This article is part of the How Do YOU CM2? blog series in collaboration with the Institute for Process Excellence (IpX). Although I receive compensation for writing this series, I stand behind its content. I will continue to create and publish high-quality articles that I can fully endorse. Enjoy this new series, and please share your thoughts!
Anything you record can and will be used against you in a court of law. The reasoning record of product memory cuts both ways, and governance is the variable.
Nobody talking about Product Memory mentions that a complete record of your reasoning is also a complete record for opposing counsel.
Capture the why behind every decision, and you have built something powerful. You have also built a discovery target. “We evaluated the safer design and rejected it” reads very differently in an engineering review than it does on a courtroom screen.
This is not hypothetical. GM shelved a fix for a faulty ignition switch on cost and timing grounds. The repair was estimated at 57 cents per switch. That decision, documented in writing, sat behind a defect tied to 124 deaths and a $900 million federal penalty. In the 737 MAX, the House investigation found a test pilot’s concern in internal data was concealed from the FAA. In both, the reasoning existed. How it was governed is the whole story.
It’s essential to recognize a common misconception: structured reasoning capture does not inherently create exposure to liability. The reality is that the reasoning records already exist, often scattered across emails, slide decks, and personal notes. These documents are equally discoverable but infinitely more challenging to defend in a judicial setting due to their disorganization. Thus, the dilemma isn’t about whether to record or not. It’s a matter of choosing between a narrative that is “governed and defensible” versus one that is “scattered and damning.”
This situation leans more toward a configuration management argument rather than a purely legal one. A reasoning record that went through proposal, validation, and an accountable authority demonstrates a deliberate, controlled engineering process. In contrast, an unmanaged thread of messages or notes does not tell that story and leaves you vulnerable.
So the discipline cuts both ways. Capturing rationale without governing it raises your risk. Capturing it under CM2 control lowers it.
If your design reasoning were subpoenaed tomorrow, would it show a controlled process or a pile of contradictory notes?