Spoliation of Evidence
My Spouse is Hiding and Destroying Electronic Evidence. What Should I Do?
In a family law context, the litigants are required to fully disclose all information related to finances. Evidence may not be destroyed. For example, Spouse A accused Spouse B of being intoxicated in front of the children. Spouse A knows Spouse B’s drunken escapade was captured on the Ring Camera. Spouse B destroys the Ring Camera footage.
Destroying the footage is spoliation of evidence. It’s not a typo – it’s spoliation, not spoilation.
Definition of Spoliation
California courts define spoliation as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
The destruction of evidence relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.
Obligation to Preserve Evidence
For an adverse inference to arise from the destruction of evidence, the party having control over the evidence must have had an obligation to preserve it when it was destroyed. California statutes specifically require that certain recordings be preserved when they constitute evidence in any claim filed or pending litigation until such litigation is resolved. Cal. Gov. Code § 26202.6
Criminal Penalties for Evidence Destruction
California law establishes criminal liability for intentional evidence destruction. A person who knowingly destroys evidence about to be produced in a legal proceeding with intent to prevent its production is guilty of a misdemeanor. Cal. Pen. Code § 135.
Civil Sanctions for Spoliation
California Code of Civil Procedure provides courts with broad sanctioning authority for misuse of the discovery process, including spoliation. Courts may impose monetary sanctions requiring payment of reasonable expenses and attorney’s fees, issue sanctions establishing designated facts or prohibiting support of claims or defenses, evidence sanctions prohibiting introduction of designated matters, and terminating sanctions including dismissal or default judgment. Cal Code Civ Proc § 2023.030.
Requirements for Adverse Inferences
Under California law, adverse evidentiary presumptions as sanctions for failure to preserve evidence are only appropriate if the trier of fact concludes the evidence was intentionally destroyed. The party seeking the benefit of a spoliation inference must demonstrate that records were destroyed with a culpable state of mind and that the destroyed documents were relevant to the party’s claim or defense.
Spoliation as Discovery Abuse
California treats spoliation as a serious form of discovery abuse that undermines the fairness and justice of legal proceedings. The conduct is condemned because it increases the risk of erroneous decisions and litigation costs as parties attempt to reconstruct destroyed evidence. Spoliation constitutes misuse of the discovery process subject to comprehensive sanctions. Cal Code Civ Proc § 2023.030.
What Should Your Attorney Do?
Notify your attorney if you believe there is evidence to be preserved, including but not limited to social media, computer data, browser history, Ring Cameras, and other security systems, smart watch data, and even Roomba cameras.
Your attorney will send a notice to the other side to preserve evidence or face potential sanctions. Parties must carefully consider their preservation obligations once litigation is pending.
Contact an attorney who is well-versed in requesting and acquiring electronically stored data. Look for future BLOGS on the best way to present data to the Court.
Contact Us for a free consultation for your San Diego Family Law Matter.
