I am going to try and be as clear and as slow as possible- knowing full well that it probably will make no difference and that my words will be twisted, strawmaned, touted or defamed whatever I do. Regardless: Hirsch v. General Motors, 628 A.2d 1108 (1993) effectively opens the door for third parties to be cited for spoliation of documents or evidence for actions, potentially and reasonably performed in good faith, before any proceeding or legal action begins or is even threatened. Again, this was a products liability case. Couple buys a car. The car catches fire. People are hurt. Car is resold to the dealer. The dealer refurbishes the car. The dealer sells the car to a third party in a cash or near cash transaction. Plaintiffs, much later, sue GM, the car's manufacturer, and the dealer. In a typical discovery order the dealer is ordered to produce the car and all records associated with it. The dealer insists it cannot. It has, it claims, in good faith, sold the refurbished car to a third party. Court demands records of the sale to identify the third party, seize the car, and use it as evidence. (Note that this harmless third party, who had nothing to do with this case, had they been identified, would have had their car seized and impounded for who knows how long, while it was evidence in this case, despite the fact that they had no idea the car would have been subject to suit, or any other action). Plaintiffs sue for spoliation of evidence, move for court sanctions against dealer and GM. Dealer protests that their standard business practice to refurbish and sell cars. Further dealer protests that they routinely have cash transactions with few or little identifying records of the end parties. (The "normal course of business defense"). Effectively, this isn't even "destroying" records, but not keeping them. The trial court permits the plaintiffs to sue for spoliation, mostly on the basis of the disposition of the car, not the papers or lack of records, although those are mentioned, and orders sanctions (a fine and costs) against the plaintiffs. Case goes to appeal where defendants make the argument that the papers, car and other evidence were not the subject of a suit or pending suit and that they were acting in the normal course of business. The ruling by trial court is upheld. Summarizing: 1. Third parties can expect that, good faith or total ignorance aside, their private property can be seized if it, through no conduct of their own, becomes the subject of a dispute. 2. The "normal course of business" is not an absolutely defense in a case of spoliation. 3. Actions which destroy or "lose" evidence and that are performed before any case, action, threat of action or summons can still constitute spoliation. Willard v. Caterpillar, Inc., 40 Cal.App.4th 892 (1995). In the normal course of business, consistent with policy and _under the advice of counsel_ defendant manufacturer destroys all internal records (along with other unrelated documents) on the design for a tractor. Some time later (years) one such tractor results in an injury and becomes the subject of a products liability suit. Plaintiffs request the production of all documents related to the tractor design. Defendant protests that these were destroyed a decade ago, on the advice of counsel. Plaintiff's move for sanctions and sue for spoliation of evidence. Trial court imposes sanctions, assesses costs to plaintiffs, turns court record over to plaintiffs in anticipation of their suit in tort for spoliation against defendant and refers the case to the local prosecutor with the recommendation that a case for criminal obstruction be brought. (Some notes in the trial record suggest that judge and defense counsel didn't exactly get along well). Hundreds of thousands of dollars and several years later in appeal the assignment of court costs are overturned on the basis that defendant was acting in something like good faith because they sought and followed advice of counsel on their document destruction policy and the destroyed records were thought for some reason to be of minimal value. Near as I can tell the record of criminal obstruction charge was sealed and doesn't seem to have been disposed of. The rest of the sanctions and fines stood. The case for spoliation was settled but some undisclosed payment was made to plaintiffs in that case. Summarizing: 1. Document destruction policies for a company which are instituted on the advice of legal counsel might get you out of court costs- after hundreds of thousands of dollars in appeals. Sanctions and suit in tort for spoliation will be permitted to go forward anyhow. 2. Pissing off the trial court judge (do not taunt happy-fun-court) is a bad idea when simultaneously telling the court you won't (can't) give them what they ask for, unless you like criminal sanctions. (Larry Flint would be another good example of the consequences of being an insufferable bastard or having a deep rooted psychological problem with authority when dealing with a court- sure you might win, but enjoy the lockup for a while in the meantime). 3. Again, the fact that you had no idea the records might some day be part of a lawsuit or action means nothing. If you destroy them, you might get burned regardless. I submit that the facts of these two cases, along with some of the others I've cited and the FRCP among other statutes, suggest that it's not much of a stretch for a remailer operator to find him or herself in the midst of a spoliation dispute- all technical distinctions between remailers and document destruction policies aside. Add the intent discussion in Lopez and only an idiot is going to be careless about operating a remailer. I'm not going to go over them all again. Go read some books. I submit further that a remailer operator would do themselves quite a lot of favors if they put themselves in a position to look squeaky clean in front of a judge if and when this happens. We have real life-real cypherpunk examples that this works. It is clearly necessary, however to improve on this. This is because: I submit that the very operation of a remailer meets the textbook definition of "spoliation" or "destruction" of evidence just intrinsic to its design and that its primary purpose is this exact function. I submit that courts are not going to be dissuaded from this obvious conclusion without a nice, clean, young, innocent, harmless looking defendant who is well behaved in front of them pleading impossibility, and maybe not even then. Even in that case there are years and years of archives (read evidence) of discussions from this list and others demonstrating that remailers were designed and perfected with precisely the intent of destroying potential evidence. I would further point out that the "it's just a file trading service, we can't help what our users do" defense was an utter failure in the Napster case and that's pretty much _exactly_ what a remailer operator is going to be saying. Courts are not always as stupid as we'd like them to be. Court's are not always as smart as we would like them to be. The trick is getting these two mental states timed well. I would add that the court in the Napster case specifically brought up the point that Napster, while a file trading service also, was clearly designed with the knowledge, if not the desire and intent, that it would be used to exchange/steal/pirate copyrighted works. The fact that it was a "dual use" technology made no difference and Napster is slowly twisting in the wind/dead because of it. Why, in the face of this, anyone would fail to see the patently obvious parallel to remailers is somewhat beyond me. Finally: As to the question of Microsoft being pinched for destroying evidence- which someone touted as having never happened without having bothered to look at any of the case file on the MS antitrust trial as an example that the sky is actually purple, MS was _twice_ cited for obstruction, three motions were made for sanctions by the prosecution and in one of those the judge actually threatened sanctions (which resulted in the eventual production of the 'missing' documents, electronic in this case. Further, instructions in the case eventually included the allowable inference that MS maliciously destroyed evidence useful to the prosecution. My only regret in pointing this out is that I think Mr. Sandfort might owe someone a house. (I note he never put a dollar figure on the house bet though). I grow tired of trying to convince religious fanatics that the world is pear shaped. If anyone not a part of my new killfile additions has anything actually useful to contribute wake me up and I'll probably comment. Some unnamed cypherpunk who doesn't want to be later cited for legal malpractice might write up a set of theoretical legal remailer operator guidelines and post it anonymously to the list in the next few weeks. We'll see.