot at getting elected to Congress without being able to read and write but beyond that, McCarthy’s got a point. Like the sagging reality of a nude beach, the view is often unpleasant. And for all the tea-bagging hysteria and chagrined progressive egos one thing seems to be lost in the hoopla of this “deal.” There is no real agreement here, no meeting of the minds, no contract.

               They have done nothing more than agree to agree. No wait, actually they have only agreed to take a stab at agreeing by passing the buck to a “commission” to hammer out details one suspects will be slippery at best. This is less governance than it is sanctioned procrastination. And in my world, the real everyday world, the world of business contract language that necessarily binds the parties to specific action and defines the consequences of failure or breach or inaction, slippery procrastination just don’t cut it, Brother. If you and your company are able to pawn off your tough and gritty decisions to some hazy “commission” and still turn a profit, more power to you. I suspect that is not the case.

               So, do they have a deal? Yeah, maybe. But an agreement?

               Not in my world.

               All the best.

               Bill Yanger