Suing an automobile giant can be a nerve-racking rollercoaster, even when you know you’ve been deceptively sold a lemon… know you are in the right… and things go more or less according to plan.
I know because I was the lead lawyer for the Plaintiff.
But what if the corporation and its lawyers start trying to game the justice system with a catalog of tactics designed to prevent your case from even getting off the ground?
In my recently concluded settlement, Judge Moyé of the 14th Judicial District Court ruled that BMW had fallen back on shenanigans including evasion, obfuscation, purposeful delays, and false incompetence.
You may read Judge Moyé’s Sanctions Order here.
And if you think this can be chalked up to “games lawyers play,” think again…
The Ultimate Driving Experience: An Unhappy Judge and Steep Penalties
The lemon dispute I was involved in devolved into BMW taking the wronged plaintiff on a long 3-year road trip, doing everything they could to avoid fairly trying their case.
According to the signed Sanctions Order, these included misclassifying copious documents as “confidential,” feigning misunderstanding or inability to follow every discovery request, and the coup de grace, reporting that some files were “caught” in a computer’s spam filter.
How did this go for them?
They were mercilessly dressed down by Judge Moyé for their “reprehensible behavior” of “gaslighting” the plaintiff and court, slapped with stiff sanctions including attorneys’ fees, and the trial they so desperately wanted to delay was moved UP, with an instruction to the jury to doubt their credibility from the outset. Ouch.
So, was this just a one-off situation? Surely, no other big companies would conduct their legal affairs this way, RIGHT? …
The Latest in Litigation Lawlessness
When recently taken to task about user data collection and privacy, Facebook and their counsel launched a stonewalling campaign that U.S. District Judge Vince Chhabria of the Northern District of California also described as “gaslighting” him and opposing counsel.
Judge Chhabria further found that Facebook had outright lied about their own prior statements, falsely tagged a number of communications as attorney-client privileged, and even told their opponents to “google” information they were required to disclose.
Speaking of Google, as a defendant in a recent antitrust case, they were required to produce numerous employees’ internal chat messages as evidence.
When they failed to do so, Judge Dunato of the Northern District Court of California found several facts that proved quite disfavorable to Google.
The chats had been auto-deleted, a setting that could’ve easily been changed, but deliberately wasn’t, even after the lawsuit began. According to employee communications (finally) submitted to the Court, this was apparently an unofficial (read illegal) policy decision.
Similarly, Delaware Court of Chancery Judge Kathaleen McCormick reserved sanctions for Elon Musk for utilizing Telegram as the inter-employee messenger app at Twitter, which doesn’t preserve an electronic copy of the messages.
Thus, when demanded at trial, that evidence was nowhere to be found, which Judge McCormick deemed “clear deficiencies in Defendants’ document production.”
These organizations invariably turn up their palms when asked why they used programs that they knew didn’t produce adequate communication records. So, these court records reflect some of the world’s most cutting-edge tech companies claiming incompetence at managing their own tech.
This behavior is the Big Tech equivalent to a street criminal speaking to his contacts on a burner phone and then chucking it into the nearest river to make sure there won’t be a record of what’s said.
Changing Times, Same Old Shenanigans?
Gone are the days when a business’s pertinent documents were on paper and filed away in an office’s back corner cabinet, vulnerable to the elements. A fire, a purging, or a late-night shredding session could make them impossible to recover, therefore unproducible as evidence.
Modern “paperwork” is digital data, meaning modern trial discovery is e-discovery. Those old “the dog ate it” excuses don’t fly anymore, but that doesn’t keep them from still being raised.
And they’re also constantly seeking new ways to hide their data, necessitated by the advances in technology. KNOWINGLY using programs that aren’t compiling suitable records is just a recent example.
How Does This Egregious Behavior Continue?
Many of juggernaut companies believe they have the power, funding, and resources to behave in whatever corrupt, self-serving way they choose, due to their clout and perceived status as essential to the community.
They think they’re “too big to be held accountable.”
And if their actions lead to litigation?
They have an age-old repertoire of strategies like those mentioned above to weaponize the justice system by rendering the trial process so expensive, cumbersome, and stressful on the plaintiff that they’re likely to take an easier way out than following through.
And it gets worse…
Not only do the companies behave in this horrible way, but their attorneys, more often than not, are caught going along with and even enabling it!
The Modern Legal Landscape
The Good News? In all of the above cases, the corporations were severely punished and penalized for their actions, indicating a legal system that’s tired of this nonsense and not putting up with it anymore.
(*See Side Note to Business Owners Below)
The Bad News? These instances, with this kind of malfeasance being smacked down, are like cockroaches. For everyone you find and eliminate, how many more are scampering about undetected?
Does this really continue after these pillars of industry have been so brutally made examples of? 100%
How?? Why??
While playing these games can and does saddle them with considerable costs and disciplinary sanctions, their proper disclosure of evidence could blow the lid off some shady secrets whose consequences make the judges’ measures look like child’s play. So…
This is NOT going away. They STILL have every incentive to do whatever it takes to delay, complicate, and stonewall any legal action taken against them.
So, if you’re the one taking this action…
WHAT CAN YOU DO When Facing This Sort of Misbehavior?
Situations vary, and depending on your state, your legal status, and your circumstances, different actions may be called for.
In ANY case, we encourage you to do three things:
Firstly, and it’s crucial to do this as early in the process as possible, the moment litigation is reasonably probable, send an evidence preservation letter.
Now, this is NOT the initiation of the lawsuit. That may never come to pass. This is to draw a bright line in the sand and put the opponent on notice that their records and documents had better be in order for the potential case that’s being considered, in order to avoid automatic sanctions.
This letter’s importance can’t be overstated, as it sets an official start date that their evidentiary ducks are expected to be in a row. It also sets the expectation for how the evidence will be managed and presented. (This preempts any claims of ambiguity, miscommunication, or any others that may come up.)
Secondly, have a proper ESI (Electronically Stored Information) protocol entered by the judge. This establishes an objective standard for how a company’s data is to be stored and maintained, so that there’s no question as to the proper procedure, and no chance to weasel out of it later by feigning ignorance or incompetence.
Thirdly, demand a detailed electronic inventory of the company’s data. What kind of data they have, how much, what devices it’s stored on, what the format is, who the custodians are that maintain the information, whether or not it’s backed up either locally or on cloud servers, etc.
Leave no stone unturned when it comes to their treatment of electronic information.
Take care of these three steps, and you’ll have a leg up on an adversary that tries to work the justice system and turn your lawsuit into a war of attrition.
KEEP THEM HONEST, KEEP THEM ACCOUNTABLE!
Any questions on how to go about it? Any bumps in the road? Just contact us at Jonathan Scott and Commerce Law Partners – Prepare to Win!
BOTTOM LINE
If you’re facing an industrial giant in court, assume they have the know-how, the capacity, and the incentive to give you the run around as you’ve never seen with a host of crooked ploys to evade making a fair and honest case.
Again, to protect yourself from this headache and hold them to account, take the 3 steps detailed above;
1) Send an evidence preservation letter,
2) Have a proper ESI (Electronically Stored Information) protocol entered by the judge, and
3) Demand a detailed electronic inventory of the company’s data.
And if any issues come up, don’t hesitate to contact us at Jonathan Scott and Commerce Law Partners – Prepare to Win!
(Side Note to Business Owners)
* In such a legal atmosphere, if you find your own business a defendant in litigation against a plaintiff who knows the game and/or a seasoned judge…
You could find yourself on the other side of the court’s wrath, through no willful malfeasance of your own. In many jurisdictions, ignorance or incompetence in properly managing evidence is not acceptable as a defense.
