You should not delete or destroy evidence that may be material to a lawsuit, including a divorce, even if the evidence is bad for your case. The legal concept is called "spoliation." Spoliation refers to:
- the destruction,
- material alteration, or
- the failure to preserve for another's use
evidence in a pending or reasonably foreseeable litigation. This rule may seem counterintuitive, but it is the law in Oklahoma and most states. There are several reasons why getting rid of evidence is a bad idea.
Destroying Evidence is Illegal
You have a legal duty to preserve evidence related to your case, even if it is evidence that you may not want to use for your own claim or defense. If you delete or alter evidence, the judge may impose sanctions against you. You may be required to pay the other side's attorney fees. The judge may impose an "adverse inference" against you, which means finding that the missing evidence would have been good for the other side and bad for you. The value of your legal claims may be diluted or dismissed altogether.
You Cannot Fully Predict What Evidence Will be Good or Bad for You
Many legal claims and lawsuits are based on human error or misconduct. Someone, possibly you, made a mistake. When it becomes clear that there was a misstep, it is a natural reaction to feel anxiety or even panic, and those feelings are detrimental to your judgment and decision-making ability.
If you make rash decisions and try to delete or manipulate evidence, you may actually make your situation much worse. For example, if you say something negative in an electronic message and then delete the message out of fear that it may be used against you, it is possible that the other side will claim that you said things much worse than what you actually said, and you will not have any proof to give context or to show that they are exaggerating. "Bad" evidence may end up proving something different than you may even be able to imagine. A traffic ticket for reckless driving could be good evidence to show where you were (and where you weren't) at a specific time. You cannot fully predict the value or quality of your information, so you should preserve it to protect yourself.
Trial is about credibility. Judges and juries are constantly evaluating who they can trust. Witnesses and lawyers often lose credibility by making misstatements about collateral or side issues that don't have anything to do with the critical issues in the case. Spoliation is one way that can happen. You could cause unnecessary harm to your legal position by simply failing to keep evidence about what happened.
How to Deal with Bad Evidence
Work with a qualified trial lawyer. Show them everything. Rules of confidentiality and privilege completely protect your conversations with your lawyer. Talk to your trial lawyer about your bad evidence. You may learn that what you perceive as harmful may be irrelevant, neutral, or even good evidence for your situation. By taking ownership of the evidence and addressing it appropriately, you may be able to give mitigating context for it while simultaneously enhancing your credibility for your case.