Spoliation – The Destruction of Evidence

Spoliation is the destruction of evidence.  In divorce, this mainly centers on deletion of social media content and text messages or video stored in a party’s cell phone.  In order to prove spoliation, the party making the allegation must prove that the other party had a duty to preserve the information.  People generally understand that a duty not to destroy or delete evidence exits once litigation starts.  Courts often include a prohibition against spoliation in “standing orders” that must be attached to an original petition or counterpetition.  

A key question is, can such a duty to  preserve evidence exist prior to the start of litigation?  Yes. 

Courts have ruled that a duty to refrain from spoliation arises when a party should have reasonably known that there was a substantial chance of litigation at the time the spoliation occurred.1  Courts have also said that, “A substantial chance of litigation is more than merely an abstract possibility or unwarranted fear.”2

If spoliation is determined to have occurred, the Court may instruct that an “adverse inference” be granted against the party who committed spoliation.3  In short, the missing evidence is treated as if it would have been damaging to the case of the party who committed spoliation.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.  The firms also provides Wills and Estates and Probate services.

Note1 See, e.g., IQ Holdings, Inc. v. Stewart Title Guar. Co., 451 S.W.3d 861, 867 (Tex. App.-Houston [1st Dist.] 2014)

Note2 Id.

Note3 Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003)