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In other cases, hasn't the rule always been that a corporate party and its agents are bound by an o order of the Court that has been properly served on the duly authorized legal agent of the corporation. As a matter of law, hasn't the rule been that all agents to the corporate entity have notice when the legal authorized representative for the entity has been served. That is the law....and as a matter of fact, the duly authorized legal representative for the CIA was properly served...and yet, here, the Court makes an exception TO THE LAW.
Here the Court is acknowledging:
1. The CIA was a proper party to litigation, having been properly served, and is properly before the Court regarding the disposition of interrogation tapes;
2. Pursuant to a hearing on the issue, the CIA as a necessary party, having submitted to the jurisdiction of the Court by filing pleadings in the case, having had full opportunity to object and appeal, and having been present at the hearing, was ordered by a Federal Court to maintain the integrity of this information; (the very subject matter of the litigation is the material at issue)
3. The Court is acknowledging that subsequent to the properly noticed hearing, subsequent to the issuance of a properly executed order, and subsequent to the service of that order upon duly authorized legal representatives, CIA officials, post-pleadings, post-notice of hearing, post-hearing, and post-service of the Order, still ordered the destruction of the very material that the Court ordered to be maintained;
4. The timing is key. If the material had been destroyed prior to the CIA ever being a litigant, well then maybe. Although, there are cases where a litigant has been held in contempt of court when materials were destroyed IN ANTICIPATION of ligitation. That's not what we have here.
Here we have a party who has been properly served.
Where the subject matter of the litigation is access to the subject material.
Where the parties have had an opportunity to submit full pleadings in the case, and then
Where the parties have had an opportunity to engage in Federally maintain initial disclosures, and then,
Where the CIA has been given proper notice of hearing, and then
Where the CIA has been given an opportunity to respond to and brief the matter to be heard, and then
Where the CIA has made an appearance in open court regarding access to the subject material, and then
Where the CIA has been given an opportunity to appeal the decision of the Court, and then
Where the CIA has been properly served with an order of the Federal Court, and then
THEN, after all of the formal legal processes, and after all those AND THEN, then the material is destroyed.
In other words, we are a long way from ANTICIPATING litigation--the proceedings were well-nigh to knee deep.
And yet, the legal precedent set today to future litigants is that no matter how much work you put into pursuing legal remedies, no matter how much faith you put into the legal system, certain preferred litigants, or at least their corporate agents, can simply disregard the orders of a federal court...and not in an inadvertent way, like they failed to maintain the material and it was mistakenly destoyed, but in an overt way--where the very material to be preserved, is ORDERED to be DESTROYED by a litigant in a blatant act of commission in violation of a court order.
Note too that the Judge is not even confident that those who overtly ordered the destruction of this material were without notice--the Judge seems to be resigned to state that CIA agents who ordered the destruction of evidence "may not have known." Maybe-willfully-ignorant is now a legal standard?
Looking forward, as the law is a guide to future action, the the onus is now on litigants engaged with the CIA as an opposing party to serve every single agent of the CIA (many who are covert) in order to be confident that the Court Order that the litigant has fought for and has put their faith in will be legally binding--otherwise the CIA can claim that some agent, somewhere, did not receive adequate notice.
Tell me: who is in a better position to make sure that covert agents of a corporate entity are properly notified of the proceedings of pending litigation? Should it be the opposing litigant's responsibility to formally notify every agent and employee of a corporate defendant before we can say with confidence that a Court Order is binding upon a corporation?
Isn't that what the judge is implying, that a corporate entity is not bound by an order of the court if each and every agent is not notified WITH CERTAINTY with the substance of the Court's order?
I would hazard to guess that most corporate defendants will not get the benefit of the agent's "may not have known" standard when it comes to destruction of material evidence. But at least now, thanks to this judge, and thanks to the CIA, there is an argument to make for those corporate entities who will overtly flaunt an order of the Court.
Ain't it beautiful?
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