Look at who pays the bills at Reason. That's who would benefit from any policy recommendations they have. "Fair" has nothing to do with it.
If you want to make it "fair" then reform the rules to where no party to a case can spend more than the other. If I bet my friend that I and a friend could beat him and a friend a two-on-two basketball, and he shows up with Kobe Bryant, would that be fair? What if that bet stated that the loser pays the bills for dinner at the winner's choice of restaurant? Is that fair? Yes, it would be a stupid bet to make. But the proposed policy change makes that bet no longer a choice but a matter of law.
Quoth the article:
«A common fear about loser-pays is that the side who loses a routine dispute will get handed a bill for 10,000 hours from Cravath, Swaine & Moore. But European courts are well aware of the danger that successful litigants will overinvest in their cases and gold-plate their fee requests. They carefully control the process to prevent that danger, giving the losing side a full chance to dispute a fee award, requiring that work be reasonable and necessary, providing that elite lawyer rates not be paid if a Main Street lawyer could have done the job, and so forth.»
Meaning they heavily regulate what can be charged. Why is Reason so enthusiastic about regulating attorneys but screams bloody murder if the government tries to regulate doctors or the energy industry?
Intentionally making your data inaccessible (by encryption or otherwise) without a means of recovering it to attempt to prevent it being used against you in court could be considered destruction of evidence. If convicted of that, expect far more than a few days in jail, depending on how annoyed the judge is with you.
Typically, you are in trouble when you destroy evidence when you has reasonable cause to believe that it is evidence.
If I delete all of my email today, I'm not committing a crime. But if I find out that my company is being sued for breach of a contract that I was working on, deleting email becomes suspicious.
My attorney has advised me that the best thing in this situation is to have a personal data retention policy: "I delete my email the first monday of every month."
Then, do just that.
If a civil or criminal case is brought against you the law says you must stop any routine houskeeping tasks like that to preserve evidence, but the most you'd have then is 4 weeks worth. Much better than 4 years.
The flip side is I escaped being charged with conspiracy to launder money because I had kept email from several years prior in which I complained at length to my manager about how a particular client was behaving, and then escalated it to his manager. Both managers were implicated, but I could show that I'd reported the behaviour and been reassured by two people who I trusted that nothing illegal was going on.
Actually, I should elaborate: if it were just two people I trusted reassuring me it was fine, I would probably have still been on the hook for contributory negligence. What got me off completely was the fact that the responses I got from the senior manager said that he'd passed all of my information on to the legal team, who'd been over it with a fine-toothed comb and decided it was all above-board. What got HIM in trouble was that he'd never passed it on to legal at all.
http://en.wikipedia.org/wiki/Warren_Hellman
Does a pretty awesome thing:
http://www.strictlybluegrass.com/