You are on page 1of 11

THE HUMAN RESOURCES

PROFESSION CATALYZES CHANGE


TO MITIGATE RISK
ELECTRONIC DISCOVERY,
INFORMATION MANAGEMENT, AND
CORPORATE CULTURE ON THE LINE
Thomas Diamante and Paul J. Neale

CULTURE RESIDES IN damages.3 Fundamentally, this was In Coleman, “misplaced” or unre-


ELECTRONICALLY STORED triggered by the fact that the judge coverable information proved costly
INFORMATION
instructed jurors to assume that yet again. Morgan’s poor “organiza-
Human Resource (HR) profes- any missing e-mails (due to lost tional skills” (for want of a better
sionals are being summoned. Re- backup tapes) were probably dam- term) led to a whopping verdict in
cent multi-million dollar court cas- aging to Warburg’s defense. Com- the plaintiff’s favor of $604.3M in
es such as Zubulake v. UBS panies are expected to preserve compensatory damages and an addi-
Warburg1 (a gender discrimination data that might be relevant to fu- tional $850M in punitive damages.
case) and Coleman v. Morgan ture litigation. The judge advised Not many organizations can survive
Stanley2 (for falsifying financials) a $1.4B adverse judgment. The fi-
that “guardians” within the orga-
along with the new Federal Rules nancials aside, the hit on a firm’s in-
nization be established to preserve
of Civil Procedure (FRCP) (enact- tegrity and corporate image can be
data and prevent spoliation. As
ed December 1, 2006) trumpet a even more staggering.
usual, the devil lies in the details.
call for integration between Human There is no doubt that the
Resources, Legal, and Information Specifics regarding “how” ex- courts take information manage-
Technology. Recent court cases, actly one predicts future litigation ment seriously and that the failure
the implications of the new FRCP, were not offered. The hiring, to adequately preserve data or, for
and the need to integrate human training, placement, and retention that matter, be forthcoming and
resources, information technology, of “guardians” were not addressed accountable for one’s business ac-
and legal departments bring to either, though conceptually devel- tions will meet the wrath of juris-
mind Ben Franklin’s advice: “We oping the organization’s capability prudence. Information manage-
must hang together or we most as- to predict future data needs (pre- ment reflects corporate behavior.
suredly will hang separately.” vent litigation) and guard against Information management represents
Zubalake led to a $20 million potential loses of data (mitigate what management is thinking,
award for punitive damages and risk) is sound business practice. feeling, and intending to do or ac-
$9.1 million in compensatory The point here, we believe, is that tually doing. Information manage-
a cultural intervention was advised ment is a “window” into the cor-
THOMAS DIAMANTE and PAUL by the courts. The cultural under- porate culture.
NEALE are with DOAR Litigation current evident in the court’s ad-
Consulting, a consulting firm that advises
In the famous McDonald’s case
corporations and their counsel on the valu- vice (and relevant, in our view) to (Liebeck v. McDonald’s4), jurors re-
ation, management and resolution of com- the above cases, however, did not sponded not to the hot coffee de-
plex civil and regulatory legal matters. get the press it deserved. bacle but rather the fact that inter-

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
13 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

nal e-mails—that is, information Technological aspects of the rigorous management practices.8
within the corporation—suggested problem are, however, relevant in Leadership must sponsor efforts to
a culture of “the hell with the con- some respects. Apparently, behav- solidify the type of culture, the
sumer” if prevention is going to ior in cyberspace, the medium of types of behaviors, and the types of
cost a dime. The uncaring attitude communications via the Internet, communications that represent the
toward consumers, the weighting lures humans into a false sense of firm. FRCP intent is compatible
of dollars over consumer risk— security. Behavior in cyberspace with professional integrity, organi-
these ingredients were rejected might follow different rules than zational capability, and above all,
outright by consumers/jurors. Ju- face-to-face communications. It human resource planning to keep
rors, as consumers, responded an- appears as though cyberspace frees all the dominoes aligned—business
grily. Corporate attitudes leak into the soul to express itself in ways processes, human competencies,
jury boxes. McDonald’s spilled not available via earthbound com- and organizational structure.
more than a cup of coffee that day, munications and that human per- Corporate wrongdoing or the
and jurors did not approve. sonality and Internet use interact in appearance of wrongdoing is
interesting ways.5 For instance, re- caused by humans and fixed by be-
INFORMATION MANAGEMENT search indicates that users may feel havior change. Technology is
IS BEHAVIOR MANAGEMENT a sense of anonymity and even merely a tool for that change; it is
personal freedom when communi- the brawn. Legal is the brains of
Information management is be-
cating online.6 The curtain en- the outfit. If human resources can
havior management. It is a mistake
abling this “protective psychologi- integrate these assets then the
to assume that since communica-
cal state,” however, is quickly brains and the brawn can assure a
tions are stored in ones and zeros,
drawn when upon discovery all level of security, or better said, a
the business problem is merely a
hell breaks loose. level of risk reduction as an inte-
technology problem. It is not. The
problem resides in corporate strat- So, technology is an enabler, if gral part of corporate culture.
egy, management development, you will, of bad behavior or poor
hiring, training and development judgments or compliance with bad CONTROL OF EMPLOYEE
of human resources. Why do em- cultures or bad leadership. Tech- BEHAVIOR, CULTURE AND
ployees do what they do? Why do nology enhances the likelihood that INFORMATION MANAGEMENT
they destroy data? What compels dirty laundry is revealed to all and/ There is a strategic competitive ad-
the employee to falsify informa- or that dissatisfied or concerned vantage in viewing the new
tion? Why are employees so an- employees will find someone that FRCP, as a litigation and organi-
gry? What do the written and un- will listen to them. That someone zational readiness litmus test. Is the
written rules of corporate behavior may be an investor, the Securities organization ready to handle dis-
say? Where is leadership? and Exchange Commission, the covery? What systemic practices
Department of Justice, the Equal ensure that discovery can be con-
Data-based litigation often leads
Employment Opportunity Com- ducted independent of key per-
directly to information technology
mission, or a potential customer. sonnel (i.e., knowledge manage-
for “blame.” Focusing on informa-
tion technology as the problem per Managing in technology- ment if employee retention
se, since it captures communica- drenched environments is unique. becomes troublesome)? Does HR
tions and transactions, is, however, Research noticed that the leader- have key personnel on tap? Can
like blaming the umbrella for the ship of successful technologically- appropriate talent inside the orga-
rain. Human behavior captured by driven enterprises differs from tra- nization be rapidly identified, if
information technology is com- ditional firms. The competencies, needed? Can this talent be de-
plex. The motivation of individu- structures, and cultures of technol- ployed to gain the upper hand at
als inside the business is influenced ogy enterprises are distinctive.7 the meet and confer?
by group and organizational dy- To the extent that human re- The Federal Rules of Civil Pro-
namics, individual needs, values sources accepts the mission of fus- cedure emphasize control or expect
and interests, personal knowledge ing legal and information technol- organizations to exercise control
(skills), and overall firm leadership. ogy together to thwart lawsuits, it over their information. The prop-
We are still blaming the computer is advised that human resources ad- er information should be stored,
for misdeeds. here to change practices tied to retained, and readily accessed if

