Final Words from me about document production requirements and remailers.

Black Unicorn unicorn at schloss.li
Sat Aug 4 16:08:07 PDT 2001



I am going to try and be as clear and as slow as possible- knowing full well
that it probably will make no difference and that my words will be twisted,
strawmaned, touted or defamed whatever I do.  Regardless:

Hirsch v. General Motors, 628 A.2d 1108 (1993) effectively opens the door for
third parties to be cited for spoliation of documents or evidence for actions,
potentially and reasonably performed in good faith, before any proceeding or
legal action begins or is even threatened.  Again, this was a products
liability case.  Couple buys a car.  The car catches fire.  People are hurt.
Car is resold to the dealer.  The dealer refurbishes the car.  The dealer
sells the car to a third party in a cash or near cash transaction.
Plaintiffs, much later, sue GM, the car's manufacturer, and the dealer.  In a
typical discovery order the dealer is ordered to produce the car and all
records associated with it.  The dealer insists it cannot.  It has, it claims,
in good faith, sold the refurbished car to a third party.  Court demands
records of the sale to identify the third party, seize the car, and use it as
evidence.  (Note that this harmless third party, who had nothing to do with
this case, had they been identified, would have had their car seized and
impounded for who knows how long, while it was evidence in this case, despite
the fact that they had no idea the car would have been subject to suit, or any
other action).  Plaintiffs sue for spoliation of evidence, move for court
sanctions against dealer and GM.  Dealer protests that their standard business
practice to refurbish and sell cars.  Further dealer protests that they
routinely have cash transactions with few or little identifying records of the
end parties.  (The "normal course of business defense").  Effectively, this
isn't even "destroying" records, but not keeping them.  The trial court
permits the plaintiffs to sue for spoliation, mostly on the basis of the
disposition of the car, not the papers or lack of records, although those are
mentioned, and orders sanctions (a fine and costs) against the plaintiffs.
Case goes to appeal where defendants make the argument that the papers, car
and other evidence were not the subject of a suit or pending suit and that
they were acting in the normal course of business.  The ruling by trial court
is upheld.

Summarizing:

1.  Third parties can expect that, good faith or total ignorance aside, their
private property can be seized if it, through no conduct of their own, becomes
the subject of a dispute.
2.  The "normal course of business" is not an absolutely defense in a case of
spoliation.
3.  Actions which destroy or "lose" evidence and that are performed before any
case, action, threat of action or summons can still constitute spoliation.

Willard v. Caterpillar, Inc., 40 Cal.App.4th 892 (1995).

In the normal course of business, consistent with policy and _under the advice
of counsel_ defendant manufacturer destroys all internal records (along with
other unrelated documents) on the design for a tractor.  Some time later
(years) one such tractor results in an injury and becomes the subject of a
products liability suit.  Plaintiffs request the production of all documents
related to the tractor design.  Defendant protests that these were destroyed a
decade ago, on the advice of counsel.  Plaintiff's move for sanctions and sue
for spoliation of evidence.  Trial court imposes sanctions, assesses costs to
plaintiffs, turns court record over to plaintiffs in anticipation of their
suit in tort for spoliation against defendant and refers the case to the local
prosecutor with the recommendation that a case for criminal obstruction be
brought.  (Some notes in the trial record suggest that judge and defense
counsel didn't exactly get along well).  Hundreds of thousands of dollars and
several years later in appeal the assignment of court costs are overturned on
the basis that defendant was acting in something like good faith because they
sought and followed advice of counsel on their document destruction policy and
the destroyed records were thought for some reason to be of minimal value.
Near as I can tell the record of criminal obstruction charge was sealed and
doesn't seem to have been disposed of.  The rest of the sanctions and fines
stood.  The case for spoliation was settled but some undisclosed payment was
made to plaintiffs in that case.

Summarizing:

1.  Document destruction policies for a company which are instituted on the
advice of legal counsel might get you out of court costs- after hundreds of
thousands of dollars in appeals.  Sanctions and suit in tort for spoliation
will be permitted to go forward anyhow.
2.  Pissing off the trial court judge (do not taunt happy-fun-court) is a bad
idea when simultaneously telling the court you won't (can't) give them what
they ask for, unless you like criminal sanctions.  (Larry Flint would be
another good example of the consequences of being an insufferable bastard or
having a deep rooted psychological problem with authority when dealing with a
court- sure you might win, but enjoy the lockup for a while in the meantime).
3.  Again, the fact that you had no idea the records might some day be part of
a lawsuit or action means nothing.  If you destroy them, you might get burned
regardless.

I submit that the facts of these two cases, along with some of the others I've
cited and the FRCP among other statutes, suggest that it's not much of a
stretch for a remailer operator to find him or herself in the midst of a
spoliation dispute- all technical distinctions between remailers and document
destruction policies aside.  Add the intent discussion in Lopez and only an
idiot is going to be careless about operating a remailer.  I'm not going to go
over them all again.  Go read some books.

I submit further that a remailer operator would do themselves quite a lot of
favors if they put themselves in a position to look squeaky clean in front of
a judge if and when this happens.  We have real life-real cypherpunk examples
that this works.  It is clearly necessary, however to improve on this.  This
is because:

I submit that the very operation of a remailer meets the textbook definition
of "spoliation" or "destruction" of evidence just intrinsic to its design and
that its primary purpose is this exact function.  I submit that courts are not
going to be dissuaded from this obvious conclusion without a nice, clean,
young, innocent, harmless looking defendant who is well behaved in front of
them pleading impossibility, and maybe not even then.  Even in that case there
are years and years of archives (read evidence) of discussions from this list
and others demonstrating that remailers were designed and perfected with
precisely the intent of destroying potential evidence.

I would further point out that the "it's just a file trading service, we can't
help what our users do" defense was an utter failure in the Napster case and
that's pretty much _exactly_ what a remailer operator is going to be saying.
Courts are not always as stupid as we'd like them to be.  Court's are not
always as smart as we would like them to be.  The trick is getting these two
mental states timed well.

I would add that the court in the Napster case specifically brought up the
point that Napster, while a file trading service also, was clearly designed
with the knowledge, if not the desire and intent, that it would be used to
exchange/steal/pirate copyrighted works.  The fact that it was a "dual use"
technology made no difference and Napster is slowly twisting in the wind/dead
because of it.  Why, in the face of this, anyone would fail to see the
patently obvious parallel to remailers is somewhat beyond me.

Finally:

As to the question of Microsoft being pinched for destroying evidence- which
someone touted as having never happened without having bothered to look at any
of the case file on the MS antitrust trial as an example that the sky is
actually purple, MS was _twice_ cited for obstruction, three motions were made
for sanctions by the prosecution and in one of those the judge actually
threatened sanctions (which resulted in the eventual production of the
'missing' documents, electronic in this case.  Further, instructions in the
case eventually included the allowable inference that MS maliciously destroyed
evidence useful to the prosecution.  My only regret in pointing this out is
that I think Mr. Sandfort might owe someone a house.  (I note he never put a
dollar figure on the house bet though).

I grow tired of trying to convince religious fanatics that the world is pear
shaped.  If anyone not a part of my new killfile additions has anything
actually useful to contribute wake me up and I'll probably comment.  Some
unnamed cypherpunk who doesn't want to be later cited for legal malpractice
might write up a set of theoretical legal remailer operator guidelines and
post it anonymously to the list in the next few weeks.  We'll see.





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