Gotti, evidence, case law, remailer practices, civil cases, civility. Was: Re: Spoilation, escrows, courts, pigs.

Black Unicorn unicorn at schloss.li
Wed Aug 1 16:07:34 PDT 2001


----- Original Message -----
From: "Tim May" <tcmay at got.net>
To: <cypherpunks at cyberpass.net>
Sent: Tuesday, July 31, 2001 11:19 PM
Subject: Re: Spoilation, escrows, courts, pigs.


> At 10:19 PM -0700 7/31/01, Black Unicorn wrote:
>
> >>  Show me exactly which law I am breaking by placing some of my
> >>  documents or files in a place even I cannot "turn over all copies
> >>  from."
> >>
> >>  I have never heard of such a law.
> >
> >If you know you've committed some kind of weapons violations or some such
and
> >you have reason to believe you have come to the attention of the
authorities,
> >burning the record of those bulk AK-74 purchases might be a bad idea- if
you
> >got caught.
>
> Show me the cites. I commit felonies on a weekly, even daily, basis.

I can't speak to your felonious activities, but on the other points, very
well.

For spoliation as an independent cause of action in tort (not to mention the
criminal sanctions that can attach through obstruction) See: Bondu v. Gurvich,
473 So.2d 1307 (1985).  Medical malpractice case in which court rules that the
loss (not destruction) of medical records related to the claim constituted
spoliation of evidence.  (Note: no willful destruction was shown, mere
negligence and the records were "lost" by actions prior to the commencement of
the proceedings).  See also: Hirsch v. General Motors, 628 A.2d 1108 (1993).
Products liability case- vehicle caught fire, was refurbished, sold, then
"lost" to an unknown purchaser.  Only then did Plaintiffs file a suit against
General Motors and the dealer who sold them the car.  Court held the "loss" of
the car constituted spoliation of evidence.  (Note that no proceeding for
products liability had been pending when the car was resold).

See also generally: Brian E. Howard, Spoliation of Evidence, 49 J.Mo.B. 121
(1993).

On the dangerous and insidious nature of Spoliation in civil cases Generally:
Mary A. Wells, Penalties for Spoliation of Evidence Can be Serious, Including
Exclusion of  Evidence, Adverse Inferences and Liability for an Independent
Tort, 60 Def.Couns.J.  280 (1993).

> >I've seen more of this in the white collar world, where billing records,
> >transaction records and such were destroyed but the principal holds.
>
> IBM instructed employees to destroy records. At Intel, we destroyed
> records--I did so as part of the "Crush" program (to drive several
> competitors out of business). So long as we were not being ordered to
> turn over evidence, not any kind of crime.

So long as it was regular practice and documented as policy it meant you had a
_defense_ against an action or spoliation issue.  It hardly meant that you
weren't potentially going to be found in contempt of court, subject to a civil
suit for spoliation or worse.  As I'm sure you are aware your argument is
flawed because of a sampling error.  i.e.: "I walked across the street today
and was not struck by an automobile.  Therefore I can always expect no
automobile will strike me when walking across the street."  This is clearly
not so.

IBM and Intel are also better resourced than our typical remailer operator.
(Unless you know something I don't?)  I think it's pretty easy to argue that
IBM and Intel were engaged in some naughtiness, that's not the issue.  The
issue is who is going to go after them and who wants to spend the money
against an IBM or Intel defense team.  (In fact you will probably know that in
the Intel anti-trust days there was a bit of naughtiness done and there is a
statute out there generated at least partly from Intel's conduct- specifically
a change was made to 18 USC 1505:

"Obstruction of proceedings before departments, agencies, and committees:

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in
whole or in part, with any civil investigative demand duly and properly made
under the Antitrust Civil Process Act, willfully withholds, misrepresents,
removes from any place, conceals, covers up, destroys, mutilates, alters, or
by other means falsifies any documentary material, answers to written
interrogatories, or oral testimony, which is the subject of such demand; or
attempts to do so or solicits another to do so... [blah blah blah...] shall be
fined under this title or imprisoned not more than five years, or both."

If you flesh out the case law on "intent," which I'll do some below, you'll
find that there is no requirement that the investigative proceeding or demand
have been made yet.

