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Alternatively... TLDR: 'Uber communicated with Ergo largely over encrypted channels. Henley [the Uber executive that hired Ergo] explained in one email that th

Alternatively... TLDR: 'Uber communicated with Ergo largely over encrypted channels. Henley [the Uber executive that hired Ergo] explained in one email that this was necessary to "avoid potential discovery issues."' Any reasonable person with knowledge of litigation knows that the only reason you attempt to hide things from discovery is that they are incriminating, aggravating (in the legal sense) and/or damning. "Common" due diligence on plaintiffs would never need to be hidden from discovery. In fact, quite the opposite: negative information turned up in due diligence would be paraded in front of the opposing side as a negotiating tactic, and you (almost always) can't selectively disclose which information you turn over in discovery. Furthermore, if you intend information to remain confidential in litigation, you have your attorney do it so it can be classified as privileged attorney-client work product. But the inconvenient limitation is that lawyers are bound by legal ethics, so the fact that this investigation wasn't conducted by the firm's attorneys (and was, apparently, hidden from them) suggests it was known to cross ethical lines. And naming CEO's in lawsuits isn't "weird" - it's an extremely vanilla legal tactic. You name anyone and everyone and let the opposing counsel argue for more limited scope. Leaning on that as an excuse is transparently absurd. It's obvious to any reasonable third party that Uber intended to go beyond normal legal due diligence, and got caught.

mcherm 10y ago
You write: > Any reasonable person with knowledge of litigation knows that the only reason you attempt to hide things from discovery is that they are incriminating, aggravating (in the legal sense) and/or damning. I disagree with that. As a general rule of thumb, "only people who have done something wrong would care about privacy" is a frequently used truism which is actually quite false. In this particular case, reasonable people with knowledge of litigation know that there are many, many reasons to hide things from discovery. The most common is because "the lawyers haven't reviewed this and so we don't know whether it would be problematic or not -- 99% chance it isn't a problem, but we shouldn't take any chances". This is the main reason (at least in the US) why companies have data destruction policies that require all emails and documents past a certain age be automatically deleted (unless an explicit step is taken to retain them).
- peterbonney 10y ago
  '"only people who have done something wrong would care about privacy" is a frequently used truism which is actually quite false.' I agree with this. Strongly. However, there are two important counterpoints here that don't apply in normal circumstances: 1. They were actively involved in litigation, which means normal information retention procedures were already out the window (or should have been). E.g. you can certainly do things like routinely delete business emails older than some specified age, but if you know those emails contain subject matter that is pertinent to active litigation you likely should not. 2. The encryption/destruction that occurred here weren't a "normal course of business" thing, but a response to the litigation. That gives a strong impression that it was willful and intended to evade laws and rules related to discovery.
  - pfarnsworth 10y ago
    > I agree with this. Strongly. This is an ignorant statement. Things you say can easily be taken out of context and manipulated. This is a common occurrence, which is why privacy matters.
    - peterbonney 10y ago
      I was trying to say that I agree that privacy matters.
pas 10y ago
Encryption is completely orthogonal to discovery. Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.) That said, yes, it's just trivial to assume that Uber wanted more, however, it's also quite standard operating procedure that in these cases all the legal responsibility is on the contractor, unless someone can somehow produce evidence that points to someone at Uber expressly requesting this "extralegal" investigation. (Though that does not mean the contractor is off the hook, unless they cut a deal with the DA, yaddayadda.)
- peterbonney 10y ago
  "Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.)" Yes. But taking action to evade discovery after litigation has become active is quite a bit different from choosing not to retain information that may or may not ever become subject to litigation. I guess I should have said "the chat app ate my homework" is a valid excuse if you always use the homework-eating chat app. But if you start using the homework-eating chat app because you're intending to discuss active litigation, that's just getting too cute. Let's be clear here: you don't have to delete or encrypt communications to protect it from discovery. Privileged attorney-client work product is always protected from discovery, whether it's in plain text, encrypted, written on paper, or whatever. But for some reason (I speculated on one) they chose not to do this work as attorney-client work product.

mcherm 10y ago

You write: > Any reasonable person with knowledge of litigation knows that the only reason you attempt to hide things from discovery is that they are incriminating, aggravating (in the legal sense) and/or damning. I disagree with that. As a general rule of thumb, "only people who have done something wrong would care about privacy" is a frequently used truism which is actually quite false. In this particular case, reasonable people with knowledge of litigation know that there are many, many reasons to hide things from discovery. The most common is because "the lawyers haven't reviewed this and so we don't know whether it would be problematic or not -- 99% chance it isn't a problem, but we shouldn't take any chances". This is the main reason (at least in the US) why companies have data destruction policies that require all emails and documents past a certain age be automatically deleted (unless an explicit step is taken to retain them).

peterbonney 10y ago
'"only people who have done something wrong would care about privacy" is a frequently used truism which is actually quite false.' I agree with this. Strongly. However, there are two important counterpoints here that don't apply in normal circumstances: 1. They were actively involved in litigation, which means normal information retention procedures were already out the window (or should have been). E.g. you can certainly do things like routinely delete business emails older than some specified age, but if you know those emails contain subject matter that is pertinent to active litigation you likely should not. 2. The encryption/destruction that occurred here weren't a "normal course of business" thing, but a response to the litigation. That gives a strong impression that it was willful and intended to evade laws and rules related to discovery.
- pfarnsworth 10y ago
  > I agree with this. Strongly. This is an ignorant statement. Things you say can easily be taken out of context and manipulated. This is a common occurrence, which is why privacy matters.
  - peterbonney 10y ago
    I was trying to say that I agree that privacy matters.

pas 10y ago

Encryption is completely orthogonal to discovery. Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.) That said, yes, it's just trivial to assume that Uber wanted more, however, it's also quite standard operating procedure that in these cases all the legal responsibility is on the contractor, unless someone can somehow produce evidence that points to someone at Uber expressly requesting this "extralegal" investigation. (Though that does not mean the contractor is off the hook, unless they cut a deal with the DA, yaddayadda.)

peterbonney 10y ago
"Using non-written, non-permanent, non-recorded means of communication is something you don't have to submit in discovery. (Because it cannot be.)" Yes. But taking action to evade discovery after litigation has become active is quite a bit different from choosing not to retain information that may or may not ever become subject to litigation. I guess I should have said "the chat app ate my homework" is a valid excuse if you always use the homework-eating chat app. But if you start using the homework-eating chat app because you're intending to discuss active litigation, that's just getting too cute. Let's be clear here: you don't have to delete or encrypt communications to protect it from discovery. Privileged attorney-client work product is always protected from discovery, whether it's in plain text, encrypted, written on paper, or whatever. But for some reason (I speculated on one) they chose not to do this work as attorney-client work product.