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3-year later follow-up: I bought a Hi-Tec C Coleto pen for my brother, who is in a profession where he has to write a lot, and color code forms, etc. He likes it a lot. Thanks for the recommendation.

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.

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.

If you notice something risky, say something. If the thing you predicted happens, point out the fact that you communicated it.

I think this needs to be emphasized more. If a catastrophe happens, corporations often try to pin blame on individual low-level employees while deflecting blame from the broader organization. Having a documented paper trail indicating that you communicated your concerns up the chain of command prevents that same chain from labeling you as a "rogue employee" or "bad apple" who was acting outside the system to further your personal reputation or financial goals.

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.

Would it be as self evidently damning as you think it would be? If so, then why would a company like Google explicitly pursue such a weak strategy? It's not just Google either. When I worked at a different FAANG company, I was told in orientation to never use legal terminology in e-mail, for similar reasons.

The first lawyer will be hardly able to contain his delight as he asks the court to mark “WidgetCo Safe Communication Guidelines” for evidence.

Having safe communication guidelines isn't as damning as you think it is. The counsel for WidgetCo would merely reply that the safe communication guidelines are there to prevent employees from accidentally creating liabilities by misusing legal language. This is no different than admonishing non-technical employees for misusing technical language.

Indeed this was Google's actual strategy.

Games, unlike many real life situations, are entered into by choice. If you are not playing to win, then one must ask why are you bothering to play? Or, more specifically, why are you playing this game and not some other?

Have you read Playing To Win, by David Sirlin? It makes many of the points that you make here, but it doesn't shy away from winning as the ultimate goal, as you seem to be doing. Sirlin doesn't fall into the trap of lost purposes. He keeps in mind that the goal is to win. Yes, of course, by all means try new strategies and learn the mechanics of the game, but remember that the goal is victory.

was militarily weakened severely

That's another highly contentious assertion. Even at the height of Vietnam, the US never considered Southeast Asia to be the main domain of competition against the Soviet Union. The primary focus was always on fielding a military force capable of challenging the Soviets in Western Europe. Indeed, one of the reasons the US failed in Vietnam is because the military was unwilling to commit its best units and commanders to what the generals perceived was a sideshow.

why the US allied with China against the USSR

Was the US ever allied with China? What we did as a result of the Sino-Soviet split was simply let the People's Republic of China back into the international system from which they had been excluded. The US certainly did not pursue any greater alignment with China until much later, at which point the Soviet Union was well into its terminal decline.

failing to prevent the oil shocks in formerly US-friendly middle eastern regimes, which were economic catastrophes that each could have done far more damage if luck was worse

More evidence is needed. The oil shocks were certainly very visible, but it's not clear from the statistical data that they did much damage to the US economy. In fact, the political response to the oil shocks (rationing, price controls, etc) did arguably more to hurt the economy than the oil shocks themselves.

Meanwhile, the USSR remained strong militarily in spite of the economic stagnation.

The actual readiness of Soviet forces, as opposed to the hilariously false readiness reports published by unit commanders, is a matter of great debate. After the Cold War, when US commanders had a chance to tour Soviet facilities in ex-Warsaw Pact states, they were shocked at the poor level of repair of equipment and poor level of readiness among the troops. Furthermore, by the Soviets' own admission, the performance of their troops in Afghanistan wasn't very good, even when compared against the relatively poor level of training and equipment of the insurgent forces.

But the idea that the US was doing fine after Vietnam, including relative to the Soviets, is not very easy to believe, all things considered.

Vietnam was certainly a blow to US power, but it was nowhere near as serious a blow as you seem to believe.

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