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
14 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

and when it is needed (i.e., upon better, faster, cheaper ways to exe- Change often requires a realiza-
discovery). The rules are about cute. How to manage in such an tion that “status quo” is not good
control of information manage- environment is a challenge. enough. These court cases, fol-
ment for trial and also pre-trial. lowed by the December 1, 2006
The impact of globalization,
Failure to produce information amendments to the FRCP, lay out
emerging technology, newfound
leads to financial penalties or ad- a mission for altering behavior in
competition, customer demands,
verse verdicts. This emphasis, in organizations. It is important that
and legal and regulatory changes
the wrong corporate hands, can HR professionals take the “change
on human health and wellness, for perspective” when designing and
lead to unproductive, morale-kill-
instance, was recently reviewed implementing programs and prac-
ing practices—unless human re-
with the goal of offering practical tices to face FRCP. Changing how
sources gets involved. The current
assessments and strategies for an organization understands and
failure to address the control fea-
building “healthy” workplace cul- complies with the FRCP will dic-
tures of the FRCP, in terms of
tures.10 The literature clearly indi- tate the level of success achieved.
corporate behavior, is evident in
the fact that consulting firms are cates that how people are managed
It is suggested that merely at-
running after the risk-assessment in firms, including technology
tending to technical matters or
and records-retention markets that firms or firms focused on informa-
writing new e-mail policies or im-
the FRCP opens up. For example, tion management, can affect health
proving the technical savvy of the
Deloitte Financial Advisor Part- care costs, morale, and productivi-
firm, will not reduce risk. Such im-
ners, reported by www.byteand- ty. The applicable requirements of
provements are necessary but not
switch.com, found that nearly 70% the FRCP need to be integrated
sufficient. The underlying behav-
of Webinar participants (these be- into corporate culture (i.e., HR
ioral thrust of the firm requires as-
ing a total of 400 chief financial of- policies, practices, and cross-func-
sessment and, if necessary, interven-
ficers, tax and finance directors, at- tional initiatives) gingerly, strategi- tion to ensure “compliance” not
torneys, and controllers) needed cally, wisely. This is not merely an with FRCP alone, but compliance
additional training on the funda- issue of “showing force.” The is- with a business strategy and culture
mentals of records retention.9 sue is one of business strategy, ex- that makes legal, social, and finan-
Clearly the training needs regard- ecution, morale, and productivity. cial success. That is the thrust of the
ing the FRCP are evident and re- HR professionals bring value by FRCP and traveling in that wake
quire strategic dissemination orga- understanding the context of the will reduce risk to business growth.
nization-wide. There are addition- new regulations. Understanding The new metrics for business
al, practical HR deliverables that the context enables HR to imple- success combine legal, social,l and
will be addressed shortly. Before ment programs, practices and pol- financial values. Human Resourc-
we drill down into the steps HR icies that will enhance organiza- es, as a profession can catalyze this
can take to heed the call from the tional compliance while making transformation. The FRCP in-
FRCP, however, there is a larger certain that regulatory compliance forms business that status quo is no
HR business strategy issue that re- doesn’t hinder business execution. longer good enough and that legal
quires attention. An impulsive, organizational reac- penalties will follow bad cultures.
HR is, of course, often relied tion to the FRCP is to focus only Bad cultures are electronically
upon to design and deliver tools on the “enforcement” (or writing stored. Bad cultures are not honest
that support business objectives. of) policies that intend to “con- and do not retain vital informa-
Over the past ten years, we’ve seen trol” technology uses and misuses. tion. Bad cultures place numbers
a transformation in the profession Constructing a culture of compli- ahead of any and all other consid-
as technology impacts not only ance however is misguided. Com- erations including risk to consum-
how organizations work but how petitive organizations require in- ers/customers or investors.
people work in organizations. The quisitive cultures. Innovation is FRCP compliance is not mere-
transformation of the workplace derived from openness, trust, ex- ly a matter of getting e-mails under
spawns new challenges for execu- perimentation, a sense of safety, control (although it is not a terrible
tives focused on sustaining com- and curiosity when playing with place to start!). A simple policy
petitive advantage and for opera- others. A hard compliance culture statement won’t do it nor will a
tions-focused managers finding kills the cat. log-in page advising employees

