In principle there is nothing inherently wrong about defining documents that you have a legal duty to preserve as records if, given your available tools and controls, it makes it easier to meet your legal duty to preserve evidence.  However, it is well worth remembering that the legal duty is to preserve relevant evidence -- and that evidence may include documents and records as well as a "bloody glove".  If one reads through spoliation cases one will find a number of them deal with automobile accidents where one of the parties is sanctioned for not preserving a vehicle involved in the accident.  Such vehicles are clearly evidence but I do not think I would see them as either a record or a document.

The following is something I found in a very useful reference "Destruction of Evidence", by Jamie S. Gorelick, Stephen Marzen and Lawrence Solum (Aspen Publishers).

The authors of this work point out that one of the earliest recorded spoliation cases was Armory v. Delamirie (1722). In this case a chimney sweep found what he thought was a gemstone and brought it to a jeweler for valuation.  The jeweler subsequently refused to return the stone and refused to produce it at trial.  The judge directed the jury to "presume the strongest against [the jeweler] and make the value of the best jewels the measure of their damages."  So we have had adverse inference for something like 3 1/2 centuries but it does not always involve records or documents.


David B. Gaynon
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Huntington Beach CA, USA

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