Because it makes it look like they’re trying to conceal evidence, which is much worse for them than simply maybe being negligent.
The part that confuses me about this is twofold: one, none of the communication policies I have worked under went as far as to say something like “don’t talk about risks vial email because we don’t want it to be discoverable in court” which is approximately what would be needed to establish something like adverse inference; two, any documented communication policy is discoverable by itself, so I expect that it will wind up in evidence regardless.
Returning to the conversation with the CEO example, if the communication policies were like those I have worked under, I expect it would go more like this:
The witness says they told the CEO about the risks in a conversation on such and such a date.
Defense counsel asks where they documented this concern.
Witness says they’re not supposed to do that.
Defense counsel introduces communication policy as exhibit A, which contains what is surely a mildly kafkaesque procedure for raising risks of that type.
Defense counsel asks why, if the risk was so great and the witness so certain, they were unwilling to follow the clearly established procedure under section 34.B.II.c of the communication policy.
After that the defense and prosecution/plaintiff can wrangle with more witnesses showing a pattern of discouraging communication about risk (undocumented of course) vs previous risks communicated according to policies and how they were properly dealt with etc, but this is hardly a slam-dunk in either direction. As you mentioned in your personal experience, proving that you are right in court costs money, and I strongly expect that this mechanism favors the defense as the actual risks increase because they have so much more to lose in the event of an actual judgement and the defense can get by with a strategy of maintaining uncertainty, unlike the plaintiff or prosecution who has to actually prove stuff.
Linking this back to the OP, the strategy of sending an email to make the risk discoverable as suggested is reliant on converting the actual risks to a legal risk because the legal risk is a bigger factor in company decision making, and the goal is to make the company choose not to take the risk at all. I feel like this is a bigger version of your experience of a real but small risk: the company thought the juice just isn’t worth the squeeze.
Out of curiosity, did you get any static afterward, or was it just an “oops” and done?
The part that confuses me about this is twofold...
What you’re missing is how specific and narrow my original point was. The thing that makes it look like you are concealing evidence is only if you do two things simultaneously
Challenge witness testimony by saying it’s not corroborated by some discoverable record.
Have a policy whereby you avoid creating the discoverable record, periodically delete the discoverable record, or otherwise make it unlikely that the record would corroborate the testimony.
So basically you have to pick one or the other. And you’re probably going to pick the 2nd. So as a witness, you probably just aren’t going to have to worry about those kinds of challenges.
Defense counsel asks why, if the risk was so great and the witness so certain, they were unwilling to follow the clearly established procedure under section 34.B.II.c of the communication policy.
This is a really good and interesting point, but I ultimately don’t think it will work.
I’m going to say I just told my boss because I didn’t understand 34.B.II.c, nobody does. The fact that I didn’t follow the exception rule isn’t going to convince anyone that it didn’t happen. The jury will get to see the communication policy in its full glory. Plaintiff counsel will ask me whether anyone ever explained the policy or rule 34.B.II.c to me (of course not), if we had a class to make sure we understood how to use the policy in practice like we had for the company sexual harassment policy (of course there was no class). And failure to follow the exception rule won’t prove that I didn’t think it was as serious. I told my boss and colleagues. People knew. What good would getting out my legal dictionary and parsing the text of 34.B.II.c do as far as helping people address the issues I raised? I dunno, I never even considered it as a possibility. I’m just a simple country engineer who wanted people to fix a safety issue.
Linking this back to the OP, the strategy of sending an email to make the risk discoverable as suggested is reliant on converting the actual risks to a legal risk because the legal risk is a bigger factor in company decision making, and the goal is to make the company choose not to take the risk at all.
I’m not sure this makes sense, except as a psychological trick. Like, the legal risk is that the actual risk will manifest itself and then someone will sue. I feel like everyone just understands this clearly already. Remember I’ve already told everyone about the risk. If the risk manifests, of course we will be sued. So maybe by making the fact that I told them readily discoverable, they’ll be less likely to ignore it just because the idea that I’d be willing to testify about it is something they could ignore or not consider. This is plausible, but we have to compare it to other options. Like I could also just say “If this were to happen, I would testify that I thought it might happen and that I told you guys.” How well would that work compared to trying to make things discoverable? I dunno, it might work better.
Out of curiosity, did you get any static afterward, or was it just an “oops” and done?
Assuming you’re talking about my story, it was the basically the latter, although that might have had something to do with the fact that we abandoned the idea, so it was never going to come up. I’m pretty sure that I was quietly regarded as less reliable and less of the sort of clever operator who would instinctively keep them out of trouble, and that this affected my chances of advancement. No doubt I could have demonstrated growth in that regard and fixed the issue, but I didn’t stick around that company long enough for it to be relevant (again, for other reasons).
