About lawyers and spoliation

[jamesd at echeque.com]

On 3 Aug 2001, at 6:03, Aimee Farr wrote:

> All we lawyer-types are saying is to engage the law in your problem-solving,
> it's in your threat model. Many of your "solutions" are 100%
> conflict-avoidance, or even ...conflict-ignorance. A strategic error. Where
> there is a corpus, there is a law to get it. You always PLAN FOR CONFLICT.
> Hence, we have _The Art Of War_ -- and not, _The Art Of Hiding_.
> 
> Hiding or secrecy as a total strategy has historically been limited by the
> Rule Of Secrets/Least Safe Principle, and the equally-important "well,
> doesn't this look suspicious!" -- a rule of natural law and human
> disposition. Crypto is not a person, object and asset invisibility machine.
> Until such a marvel comes to pass, stick to traditional wargaming.
> 
> THE SITUATION:
> -------------
> Controverted spies have brought you intelligence that the enemy has a new
> long-range weapon. You learn that it works, but you think you lie outside
> the current range. However, you learn that it is undergoing rapid
> development and experimentation.
> 
> SOME OF YOUR RESPONSES:
> -----------------------
> "They're dumb, I hate them, and they can't hit us."
> 
> "IF they've never hit us, THEN they can't."
> 
> "They can't hit what they can't see."
> 
> "We should insult and burn the spies at the stake for bringing us this
> information."
> 
> "Bitch. Bitch. Bitch."
> 
> ***
> 
> Within this particular range of hypotheticals, the courts are going to see a
> problem and they might reach for spoliation. Arguing over the rightfulness
> or wrongfulness of it is a futile exercise. When you learn your adversary is
> using a new tactic or developing a new weapon, you examine your own tactics
> and adjust them accordingly in ANTICIPATION OF CONFLICT. You assume they
> will "get better" unless you do something about it. Given the nature of the
> law, there is nothing to be done other than to prepare for advancement and
> proliferation. The legal question is never what is - but what will be. In
> this light, precedent is not "a rule," it is an aid for prediction.
> 
> "To secure ourselves against defeat lies in our own hands, but the
> opportunity of defeating the enemy is provided by the enemy himself." -- Sun
> Tzu.
> 
> A most apt analogy for the law. Where it presents an obstacle, it presents
> an opportunity.
> 
> ~Aimee