Spoliation cites

[jamesd at echeque.com]

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On 3 Aug 2001, at 6:05, Aimee Farr wrote:
> 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

As I mentioned earlier, we have already had both crypto and data havening situations, in the DVD case we had data havening while the case was actually under way, which certainly was defiance of the court.

Lots of people, among them various companies I worked for, have been doing equivalent things with shredders, selective backup, and so on and so forth, routinely destroying records, in part because excessive record keeping could become a disaster in any court case.

Everyone is doing it, no one has been charged.

There is no law against it, no legal precedents against it, merely a claim that judges will "look with disfavor" upon it.

When the first thousand executives who have been overactive with routine use of their shredders go to jail for their routine weekly, monthly, and yearly destruction of records, then it will be time for remailer operators to worry.

> 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.

I am still waiting for some executives to be jailed for their policies of routine, regularly scheduled destruction of records.

It seems extraordinarily rare for people to be punished even for non routine destruction of records, unless seizures of records were already under way.  Certainly the people who data havened the DVD ripping code before the court order were not punished, even though those people had the intention 
of defying and ridiculing the courts.  Punishing people for routine record destruction is almost unimaginable, as is punishment for routine publication of thought crimes into irrecoverable media.

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         James A. Donald
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