Preserve, Don’t Delete Anything
Video Transcribed: Let’s talk about preserving evidence. What are your duties if you are in possession of evidence that could potentially come up in family court? My name is Brian L. Jackson. I am a father’s rights attorney in Tulsa, Oklahoma here with Dads.Law, where fathers are not disposable, and I want to talk to you guys today about preserving evidence.
There is a principle in evidence law called spoliation, and spoliation is, is basically if you destroy evidence, if you allow evidence to degrade or be destroyed when you could have prevented it, that is potentially a negative against you. It can lead to negative consequences. It could lead to discovery sanctions and other potential problems for you in court. The big one is that the court may very well draw a negative inference from your refusal to preserve the evidence or refusal to turn the evidence over, so one of your duties with evidence is to preserve it.
In other words, if there are social media posts that would be relevant, then don’t delete them. If you have texts that might be relevant, don’t delete them. Back it up. Keep it somewhere safe. Even if you don’t think it’s helpful to you, you probably still have to preserve it. Now, that doesn’t necessarily mean that you have to turn it over to the other side, although you may. If it becomes subject to a discovery request that’s not objectionable discovery request, then you do have to turn it over, but you definitely want to preserve it. If you get a discovery request for a particular piece of evidence that you don’t want to turn over, then it may be objectionable, or it may not be objectionable. It depends on what the evidence is. It depends on the nature of the request. If you get a request for communications you’ve had with your lawyer, clearly those are privileged. That’s not discoverable.
On the other hand, if it’s what you posted on your Facebook wall while you were out at the bar, that is probably discoverable. The fact that it’s damaging to you doesn’t mean that it’s necessarily objectionable, and you cannot delete that just because, “Oh, well it’s going to hurt me.” If you do, it’s evidence spoliation, and it could be a problem, particularly if it’s subject to a discovery request. What it basically means is, if you know you’re headed into litigation, don’t destroy evidence. Do preserve it, and you should preserve things even if you think it’s not particularly important.
Major things to be aware of, are messages between you and any other parties that could potentially be involved in the litigation or between you and your children, photographs of any kind of incidents or anything around the time of the alleged incident, financial records, social media posts, journals, calendars, those sorts of things are the kind of things you see requested a lot in discovery. Emails are less commonly used. People usually text, but it’s there. Any of that kind of stuff, videos, any of that kind of stuff, you have a duty to preserve it.
If it’s something that you don’t want to turn over, talk to your lawyer. They may be able to come up with an objection to keep it out, but you should never destroy it. Medical records are another thing that’s discoverable, potentially. Psych records are potentially discoverable. Again, you should not be destroying these things to try to keep them out of the hands of your ex. If they’re trying to get you to turn over something that you don’t want to turn over, that’s where you get a lawyer.
Get your lawyer to object if there is a reasonable objection. Otherwise, you’re just going to have to figure out a way to deal with it, but that’s how you handle that. You don’t destroy evidence because that’s not going to help you, and it could potentially lead to monetary sanctions or a negative inference against you in court. If you have any questions about that, then you need to consult with a good lawyer, and one place you can find a good Tulsa family law attorney is at Dads.Law, where fathers are not disposable.
