Team Kimberlin Post of the Day

BS201608281456ZBS201608281906ZIt’s seems that The Dreadful Pro-Se Freeloader Schmalfeldt simply doesn’t understand the meaning of the word spoliation as it relates to evidence. It’s the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. If someone so much as hides evidence sought by an adverse party in a lawsuit, he is has engaged in spoliation of that evidence. It doesn’t matter if someone else has a copy of the document. Spoliation occurs when the original is compromised.

It’s my understanding that the Rules of Evidence generally require that the original document or an authenticated copy is necessary for that document to be admissible as evidence, but an exception to the hearsay rule allows for an unauthenticated copy to admitted if the person who should have produced the document engaged in spoliation. IANAL, so YMMV.

popcorn4bkIt looks as if the Cabin Boy™ has painted himself into an corner. It’s obvious that he has deleted files from the Internet, in effect hiding them. If, as he says, spoliation hasn’t occurred because of the copies posted online, then he has authenticated the copies. (“Anything you say can be used in evidence against you.”) OTOH, if he fails to produce copies of his web postings during discovery or in response to a subpoena because he’s deleted them, a court may find that he’s engaged in spoliation. In that case, the court can make the adverse inference that TDFS was trying to hide something and that the online copies are true and correct. Neither possibility is favorable for the Cabin Boy™.

44 thoughts on “Team Kimberlin Post of the Day

  1. The “best evidence” rule is a legal principle that holds an original copy of a document as superior evidence.

    The rule specifies that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists and can be obtained. The rule has its roots in 18th century, British law.

    The “best evidence” rule is why you can’t delete things off the interwebz and think a copy is okay.

    Ask your lawyer (we know you won’t ).

  2. I’m going to make a prediction of the future. I’ve been blessed since my 6th birthday, during the blood moon’s 3rd orbit, with the gift of foresight. With this power in use, my prediction is as follows:

    It will be revealed to us tomorrow that a confidential phone call involving the Cabin Boy was conducted. At the conclusion of that call, FreeLoader Schmalfeldt has learned that his actions do not represent “Spoiliation” and Mr Hoge’s statements above are false. Unfortunately, the other party to this call is somewhat cloudy but Schmaldeldt will proclaim his information is 100% accurate.

    End of prediction. Sorry guys but these reading make we very sleepy, so I must log off.


  3. Just because something is in a “vault” somewhere doesn’t mean everyone has access to it, including defendants in pending litigation.

    Even if something is in a “vault” somewhere doesn’t mean the content originator didn’t do everything within their power to destroy it.

    I’ve heard that “intent” is kind of important to judges.

  4. Indeed.

    If someone who is engaged in litigation or who believes that litigation is even remotely possible destroys or alters a document which is then required for that litigation, the assumption is, sensibly, that the destruction or alteration occurred to hide evidence which would be beneficial to the opposing party. When I was in library school, the case against Piper Aircraft was the classic example of why one kept one’s documents, and why one produced them (or a retention schedule which was actually followed) for litigation.

  5. Businesses are required to keep electronic documents for multiple years, just to prevent spoliation. Such as any message sent to my Qualcomm or I send through my Qualcomm. It has to be stored for several years. And anything that has hazmat documents (I forget what they’re called when inside the business itself), those documents must be kept for 10 years AFTER that item is no longer in the building. It’s to prevent spoliation in the event of a lawsuit.

    So, the fattest Pedoketeer is wrong, yet again, about everything, including “is” and “and”.

    • So you’re saying he will have trouble getting “CONTEXT” into evidence. Bill loves context … and those arguments Bill brought up about context and why he hates Sarah’s site because her site doesn’t contextually explain his quotes enough like he likes.

      Billy Goat, you spoiled any and all context you want to bring forth.

    • They are called Material Safety Data Sheets (MSDS) and hospitals especially have to keep them up properly. Even for something like White-out!

      • I used to have to keep a very thick file folder in one of my office drawers at the hospital library with all those. I think I had one for each copier toner and printer ink cartridge, as well as for the dish soap and the Sharpies. I think they may have had me keep sheets for my ink pens too.

          • Ironically, totally-pure water IS dangerous: If some mineral content isn’t present (I can’t remember the specific minerals and/or recommended concentrations), then reverse osmosis occurs, and the pure water leaches out important minerals from the body, which can become a significant health problem over time.

            Also, if my memory serves me correctly (this is not guaranteed, sigh), there was a tragic death associated with the promotion “A Wee For a Wii”, where contestants drank a LOT of water at the start… and the last one to take a leak won…

  6. So let me get this straight… he deliberately starts editing his online posts and presence, because it makes him look like a complete toolbox… but because other people have been carefully archiving his verbal diarrhea, it’s not actual spoilation or an attempt to hide his misanthropy?

    And therefore, it’s not really spoilation at all, so HE’S the smart one and we’re the idiots?

  7. I had to read those tweets twice.
    At first I thought he was saying spoliation didn’t happen because he had copies, which might have worked I guess might work, but IANAL.
    But he’s saying it did isn’t in play because others saved copies (figuring he’d memory hole it)
    Forgetting the law, that doesn’t even follow logically.

  8. In Bill’s case, he could/should in theory delete some of the terrible things he’s said online, as they are terrible. It’s probably not spoliation if HE has a copy, but chooses not to let it show in the internet. We know of course, he just destroys it all.

    • Oh, Deb Frisch has her moments, though 9 months in jail in 2015 seems to have slowed her a bit.

      She’s mostly doing reruns of her classic bits these days, with “180 day tort notices”, and “Diane Downs waz FRAMED”…

Leave a Reply