Plaintiff wants to prove that an engineer told the CEO that the widgets were dangerous. So he introduces testimony from the engineer that the engineer told the CEO that the widgets were dangerous. Defendant does not dispute this.
Why wouldn’t the defendant dispute this? In every legal proceeding I’ve seen, the defendant has always produced witnesses and evidence supporting their analysis. In this case, I would expect the defendant to produce analyses showing that the widgets were expected to be safe, and if they caused harm, it was due to unforeseen circumstances that were entirely beyond the company’s control. I rarely speak in absolutes, but in this case, I’m willing to state that there’s always going to be some analysis disagreeing with the engineer’s claims regarding safety.
If I say I want you to turn over your email records to me in discovery to establish that an engineer had told you that your widgets were dangerous, but you instead destroy those records, the court will instruct the jury to assume that those records did contain that evidence.
Only if you do so after you were instructed to preserve records by the court. If you destroyed records, per your normal documented retention policies prior to any court case being filed, there’s no grounds for adverse inference.
Plaintiff responds by showing that defendant had a policy designed to prevent such records from being created, so defendant knows that records would not exist whether the meeting took place or not, and thus his argument is disingenuous. Would you follow defendant’s strategy here? I wouldn’t.
Every company I’ve worked for has had retention policies that call for the automatic deletion of e-mails after a period of time (5-7 years). Furthermore, as I alluded to in my other post, Google had an explicit policy of disabling permanent chat records for certain sensitive conversations:
At trial, the DOJ also presented evidence and testimony about Google’s policy called “Communicate with Care.” Under that policy, Google employees are trained “to have sensitive conversations over chat with history off,” the DOJ said, ensuring that the conversation would be auto-deleted in 24 hours.
This policy has created much tension between the DOJ and Google before the trial. The DOJ has argued that “Google’s daily destruction of written records prejudiced the United States by depriving it of a rich source of candid discussions between Google’s executives, including likely trial witnesses.” Google has defended the policy, claiming that the DOJ has “not been denied access to material information needed to prosecute these cases and they have offered no evidence that Google intentionally destroyed such evidence.”
And while this does look bad for Google, one can very easily argue that the alternative, the release of a “smoking gun” memo like the “embrace, extend, innovate” document would be far worse.
Why wouldn’t the defendant dispute this?...In this case, I would expect the defendant to produce analyses showing that the widgets were expected to be safe
You’re not reading carefully enough. The thing I said that the defendant would not dispute is the fact that the engineer said something to them, not whether they should have believed him. This is why I said later on
Remember, they’re not conceding the whole case, just the fact that the engineer told them his opinion. What they’re going to do instead is admit that the first engineer told them, but that they asked some other other engineers to weigh in on the point, and those engineers disagreed.
Of course the company will defend their decision in either case. My point is about what you gain by having a record of having raised a concern versus testifying that you raised that concern. My opinion is that they’re the same unless there’s a reason to doubt that you raised the concern like you say you did. And if the defendant doesn’t challenge the claim that the concern-raising happened, why would there be?
If you destroyed records, per your normal documented retention policies prior to any court case being filed, there’s no grounds for adverse inference.
Yes, this is correct. I was simplifying it.
Every company I’ve worked for has had retention policies that call for the automatic deletion of e-mails after a period of time (5-7 years).
I don’t doubt it, but I think you’re missing the point here. What I’m referring to by “defendant’s strategy” is not the practice of regularly deleting things, but the trial strategy of attempting to rebut witness testimony by claiming that testimony is not corroborated by records while simultaneously regularly deleting records. I agree that regularly deleting things can be very useful to your legal strategy, it just takes certain options off the table for you. Either you can rebut testimony by saying it doesn’t match the record or you can regularly delete that record, but you can’t do both without getting crucified.
The thing I said that the defendant would not dispute is the fact that the engineer said something to them, not whether they should have believed him.
I still disagree. If it wasn’t written down, it didn’t happen, as far as the organization is concerned. The engineer’s manager can (and probably will) claim that they didn’t recall the conversation, or dispute the wording, or argue that while the engineer may have said something, it wasn’t at all apparent that the problem was a serious concern.