Intel and IBM aside, a remailer operator is hardly going to be doing him or
herself a favor looking to large multi-nationals to define the rules of
conduct since all of us here know (or should have known) that the rules don't
always (ever?) apply to large multi-nationals.Back to the matter at hand.In
reference to your example c.f. the experience in Willard v. Caterpillar, Inc.,
40 Cal.App.4th 892 (1995).  Defendant destroys all internal records on the
design for a tractor that eventually results in an injury and a lawsuit
(products liability), some ten (10) years later.  Defendant destroyed these
records _on advice of counsel_ 10 years before the proceedings and years
before the accident.  The trial court found spoliation in a hot minute,
imposed sanctions and referred to the prosecutor the suggestion that criminal
obstruction charges be filed.

If this were a remailer operator we'd be struggling to scrape together
$2,000.00 for EFF to defend the guy and he'd still be in the can, I suspect.
In a lovely piece of language on intent with reference to the destruction of
the documents the court also notes: "...intent is broader than a desire or
purpose to bring about physical results.  It extends not only to those
consequences which are desired, but also to those which the actor believes are
substantially certain to follow from what the actor does."  (More on this
later).  An expensive appeal overturned a portion of the sanctions, but _only_
it seems, because the judges were convinced that the action of destruction was
on advice of counsel and this outweighed the spoliation effect itself, which
was low since the probative value of the records destroyed were regarded by
the court to be minimal.

> A bookstore is not "spoliation" for failing to keep records of who
> bought which books.Now we just haven't created any records- or any evidence.

I'd counter that the bookstore would be running afoul of standard accounting
practices, or that most of the records of credit card transactions would be
otherwise available so it's not a very good hypo, but let's go with it.

> Cop: "We have a court order requiring you to turn over all records
> concerning who bought the book "Applied Cryptography.""
> Store: "We don't keep records."
> Cop: "Why not?"
> Store: "None of your business."
> (Interjection by Black Unicorn: "The court is not amused.")
> Cop: "We could charge you with spoliation!"
> Store: "Go right ahead."
> (Interjection by Black Unicorn: "It's not nice to fool with Mr. Happy
>  Fun Court.")

I note that you have omitted my "knew or should have known" that those records
were likely to be part of a proceeding, I assume not just because it serves
your argument in this instance.  (I also note that the quote is "do not taunt
happy-fun-court."  A reference to the SNL quote "Do not taunt happy-fun-ball"
and a statement of the dangers of taunting powers you may not understand).

Still, the facts in Willard might still support your hypo as plausible, though
I find it hard to envision it being pressed, and I think if you look at the
facts of Hirsch v. General Motors you'll also find that the court isn't that
kind to an otherwise innocent third party who does anything with records or
"evidence" that eventually is sought after by the court, reasonability aside,
knowledge aside, pending litigation aside.

Disturbingly, innocent third parties have increasingly been taking it on the
chin in American jurisprudence, but that's another essay.

> >Still, based on what you seem to have read me as saying we probably lost a
> >good deal of the context of the discussion.  The original question, as I
> >understood it, was what an individual who was faced with a clearly pending
> >court action (or an existing court order) could to do frustrate that order
and
> >prevent certain materials from being distributed- _without consequences_.
> >My discussion was limited to that context, though I did not probably
clarify
> >that sufficiently.
>
> The discussion included claims that those who use remailers, or who
> run remailers, may be guilty of spoliation. And it included comments
> that using offshore/unreachable methods if one ever expects to be
> charged is spoliation.

And I stand by those.  Such people have no (or just a little depending on the
age of the judge in the case) defense in "normal course of business" or
"custom" or "policy" that their actions were for any purpose other than to
dispose of potentially material evidence to a crime.  Face facts.  Remailers
are to destroy or prevent the creation of records.  It's pretty reasonable to
assume that the operator knows about this effect and anticipates the result.
(More on that in a sec).  Let's pretend for sake of argument that we could
make a normal course of business argument (which IBM and Intel certainly would
make, citing document destruction policies broadly written but loosely
applied, to demonstrate their intent as being kosher).  Even this isn't always
enough, but it tends to help, particularly if your a big company keeping lots
of records.  (See e.g., Willard, Hirsch).  Also, note the intent
interpretation, applied to spoliation, is articulated better in Lopez v.
Surchia 112 Cal.App.2d 314.  A person who acts willfully intends "those
consequences which (a) represent the very purpose for which an act is done
(regardless of the likelihood of occurrence), or (b) are known to be
substantially certain to result (regardless of desire)."  On this point See
Also Generally: Perkins on Criminal Law (2d ed.).

