Spoliation cites

[jamesd at echeque.com]

    --
James A. Donald:
> > If one keeps records, and suddenly someone sues one, and THEN one
> > starts shredding, yes, then one can get into trouble.  If
> > however, one shreds away indiscriminately, on a routine and
> > regular schedule, one is in the clear.   As a remailer operator
> > said to the courts  "Sorry, I do not keep
> > records".
> >
> > Now if he had kept records, and then erased them on being
> > summoned to the court, he would have had a problem.  But because
> > he erased them routinely, no problem.

On 5 Aug 2001, at 5:03, Aimee Farr wrote:
> If you read any of those cites and shep'd them, you will see there are
> circumstances where
> defendants didn't know the documents were relevant to a specific lawsuit.
> There is support for the words "SHOULD HAVE KNOWN" might NOT equivocate to:
> "a lawsuit has been filed."

Might equivocate to a big cloud of complicated fog.  Probably will.  In fact it already has.

However there is a large and glaring gap between the legal advice that Black Unicorn is giving: telling us that routine regularly scheduled erasure and shredding is dreadfully unwise, and the practices of many leading CEOs, that routine regularly scheduled erasure and shredding without checking 
what it is that one is shredding (other than date, and broad category) is good practice and required.

In particular it is common good practice to routinely erase all internal emails.   This is a major obstacle to lawsuits, and is intended to be a major obstacle to lawsuits, and yet no one has been busted for it.

If businesses can erase their email, then remailers can erase their logs, and I can publish thought crimes on freenet and alt.anonymous.messages, and you lot do not know shit from beans.

Care to explain the obvious difference between good practice as explained by you lot, and the actual practice of good businesses?

If a bunch of people claimed to be highly qualified astrophysicists, and explained that for all sorts of very complicated astrophysical reasons the sun actually rose in the north and set in the south, I would be more inclined to believe that they were not highly qualified astrophysicists, than to 
believe that the sun rose in the North.

If shredding, erasure, and just plain not keeping logs is legal, then the cypherpunk program is legal, and remailers are legal.

And it is as obvious that the cypherpunk program is, as yet, so far, still legal, as it is obvious that the sun rises in the East.  Yet Black Unicorn has been telling us in no uncertain terms that it is illegal.  The most recent post of his to which I replied rejected the entire cypherpunk 
program and standard business practice as foolish and unwise.

They are going to bust Bill Gates for erasing email before they bust me.  Why is Black Unicorn telling me I should be so terrified of the courts that I must abandon the cypherpunk program, for a threat that has as yet not been made, let alone carried out even against high profile targets?

> o email = most say a few weeks, unless it is a complaint, etc.

And what most are saying, is glaringly inconsistent with what black unicorn is saying.

> It's not so simple as many think. It's document specific.

But if it is document specific, and the remailer does not read the documents, and could not be expected to know their relevance if he did, then Dark Unicorn's most recent post on remailers is obviously full of shit.   The remailers cannot possibly be document specific, nor can Freenet.

Aimee's favorite citation, repeated yet again.
> ...First, the court should determine whether Remington's record retention
> policy is reasonable considering the facts and circumstances surrounding the
> relevant documents.

These cites are all "on the one hand this, on the other hand that".   No one has been busted specifically for a policy of routine document erasure.  When Bill Gates is in jail being sodomized, then we will worry.  This alleged law is not a law, or an existing court practice -- it is an opinion 
held by some people that has never been given real substantial effect.  If it is ever given real effect, they are not going to start with us.  They are going to start with the deep pockets.

Aimees favorite citation continued
> Finally, the court should determine whether the document
> retention policy was instituted in bad faith.  Gumbs v.
> International Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983)
> ("no unfavorable inference arises when the circumstances
> indicate that the document or article in question has been lost
> or accidentally destroyed, or where the failure to produce it
> is otherwise properly accounted for."); Boyd v. Ozark Air
> Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977) ("We recognize,
> however, that the destruction of business records may be
> sufficient to raise an unfavorable inference.").

More "on the one hand this, on the other hand that" fog.

Everyone knows why Microsoft's email destruction policy was implemented.  If that is not "bad faith", what is?

Show us some busts.  Opinions are worth two cents a bale, but only after they have been baled.  You can find an opinion for anything.

Nothing is going to stop big business, small business, and individuals from destroying records except some busts -- quite a lot of busts with quite drastic penalties, penalties specifically imposed for routine record destruction, penalties explicitly intended to put an end to the routine and 
widespread practice of routine record destruction.

No such busts so far -- therefore you are full of shit.

More from the cite:
> "Such a presumption or inference arises,
> however, only when the spoliation or destruction [of evidence] was
> intentional, and indicates fraud and ...

This is, more or less, the guilty mind criterion.  Routine destruction of remailer logs, publication on irretrievable media, and the like, really are not evidence of the guilty mind.  Your cites are just rambles, each paragraph contradicts the next.

As I said, no busts, therefore it is legal.

> In some high-risk endeavors, opponents may argue that destruction or
> purposeful non-retention = fraudulent intent. I don't think Remington REALLY
> wanted to keep those complaints 3 years, James. Ask yourself why they did
> even that.

I rather think they did want to keep them three years.  Compared to the typical reach of a lawsuit three years is quite short.  If they had made it three hours instead of three years, it would not make a large difference to lawsuits, but it would have made a large difference to customer 
satisfaction.   Throwing away complaint letters while they are still hot would indeed be obvious evidence of a guilty mind, obvious evidence of the validity of the complaints.  However throwing them away after three years still sticks a big spoke in the wheels of class action lawsuits.  Therefore 
it is legal to purge documents in ways that stick a big spoke in the wheels of forthcoming lawsuits, even when they are complaints, even when such lawsuits are obviously coming down the road, as they were in the Remington case.

> Look, we are just trying to envision what opponents are likely to try.

No.  You are spreading fear, uncertainty, and doubt.

This battle, if it is ever fought, will be fought by people with big pockets.  The courts will go after them first.  If they lose, then AFTER that loss, remailers will feel a cold  breeze on their testicles.

Remailers and freenet and the like do not need to think about this until the battle is ending.  The battle has not yet even begun, and I rather doubt that it will.

> > You guys keep telling us we are not allowed to routinely purge
> > records,

> You keep speaking in absolutes. It's more complicated.

No it is not complicated.

If I search through my records and destroy certain specific records for certain complicated specific reasons, then those specific reasons can make life really complicated, depending on what those reasons are.  If I say "That heap looks pretty dusty -- I guess I am not likely to need it", and 
chuck it in the bin because it is old, then because I throw it away for uncomplicated reasons, life does not get complicated.

The question is simple:  Do we have to keep all records the state might someday decide it wants to look at, or don't we?

The answer is, we certainly do not.  If we did, Remington would have been busted for their three year policy on complaints.  Your citations just do not say what you claim they say.

 If someone sends me a letter threatening a to sue me, that is complicated.   If my remailer processes a letter carrying a threat, a letter whose context and relevance I do not know or care about, a letter I do not read, and cannot be expected to read, that is quite uncomplicated.

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         James A. Donald
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