Some kind of direct email from SA to client is admissible. An SA telling a client, "you have to spend X to get a Birkin" is admissible, but then Hermes can challenge it saying "The SA never said it" so it's not as concrete as an email.
Evidence that is not written down is still admissible. Juries/judges are the ultimate finders of fact, and they are specifically instructed to weigh the credibility of witnesses. It is up to them to assess if an SA is lying to them, not being entirely clear, or cagey, and if the customer is telling the truth. Or in this case, if their actions/words/policies created an impression that spending was required to obtain a bag. Which IS valid evidence. For ex (hypothetical witness interview):
Atty: "Did Ms. Karen come in on Wed 12th at 2pm asking for a Birkin bag?"
SA: "I don't remember."
Atty: "Ok. But do a lot of clients come in asking for a Birkin bag, right?"
SA: "Yes, many do."
Atty: "What are you instructed at training and by your manager to tell them?"
SA: "That we offer these bags as a reward to loyal clients and that they should get to know the Maison first."
Atty: "How do you define 'getting to know the Maison?'"
SA: "Develop an appreciation for the items."
Atty: "By buying them?"
SA: "Not necessarily."
Atty: "But it's easier to develop an appreciation for the items which you own and use consistently, right?"
SA: "That's fair."
Atty: "So the best way to get to know the brand is by buying the products?"
SA: "I suppose so."
Atty: "How do you define "loyal customer?"
SA: "One who consistently shows appreciation for the brand."
Atty: "If showing appreciation means buying items, does that mean showing "consistent appreciation" is done by repeatedly buying products?"
SA: You could say that, but it can be done in other ways too.
Atty: So does this mean you do not give bags to those who do not show loyalty to the brand, which as you said, means to spend consistently?
SA: That's not what I meant.
Atty: Are you aware of your store's 2022 sales figures that show the recipient of a Birkin spends on average $15k before receiving a bag?
SA: No. but again, that's an average. Some clients spent much less than that.
Atty: Are you aware your average client whom you serve spent $18k before receiving a bag?
SA: Some were higher and some were lower. I gave a bag to one client who only bought a twilly.
Atty: I see that. But then on January 18th did you make another client buy $22k in ancillary products to compensate for that twilly customer and keep your SM happy to entertain those lower-spend bag nominations, which otherwise wouldn't be considered?
SA: I don't make clients buy anything to receive a bag.
Atty: Let's talk your commission. You don't earn it on Birkin bags, do you?
SA: No.
Atty: But you do on other products?
SA: Yes.
Atty: So, you make money when the customer shows loyalty, yes or no?
SA: Sort of... we--
Atty: Just yes or no is fine. Your corporate policies prohibit you from discussing bag offers over phone, email, text and through written correspondence, correct?
SA: Yes.
Atty: But you can verbally discuss the amount of spending required to obtain a bag, right?
SA: Verbally or written we don't do that.
Atty: So you deny making verbal assurances to customers that if they purchase certain items they can get a bag?
SA: I do.
Atty: On January 12th did you recall taking Ms. Karen to the jewelry section after she asked for a Birkin, promising her that if she bought a... ah, a $55k collier de chien pave bracelet, that she could get the Birkin she wanted?
SA: It's ok. No, I absolutely did not do that to Ms. Karen.
Atty: You didn't ask her to show committed loyalty to the brand in order to receive the bag as per your own training and experience?
SA: Not in that way, no.
Atty: So you deny that as a practice, when customers ask you for a bag, you lead them over to the metiers where you get the most commission and invite them to make a purchase?
SA: I deny. We're told explicitly not to do that. To Ms. Karen or anyone.
Atty: But then do you recall at the end of January two months later, sales records indicate that one of your other clients DID purchase that same bracelet, and you sold her a bag that very day?
SA: I don't remember. But again, that's a sign of loyalty. It's a reward.
Atty: For which you made almost two grand and for which she received the bag she ultimately wanted, correct?
SA: I wouldn't say that.
Atty: You verbally told this client that if she purchased a 55k bracelet, you'd give her a bag--just like you told Ms. Karen, didn't you?
SA: No.
Atty: So really, you sell a bag to anyone but only if they buy what you want them to, in the departments of your choosing, that make you and the company the most money, correct?
SA: No.
Atty: Nothing further.
FIN 😜
The above SA didn't say crap. He didn't have to. A halfway decent attorney takes the most recalcitrant, liplocked witness and turns them into a placeholder to ream in their main point of view. A judge/jury can then weigh this SAs responses, actions, and (most probably) sales figures/purchases of other clients whose name may or may not be redacted to see if there's a likelihood that the previous witness (who said they were told point blank told that if they bought x they could get a bag) is credible.
Hermes in turn would have the chance to rehab this witness, and put on their own more scrupulous SAs from the same store. And if you're saying this witness didn't prove tying... the nuances of what tying means, if there's a specified spend or product attached to it, and whether it applies here is exactly what the judge/jury have to determine. Again: that's THEIR job.
