Spoliation cites

[Black Unicorn]

> -----Original Message-----
> From: owner-cypherpunks at lne.com [mailto:owner-cypherpunks at lne.com]On
> Behalf Of Aimee Farr
> Sent: Thursday, August 02, 2001 5:01 PM
> To: cypherpunks at lne.com
> Subject: Spoliation cites
>
>
> The rapid acceptance of the spoliation theory out of CA has been
> in response
> to digital data.

And this strikes me as unfortunate, because I don't think courts have
understood this well.

> Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir., 1998)

> In cases where a document retention policy is instituted in order to limit
> damaging evidence available to potential plaintiffs, it may be proper to
> give an instruction similar to the one requested by the Lewys. Similarly,
> even if the court finds the policy to be reasonable given the
> nature of the
> documents subject to the policy, the court may find that under the
> particular circumstances certain documents should have been retained
> notwithstanding the policy.

Yep.  Ouch.  Document retention/destruction policy a good idea, but no
absolute defense.

> For example, if the corporation knew or should
> have known that the documents would become material at some point in the
> future then such documents should have been preserved. Thus, a corporation
> cannot blindly destroy documents and expect to be shielded by a seemingly
> innocuous document retention policy.  Gumbs, 718 F.2d at 96 ("Such a
> presumption or inference arises, however, only when the spoliation or
> destruction [of evidence] was intentional, and indicates fraud
> and a desire
> to suppress the truth, and it does not arise where the destruction was a
> matter of routine with no fraudulent intent.") (quoting 29 Am. Jur. 2d
> Evidence '  177 (1967)).

This is the nexus of spoliation theory that bother me.  Consider:

Retention policy is ok under Gumbs (but only in its limited scope discussed
below) only when (under 29 Am. Jur. 2d) "the spoliation or destruction [of
evidence] was intentional... it does not arise where the destruction was a
matter of routine with no fraudulent intent."  The only problem is that the
standard for intent is overly broad in my view.  Consider again 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)."  Well, the other
problem is that none of the judges seem to be reading or relying on the
American Jurisprudence discussion, because that "desire to suppress the
truth" language never seems to make into these cases.

To me, in the absence of this little bit of case law from Lopez, Gumbs seems
just fine and logical to me.  With Lopez, however, "fraudulent intent"
becomes the equivalent of knowledge that a court won't have access to the
records if they are destroyed (under the second part of the Lopez test where
consequences are "known to be substantially certain to result (regardless of
desire)."  You'd have to be of IQ < 70 to fail to make that conclusion.

I am reminded of the asinine distinction drawn between "discrimination in
intent" and "discrimination in effect" (the latter meaning that if you
refuse to hire felons, and as it turns out this means that you don't hire
any Alaskan natives because all of the ones who applied were felons, you are
guilty of discriminatory practices even if you didn't even know they were
Alaskan natives.  See Also: "Redlining" prosecution silliness in the early
and mid 90s).  Effectively, corporations and individuals are required to
possess oracle like powers to determine what their retention requirements
are.  That's just silly and very onerous.

Also note that Gumbs is only really talking about how the destruction policy
(which looks to have been a sub-issue of the matter at hand- not a contempt
or destruction charge) will influence jury instructions- in this case what
inferences the jury can be instructed are permitted when in their
deliberations.  In cases where the actual destruction of evidence is the
primary matter of the case things seem to get more serious for the
defendants- maybe because courts spend more time considering the issue.

A jury instruction that the destruction of evidence could be considered
fraudulent is bad.  An actual charge of spoliation or obstruction is worse.

> See also, In re Prudential Is. Co. Sales Practices Litigation, 169 F.R.D.
> 598 (D.N.J. 1997) ($1 million fine for negligent destruction);
> U.S. v. Koch
> Industries Inc., 1998 WL 1744497 (N.D.Okla., 1998) (jury informed of
> document destruction, and allowed to make inferences).

I looked at this after I wrote the above.  Exactly what bothered me.

> But see, Procter & Gamble Co. v. Haugen, 179 F.R.D. 622 (D.Utah, 1998)
> (analyzing time element and refusing to find spoliation in
> absence of notice of potential relevance or court order).

There are SOME reasonable courts.  Seems time is a weighing factor, but not
an absolute defense.  Same story all around on this issue.

> In a criminal context, U.S. v. Lundwall, S-1 97 Cr. 211 (S.D.N.Y. 1997)
> (finding obstruction of justice):
>
> ...Defendants contend that they were not subpoenaed or directed by a court
> to furnish the information sought by the Roberts plaintiffs in their
> discovery requests. They also submit that the Indictment is overbroad,
> charging them not only with concealing and destroying documents
> requested by
> the Roberts plaintiffs, but also with concealing and destroying documents
> likely to be requested by them. But the law is clear that neither
> a subpoena
> nor a court order directing the production of documents must be issued or
> served as a prerequisite to a '  1503 prosecution, and that the
> concealment
> and destruction of documents likely to be sought by subpoena is actionable
> under the statute. See, e.g., Ruggiero, 934 F.2d at 450 (destroying
> documents in anticipation of a subpoena can constitute obstruction);
> Gravely, 840 F.2d at 1160 (under '  1503, documents destroyed do
> not have to
> be under subpoena; it is sufficient if the defendant is aware
> that the grand
> jury will likely seek the documents in its investigation);

I should have spent the time to look at the federal stacks the other day
because Ruggiero is exactly what I was worried about- specifically that FRCP
and USC would have more teeth and federal courts less tolerance.  Ouch.

I suspect it can only get worse as we start to get more electronic evidence
cases, particularly in IP law- since the criminal sides of that are starting
to show up in civil based actions (much like anti-trust in the 80s-90s).
Everyone is a prosecutor who can afford to be one.

Great.