Taking it to the remailer example, sure, your (a) very purpose for which [logs
are routinely erased] is accomplished. to wit: the saving of space time etc.
but it is also (b) known to be substantially certain to result in [the denial
of a court of law's access to the records pertaining to an issue before it].
Let's face it, remailers are not politically correct animals (all the human
rights and recovery group arguments notwithstanding).  A court might well
assign intent to a remailer operator on the basis of this piece of case law,
which is _strongly_ engrained in California jurisprudence incidentally and
used as a major cite in several intent issue arguments.

> I say this is bullshit.

In response I can only direct you to read above.

> By your vague (no plausible cites, just some
> 1L literatlisms), whispering is spoliation. Failure to archive tape
> recordings of conversations is spoliation. Use of encryption is
> spoliation. Drawing the curtains is spoliation.

This is the point.  The practical definition of destruction of evidence is
what the court says it is.  All you can do, all you can ever do, in court is
to make arguments the other way.  Either the court will buy them, or they
won't.  I tend to think your bookstore example would be unlikely to bring
about a case.  However, if I walked into the bookstore, told the manager I was
going to sue him because he was overcharging 2% for every book, and then left,
_technically_ the destruction of billing records after that point makes a
pretty good case for spoliation.

Something I didn't even give thought to, that I discovered thanks to Mr. May's
insistence that I provide cites, is that it's even worse than that.  You don't
even have to intentionally toss the records to be spoiling evidence.  You can
do it by mere negligence or inaction.  See e.g., Continental Casualty Co. v.
Superior Court, 190 Cal.App.3d  (1987).

> >I can cite some case law if you really want or if there is some legitimate
> >need for more clarification, but we are a bit far afield of the original
> >discussion now, and that was not intended to allege anything close to the
kind
> >of prohibition you seem to be talking about.
>
> >But you said, more than once,
>
> "If it looks like you knew it was going to be a
> court issue and you put it on freenet for that purpose, you're in trouble."

See above.

> And why would it be a crime for John Gotti to make his communications
> inaccessible or irretrievable or unrecallable?

That's preventing the creation of evidence in the first place.  That is not
the same problem.  Extending to remailers, disabling the logging function
entirely (rather than just routing to /dev/null or deleting regularly) is the
best policy probably.  Even better is to be a middle remailer.  I fall back to
my earlier position.  Put yourself in the spot to be able to say "I couldn't
give you those if I wanted to cause I don't control them."  Adding to my
earlier position you should rather be able to say "No such logs ever existed
because that function doesn't exist in the software I use." or "No such logs
exist because mail that comes to my system doesn't have meaningful headers on
it anyhow."  Or even better, just give them a full set of 20gigs of logs of
encrypted mixmaster stuff with headers from nothing but 4 other front end
remailers, maybe compressed in an obscure format on old Western Digital Corp
tape reels or something.

> How aboutL "If it looks like you knew it was going to be a
> court issue and you whispered so that the FBI could not understand
> your words , you're in trouble."?

Let's not be silly.  That falls under the realm of not creating evidence in
the first place, not destroying evidence that already exists.  If you don't
recognize the difference this discussion is a bigger waste of time than it
already appears to be.  If you routinely tape your calls for whatever purpose
you're creating evidence.  If you take notes, there's evidence.  If there's a
witness, there's evidence.  There is no evidence if two parties are whispering
in a loud Italian restaurant, unless the FBI has rather more sophisticated
listening devices than I am led to believe.  Well, technically there is
evidence in the second party as a witness.  If you tamper with him or her,
you're in trouble too, as Gotti will, I suspect, readily attest to.

> Isn't this spoliation by your broad standards?

They aren't my standards and no, it's not, for the reasons I cite above.

Mr. May Asks:

>>>  Cites?
>>
>>I don't have any.  This was my theory.  Hence my language: "It almost sounds
>>tantamount..."  Hence my cite of the definition of spoliation below, for
>>comparison.  Hence my discussion of a prosecutor's likely tactic in making
the
>>argument.  Encrypting to an "irrecoverable" key certainly comes close to if
>>not outright meets the technical definition of spoliation in Black's Law
>>Dictionary.  What "irrecoverable" means will depend on the judge probably.
>
> But, Black Unicorn, you're the one who chose to lecture all the children
here.