I’m not sure this makes sense, except as a psychological trick.
This is indeed about half the pitch in my view. The strategy comes in two parts as I understand it: one, the psychological trick of triggering a fear of successful lawsuits; two, slightly increasing the likelihood that if the risk becomes reality they will have to pay significant penalties.
The part that confuses me about this is twofold: one, none of the communication policies I have worked under went as far as to say something like “don’t talk about risks vial email because we don’t want it to be discoverable in court” which is approximately what would be needed to establish something like adverse inference; two, any documented communication policy is discoverable by itself, so I expect that it will wind up in evidence regardless.
Returning to the conversation with the CEO example, if the communication policies were like those I have worked under, I expect it would go more like this:
The witness says they told the CEO about the risks in a conversation on such and such a date.
Defense counsel asks where they documented this concern.
Witness says they’re not supposed to do that.
Defense counsel introduces communication policy as exhibit A, which contains what is surely a mildly kafkaesque procedure for raising risks of that type.
Defense counsel asks why, if the risk was so great and the witness so certain, they were unwilling to follow the clearly established procedure under section 34.B.II.c of the communication policy.
After that the defense and prosecution/plaintiff can wrangle with more witnesses showing a pattern of discouraging communication about risk (undocumented of course) vs previous risks communicated according to policies and how they were properly dealt with etc, but this is hardly a slam-dunk in either direction. As you mentioned in your personal experience, proving that you are right in court costs money, and I strongly expect that this mechanism favors the defense as the actual risks increase because they have so much more to lose in the event of an actual judgement and the defense can get by with a strategy of maintaining uncertainty, unlike the plaintiff or prosecution who has to actually prove stuff.
Linking this back to the OP, the strategy of sending an email to make the risk discoverable as suggested is reliant on converting the actual risks to a legal risk because the legal risk is a bigger factor in company decision making, and the goal is to make the company choose not to take the risk at all. I feel like this is a bigger version of your experience of a real but small risk: the company thought the juice just isn’t worth the squeeze.
Out of curiosity, did you get any static afterward, or was it just an “oops” and done?
What you’re missing is how specific and narrow my original point was. The thing that makes it look like you are concealing evidence is only if you do two things simultaneously
Challenge witness testimony by saying it’s not corroborated by some discoverable record.
Have a policy whereby you avoid creating the discoverable record, periodically delete the discoverable record, or otherwise make it unlikely that the record would corroborate the testimony.
So basically you have to pick one or the other. And you’re probably going to pick the 2nd. So as a witness, you probably just aren’t going to have to worry about those kinds of challenges.
This is a really good and interesting point, but I ultimately don’t think it will work.
I’m going to say I just told my boss because I didn’t understand 34.B.II.c, nobody does. The fact that I didn’t follow the exception rule isn’t going to convince anyone that it didn’t happen. The jury will get to see the communication policy in its full glory. Plaintiff counsel will ask me whether anyone ever explained the policy or rule 34.B.II.c to me (of course not), if we had a class to make sure we understood how to use the policy in practice like we had for the company sexual harassment policy (of course there was no class). And failure to follow the exception rule won’t prove that I didn’t think it was as serious. I told my boss and colleagues. People knew. What good would getting out my legal dictionary and parsing the text of 34.B.II.c do as far as helping people address the issues I raised? I dunno, I never even considered it as a possibility. I’m just a simple country engineer who wanted people to fix a safety issue.
I’m not sure this makes sense, except as a psychological trick. Like, the legal risk is that the actual risk will manifest itself and then someone will sue. I feel like everyone just understands this clearly already. Remember I’ve already told everyone about the risk. If the risk manifests, of course we will be sued. So maybe by making the fact that I told them readily discoverable, they’ll be less likely to ignore it just because the idea that I’d be willing to testify about it is something they could ignore or not consider. This is plausible, but we have to compare it to other options. Like I could also just say “If this were to happen, I would testify that I thought it might happen and that I told you guys.” How well would that work compared to trying to make things discoverable? I dunno, it might work better.
Assuming you’re talking about my story, it was the basically the latter, although that might have had something to do with the fact that we abandoned the idea, so it was never going to come up. I’m pretty sure that I was quietly regarded as less reliable and less of the sort of clever operator who would instinctively keep them out of trouble, and that this affected my chances of advancement. No doubt I could have demonstrated growth in that regard and fixed the issue, but I didn’t stick around that company long enough for it to be relevant (again, for other reasons).
This is indeed about half the pitch in my view. The strategy comes in two parts as I understand it: one, the psychological trick of triggering a fear of successful lawsuits; two, slightly increasing the likelihood that if the risk becomes reality they will have to pay significant penalties.