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
15 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

that they are being “watched” at Michael Saks, the recipient of the ing the discovery process for unde-
all times. Indeed, it is not a stretch 1987 award for Distinguished sirable expense and delay in litiga-
to imagine that very capable, au- Contributions to Psychology in tion.” (Saks relied upon the Poll of
tonomous, high-value employees the Public Interest at the 96th An- Judges Released, 1988, a Yale Law
might feel the “pinch” of those nual Meeting of the American Report, to draw his conclusions.)
chains. From a business maturity Psychological Association. The Upon close inspection of how
cycle standpoint, turning a firm work of Saks reminds us that the the FRCP came to be what they
into a “compliance” culture, when schism between social sciences or were in 1988, Saks informs us that
in a competitive environment, is a in this case, organizational behav- there is a paucity of research or em-
fatal mistake.11 At the very least, ior, and the law is real. That is, un- pirical investigation of any sort to
HR must ensure that the corpora- like other scientific disciplines, the guide or influence policy. He wrote:
tion does not throw out the baby law moves forward in non-empir-
with the bathwater. Destroy your ical steps rather than progressing Consider these questions: What
business culture for the sake of a through a series of improvements sorts of data do these judges have
simpleton’s understanding of what guided by programmatic evalua- on which to base their conclu-
FRCP is trying to accomplish? tion research. sions concerning what problems
exist and what features of the rules
A historical commentary on the
cause the problems? If the prob-
CONNECT ORGANIZATIONAL FRCP is noteworthy. In 1989, lems do indeed exist, as is widely
BEHAVIOR TO LEGAL Saks wrote in an article for the believed, why weren’t these
IMPROVEMENTS American Psychologist that the shortcomings (or developing
FRCP in effect at that time re- trends) recognized decades ago?
The issue of electronic message Although several answers are pos-
control is an issue of human com- quired alteration but that modifi-
sible, one that is certainly true is
munication, integrity, and respect cations unfortunately do not bene- that no one was watching in any
for fellow employees, customers/ fit from knowledge of social sci- systematic way. Appreciating the
consumers, and investors. The ences (or organizational behavior/ benefits of the federal rules was
FRCP awakening is an enormous industrial psychology) and that largely a matter of faith, and de-
change was needed almost fifty tecting their negative effects was
opportunity to re-visit HR pro- something that occurred, if at all,
grams and overall corporate strate- years ago. He wrote:
by observation. (pp.1113–1114)13
gy, making certain that the organi-
A far more profound example of
zation does what it says it will the law’s failure to empirically Legal policy scholars inform us
do—meeting both the spirit and evaluate the effects of its inven- of the pitfalls involved with “im-
letter of the law. It is a bonus that tions is provided by the Federal provements” in law being not sav-
the federal rules of information Rules of Civil Procedure. These
vy about or perhaps not linked to
management can be deployed in a rules were an important and in
some ways dramatic innovation in social and behavioral sciences. The
context of organizational change. new FRCP are not the outcomes
how the process of civil litigation
The larger context of organiza- was to be carried out. These rules of years of programmatic evalua-
tional change is the proper frame- govern the conditions under tion research. They are a practical
work for compliance with FRCP. which people have access to the attempt to stay in step with organi-
courts, the party structure of cases,
FRCP is not about merely manag- zational behavior.
the pretrial process and the con-
ing e-mails, building better data duct of trials. Last year marked the Consequently, HR professionals
repositories or ensuring that elec- 50th anniversary of the adoption should not blindly strive to “police”
tronic discovery tools can acquire, of these rules. At the same time employee behavior. The FRCP
authenticate and analyze informa- that their anniversary was being
celebrated, there was controversy
could easily lead the HR profession
tion rapidly. Of course, it is all of to be focused on writing policies
and pressure for change [emphasis
that but what the FRCP really mine]. (p.1113)12 and enforcing them. This would be
did—perhaps what it intended to a waste. The HR profession is situ-
do—is get Federal Rules in line Saks continued to report that a ated to integrate information tech-
with business models. survey conducted by Yale Univer- nology and legal while also calibrat-
Interestingly, the need to “up- sity in 1988 uncovered that state ing impact on consumer, custom-
grade” the Federal Rules of Civil and federal trial judges in the U.S. ers, and investors. Unlike the legal
Procedure was addressed by were nearly unanimous in “blam- profession, the HR profession is

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
16 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

