Spoliation cites

[Aimee Farr]

James A. Donald:

> On 2 Aug 2001, at 19:01, Aimee Farr wrote:
> [...]
>  (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);
>
> \All these citations obviously refer to situations where the case is
> already under way, and are thus irrelevant to the claims made by
> Black Unicorn.

The cases were offered for general background, nothing more. Actually, I
don't think all of them referred to a situation where the case was
"underway."

Google up spoliation and see that I brought this up earlier.

The fact that Uni also instinctively reached for the concept, should tell
you something: spoliation is what the courts will reach for both in crypto
and in datahavening situations. I don't think either of us is saying that
the theory is without limitations. Where the courts will draw the lines is a
big question. It will depend on the circumstances the court is presented
with. Spoliation in a digital context is evolving and volatile. Some of you
seem to suggest we are saying this is a big, black line -- we aren't saying
that.

Just because something is distinguishable, doesn't mean it won't be
extrapolated. The judicial acceptance of spoliation has been rapid. Did you
read the cases? Did you shep them? Did you look at the adoption of corporate
electronic retention policies? Just making a point that there is a definite
trend of judicial acceptance and extrapolation. The history here is
revealing, and it isn't in the case law.

An important point is that the courts have validated electronic destruction.
They see it as a legitimate exercise to limit discovery fishing. That's a
positive utilitarian undercurrent that many of you aren't seeing, even
though you can't hide behind a policy. The courts are placing a good faith
burden on the person with the evidence. To what extent this will be applied
in a "personal papers" context - who knows?

As for your comments regarding Nixon, that was before spoliation was
"revived" by the courts in a digital context. The erosion of personal paper
protection and game theory also comes into play here. (I threw out a SSRN
link to a paper earlier in this thread, which covered this a little, if you
are interested in commenting on it.)

~Aimee