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 must intervene, and your case must go to trial. When your case goes to trial, you’ll need to prepare, and arguably, the most critical part of preparation is collecting evidence to submit.

However, what happens when your spouse controls 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 essential part of your case, usually done through a process known as “formal discovery,” including subpoenas, requests for the production of documents, interrogatories, and many other processes.

Nonetheless, the risk of evidence destruction remains. How do you ensure the other party doesn’t conveniently “lose” the information you need?

Simple: You legally compel them 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 using a standard tool: a “No-Spoliation” letter.

What Is a “No-Spoliation” Letter?

North Carolina family law attorneys frequently use the “No-Spoliation” letter to protect evidence. “Spoliation” is the legal term for ruining or destroying evidence, and a no-spoliation letter is essentially an order to cease any spoliation actions.

Attorneys often send these letters to parties to notify them that the evidence they seek 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 that should be preserved, including the formats in which the evidence should be preserved. This is important, particularly for binding legal contracts, government certificates, licenses, etc.

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, telling them they must preserve all evidence of their affair. This can include all communication with the spouse, including text messages, emails, phone records, hard drives, etc.

Why Send No-Spoliation Letters?

It is essential to send no-spoliation letters at the outset of some instances to notify parties 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. Suppose a party acts to destroy evidence after a no-spoliation letter has been served. In that case, the court can sanction the party who destroyed evidence, possibly subjecting them to criminal consequences.

Whether you believe your case might be resolved outside of court or you know a trial will be necessary, ensuring you are in the best position possible if and when a trial occurs is crucial.