The children can do a little homework if they are personally interested in
more detail.  As it is I did a bit of research for the list and you Mr. May,
since FindLaw didn't seem to do it for you.  (Not surprising since I don't
regard it as a tool of much use).  Whatever you, or anyone else, might think I
don't pull this stuff out of thin air just to hear myself type.I'm interested
in seeing remailers stick around and grow in numbers.  That's not going to
happen if remailer operators get pinched and bullied on a regular basis.
We've been pretty lucky so far.  I don't expect that to last forever.  There
are so many teeth getting built into "thought crimes" now with respect to
intellectual property that I believe that this evidence issue is going to
become a huge one, akin to what export was (is) in the mid 90s.  You have
DirectTV on the cover of yesterday's Wall Street Journal saying they are going
to pursue end users citing over a billion dollars in "loss" due to pirates
(and needing to dust off their financials for an upcoming acquisition
transaction).  You have distributors whining about the potential illicit
digital redistribution of Planet of the Apes.  You have researchers being
pounded for publishing DMCA violating research.  You have 20 something kids
smart enough to be giving lectures at DEFCON in federal custody, despite the
fact that the FBI buys their stuff, because a corporation got an IP bug stuck
in its rectum.I'm happy to suggest prudent, conservative approaches for
remailer operators, data haven types and suchlike- based on my experience with
courts, white collar crime, production orders, discovery, and etc., because I
think it's needed but even so I don't particularly I want to go romping
through case law every week just to win a battle of egos on a mailing list.

It's only the vigor and venom of your reply that's spurring me on in this
instance actually since you made a few credibility comments that I think might
have been a bit uncivil and unfair.  (Lesson for other posters- to get legal
research for free out of Uni, just insult him a lot).

> I have asked for a cite that shows that higher courts, up to the
> Supreme Court, have held that using Freenet or encryption would
> constitute spoliation, which you brought into the discussion as a
> reason why Cypherpunks had better not count on using encryption, or
> offshore storage, or any other means that might cause the court to
> "not be amused."

Well, that's not what you asked for.  You asked for cites on spoliation
generally, or so I understood you to ask.  I also don't remember you
specifying which courts you wanted cases from (though the ones I've cited are
generally state supreme court level or otherwise major citations in the states
they represent.  I didn't spend time in the federal stacks today so you get
state cites.  A little exploration into the FRCP will yield equivalent cites
for federal discovery and etc.

> They didn't get John Gotti for whispering, so I doubt "spoliation" is
> nearly the tool you and Aimee Farr seem to think it is.

I've seen obstruction and spoliation tacked on to about every white collar
criminal action I have had any exposure to- almost like mail and wire fraud.
It usually ends up in court imposed sanctions.  Expensive ones.  More
importantly the credible allegation that evidence was tampered with or
destroyed by the defendant is a _very_ persuasive thing for a jury to hear.
Murder cases are won on that alone without bodies.  A good place to look at
this is in piracy cases, where the evidence is almost always tossed overboard
and eaten.  Lots of discussion about evidence that the evidence was tossed and
lots of convictions.

I regret that I can't talk in much detail about examples I had personal
involvement with, I hope the cites I provide are enough for you to look
further.  They should be as they are, generally, the premise for much of the
evidence case law out there in this area.  My personal examples probably
eventually resulted in briefs which cite these cases or their contemporaries
because they were the same issues.

Mr. May reminds us:

> >>  Remember, the hypo involves placing material in irrecoverable forms
> >>  prior to any actual court case.
>
>>Well, that's not the hypo I remember but in any event the case doesn't need
to
> >have been called, the defendant merely needed to "know or should have
known"
> >that the material in question was likely to be the subject of a legal
> >proceeding or material evidence to same.
>
> John Gotti "knew or should have known" that prosecutors would have
> loved to have had his tape-recorded conversations. Was he then
> obligated by "spoliation" standards to have neatly archived them or
> could he re-use his answering machine tapes the way everyone else
> does/

Hirsch v. General Motors suggests that the "normal course of business" (i.e.
reusing answering tapes perhaps) is not an absolute defense, or even a good
defense, for spoliation.  (c.f. Catapiller which suggests at least that it
might have some weighted persuasive value if it was your attorney who told you
to burn the documents- wonder if there was a malpractice case there?).  They
resold a damaged and refurbished car.  That's what they do.  They are a
dealership.  They sell cars.  Some of them are used.  Some have been damaged.
Routine.  The only problem was that the previous owners then decided to sue
General Motors.  Court, not being amused at the lack of availability of the
car, imposes sanctions and permits a civil action for spoliation against GM
and the dealer.  Look, I agree with you.  That's stupid to me.  Don't burn the
messenger though.  Your outrage at my assertions is better directed to your
legislative representative and even above you've still giving an example above
of not actually creating evidence, unless there actually were taped
conversations that Gotti actually altered or such.I'm not sure remailer
operators can credibly give the "not creating evidence" example yet.

