Spoliation cites

[jamesd at echeque.com]

    --
James A. Donald:
> > You yourself have acknowledged that standard best practice legal
> > advice is to routinely purge all internal email after a few weeks.

Aimee Farr wrote:
> Yes. Unless it is of special relevance.

If one is operating a company, the guy who purges the email on the mail server is not expected to know or care what is of special relevance -- he just purges it by date.  If he knew what he was purging, and chose to purge one thing and not another, his decisions would cause no end of legal 
troubles.  The whole point and purpose of the purging is to ensure that those inconvenient emails that so embarrassed Bill Gates will be GONE, emails that most certainly were of special relevance.   The whole point and purpose of Microsoft's new policy on email is to avoid a rerun of the Bill 
Gates courtroom saga, so that there will be no inconvenient specially relevant emails about Windows XP in the way that there were highly inconvenient specially relevant emails about Windows Explorer.

And if it is legitimate for companies to avoid the Bill Gates experience by purging mail files, then it is legitimate for them to avoid the Bill Gates experience by encrypting with perfect forward secrecy, and all the rest of the cypherpunks program is similarly legitimate.

> Dear company:
>
> I just wanted to write you and tell you that the microwave that I bought
> from you exploded. Thought you should know. Nobody was hurt, thank goodness!
> Maybe something is wrong with it?
>
> Thanks,
>
> Mrs. Smith
>
> The above wouldn't just be any old email now would it?

Defence:  "I am sorry.  All our email is routinely deleted.
All complaints corresponding to a single bug are summarized into a single entry in our bug database, and we have given you that entry.
This alleged message would appear to correspond to bug Microwave#38 in our bug database, which we kept and gave you as part of your discovery process, giving you an accurate good faith account of all our knowledge of problems with our product.  You will notice that our bug fix database records 
our prompt and effective resolution of the problem to which this alleged email appears to refer. "

Accuser: "You threw away inconvenient evidence!"

Defence:  "No we did not.  We kept it for some time, then recorded it in summary form, to render a large number of events as a small number of intelligible issues.   This enabled our management to handle what would otherwise be an intolerable flood of information, and now it is producing similar 
benefits in this courtroom, since going through each complaint separately in the court room would have run up tens of millions of dollars in legal fees, which was of course your intention."

Do you think this conversation is going to get the company in trouble for destroying evidence?  I very much doubt it.  (Well it would if defense spoke so plainly, but like Herodotus, I represent defence saying what he means, instead of what he would actually say.)

More importantly that internal email from the VP of engineering that says "About the damned exploding microwave -- only customers that are so moronic they leave forks in the microwave and then blithely ignore the sparks, smoke,  and balls of flame for the next ten minutes get that problem -- 
serve the damned idiots right" will never appear in the evidence, even though it is a lot more specially relevant than any one letter of complaint about an exploding microwave oven.

James A. Donald:
> > Most of the postings issued by you three, particularly those issued
> > by Black Unicorn, sound to me as if they were issued in ignorance
> > of the standard and legally recommended practice, that you were
> > unaware of standard best practice on the topic on which you were
> > posting.

Aimee
> No.

I am unable to reconcile Black Unicorn's recent post, where he denounces almost the entire cypherpunk program as illegal by current legal standards and a manifestation of foolish ignorance of the law and obstinate refusal to take his wise advice, with the conjecture that Black Unicorn is aware of 
current recommended best practice in record keeping.

If current best legal practice in record keeping would delete those inconvenient emails that so embarrassed Bill Gates, then current best legal practice in communication would encrypt them with perfect forward secrecy if they had to go outside the Microsoft LAN.

If current best legal practice is to promptly purge old emails whose significance no one knows or cares, then current best legal practice is for remailers to routinely purge their logs.

    --digsig
         James A. Donald
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