poised to incorporate social and be- approach. Organizational change WHAT HR CAN DO TO
havioral sciences into its practices never had a magic bullet and MITIGATE RISK
and it should. FRCP compliance is organization- Coordinate IT and Legal To
Saks again reminds us that the law, al change. Muster the Best Defense as a
unlike HR, is not equipped to inte- Strong Offense
Electronically stored informa-
grate behavioral and social sciences Conducting discovery requires the
research into practice. He wrote: tion (ESI) is the life-blood of orga- involvement, compliance and effort
nizations. ESI is the life-blood of of people in an organization. There-
The law and its practitioners are the amendments to the FRCP. fore, there is a human-organizational
careful, thoughtful, and rigorous ESI transcends the trade cycle be- element to effective discovery.
about many things, but those
ing relevant pre-trade, during Discovery, especially when
things do not include the nature
of social and behavioral phenom- trade, and post-trade. ESI is with- sparked by allegations of corporate
ena, cause and effect relationships, out boundaries residing in servers, malfeasance, can shake the organi-
or the effects of the interventions desktops, laptops, personal digital zation hard. Public trust can be
made by law. In those areas, the eroded (e.g., securities fraud alle-
law lacks rigor. Legislative acts
assistants (PDAs), cell phones, por-
usually will withstand judicial re- table storage devices, and voice gations) and the organization can
view if they are not flagrantly irra- mail systems. Coalescing electron- face immediate and long-term cor-
tional and if the legislators had porate image and brand equity is-
ic evidence is more challenging
some minimal basis for believing sues. Internally, morale can suffer
that their solution to a problem than working with paper (hard)
and productivity can follow.
would work. documents. Unlike paper, elec-
To ensure that discovery is man-
tronic evidence can be enormously
aged well, plan its conduct with the
Saks went on to explain: voluminous and can be edited or organization and its people in mind.
altered by many users. ESI can also To do this, early planning is essential.
The substantive rules that make
become hard to decipher when As a starting point, when discovery is
up the law and the procedural
rules that specifyhow the law will separated from a computer operat- on the horizon make certain the or-
carry out its work have been de- ing system that created it (e.g., try ganization: 1) establishes sponsorship
veloped, for the most part, by rig- opening a document when you for the effort, and 2) plans organiza-
orless examination of evidence, tional communications.
by intuition, and by guesswork.
don’t have the appropriate pro-
Sometimes this is excused by say- gram loaded on your computer). Organizations coming under
ing that the law’s principal con- These special “qualities” of ESI the microscope require leadership
cern is symbolic: The law an-
compel law, litigants, and business- focused on this event. Establish
nounces what it seeks to sponsorship for the discovery effort. It is
accomplish. Whether it in fact ac- es to break a sweat when ESI be-
important that leadership is visible
complishes those things is second- comes relevant.
ary. The primary issue is that for and “projects confidence” in the
which the law stands. (p. 1111)14 ESI mirrors the boundary-less organization’s ability to comply
organization as extranets blur the with discovery. It is not enough to
This historic commentary is of- lines between employees and cus- put a technical representative or
fered here, not as an exposé on le- tomers and digitized communica- legal liaison in the lead—the lead
gal developments but rather as a tions operate 24 hours per day on must have organizational gravitas
warning to human resource pro- a global basis.15 ESI needs to be and must be able to get things
fessionals and as an advisory note. done. This will enhance internal
managed as closely and as dearly as
HR cannot simply afford to “com- cooperation among relevant par-
one manages a high-value employ-
ply” with FRCP by acting as an ties and will reduce friction be-
ee. ESI reflects how the “compa- tween all parties involved.
enforcement agency. It won’t
ny” (i.e., people employed by the
work for a multiplicity of reasons. Plan organizational communications
Business strategy issues, human be- company) treats investors, the to reduce the risk of panic or brand ero-
havioral/motivational issues, and public consumers/customer, and sion. Fear and panic threatens the
organizational issues are, at the even each other. ESI, as a collec- discovery process and it paralyzes
very least, a few of the elements tive sample of behavior, can be the business. Messages inside the
that complicate the enforcement used to infer corporate culture. organization leak outside the orga-

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
17 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

nization and often, when the case is A second tactic is to activate an in- what is not going on). No one is
visible, media will be trying to drill ternal communications campaign for all left out in the cold.
holes into the company to obtain employees. Craft a multi-faceted Internal communication reduc-
something juicy for public diges- campaign and make certain it cas- es fear and anxiety by establishing
tion. The best way to gain control cades down into employee ranks. resources for select personnel. In
over messages outside the organiza- Although e-mail is fine initially, this addition to managing the message
tion is to first get a hold on what is requires “town hall” type interfaces internally, the external message is
going on inside the organization. and continuity of messaging also tackled by ensuring alignment
To control external messages, con- throughout the discovery period. and on-going consistency. The
trol internal messages. Take a mea- A third tactic is to ensure that pol- importance of communications
sured internal, corporate response icies & procedures are in place. Every- management is clear for not only
to avoid panic and align messages one involved directly, indirectly, compliance reasons but also to
across the company. Corporate or not at all needs to know their maintain the integrity of brand,
counsel, business leaders and litiga- situation. Human resources should protect morale, and avoid organi-
tors should focus not only on the zational paralysis.
be present when conveying infor-
technical and legal aspects of mov-
mation to employees and business
ing forward with discovery but Incorporate ESI and FRCP rules
units that require interface. Issues
also the operational, interpersonal, into Leadership Development
regarding discovery, information Programs
and cultural issues that will no
sharing and perhaps, under Sar-
doubt surface as well. The entire HR and senior management can
banes-Oxley (2002), whistle-
organization is under-going the sponsor an educational initiative
blowing practices and protections
inspection, not isolated pieces. focused on consumer/customer/
must be conveyed. In particular,
Tactically, align resources based upon investor/stakeholder integrity. A
Human Resources needs to make
the expected path of discovery. For in- multi-faceted learning approach
certain that employees are fully in-
stance, assign a point person as the with education accomplished
doctrinated into relevant law and
“go-to” person for senior manage- through seminars, direct commu-
practice on matters that could
ment. If media calls, senior manage- nications and training that incor-
touch upon discovery (e.g., corpo-
ment needs to know how to handle porates ethical/legal scenarios
rate counsel conducting an inter-
the call. Train them on this. Provide would prove wise. Simulations
nal investigation does not repre-
an internal resource that will take could be developed to test man-
sent the individual—they focus on agements’ handling of or ability to
media calls. Educate senior manage-
corporate interests; false statements detect potential problems captured
ment on next steps in discovery be-
conceivably can be used against by (not caused by) ESI. The un-
fore they happen after providing a
the individual should corporate derlying notion here of course, is
thorough understanding of what is
waive attorney-client privilege; an that managerial judgment creates
happening (and what is not happen-
employee’s history should not be problems, not the ESI per se. Edu-
ing). Clarity is a weapon.
taken into consideration should a cational and training programs that
If senior management plays a Sarbanes violation be reported).
role in the discovery effort, inform address ESI, which captures man-
them of their responsibilities and Finally, everyone speaks from the agement actions/thoughts/com-
include not only managerial issues same page. The business outcome munications, should be part of
but legal counsel as well. Establish of management control during dis- leadership development programs.
a discovery management team to covery is that the corporation se- Change is one of the few con-
plan, chart, and otherwise navigate cures message consistency both stants in business. This is a business
the discovery event. On this team within the company and in terms fundamental that frames leadership
consider the general counsel’s of- of its messages to the media. This is development. Typically, issues of
fice, chief information officer, and a result of senior management be- alignment from an organizational
experts in change management ing educated, the company sup- and individual context do in fact,
and risk reduction. Third-party plying a resource for senior man- comprise executive development
objectivity will add value to this agement (likely the target of media programs. HR is offered the op-
team so consider partnering with attack) and the fact that employees portunity to bring FRCP to the ta-
suitable consulting professionals. are versed in what is going on (and ble so that leaders understand the