There’s a reason that whistleblowers focus so hard on generating and maintaining a paper trail of their actions and conversations, to the point that they will often knowingly and willfully subvert retention policies by keeping their own copies of crucial communications. They know that, without documentation (e-mails, screenshots, etc), it’ll just be a he-said-she-said argument between themselves and an organization that is far more powerful than them. The documentation establishes hard facts, and makes it much more difficult for people higher up in the chain of command to say they didn’t know or weren’t informed.
I still disagree. If it wasn’t written down, it didn’t happen, as far as the organization is concerned.
So obviously I violently disagree with this, so assuming it was supposed to be meaningful and not some kind of throwaway statement, you should clarify exactly what you do and don’t mean by this.
The engineer’s manager can (and probably will) claim that they didn’t recall the conversation
They may say this, but I think that you aren’t thinking clearly enough in terms of the logical chain of argument that the hypothetical legal proceeding is trying to establish. A lawyer has a witness answer specific questions because they support specific facts which logically prove his case. They don’t just say stuff.
Suppose plaintiff didn’t have a witness, but wanted to try to establish that the company knew about the widgets in order to establish responsibility and/or negligence. Plaintiff might ask a manager “Did any engineers mention that the widgets were dangerous?” And he might reply “I don’t recall” at which point plaintiff is SOL. On the other hand, if plaintiff has already elicited testimony from the engineer to the effect that the conversation happened, could defendant try to imply that it didn’t happen by asking the manager whether he recalled the meeting? I mean, yes, but it’s probably a really bad strategy. Try to think about how you would exploit that as plaintiff: either so many people are mentioning potentially life-threatening risks of your product that you can’t recall them all, in which case the company is negligent, or your memory is so bad it was negligent for you to have your regularly-delete-records policy. It’s like saying I didn’t commit sexual harassment because we would never hire a woman in the first place. Sure, it casts doubt on the opposition’s evidence, but at what cost?
or dispute the wording, or argue that while the engineer may have said something, it wasn’t at all apparent that the problem was a serious concern.
Disputing the wording is probably a bad idea; arguing that the engineer did say something, but we decided it was not an issue is what I’ve been saying they would do. But it involves admitting that the conversation happened, which is most or all of what a discoverable record would establish in the first place.
Suppose the engineer originally told management that the widgets would explode if heated to 80C, and this is what he testified that he told management. One approach that management could take is to say “I recall that conversation precisely and the engineer said it would explode at 70C, not 80C. We tested it up to 70C and nothing went wrong. Now they’re lying and saying they said 80C all along in order to make us look negligent.” This is possible, but it’s an extremely dangerous game. For example, as a lawyer you would be ethically prohibited from advising a client to attempt this defense, and your career would be over if it ever came out. Also, it’s the sort of thing that could be checked: does it even make sense to believe that it would explode at 70C? Assuming the engineer used the normal methods he always used in his job (like some kind of simulation software) to arrive at 80C, what would he have to do wrong to think it was 70C? Does this even make sense to make those errors? Successfully lying in court about something technological could be very difficult.
Also keep in mind that if we’re going to assume the company will lie on the stand about complex technical points, presumably they’re also willing to doctor the discoverable record, if they think they can get away with it. If they are, then creating a discoverable record might not be enough. Now you’d have to steal copies of the discoverable record prior to anything going wrong. In other words we’re going to do something wrong because we think that maybe someone else will do something wrong in the future. This is not something to mess around with.
One reason not to mess with this is that we have other options. I could keep a journal. If I keep notes like “2023-11-09: warned boss that widgets could explode at 80C. boss said they didn’t have time for redesign and it probably wouldn’t happen. ugh! 2023-11-10: taco day in cafeteria, hell yeah!” then I can introduce these to support my statement. Also, if I told my wife that I was unhappy about the conversation with management right after it happened and she recalls that I said 80C, plaintiff can call her to testify to prove my point (this is the present sense impression exception to hearsay).
There’s a reason that whistleblowers focus so hard on generating and maintaining a paper trail of their actions and conversations, to the point that they will often knowingly and willfully subvert retention policies
I agree, but we’re now talking about whistleblowers in general, and corporate malfeasance in general. There are absolutely situations in which subversion is reasonable. But there are also situations in which it’s unreasonable. In the original example, an engineer has a safety concern which he wants to communicate to management, and to be able to establish that he did this at a later date. I don’t think this calls for full-on defiance, open or secret.
In general, I’d say it makes sense to do subversion/defiance when I have good reason to believe that the organization’s conduct is criminal (not e.g. tortious) right now. For example, I work for Madoff Investment Securities and I think they’re actively doing securities fraud right now, not maybe in the future. Then I should consider keeping a few documents for later in defiance of company policy.
