Spoliation of Evidence (AKA Preservation of Evidence)

So, you are contemplating litigation or have recently commenced litigation and you think the opposing party has information that will make your case an easy win.  What do you do?  You send them a spoliation letter.  With the advent of the internet there is potentially a gold mine of information that exists that can help you win your case.

SO WHAT DOES ALL THIS HAVE TO DO WITH EVIDENCE AND FAMILY LAW?

In North Carolina, there exists a permissive adverse inference that a party has information that is relevant to a forthcoming lawsuit and that information would be detrimental to the noticed party's case.  In order for a party to qualify for the permissive adverse inference, and potential award of sanctions, he/she must show that the opposing party was on notice that litigation was pending and expected.  How do you put someone on notice to not destroy evidence?      

SPOLIATION LETTER

Let's say a spouse's attorney believes that a separation agreement will not be worked out and the only other option to resolve pending issues is to file a lawsuit.  The attorney may send what is called a "spoliation letter".  A typical spoliation letter will instruct the other party that they are on notice that litigation is expected and they are to refrain from destroying or deleting any information that may be pertinent to expected litigation.  The letter should be specific and encompass all social media posts, physical documents, emails, writings, and any communications whether made digitally or physically.  Laying out what will happen if the other party ignores you is always a good idea.  

SO, WHAT HAPPENS IF I DO DESTROY EVIDENCE?

Remember that adverse inference discussed earlier?  Well, a Judge or jury (if jury trial) will have the option to consider the evidence that was destroyed and can, but are not required, to infer that it was not favorable to the party that destroyed it.  The other potential penalty would be sanctions against the party deemed to have destroyed evidence that should have been preserved.  North Carolina Pattern Jury Civil Instruction 101.39 is going to be used to instruct a jury as to spoliation of evidence and that they are allowed to infer that the evidence existed if they choose. 

EXCEPTION

Keep in mind that if both parties have equal access to the information at issue, then no permissive adverse inference arises and the documents do not have to be preserved.  

*Nothing in this blog post shall be deemed to have established an attorney-client relationship.  This is for educational purposes only and should not be construed to be legal advice.