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
18 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

impact of ESI, as a representation burden” in terms of production of Other changes in Federal Rules
of their behavior, on the business. ESI, HR information that validates bring similar concerns for example
Organizations re-establish their this argument would be of enor- Federal Rule 45(d)(1)(D):
capabilities all the time to meet mous value. First, the issue of what
consumer demands and/or im- is reasonably accessible requires A person responding to a subpoe-
prove business execution in re- definition. From whom will this na need not provide discovery of
sponse to (or in anticipation of) electronically stored information
come? Is this a technical question,
from sources that the person iden-
challenges. The new FRCP is one a legal question or is it an organi- tifies as not reasonably accessible
of those challenges and so from a zational question? If the task is or- because of undue burden of cost.
standpoint of change management ganizationally cumbersome, does On motion to compel discovery
requires attention. It is notewor- that make it reasonably inaccessi- or to quash, the person from
thy, that internal “ethics in leader- whom discovery is sought must
ble, despite the work not being show that the information is not
ship” programs would likely be necessarily a technically complex reasonably accessible because of
discoverable and would bode well endeavor? Will HR need to make undue burden of cost. If that
for the integrity of the business. a case for the organizationally un- showing is made, the court may
reasonable nature of the request? nonetheless order discovery from
Tackle the Cost of Production such sources if the requesting par-
Although the FRCP do not specif- On the business side, are human ty shows good cause, considering
ically focus on organizational resource competencies able to make the limitations of Rule
26(b)(2)(c). The court may speci-
change or business operations issues an opinion stand up? How is cost
fy conditions of discovery.
per se, FRCP states that a party can calculated? Is cost a factor of the
argue that undue burden exists work or the way you choose to
The idea behind these new rules
making production unreasonable. work? Is there an advantage to en-
of course, is sparing parties unrea-
Of course, the mechanism by suring that complying with discov-
sonable expenses. What is unrea-
which the undue burden reveals it- ery is (or is not) costly and burden-
sonable? What is an expense? Is
self is left open for interpretation. some? Will Rule 26(b)(2)(B) trigger there a sliding scale based upon the
Operational and managerial is- executive thoughts as to how they balance sheet of the firm? To what
sues might be highly relevant in should be managing information? extent will the courts consider or-
terms of showing burden or calcu-
What expertise will be relied ganizational or non-technical ele-
lating costs or arguing that ESI
upon to dissect the technological, ments in calibrating the costliness
which is otherwise subject to a dis-
business, and human resource ele- and reasonableness of the discov-
covery request (for production) is
ments that contribute to total ery request?
(or is not) accessible. Business exe-
cution and organizational realities “cost”? HR could play the role of Can HR coordinate the organi-
are fair game in making your case organizational expert in securing an zation to reduce costs of discovery?
for (or against) an undue burden estimate of burden. Did your orga- For example, projects are often ex-
standard. HR can facilitate the nization establish “guardians” of ecuted deploying virtual global
making of this case. HR under- data? Is that to be a person, a team, teams, data is everywhere. Should
stands the complexities of coordi- or a policy? Should there be a spirit HR be accountable for ensuring
nating people, skills, or competen- of “guardianship” rather than a sin- that data access is recoverable, that
cies. Global obstacles might reveal gle guardian? How will HR deal is, are human resources available to
themselves and cross-cultural issues with Sarbanes issues governing recover needed data? Should the
could complicate matters (sharing whistleblower protections—should organization simply outsource this
information in the Americas with someone reveal a less than accept- capability? These are all issues re-
information for Pac-Asia, for in- able appraisal of data management? garding which senior management
stance, or relying on competencies How will HR have the technical will reach to HR for assistance.
in Pac-Asia to access requested in- savvy to understand and discover
Value (and Manage) the
formation in New York). the legitimacy of the complaint? Large (Unmanageable)
If, at the meet and confer, bu- Are whistleblower complaints dis- Communications Business
reaucratic impediments or organi- coverable and relevant and do they Landscape
zational burdens need to be on the also retain a duty to preserve, by The impact of technology on busi-
table to make a case of an “undue HR itself? ness, communications, and client/

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
19 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