On the other hand, if plaintiff has already elicited testimony from the engineer to the effect that the conversation happened, could defendant try to imply that it didn’t happen by asking the manager whether he recalled the meeting? I mean, yes, but it’s probably a really bad strategy. Try to think about how you would exploit that as plaintiff: either so many people are mentioning potentially life-threatening risks of your product that you can’t recall them all, in which case the company is negligent, or your memory is so bad it was negligent for you to have your regularly-delete-records policy. It’s like saying I didn’t commit sexual harassment because we would never hire a woman in the first place. Sure, it casts doubt on the opposition’s evidence, but at what cost?
If it’s a criminal trial, where facts have to be proven beyond a reasonable doubt, it’s a common strategy. If the whistleblower doesn’t have evidence of the meeting taking place, and no memos, reports or e-mails documenting that they passed their concerns up the chain, it’s perfectly reasonable for a representative of the corporation to reply, “I don’t recall hearing about this concern.” And that’s that. It’s the engineer’s word against not just one witness, but a whole slew of witnesses, each of whom is going to say, “No, I don’t recall hearing about this concern.”
Indeed, this outcome is so predictable that lawyers won’t even take on these sorts of cases unless the whistleblower can produce written evidence that management was informed of a risk, and made a conscious decision to ignore it and proceed.
Also keep in mind that if we’re going to assume the company will lie on the stand about complex technical points
I’m not assuming anything of the sort. I’m merely saying that, if the whistleblower doesn’t have written evidence that they warned their superior about a given risk, their superiors will be coached by the company’s lawyers to say, “I don’t recall,” or, “I did not receive any written documents informing me of this risk.” Now, at this point, the lawyers for the prosecution can bring up the document retention policy and state that the reason they don’t have any evidence is because of the company’s own document retention policies. But that doesn’t actually prove anything. Absence of evidence is not, in and of itself, evidence of wrongdoing.
One reason not to mess with this is that we have other options. I could keep a journal. If I keep notes like “2023-11-09: warned boss that widgets could explode at 80C. boss said they didn’t have time for redesign and it probably wouldn’t happen. ugh! 2023-11-10: taco day in cafeteria, hell yeah!” then I can introduce these to support my statement.
Yes, that’s certainly something you can do. But it’s a much weaker sort of evidence than a printout of an e-mail that you sent, with your name on the from line and your boss’s name on the to line. At the very least, you’re going to be asked, “If this was such a concern for you, why didn’t you bring it up with your boss?” And if you say you did, you’ll be asked, “Well, do you have any evidence of this meeting?” And if your excuse is, “Well, the corporation’s data retention policies erased that evidence,” it weakens your case.
I think we’ve gone well past the point of productivity on this. I’ve asked some lawyers for opinions on this. I’ll just address a few things briefly.
If the whistleblower doesn’t have evidence of the meeting taking place, and no memos, reports or e-mails documenting that they passed their concerns up the chain, it’s perfectly reasonable for a representative of the corporation to reply, “I don’t recall hearing about this concern.”
I agree this is true in general, but my point is limited to the cases where documentation would in fact exist were it not for the company’s communication policy or data retention policy. If there was a point in the Google case you brought up earlier where Google had attempted to cast doubt on a DOJ witness by pointing out the lack of corroborating evidence (which would have been deleted per Google’s policy), I’d strongly reconsider my opinion.
What the article about the case said was just that DOJ complained that it would like to have all the documentation that Google destroyed, and that this probably contained evidence which proved their case. It did not say that Google challenged DOJ witnesses on a lack of corroboration between their testimony and the discoverable record.
It doesn’t have to be the Google case. Any case where the defense tried to impeach a witness on grounds of lack of corroborating evidence where that evidence would have been intentionally destroyed by a data retention policy would do.
There are other things I disagree with, but as I said, we’re being unproductive.
Why wouldn’t the defendant dispute this? In every legal proceeding I’ve seen, the defendant has always produced witnesses and evidence supporting their analysis. In this case, I would expect the defendant to produce analyses showing that the widgets were expected to be safe, and if they caused harm, it was due to unforeseen circumstances that were entirely beyond the company’s control. I rarely speak in absolutes, but in this case, I’m willing to state that there’s always going to be some analysis disagreeing with the engineer’s claims regarding safety.
