Deleting evidence vs protecting yourself. What’s legal and what’s not.

Spoliation of evidence — what courts call destroying or altering material relevant to a legal proceeding — is treated seriously. The consequences: adverse inference instructions where the judge tells the jury they can assume the deleted content was harmful to you, sanctions against your legal position, in some cases criminal exposure. The content of what you deleted stops being the issue. The act of deleting it becomes the issue.

When the duty to preserve begins

Not when you file. Not when a lawyer sends a formal letter. The duty attaches when you know, or reasonably should know, that litigation is likely. Which means: if you are already researching divorce checklists, it has probably already begun. (See: digital privacy checklist before divorce.)

You still have rights over your own data. What changes is that exercising those rights unilaterally, without understanding your preservation obligations, creates risk. The window between thinking about filing and needing legal advice on what you can and cannot delete is very short.

What counts as spoliation in practice

Communications directly relevant to the dispute. Messages, emails, call logs that relate to financial claims, custody arrangements, or whatever is being contested. If money is in dispute, communications about money are in scope. If custody is disputed, anything revealing your parenting situation or living arrangements is in scope.

Documents that contradict your filings. Financial records, photos with location metadata that place you somewhere at a specific time, calendar entries. These don’t need to live in a folder you deliberately created. They can be embedded in your photo library, your calendar sync, your email headers.

Social media content. Posts, comments, anything publicly accessible that is relevant to claims in the proceeding. Courts have required production of private social media content in cases where relevance is established. The platform’s privacy setting has no bearing on that. (See: judges are using your Instagram posts.)

What you can legitimately do

Securing access going forward is not evidence destruction. Changing passwords, revoking shared account access, enabling two-factor authentication: these protect you from ongoing surveillance without touching anything that already exists.

Moving to secure communications for future conversations is not evidence destruction. Using Signal or Proton Mail going forward creates no preservation obligation for communications that haven’t happened yet. (See: assume your devices are already compromised.)

Removing yourself from data broker sites is not evidence destruction. It closes exposure to public information about your address and contact details. It has no effect on anything relevant to proceedings.

The line, stated plainly: protecting what hasn’t happened yet is fine. Destroying what already exists and is relevant to an anticipated dispute is spoliation. The line runs through legal advice, not through what feels reasonable under pressure at 2am.

Frequently asked questions

What is spoliation of evidence?

The destruction, alteration, or failure to preserve material that is relevant to a legal proceeding. Consequences include adverse inference instructions — where the court tells the jury to assume the deleted material was harmful to you — sanctions, and in some cases criminal liability.

Can I delete text messages during a divorce?

Not safely, without legal advice specific to your situation. If those messages are relevant to claims in the proceeding, and the duty to preserve has already attached, deleting them creates spoliation risk that is worse than whatever the content might show. Speak to a lawyer before deleting anything connected to the dispute.

There’s no perfect setup. Anyone selling you perfect is selling fear. The goal is simple: make yourself a harder target than the person next to you.