Preserving Evidence Using "No-Spoliation" Letters

While most couples who can work together and negotiate with each other will try to avoid court using mediation or alternative resolution methods, these aren’t necessarily right for everyone. Sometimes a North Carolina Family Court judge needs to intervene and your case needs to go to trial. When your case goes to trial, you’ll need to prepare, and arguably the most important part of preparation is collecting evidence to submit. However, what happens when your spouse is in control of a particularly important piece of evidence? Could they theoretically destroy it, thus preventing you from being able to use it to advance your case?

Collecting evidence from the other party and third parties is an important part of your case, one which is usually done through a process known as “formal discovery,” including subpoenas, requests for production of documents, interrogatories, and many other processes. Nonetheless, the risk for evidence destruction remains. How do you make sure the other party doesn’t conveniently “lose” this information that you need?

Simple: you legally compel them to by serving notice that you wish to use that evidence in your case. This imposes a legal duty to preserve and not destroy this evidence. This is done through the use of a common tool: a “No-Spoliation” letter.

What Is a “No-Spoliation” Letter?

North Carolina family law attorneys will frequently use “No-Spoliation” letter as their preferred method for protecting evidence. “Spoliation” is the legal term for the act of ruining or destroying evidence, and a no-spoliation letter is essentially an order to cease any and all spoliation actions.

Attorneys often send these letters to parties in order to notify them that the evidence you are seeking will be requested in the discovery process and that they should not destroy any relevant evidence. These letters include a general identification of the evidence which should be preserved, including what formats the evidence should be preserved in. This is important, particularly for things like binding legal contracts, government certificates, licenses, and much more.

For example, in an alienation of affection and criminal conversation case, a Charlotte family law attorney might send a letter to a spouse’s paramour, serving them notice that they must preserve all evidence related to their affair. This can include any and all communication with the spouse, including text messages, emails, phone records, hard drives, and the like.

Why Send No-Spoliation Letters?

It is important to send no-spoliation letters at the outset of certain cases to put parties on notice of their duty to preserve evidence as soon as possible. But what happens if they choose to “ignore” The letter and simply destroy the evidence anyway? Well, to put things simply, nothing good for them. If a party acts to destroy evidence after a no-spoliation letter has been served, the court can sanction the party who destroyed evidence, possibly even subjecting them to criminal consequences.

Whether you believe your case might be resolved outside of court or you know trial will be absolutely necessary, it is important to make sure you are in the best position possible if and when a trial occurs.