Posted on February 4, 2021

Preservation And Destruction of Evidence In An Illinois Divorce

Every divorce litigant ends up realizing that a massive amount of their divorce is devoted to discovery. Discovery is the accumulation of relevant information which either gives a party peace of mind or gives a party evidence to use in a trial later. Either way, information must be exchanged to resolve a divorce case.

When relevant information for a divorce case goes missing or is destroyed, it is a problem for the divorce case in general and the person responsible for that evidence in particular.

What happens when evidence is missing or destroyed in an Illinois divorce case?

Purposely missing or destroyed evidence is called “spoliation of evidence

What Is Spoliation Of Evidence

Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu[ally] a document.” Black’s Law Dictionary (11th ed. 2019). “If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible.” (Id.)

Evidence cannot be destroyed, mutilated, altered or concealed because it MAY be requested.

“Full Disclosure Required. Except as provided in these rules, a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201(b)(1)

Possible relevant evidence includes emails, Facebook posts, and cell phone data.

“The word “documents,” as used in Part E of Article II, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4).” Ill. Sup. Ct. R. 201(b)(1)

These documents can be requested…if they exist and are in the possession of the other party.

A party is only required to tender documents they are have in their “possession”. “A party served with the written request shall (1) identify all materials in the party’s possession responsive to the request and copy or provide reasonable opportunity for copying or inspections.” Ill. Sup. Ct. R. 214.

Wait? What? You do not have to turn over documents in a divorce case that you don’t have? This is no excuse to simply destroy the evidence so you no longer have the evidence they requested.

Spoliation of evidence is not a crime and it is also not a tort (a civil wrong). “[I]n a spoliation of evidence case, the plaintiff must plead the existence of a duty, a breach of that duty, an injury proximately caused by the breach, and damages.” Dardeen v. Kuehling, 801 N.E.2d 960 (Ill. App. Ct. 2004)

Instead, “An action for negligent spoliation can be stated under existing negligence law without creating a new tort.” To state a cause of action for negligence, a plaintiff must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages. 

The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill. 1995) (Citations Ommitted)

So, if evidence is destroyed, whether on purpose or not, the other party can sue the evidence destroyer under the negligence theory of torts.

“Boyd set out a two-prong test. Under the first prong, a spoliation plaintiff must demonstrate that at least one of the circumstances outlined in Boyd exists. Under the second prong, the plaintiff must show that the duty extends to the specific evidence at issue by demonstrating that a reasonable person in the defendant’s position should have known the evidence would be material to potential civil litigation. If the spoliation plaintiff does not satisfy both prongs of the test, there is no duty to preserve the evidence at issue.” Jones v. O’Brien Tire and Battery, 871 NE 2d 98 – Ill: Appellate Court, 5th Dist. 2007

So, if the other party destroyed evidence, now you have two lawsuits: the divorce and the tort. What a hassle! Luckily, there are alternative means to enforce the appropriate preservation of evidence in an Illinois divorce court.

Sanctions For Destruction Of Evidence In An Illinois Divorce

The more practical method of enforcing preservation of evidence is to threaten sanctions for the failure to preserve evidence.

“[A] potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence. This duty is based on the court’s concern that, were it unable to sanction a party for the presuit destruction of evidence, a potential litigant could circumvent discovery rules or escape liability simply by destroying the proof prior to the filing of a complaint.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 121 (Ill. 1998)

“[A] trial court [has] authority to impose a sanction…for the destructive testing of evidence” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)

The power of an Illinois divorce court to sanction someone who breaks ANY rule regarding discovery and evidence is extremely broad.

“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision…of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:

(i) That further proceedings be stayed until the order or rule is complied with;

(ii) That the offending party be debarred from filing any other pleading relating to any issue to which the refusal or failure relates;

(iii) That the offending party be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue;

(iv) That a witness be barred from testifying concerning that issue;

(v) That, as to claims or defenses asserted in any pleading to which that issue is material, a judgment by default be entered against the offending party or that the offending party’s action be dismissed with or without prejudice;

(vi) That any portion of the offending party’s pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to that issue; or

(vii) That in cases where a money judgment is entered against a party subject to sanctions under this subparagraph, order the offending party to pay interest at the rate provided by law for judgments for any period of pretrial delay attributable to the offending party’s conduct.

In lieu of or in addition to the foregoing, the court, upon motion or upon its own initiative, may impose upon the offending party or his or her attorney, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred as a result of the misconduct, including a reasonable attorney fee, and when the misconduct is willful, a monetary penalty.” Ill. Sup. Ct. R. 219

If there’s an order to preserve evidence, the evidence must be preserved. But, just because there is no current order, that doesn’t mean a party can just begin destroying inculpating evidence.

“[Parties] are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence.” Graves v. Daley, 526 NE 2d 679 – Ill: Appellate Court, 3rd Dist. 1988

Each particular divorce judge will consider the appropriate sanction for destroying evidence based on the particular facts of their case.

Without an order. The court should know that the opposing side had notice to preserve evidence (beyond their own common sense). A discovery request should be sufficient but discovery doesn’t always start immediately in a divorce case nor is every discovery request so broad as to include all possibly soon-to-be-destroyed evidence.

So, a simple letter asking the other party to preserve all possible relevant evidence under Illinois Supreme Court Rule 201.

The court will then consider all discovery orders, discovery requests and related correspondence in their decision to impose sanctions for destroyed evidence.  

[A] party is not automatically entitled to a specific sanction just because evidence is destroyed or altered. Rather, a court must consider the unique factual situation that each case presents and then apply the appropriate criteria to these facts in order to determine what particular sanction, if any, should be imposed.” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 127 (Ill. 1998)

The intent to destroy is not the crucial issue. What is important is how crucial the destroyed evidence could have been to the other party’s case.

“[W]hen crucial information or evidence is destroyed, the offending party’s intent becomes significantly less germane in determining a proper sanction. A showing that plaintiff’s noncompliance was reasonable does not hinge on intent; the critical issue is how important the undisclosed material was to the opposing party.” Farley Metals, Inc. v. Barber Colman Co., 269 Ill. App. 3d 104, 111 (Ill. App. Ct. 1994)

The court can even presume that the missing evidence would have weighed heavily in the other party’s favor, thus creating an adverse inference if “(1) the evidence was under the control of the party and could have been produced through the exercise of reasonable diligence; (2) the evidence was not equally available to the adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed the evidence to be in his favor; and (4) no reasonable excuse for the failure has been shown.” Jenkins v. Dominick’s Finer Foods, Inc., 288 Ill. App. 3d 827, 831 (Ill. App. Ct. 1997)

If you’re worried that your spouse is destroying evidence that you will need to use in your divorce trial, you must begin sending spoliation letters, issuing discovery and entering discovery orders immediately. Contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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