Spoliation and the Requirement to Preserve Evidence

Whether you are involved in a divorce proceeding or a child custody matter, litigation is often an emotional and intrusive experience. It can be made even more so through the discovery process, when you are required by the court’s rules of procedure to provide numerous types of documents to the opposing party and to the Court. If you have text messages, e-mails, or other documents that re relevant to your legal matter, then it is likely that you will need to share that evidence as part of the discovery process – and it is important that this evidence is not destroyed.

What Happens to Text Messages, E-Mails and Photos in Court?

You may be required to share documents with the opposing party in response to a Request for Production of Documents, a Deposition Notice, or a trial Subpoena. While there are surely documents that you would prefer that your spouse or the court not see (i.e. a disparaging text message, an embarrassing photograph, a receipt for an excessive purchase), you will still be required to comply with the court’s rules as to discovery and evidence, which mandate that you produce all relevant documents within your possession, custody, or control. While you may have a strong desire to prevent certain documents from ever seeing the light of day, the consequences of doing so may be end up being worse than disclosing the documents.

There is a concept under the law known as “spoliation”, which is the intentional destruction of evidence. If a judge finds that a party has intentionally destroyed a discoverable document (e-mail, text message, or otherwise), the judge has broad authority to impose sanctions against the party responsible for the destruction. The court’s sanctions may be financial in nature, with the imposition of attorney’s fees and expenses, or the sanctions may have substantive legal consequences, resulting in the dismissal of claims or allowing the fact finder to draw an inference as to the content of destroyed documents. The requirement to preserve documents applies not only to physical documents, but also to records and data that is maintained electronically, whether by you, or by a third party on your behalf.

In their consideration of claims of spoliation of evidence, the Court will look at whether: (1) there was an act of destruction; (2) the evidence was discoverable; (3) there was an intent to destroy the evidence; and (4) occurrence of the act was at a time after suit has been filed, or, if before, at a time when the filing is fairly perceived as imminent. Cumberland Insurance Group v. Delmarva Power, 226 Md.App 691 (2016). The fourth prong of the Court’s test is important to note, because spoliation sanctions may be imposed if a document is destroyed even before litigation has started.

Be Proactive

In Maryland, custody and child support are always subject to modification. With this in mind, it is important to preserve evidence even after your case has concluded. If your child is under the age of 18 and has not yet graduated from high school, it is possible that you could find yourself back before the Court on a modification of child support or custody. The day to day communications between you and your co-parent could be the very evidence that would make or break your future case. In divorce, the communications or documentation that is produced follow your divorce hearing may be relevant in the future in enforcement proceedings should either party fail to comply with the Court’s Orders.

Even if you believe there are documents in your possession, custody, or control that may be detrimental to your case, do not destroy or dispose of the evidence. It is important you bring those concerns to the attention of an attorney, rather than risk sanctions from the court. An attorney will be able to advise you about your concerns, and discuss a strategy going forward to address and mitigate any potential issues. If you are concerned that your spouse will attempt to destroy documents relevant to your case, there are steps that can be taken to put your spouse, or the custodian of relevant records, on notice that litigation is imminent and that they have a duty to preserve all evidence going forward.