I hear a lot about clearing Web browser history or replacing the computer’s hard drive when going through a divorce in case there might be incriminating information about affairs, financial misconduct, etc.
Can I do this without being punished or would this be considered spoliation of evidence?
Generally, spoliation of evidence refers to the intentional or negligent destruction of evidence. Texas (where I practice) does not recognize spoliation of evidence as an independent tort, but instead as an evidentiary issue. Thus, a court may impose a remedy for the non-spoliator.
Under Texas law, a court will look at whether there was a duty to preserve evidence, whether the alleged spoliator either negligently or intentionally spoliated evidence, and whether such spoliation prejudiced the non-spoliator’s ability to present its case or defense.
Please also keep in mind that Texas courts have the ability to impose a variety of sanctions on a party for spoliation of evidence because it is an abuse of the discovery process. In other words, yes, you can be punished for the intentional destruction of evidence.
I recommend seeking further legal advice as the information provided is only general in nature. Cordell & Cordell has attorneys licensed and located nationwide who can provide a more in-depth analysis of your current situation.