Subpoena Futures

A subpoena … is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. … party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, or subpoenaing persons who would have no evidence to present, or subpoenaing records or testimony that is confidential or privileged. (More)

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. (More)

Exceptions are quite limited: self-incrimination, illegally-obtained info, and privileges of spouses, priests, doctors, diplomats, and lawyers. The remarkable fact is that the law has little general respect for privacy. Unless you can invoke one of these specific privileges, you must publicly report to the court any info that it thinks sufficiently relevant to a current court case. You simply have no general right to or expectation of privacy re stuff a court wants to know. Courts don’t even compensate you for your costs to collect evidence or appear to testify.

And yet. Consider what I wrote March 5:

The straightforward legal remedy for [pandemic] externalities is to let people sue others for infecting them. In the past this remedy has seemed inadequate for two reasons:

1. It has often been expensive and hard to learn and prove who infected who, and
2. … most folks just can’t pay large legal debts.
The vouching system directly solves (2), … And the key to (1) is ensuring that the right info is collected and saved.

First, consider some new rules that would limit people’s freedoms in some ways. Imagine people were required to keep an RFID tag (or visible QR code) on their person when not at home, and also to save a sample of their spit or skin once a week? Then phones could remember a history of the tags of people near that phone, and lawsuits could subpoena to get surveillance records of possible infection events, and to see if spit/skin samples on nearby dates contain a particular pathogen, and its genetic code if present. We might also adopt a gambled lawsuit system to make it easier to sue for small harms. (More)

Here, to help law deal with pandemics, I was tempted to propose specific rules re info that people must collect and preserve. Yet if courts can get any info they think relevant, why is there ever a problem with courts lacking info to deal with key harms, such as pandemic infection?

The answer is that current law allows a huge exception to its subpoena power. Courts can force you to reveal info that you have already collected, on paper, a computer, in your head, or in your physical objects. But you usually have no obligation to collect and save info now that the court might want later. As a result, many people and orgs go out of their way to not save incriminating info. For example, firms do key discussions verbally, not recorded, rather than via email. Thus you have no obligation to save spit samples or detailed records of where your phone goes, to help with future pandemic infection lawsuits.

This seems a huge and inconsistent loophole. I could understand if the law wanted to respect a more general right to privacy. Then the court might weigh the value of some info in helping court cases against the social harm from forcing its publication via a subpoena. As a result, it might sometimes block a subpoena even when the info collected would be relevant to a court case.

But I can’t see a reason to eagerly insist on access to info that seems relevant to a court case, and yet put no effort into inducing people to collect and preserve such info beforehand. So I propose that we create a legal process by which legal judgements are made on, if collected and saved, how likely some info would be to be subpoenaed, and how valuable it would be in that case.

When info would be valuable enough if collected and saved, then the court should require this. I don’t have a strong opinion on who exactly should bring a suit asking that such info be saved, or who should represent the many who would have to save that info. But one obvious system that occurs to me is to just have courts usually make ex post estimates of info value by the end of each court case, and then use “subpoena futures” prediction markets to make an estimate of that value ahead of time. (And make it legal and cheap to start such markets.)

So, if a subpoena futures market on a type of info estimates its expected court value to be above a standard threshold, then by law that info must be collected and saved. These prediction markets needn’t be huge in number, if they could estimate the average value of such info collect over a large group, which would then justify requiring that entire group collect the info. Such as everyone in an area who might infect others with a pandemic. If some subgroup wanted to claim that such info wasn’t less valuable regarding them, and so they should be excused, why they’d have to create different prediction markets to justify their different estimates.

For example, when a pandemic appears, if those who might infect others are likely vouched, then those who might be infected would want to require that first group to collect and save info that could be used later to prove who infected who. So they’d create prediction markets on the likely court value of spit samples and phone location records, and use market estimates to get courts to require the collection of that info.

Compared to my prior suggestion of just having the law directly require that such info be collected, this subpoena futures approach seems more flexible and general. What other harms that we do each other could be better addressed by lawsuits if we could require that relevant info be collected and saved?

(Btw, courts need not estimate info value in money terms. They might instead express the value of each piece of info in terms of its multiple of a “min info unit”, i.e., the value of info where they’d be just on the border of allowing it to be subpoenaed for a particular case.)

Added 7a: As mentioned in this comment, we now have this related legal concept:

Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding …The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party’s destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding.

My proposal can be seen as expanding this concept to allow a much weaker standard of “foreseeable”. And instead of allowing a presumption at trial, we just require the evidence to actually be collected.