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.
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.