consumer experiences comes in these practices could stand to pro- 26(b) now require parties to discuss
many flavors. Whereas the obvious tect you from unnecessary expo- electronic evidence pre-trial. It is
technology issues, such as e-mail sure (e.g., New Rule 37(f) regard- business wise to have a heavy hand
and information capture, storage ing “safe harbor” against sanctions in setting the rules of discovery be-
and dissemination are not news to for loss or destruction of ESI im- fore you play the game.
most professionals, technology has plicating routine or automated FRCP changes focus on elec-
also altered the “landscape” of computer deletions). Business tronically stored information (ESI)
what is business relevant and what planning on even the fundamentals and their preservation and produc-
perhaps is not. of data retention and production tion. There will likely be more dis-
For instance, Web sites grow can bring large returns should dis- course among parties before the
through Internet cracks and some- covery go live. meet and confer and discussions
times the purpose of these sites is Planning for discovery today about what is reasonably accessible
to target companies and evaluate sustains competitive advantage in and what is not may get heated.
their behavior. Online communi- the marketplace and in court. HR Entry into these conversations re-
ties gestate and in time can grow can play the lead in ensuring that quires planning. Wisdom argues
into formidable cause for corpo- the right players are at the table that technical expertise to over-
rate image concern (e.g., “ihate- early to define, implement, and come opposing counsel’s position
blank.com,” blogs, bulletin enforce policy compliant with is warranted. In-house counsel
boards). These communities share FRCP. HR, in a facilitative sense, needs to learn the technical and
information about experiences can bring information technology, functional capabilities of client in-
with companies. These sites are in- legal, and senior management to- formation management systems
tended as a mechanism to enable gether to ensure that the right peo- well in advance of discovery or risk
“honest” conversations between ple are focused on the right issues being unprepared for initial dis-
employees and customers. As a re- to do the right thing. Simulation- covery conferences. HR can make
sult, such communications “blur” based training is ripe for prepara- certain that this education oozes
boundaries between the company tion. Designed with high fidelity, into the halls of the general coun-
and its customer. A customer in HR can reflect the complex nature sel. Forewarned is forearmed.
the morning can be chatting with of unwanted discovery.
an employee of the same firm that For instance, Federal Rule
For example, the management 26(b)(2)(B) addresses the extent of
evening online. The employee
team can learn from each other in production of evidence. This rule
may be sharing information they
terms of how they handled the sce- is critical to a strategic, early ap-
should not, is inaccurate, or both
nario. It is wise to run programs proach to discovery.
(yes, the information might also be
such as these as realistically as pos-
very correct).
sible and include both hard (was A party need not provide discov-
Technology therefore compli- the data accessible, rate of produc- ery of electronically stored infor-
cates management control. Clear- tion, levels of risk) and soft mea- mation sources that the party
ly, organizational boundaries and sures (levels of participation, orga- identifies as not reasonably acces-
information management is not nizational blockades or impedi- sible because of undue burden or
what it used to be. What is acces- ments, interpersonal problems) cost. On motion to compel dis-
sible, what is discoverable, what is covery or for a protective order,
from participants. There is nothing the party from whom discovery is
burdensome—all these questions like experience and better to get sought must show that the infor-
exist in the context of information some before you need some. mation is not reasonably accessi-
flowing in-to and out-of business- ble because of undue burden or
es. HR must come to the rescue. Get Proactive about Discovery cost. If that showing is made, the
court may nonetheless order dis-
Conduct Crisis Management Preparation as always is a distinct covery from such sources if the
Scenario Training advantage. HR can help the orga- requesting party shows good
Business practices are implicated nization gain the upper hand during cause, considering the limitations
by the new FRCP. For instance, the meet and confer or other pretri- of rule 26(b)(2)(C). The court
may specify conditions for the dis-
fundamental business operations al discovery meetings. Essentially, covery. (See, for instance, Zubal-
regarding information control these meetings “set the rules” for ake v. UBS Warburg LLC, 217
now require thoughtful analysis as discovery. Federal Rules 16(b) and F.R.D. 309 (S.D.N.Y., 2003).)

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
20 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

According to Federal Rule While legally, discovery may laws, employment laws and other
26(b)(2)(B) if one party can evi- have a beginning and end, organi- regulations require review in terms
dence, to the court’s liking, that zationally or culturally, discovery of FRCP needs (e.g., Health In-
the burden of discovery is too is an event in a business life-cycle. surance Portability and Account-
high—opposing counsel is offered What will the event mean? Who ability Act, 1996; Family Medical
the opportunity to counter the ar- will it impact? How will it affect Leave Act, 1993; Civil Rights
gument. What arguments are via- brand? What will it do the organi- Acts, 1964, 1991 (Title VII);
ble? What is adequate preparation zation’s capability to attract, retain, Americans with Disabilities Act,
for the counter-argument? Clear- and develop world-class talent? 1990; and other EEOC-related
ly, preparation for entering this HR needs to begin these conver- federal, state, and local employ-
discussion is crucial for successful sations, perhaps at the board level ment laws and regulations).
discovery management. To the so that senior management can For example, allegations of sexu-
extent that HR can advise business plan communications. al harassment, discrimination, and
units on internal capabilities both, As evidence is dissected by dis- other wrong-doings that were in-
hard and soft, HR will bring tre- covery practices, forensic examin- vestigated and discarded require re-
mendous business value. To the ers, and attorneys, care must be tak- tention and proper, legal guardian-
extent that HR made certain that en to keep the organization intact. ship. Clearly, IT, HR, and Legal
the general counsel’s office is intel- Are employees left with the notion must fall on this grenade together.
ligent about computer systems in that their privacy is forever gone? Title VII violations, class action
the workplace, tremendous value Will the employer be over-zealous lawsuits, and their defense require
is added. in its monitoring making employ- sophisticated analysis and retention
It is clear that there is an epi- ees uncomfortable because some- of data. Who is minding that shop?
demic of regulatory-based law- one is always watching their behav- Are adverse impact analyses being
suits. These are not going away. ior online of off-line? Such residue conducted? Where does that data
Proactive approaches to discov- hurts morale and productivity. reside? Is it accessible?
ery—integrated proactive ap- Businesses are encouraged to Programs and practices used to
proaches—attend to the organiza- integrate human resource, change make personnel decisions all re-
tional, technological, and legal nu- management and organization de- quire review to ensure compliance
ances of the new rules of FRCP. velopment professionals as proac- with FRCP. For example, em-
Planning discovery requires con- tive discovery is planned, executed ployment practices used for selec-
sideration of not only the new and extinguished. This will ensure tion likely (hopefully) were vali-
rules but their organizational ap- corporate compliance and organi- dated in respect to the Uniform
plication, as well. Discovery zational commitment to discovery. Federal Guidelines16 and other rel-
doesn’t run itself—organizational Human resources staff profession- evant professional standards.17 The
compliance is required. The coor- als can manage the use and quality validation of employment hiring
dination of such compliance is best of delivery of consulting profes- tools and other assessment devices
facilitated by HR professionals. sionals if not provide services di- typically require data-heavy re-
rectly themselves. search or validation studies. The
Manage the Wake of Discovery management of the research for
Reduce Risk Within Human
Living through discovery is a so- Resources HR and its retention is under the
bering experience. Brand can be Like the rest of the organization, scrutiny of FRCP. Furthermore,
tarnished. The entire corporate HR retains data of all sorts. Some any and all electronic communica-
image might require some fine- of this is employment data and tions that are material to tools or
tuning. Even coming out of dis- benefits-related data, yet other data practices used to make personnel
covery “clean” can leave behind a is managerial—for instance sophis- decisions are discoverable.
trail that produces concerns about ticated 360-degree feedback data An e-mail from a key executive
the company, its products, or ser- on key executives (likely to be de- that states that although he under-
vices and the credibility of the pro- posed) and/or other evaluative stands that HR professionals “vali-
fessionals that work there. Con- morsels of information. HR needs dated” the method, he does not buy
sumers (and clients) value socially to clarify and guard its own data it and “if this test is used in my busi-
responsible organizations. repositories. Specifically, privacy ness unit, the hiring manager better