Only if you do so after you were instructed to preserve records by the court. If you destroyed records, per your normal documented retention policies prior to any court case being filed, there’s no grounds for adverse inference.
Every company I’ve worked for has had retention policies that call for the automatic deletion of e-mails after a period of time (5-7 years). Furthermore, as I alluded to in my other post, Google had an explicit policy of disabling permanent chat records for certain sensitive conversations:
And while this does look bad for Google, one can very easily argue that the alternative, the release of a “smoking gun” memo like the “embrace, extend, innovate” document would be far worse.
You’re not reading carefully enough. The thing I said that the defendant would not dispute is the fact that the engineer said something to them, not whether they should have believed him. This is why I said later on
Of course the company will defend their decision in either case. My point is about what you gain by having a record of having raised a concern versus testifying that you raised that concern. My opinion is that they’re the same unless there’s a reason to doubt that you raised the concern like you say you did. And if the defendant doesn’t challenge the claim that the concern-raising happened, why would there be?
Yes, this is correct. I was simplifying it.
I don’t doubt it, but I think you’re missing the point here. What I’m referring to by “defendant’s strategy” is not the practice of regularly deleting things, but the trial strategy of attempting to rebut witness testimony by claiming that testimony is not corroborated by records while simultaneously regularly deleting records. I agree that regularly deleting things can be very useful to your legal strategy, it just takes certain options off the table for you. Either you can rebut testimony by saying it doesn’t match the record or you can regularly delete that record, but you can’t do both without getting crucified.
I still disagree. If it wasn’t written down, it didn’t happen, as far as the organization is concerned. The engineer’s manager can (and probably will) claim that they didn’t recall the conversation, or dispute the wording, or argue that while the engineer may have said something, it wasn’t at all apparent that the problem was a serious concern.
There’s a reason that whistleblowers focus so hard on generating and maintaining a paper trail of their actions and conversations, to the point that they will often knowingly and willfully subvert retention policies by keeping their own copies of crucial communications. They know that, without documentation (e-mails, screenshots, etc), it’ll just be a he-said-she-said argument between themselves and an organization that is far more powerful than them. The documentation establishes hard facts, and makes it much more difficult for people higher up in the chain of command to say they didn’t know or weren’t informed.
So obviously I violently disagree with this, so assuming it was supposed to be meaningful and not some kind of throwaway statement, you should clarify exactly what you do and don’t mean by this.
They may say this, but I think that you aren’t thinking clearly enough in terms of the logical chain of argument that the hypothetical legal proceeding is trying to establish. A lawyer has a witness answer specific questions because they support specific facts which logically prove his case. They don’t just say stuff.
Suppose plaintiff didn’t have a witness, but wanted to try to establish that the company knew about the widgets in order to establish responsibility and/or negligence. Plaintiff might ask a manager “Did any engineers mention that the widgets were dangerous?” And he might reply “I don’t recall” at which point plaintiff is SOL. On the other hand, if plaintiff has already elicited testimony from the engineer to the effect that the conversation happened, could defendant try to imply that it didn’t happen by asking the manager whether he recalled the meeting? I mean, yes, but it’s probably a really bad strategy. Try to think about how you would exploit that as plaintiff: either so many people are mentioning potentially life-threatening risks of your product that you can’t recall them all, in which case the company is negligent, or your memory is so bad it was negligent for you to have your regularly-delete-records policy. It’s like saying I didn’t commit sexual harassment because we would never hire a woman in the first place. Sure, it casts doubt on the opposition’s evidence, but at what cost?
Disputing the wording is probably a bad idea; arguing that the engineer did say something, but we decided it was not an issue is what I’ve been saying they would do. But it involves admitting that the conversation happened, which is most or all of what a discoverable record would establish in the first place.
Suppose the engineer originally told management that the widgets would explode if heated to 80C, and this is what he testified that he told management. One approach that management could take is to say “I recall that conversation precisely and the engineer said it would explode at 70C, not 80C. We tested it up to 70C and nothing went wrong. Now they’re lying and saying they said 80C all along in order to make us look negligent.” This is possible, but it’s an extremely dangerous game. For example, as a lawyer you would be ethically prohibited from advising a client to attempt this defense, and your career would be over if it ever came out. Also, it’s the sort of thing that could be checked: does it even make sense to believe that it would explode at 70C? Assuming the engineer used the normal methods he always used in his job (like some kind of simulation software) to arrive at 80C, what would he have to do wrong to think it was 70C? Does this even make sense to make those errors? Successfully lying in court about something technological could be very difficult.