> (Again, he is not in Marion for spoliation.)

Gotti is probably a bad example to argue your point with.  He did have several
counts of obstruction and tampering which stuck.  I remember something off the
top of my head about several sets of court sanctions against Michael Coiro,
Gotti's attorney (whom I actually met once) related to evidence.  He was
eventually found guilty for money laundering and there was some tampering or
destruction discussion there.  You can write and ask Gotti if you like, if the
throat cancer hasn't got him yet, I'm not looking that one up.  (Mr. John
Gotti #18261-053 USP Marion PO Box 1000 Marion, IL 62959).

> And so on. I could give a dozen examples off-hand of cases where
> records were not kept, where whispering or coded messages were used.
> No prosecutions on spoliation that I know of. Cites from you?

Again, if you don't actually _make_ records then there's nothing to spoil.
That's a different hypo.

To Mr. May's apparent chide that I consider myself a "real lawyer.":

> >Depends on your definition of "real lawyer."  I hold the degree.  I'm
licensed
> >to practice somewhere or another.  I've probably made 15 or more motions
> >before courts in various proceedings in various jurisdictions.  I don't
> >practice anymore so perhaps that disqualifies me.  Still, all of this is
> >academic- just as this discussion is.  My qualifications are irrelevant.
You
> >got my opinion for free.  I think I can fairly say you got more than you
paid
> >for.   Look up the statutes for yourself.
>
> I'm asking for some cites that your broad interpretation, which you
> have even extended to saying that remailer operators may be running
> afoul of the spoliation law merely for not keeping records of who
> used their services, is at all in the ballpark of plausibility.

Cites provided.  See above.  I think I show its more than in the ballpark, but
rather a called third strike.

> A person under indictment or called as a witness who throws a gun
> into a river, or who burns diaries, may be said to be tampering with
> or destroying evidence. Maybe "spoliation" is the Black's Law term.
> Who cares?

Because the applicability extends farther than just someone called as a
witness or under indictment.  Certainly in tort its _much_ more extensive.
I'm tired of citing, see above.

> But this is a far cry from saying that anyone "who knows or has
> reason to expect" that he will someday be charged with some crime is
> committing spoliation by using remailers, offshore
> accounts,whispering, using secure phone lines,  etc.

I think we've addressed most of these above either by discounting them as out
of the scope of discussion or providing cites.

> Saying I should "look up the statute" is a cop-out. In fact, I did
> some Findlaw searches and found nothing to support your broad claim
> that using a remailer or an offshore storage site exposes one to
> spoliation charges. In the real world, that is, not the 1L
> simplicities of reading statutes overly literally.

You didn't look very hard or maybe you did but findlaw isn't the best resource
either.  It's for armchair attorneys.  Seriously interested researchers will
spend time at the library, look up statutes and learn to Shepardize.  I
happened to be at the law library for an unrelated matter so I wasted 90
minutes looking this silliness up for you and the list Mr. May.  I herewith
submit my invoice, payable on receipt, for more civil treatment, for services
rendered.

> If you're going to try to scare remailer operators with the claim
> that they may already be violating the spoliation laws, at least
> provide some strong evidence.

I actually pointed out examples of how to avoid the problems and cited a real
individual example (but since I did not consult with him or her ahead of time
I left the individual nameless- I see, but have not read- a reply that might
be from said individual on the list now) of a successful dodge of a subpoena-
or harmless emergence from the process in any event.  The point is not to try
and scare anyone, but impose some sense of reality that many cypherpunks just
miss, having never seen the inside of a courtroom or having rendered a court
"unamused."  There's nothing quite like an unamused court if your standing
(sitting) in front of one, and in answer to your implied query- I call them
that because the judge always frowns, scowls, leans forward and says "I am not
amused Counsler."  Suddenly things get really quiet.

> --Tim May





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