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
21 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

damn well find a way to bypass it” 1. Scrutinize HR-Enhancing tional, legal and ethical issues to
would be providing opposing coun- Technology Tools. the HR professional. Business
sel a means to negate the statistical HR needs to know where data leaders will require HR to assume
“validity coefficient” or other valid- resides relevant to employment is- leadership on such matters.
ity evidence painfully collected by sues and in what manner it is in- HR needs to ensure that the
HR experts. In short, many months dexed or retrievable (this is espe- organization is focused on data
of sophisticated personnel research cially important for research and preservation and destruction and
could be rapidly neutralized at trial. evidence used to validate employ- that the rationale for all actions is
(Incidentally, validation efforts are ment or personnel decision-making agreeable to legal, information
very costly in terms of time and labor practices; that is, data on internal technology, and makes sound
inside the organization, not to men- HR research that might be critical business sense. Data retention
tion compensation for the profes- at trial as such data is reasonably im- policies and “acceptable use” pol-
sional expertise. Statistical and other minent for a Title VII action). icies require close attention (cod-
forms of validity data are typically Confidentiality of data is para- ified and enforced) to ensure “safe
the best corporate defense for Title mount and HR needs to assure that harbor” rights. (HR can benefit
VII class action discrimination cases. information is properly safeguard- from counsel in deciphering what
All this can quickly become unrav- ed. For instance, the use of encryp- it needs to preserve; third-party
eled as a result of a few keystrokes, tion and/or removal of certain files objectivity often enhances a sense
such as an impromptu e-mail sug- from network access (so that only of what is “reasonably likely” to
gesting that field managers circum- select personnel can access the data- become relevant to future litiga-
vent corporate policy; such an e- base) are worth considering. tion; see for instance, Federal
mail would be on the table rapidly in Utilize intelligent technologies Rules of Evidence, 401; Federal
compliance with FRCP. wisely. Background checks are Rules of Civil Procedure, Rule
streamlined today through sub- 37.) The decisions regarding what
Again, we come around to the scription services and other sourc- data to preserve, what data should
fact that culture resides in electron- es. What information will be re- be destroyed, and when, require
ically stored information. A key ex- tained, stored, and preserved? careful analytics by weighing
ecutive or anyone in management Why? Ensure compliance with business, legal, and human re-
“should know better” than to by- EEO law while also being sensitive source considerations.
pass corporate policy in such an ir- to FRCP duty to preserve.
reverent style. An e-mail to HR This issue is not easily resolved
As technological capabilities as information (text), voice mail,
asking for an explanation of the se-
emerge and become vast, HR will instant messages—all these are dig-
lection system would of course,
be stretched and judgment will be itized and open to interpretation.
never make it to court as it does required. What background infor-
nothing for opposing counsel. Un- It is not always easy to decipher a
mation will be used or not used to message; for instance, “let’s con-
covering a culture of subterfuge en- make employment decisions? quer the competitor” could be
gages jurors. How the organization Whereas job-related, relevant in- translated into anti-trust motiva-
is run impacts how managers re- formation is clearly within the tion (or just be good hype in a mo-
spond to corporate policies and scope of EEO laws, where does tivational training session). It will
procedures and these HR programs the organization take knowledge be important to know when the
or management tools. of a nicotine patch, AZT usage, or communication was written, what
perhaps a history of civil litigation? the proper context is or was, and
Block and Tackle ESI Before it Are these facts relevant—should
Gets the Better of You
perhaps the location of the infor-
such information be used? Is this a mation. (What is the nature of the
A collaborative educational effort be- business question? An ethical ques- file that houses it? For instance,
tween HR, IT, and Legal should be- tion? An organizational values/ was the text stored in a file on
come an ongoing part of corporate culture question? The information competitive business strategy or in
culture. Beginning with newcomer used to make such decisions are all HR files on motivation training?
orientation and ending in the board- FRCP relevant. The architecture of data manage-
room, everyone needs to understand Data mining has come a long ment can assist with data interpre-
the issues of discovery residing in way. Enhanced technological ca- tation and so, too, requires close
electronic communications. pabilities bring complex organiza- scrutiny by HR, IT, and Legal.)

