Academic and Intellectual Dishonesty in Cypherpunks... Was: Spoliation stuff

[Black Unicorn]

> -----Original Message-----
> From: owner-cypherpunks at lne.com [mailto:owner-cypherpunks at lne.com]On
> Behalf Of Ray Dillinger
> Sent: Thursday, August 02, 2001 9:04 PM
> Cc: cypherpunks at einstein.ssz.com
> Subject: Re: Spoilation, escrows, courts, pigs.
>
> >On Wed, 1 Aug 2001, Petro wrote:

[On record destruction]:

> >> You're going to be talking to a judge about this, and no, they
> >> won't be happy.

Jim Choate replies:

> >And there won't be a damn thing that they can do about it either unless
> >they can PROVE you were aware of THE (as opposed to a hypothetical one)
> >investigation.

Mr. Dillinger retorts:

> Wow.  You're seriously in denial, you know that?
>
> Hint: The cites BU provided are *REAL*.
>       This actually happens, routinely.
>
>
> 				Bear

Jim Choate has been in a filter on my mail which dumps all his posts into a
"Junk" folder along with anything containing the words "Get Rich Quick,"
"Miracle Penis Enlargement" or "The Internet Spy" for at least six weeks.
Six wonderfully silent weeks.

Every once in a while I see "Choate" sneak through when someone quotes him
(the last time was this LSAT business he chickened out of).

When I saw this post above I peeked at the "Junk" folder and found a host of
legal commentary by Jim Choate, none of which, of course, shows any sign
that he has bothered to so much as peek at any of the cases involved, or
even bother to read the entirety (or majority) of the content in my posts.

It does reaffirm that Mr. Choate not only has no legal credentials or
expertise whatsoever but has actually strayed into territory I thought could
not possibly exist; specifically: Perfect Legal Anti-Credibility.  That is
to say that the careful reader can get an awful lot of good legal advice out
of Mr. Choate's post by merely reversing all the legal conclusions.  The
result turns out to be pretty good counsel.  Remarkable indeed.

As for Mr. Choate's posts, they are all awfully absent and I generally
consider Mr. Choate the cypherpunks village idiot of the type who
unfortunately lacks any redeeming quality in being amusing enough to provide
entertainment.  These below, however, convince me that Mr. Choate doesn't
really even have any common connection with reality whatsoever:

Mr. Choate:

> ...the point you and the courts
> seem to be jumping right over isn't the 'spoliation' per se but rather the
> environment that indicates 'willful' and 'substantial certainty' in the
> consequences of those document destructions. It isn't the document
> destruction per se but rather your motive to destroy them to hide your
> crime.

...and in another post:

On Thu, 2 Aug 2001 mmotyka at lsil.com wrote:

> >1) The piece of useful information most easily extracted from this
> >thread is that the best defense is that the "evidence" never existed and
> >the device lacks the capability of creating it. Is it possible that the
> >courts could decide that using or designing a device lacking logging
> >features or that compiling a device from source with logging
> >capabilities but with those capabilities selectively disabled is in
> >itself an act of spoliation? These are acts done without any specific
> >knowledge of people, places, things or events likely to be of interest
> >to a court. General knowledge of the effects of designing, compiling or
> >using such a device might be shown.

Mr. Choate replies:

> No, they demonstrate that Black Unicorn drops the 'intent' requirement in
> his cites when he find it convenient.

mmotyka at lsil.com continues:

> >2) Most of the cites seem to describe cases involving corporations. Is
> >it reasonable to think that while in theory corporations and individuals
> >could be treated identically that in practice there are more
> >documentation requirements on the part of a corporation, especially in
> >the case of one that produces a product that is sold to the public?
> >Would the expectations be different for individuals not engaged in
> >commercial activities?

Mr. Choate comments:

> All the cite's require 'intent' in one definition or another to be
> specific toward obfuscating the future case. You know you fucked up, now
> hide it fast before anybody finds out about it. Oops, didn't hide it fast
> enough.

Mr. Choate levels the kind of accusations that, in academic circles, would
be very severe indeed.  I could get pretty upset about this- that is until I
remember it's just Mr. Choate.  If his credibility credit reports are as
anti-accurate as his legal views I take his posts as high compliment on my
astounding legal skill and acumen.

Mr. Choate insists I have some how "pulled a fast one" by avoiding the
discussion of intent, which is implicit as a requirement in all of these
cases.  This accusation puzzles me intensely.

In another of his posts he pretty much insists that I am intentionally
omitting key facts from the case cites which would show the severity of the
problem is actually far less than what I describe.  To wit:

> Review BU's cites and then ask yourself this (let's take the doctors
> records example specifically)...
>
> Had the record that was lost been one of a hundred that were lost in a box
> would spoliation charges have been filed? Most likely not, because there
> was nothing singularly interesting about that record in that context.
>
> In the other case, it wasn't that the company lost several cars and this
> particular one happened to be of interest, but rather that was the only(!)
> car that was lost.

Had Mr. Choate bothered to look up these cases he would have discovered that
the record "loss" in the medical malpractice case (Bondu v. Gurvich) was in
fact several records which were lost or otherwise misplaced at the same time
of which the plaintiff's were but one.  This is admittedly bit difficult to
discern from the appeals case, but is clear at the trial court level.

With respect to "loss" of the car in Hirsch v. General Motors it is clear to
anyone who has spent 10 minutes with the case that the car was sold, as a
matter of course, and records of the buyer not available or otherwise
"lost."  It also came out that this was the practice of the dealership with
respect to many used car purchases that were on terms other than financing
and that many used cars had been sold under the same circumstances with
respect to records and thus "lost" before and since the car in question.

As to his accusation that I avoided the intent issue I can only quote myself
from the very post which is the subject of his accusation:

> 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.

[...]

> 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).

[...]

> ...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 suppose what surprises me the most (and then again, doesn't considering
the source) is that Mr. Choate is (intentionally or unintentionally I'm not
quite sure) committing _precisely_ the kind of academic and intellectual
dishonesty that he accuses me of in the very act of accusing me of it,
specifically outright deleting any reference to my clear (and numerous)
discussions of intent to serve his own ends.  What's curious is how directly
transparent this would be to anyone who bothered to read my posts after
Choate's or those of Ms. Farr.  What can he hope to accomplish?  I suppose
woo the court of the lazy?

I don't know what to make of this in good faith other than that the
medication lapsed at exactly the 3 disparate moments in my post when he
caught a bit of intent discussion in my posts.  (This seems suspicious to
me, but I'll give him the benefit of the doubt since I believe him to be a
very sick man).

Of course, Mr. Choate is welcome to provide citations to the cases
themselves refuting my interpretations of them if he wishes.  Someone will
have to forward them to me though because after this I intend to forward all
mail with his name on it directly to the trash instead of to the "Junk"
purgatory it currently enjoys.