Monday, June 28, 2010

Finally a ruling on City of Ontario, Ca. v. Quon

At long last the Supreme Court has ruled on City of Ontario, Ca. v. Quon. I say at long last because I have heard so many things about the case that it’s nice to hear the real facts and clear up any confusion about the law. This is the case involving a police SWAT guy who was given a paging device by the police department and then had his messages reviewed after he exceeded allotted departmental usage. Quon, the SWAT guy, cared because he had used the text capability provided for “BUSINESS PURPOSES” for mostly personal messages and had sent some sexually explicit and salacious texts as well. Anyway, the Supreme Court handled the case rather well. While not really addressing whether or not QUON had an expectation of privacy, they concluded that the search of the stored messages was not unreasonable, blah, blah, blah.

Well, the case stands for the same beliefs Kahn Consulting had been guided with in all our policy work over the years for clients. Make sure you have policies and that they clearly communicate the “rules of the road”. Make clear employees do not have an expectation to privacy and that the rules apply to all technologies of telecommunications systems provided by the employer.

There was special issue in the case that needs special attention. The texts were stored on the provider’s computers not the Police department’s servers. This issue needs special attention. Given the complexities and law on this issue, I am not going to give simple rules here that may confuse you. Suffice to say, as you contemplate storing content on “THE CLOUD” think about how accessing the business content when it is not on your server may have legal implications. If you need help, give us a call.

Friday, June 25, 2010


Arbitrariness, I am not sure if it’s a word. But, it is a thing worth exploring. When folks do something for poorly thought out reasons, or no reasons at all, that is arbitrariness. Like, for example, making a record by filming the CIA interrogating terrorists. Why was it done and why are we continuing to do it--So that we can demonstrate to the world that we are not too tough on terrorists. But I digress.

A guy builds a spreadsheet for the Mine Safety and Health Administration but configures it so we can only see a mine that has safety problems and not the parent company which may own many mines, all with safety problems. It is arbitrariness that allows the bad design to limit the safety agencies ability to track trends by offending companies. Arbitrariness!

Or When the same Mine Safety agency only allows a certain number of offending mining companies to be “assigned tougher enforcement” for their failings—that too is arbitrariness. In the June 24 Wall Street journal, the article states “The Labor Department’s Inspector General found that federal mine safety regulators may have improperly limited enforcement of mines with serious safety violations… District managers could select no more than one mine a field office and a maximum of three mines a district office.” I sure hope we spread out the “bad boys” of mining so that it comports with the Mine Safety “one bad boy per region” rule. Arbitrariness.

When a CIO keeps 10 years of disaster recovery back-up tapes and asks why they keep getting their clock cleaned in discovery—that is arbitrariness.
When a records manager pushes out the updated retention schedule with 600 rules instead of the 1200 they had before “simplification” that is arbitrariness.

Monday, June 14, 2010

Does a request for information matter?

Many have concluded that the risk and exposure of litigation cause companies to make business decision about legal claims. So if faced with a $500,000 expense to do discovery of electronic stored information(ESI), some would rather settle the case for $100,000 even if it has no merit.

But does the mere request for information from a government regulator impact the company? Well of course it can. Take for example the request for records by a federal agency of a well known public company in the news recently. The day the information request became known the stock went down 5% which is millions and millions of dollars.

Wednesday, June 9, 2010

Where's Waldo?

Randy’s Theory of Information Mismanagement-If at first you fail to do anything or do something albeit poorly, you will most certainly revisit your failings at the first smell of litigation or regulatory investigation.

Let apply this theory-

How about we start with the June 8 Wall Street Journal article entitled “Goldman Accused of Stalling By Panel”. It appears that the Financial Crisis Inquiry Commission sent Goldman a subpoena. It also seems that maybe Goldman didn’t respond with needed documents in a timely fashion. So in a rush, Goldman chucked huge chunks of data over the fence to the agency. How much you ask? Well 5 terabytes. That is the equivalent of hundreds of millions of pages. Guess what the response was “we should not be forced to play ‘Where’s Waldo on behalf of the American people.' Ouch.

If electronic information is mismanaged upfront, finding it when you need to is a major headache—SEE GOLDMAN.

Spending a little money to get your house in order proactively may not take all the hurt out of finding Waldo, but it sure can help.