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
22 material involved, the number of copies you wish to distribute and the purpose or format of the use.
THE HUMAN RESOURCES PROFESSION CATALYZES CHANGE TO MITIGATE RISK

2. Know Where the Ball Lies. hard to find a company that doesn’t resources can hang together, so
Collect enterprise-wide informa- say it is customer-centric and that it they need not hang separately.
tion about work-related computer values its employees. Talk is cheap. ■
communications (this may enable ac- When employees feel mistreated
cessing information from home it shows. When customers feel un- NOTES
computer links and BlackBerrys wanted they respond. When inves- 1. Zubulake v. UBS Warburg LLC, 217
when, for some reason, the informa- tors believe the organization is go- F.R.D. 309, 91 Fair Empl. Prac. Cas.
tion was irretrievable from the work- ing “astray” they cut and run. All of (BNA) 1574 (S.D. N.Y. 2003).
based communications device). this speaks of course, to articulating 2. Coleman v. Morgan Stanley Inc. No. CA
Knowledge of what employees use 04-5045, 15th Jud. Cir., Palm Beach City, Fl.
a sound business mission and run-
3. National Law Journal, Verdicts & Settle-
various devices to communicate ning a firm in a way that appeals to ments, 27, p16 (April, 2005).
brings the capability to investigate consumers, investors, and high-cal- 4. Liebeck v. McDonald’s Restaurants,
communications on those devices iber employees. Today’s consumer P.T.S., Inc., 1995 WL 360309 (N.M. Dist.
(for whatever reason or allegation). is tomorrow’s juror. Ct. 1994).
5. Amichai-Hamburger, Y. (2005). The So-
Information sent to clients and
cial Net: Human Behavior in Cyberspace.
those external to the organizations ORGANIZATIONAL NY: Oxford University Press.
requires management. For instance, CAPABILITY & RISK 6. Williams, P. M. (2001). The Psychology of
Word document attachments are MITIGATION: THE HR AGENDA the Internet. Oxford, U.K.; Cambridge
easily “picked” for metadata that can University Press.
As far as HR is concerned, we’ve 7. Diamante, T., & London, M. (2003).
reveal edits or commentary (i.e., been arguing that a firm that is well Technology-focused Expansive Profession-
track changes)—or other anecdotes managed is less likely to experi- als: Developing Continuous Learning in
that the sender would not want the ence litigious problems. Custom- the High Technology Sector. Human Re-
receiver to view. Simply converting sources Development Review, 1, 500-524.
ers are valued. Investors meet with 8. Ivancevich, J. & Lidwell, W. (2004). Guide-
documents to a portable digital for- integrity. The public appreciates lines for Excellence in Management. NY: Thom-
mat (PDF) would protect the meta- some level of social responsibility. son South Western, TEXERE Publishing.
data contained within a document, 9. http://www.byteandswitch.com/docu-
Tactically, the FRCP certainly
but this requires users (employees) to ment.asp, retrieved Jan. 3, 2007, Deloitte
implicates readiness for the meet Financial Advisory Services, LLP.
adhere to policy—behavioral com-
and confer (i.e., it is wise to be 10. Diamante, T., et al. (2006). Organizational
pliance being an HR issue.
proactive toward discovery) and Wellness, In Health Promotion in Practice,
It is possible to implement tech- S. Sheinfeld-Gorin & Arnold, J. (Eds.) San
information technologists no
nology that will screen all outgo- Francisco, CA: Jossey-Bass.
doubt will be able to tinker with
ing firm e-mail document attach- 11. Diamante, T. (1998). Organizational Trans-
gadgets so that forensic technolo- formation: What Works & What Doesn’t. In
ments and instantly remove meta-
gists can acquire, authenticate, and Human Resources to the Rescue: Case
data to PDF. Should that be imple- Studies of HR Solutions to Business Chal-
analyze. FRCP streamlines due
mented? What is the immediate lenges (Mone, E. & London, M., Eds). NY:
process, attempts to reduce red
and long-term cost of bringing this Gulf Publishing.
tape, and places evidence in the 12. Saks, M. J. (1987). Legal Policy Analysis
into the infrastructure? Are the
right hands as soon as possible. and Evaluation. American Psychologist, 44,
business benefits undeniable and 1110-1117.
justified? Again, to manage behav- Legal tactics aside, human re-
13. Saks, M. J. (1987). Legal Policy Analysis
ior of people that use technology, sources, as the profession that fo- and Evaluation. American Psychologist, 44,
you need to know what these peo- cuses on human behavior in orga- 1110-1117.
ple are doing, how they do it, and nizations, must step up to the fact 14. Saks, M. J. (1987). Legal Policy Analysis
neither legal, information technol- and Evaluation. American Psychologist, 44,
where they store it. You can’t hit 1110-1117.
the ball if you don’t see it. ogy, or human resources alone can 15. Levine, R., Locke, C., Searls, D., & Wein-
3. Run the Enterprise Knowing assure that risk is mitigated. To- berger, D. (2001). The Cluetrain Manifes-
That Consumers, Investors, and gether, however a corporate cul- to: The End of Business as Usual. NY: Per-
Stakeholders Might Sit in ture can be managed, legal wisdom seus Publishing.
Judgment. 16. Equal Employment Opportunity Commis-
can prevail, and the technological
sion, Civil Service Commission & Depart-
HR needs to make certain that capabilities can reside in an enter- ment of Justice (1978). Uniform Guidelines
business executives take culture se- prise that places employees, cus- on Employee Selection Procedures. 43 Fed.
riously. Not to overstate the point, tomers, investors, and the public Reg. 38290 to 38315.
but people drive business. Employ- first. With HR as the catalyst for 17. Society for Industrial & Organizational Psy-
chology (2003). Principles for the Validation
ees, customers, investors, and the change, most assuredly informa- and Use of Personnel Selection Procedures. (4th
public at large are to be valued. It is tion technology, legal, and human Ed.) College Park, MD.

© 2007 Thomson/West. This publication was created to provide you with accurate and authoritative information concerning the subject
matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The
HR ADVISOR publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney.
If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. For authorization
MARCH/APRIL 2007 to photocopy, please contact the Copyright Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, USA (978) 750-8400; fax
(978) 646-8600 or West's Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) 687-7551. Please outline the specific
23 material involved, the number of copies you wish to distribute and the purpose or format of the use.