While the goal of a legal hold business process is to discharge an organization's common law duty to preserve evidence, often the unstated goal is avoidance of the dreaded adverse inference jury instruction.
An adverse inference jury instruction is a common spoliation sanction. In short, the judge in a civil trial will tell the jury that evidence was destroyed by a party . The jury is also told that it is entitled to find that the destruction was for the purpose of keeping the evidence out of the hands of the jury because the evidence was bad for the party. While court opinions often refer to an adverse inference instruction as a "lesser sanction" for lawyers and clients it is often the worst sanction. Its the worst because it often results in not only losing the case, but higher damages. No one likes a party that destroys evidence. There is a fundamental belief in the United States that destroying evidence is just plain wrong and should not be tolerated. But where did this belief come from?
For anyone curious about the origins of the duty to preserve evidence in the United States, Ralph Losey's recent "tale" of the first civil case in the world believed to give the jury an adverse instruction is a must read. See Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722).
It is all too easy to lose sight of the reasons behind why legal holds are gaining so much importance in the United States, as organizations scramble to figure out when a legal hold is required or what is a trigger event. By bringing us back to a simple tale, The Chimney Sweep Boy and the Goldsmith: the Ancient Origins of the Doctrine of Spoliation, is a very good education on the origins of the doctrine of spoliation.
To read the full tale click here.