Also keep in mind that if we’re going to assume the company will lie on the stand about complex technical points, presumably they’re also willing to doctor the discoverable record, if they think they can get away with it. If they are, then creating a discoverable record might not be enough. Now you’d have to steal copies of the discoverable record prior to anything going wrong. In other words we’re going to do something wrong because we think that maybe someone else will do something wrong in the future. This is not something to mess around with.
One reason not to mess with this is that we have other options. I could keep a journal. If I keep notes like “2023-11-09: warned boss that widgets could explode at 80C. boss said they didn’t have time for redesign and it probably wouldn’t happen. ugh! 2023-11-10: taco day in cafeteria, hell yeah!” then I can introduce these to support my statement. Also, if I told my wife that I was unhappy about the conversation with management right after it happened and she recalls that I said 80C, plaintiff can call her to testify to prove my point (this is the present sense impression exception to hearsay).
I agree, but we’re now talking about whistleblowers in general, and corporate malfeasance in general. There are absolutely situations in which subversion is reasonable. But there are also situations in which it’s unreasonable. In the original example, an engineer has a safety concern which he wants to communicate to management, and to be able to establish that he did this at a later date. I don’t think this calls for full-on defiance, open or secret.
In general, I’d say it makes sense to do subversion/defiance when I have good reason to believe that the organization’s conduct is criminal (not e.g. tortious) right now. For example, I work for Madoff Investment Securities and I think they’re actively doing securities fraud right now, not maybe in the future. Then I should consider keeping a few documents for later in defiance of company policy.
If it’s a criminal trial, where facts have to be proven beyond a reasonable doubt, it’s a common strategy. If the whistleblower doesn’t have evidence of the meeting taking place, and no memos, reports or e-mails documenting that they passed their concerns up the chain, it’s perfectly reasonable for a representative of the corporation to reply, “I don’t recall hearing about this concern.” And that’s that. It’s the engineer’s word against not just one witness, but a whole slew of witnesses, each of whom is going to say, “No, I don’t recall hearing about this concern.”
Indeed, this outcome is so predictable that lawyers won’t even take on these sorts of cases unless the whistleblower can produce written evidence that management was informed of a risk, and made a conscious decision to ignore it and proceed.
I’m not assuming anything of the sort. I’m merely saying that, if the whistleblower doesn’t have written evidence that they warned their superior about a given risk, their superiors will be coached by the company’s lawyers to say, “I don’t recall,” or, “I did not receive any written documents informing me of this risk.” Now, at this point, the lawyers for the prosecution can bring up the document retention policy and state that the reason they don’t have any evidence is because of the company’s own document retention policies. But that doesn’t actually prove anything. Absence of evidence is not, in and of itself, evidence of wrongdoing.
Yes, that’s certainly something you can do. But it’s a much weaker sort of evidence than a printout of an e-mail that you sent, with your name on the
fromline and your boss’s name on thetoline. At the very least, you’re going to be asked, “If this was such a concern for you, why didn’t you bring it up with your boss?” And if you say you did, you’ll be asked, “Well, do you have any evidence of this meeting?” And if your excuse is, “Well, the corporation’s data retention policies erased that evidence,” it weakens your case.I think we’ve gone well past the point of productivity on this. I’ve asked some lawyers for opinions on this. I’ll just address a few things briefly.
I agree this is true in general, but my point is limited to the cases where documentation would in fact exist were it not for the company’s communication policy or data retention policy. If there was a point in the Google case you brought up earlier where Google had attempted to cast doubt on a DOJ witness by pointing out the lack of corroborating evidence (which would have been deleted per Google’s policy), I’d strongly reconsider my opinion.
What the article about the case said was just that DOJ complained that it would like to have all the documentation that Google destroyed, and that this probably contained evidence which proved their case. It did not say that Google challenged DOJ witnesses on a lack of corroboration between their testimony and the discoverable record.
It doesn’t have to be the Google case. Any case where the defense tried to impeach a witness on grounds of lack of corroborating evidence where that evidence would have been intentionally destroyed by a data retention policy would do.
There are other things I disagree with, but as I said, we’re being unproductive.