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What is a Litigation Hold Letter in a Divorce Case?

Posted by Furman & Zavatsky | Dec 27, 2018

Any divorce legal proceeding in the State of California will require evidence to prove the case. A litigation hold letter is a legal document that will require you or an entity to preserve all documents and information that could relate to pending legal action. It's commonly known as a “preservation order,” or “stop destruction request, ” and its primary purpose is to keep all relevant evidence safe.

Litigation Hold Letter in California Divorce

If you receive a litigation hold letter during a Los Angeles County divorce proceeding, you will have specific legal responsibilities to follow. It's important to take the litigation hold letter seriously. A litigation hold letter during a divorce process will typically arrive after the initial filing of the Petition for Dissolution of Marriage in California.

If your spouse hired a divorce lawyer, they will normally issue this type of letter immediately. It's a notification of the anticipation of future litigation and it will provide certain written instructions you are mandated to follow. Essentially, the instructions will let you know that you must preserve all electronic data, documents, and other types of records that might potentially be used for evidence in the upcoming divorce case.

The relevant information it's asking to preserve includes computer hard drives, medical records, paper documents, pictures, videos, emails, texts, voicemails, calendars, thumb drives, contracts, internet files, among other items. The hold letter will describe the scope of the litigation based on the facts of your divorce case. It should be noted you don't have to save every single piece of paper you might possess, but you are required not to destroy any evidence that might be relevant to your case.

If you have any questions before you delete anything or throw something away, you need to speak with our Los Angeles divorce and family law attorneys at Furman & Zavatsky LLP as there are significant penalties for what the Los Angeles County family court deems to be the destruction of evidence. Don't expose yourself to potential liability and sanctions.

Preserving Evidence is Necessary in Family Law Cases

If you are litigating a family law issue, such as how to divide assets in a divorce or custody of a minor child, then evidence will be necessary to ensure your family's assets are fairly distributed and you receive sole or joint custody of your child. But it is often the case that crucial evidence is not in your possession. If your spouse has possession of important evidence, such as bank records, it becomes necessary to ensure that those records are made available for the legal proceeding.

As stated above, a litigation hold letter is issued by an attorney upon the opposing party to demand that evidence be preserved for the impending legal proceeding. Failure to preserve evidence is sanctionable in the State of California, and the litigation hold letter is a warning to the other party that if they fail to preserve evidence, we will seek punishment through the court.

Duty to Preserve Evidence

In Los Angeles County, if a party becomes aware of an impending lawsuit or has reason to believe a lawsuit might arise, that party has a duty to preserve any evidence that might be related to the lawsuit. The idea is that the courts want to prevent parties to a possible legal case from destroying unfavorable evidence before the other party has an opportunity to perform discovery. It is in the justice system's best interest to have all relevant evidence available for review by the court in a legal proceeding. Destruction of evidence is also referred to as spoliation. Stiff penalties exist for destroying evidence when there is an impending lawsuit.

Penalties for Destroying Evidence

If a party has reason to believe a lawsuit is impending, or if a lawsuit is already in progress, then penalties will be imposed if that party destroys evidence to prevent it from being reviewed by the opposing party, the courts, and the jury. The following penalties exist for spoliation:

  • Criminal Penalties. The California Penal Code Section 135 makes it a misdemeanor to knowingly destroy evidence. It is also a misdemeanor to alter, conceal, or falsify evidence. A misdemeanor is a criminal offense in the State of California and, therefore, a criminal case can ensue.
  • Jury Instructions. If a party destroys evidence, the court can direct that the jury consider that the destroyed evidence would have been unfavorable to that party's position. The California Civil Jury Instruction 204 (“Willful Suppression of Evidence”) states: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” If the matter ultimately goes to trial, this can be a powerful response to the other party's destruction of evidence.
  • Tort Remedies. California courts have also found tort liability for against a party who has destroyed evidence to their benefit. This can be found in the case Smith v. Superior Court (1984) 151 Cal.App.3d 491. A tort claim can be made against the party who has destroyed the evidence by impairing your opportunity to recover against that party in the legal proceeding.

You should protect yourself from these risks above by taking the litigation hold letter seriously and get organized. You need to get your home and electronic devices in proper order for the divorce proceedings ahead. You also need to figure out what potential evidence you have and how you will need to get it to your spouse or their divorce lawyer.

Our Los Angeles divorce attorneys can help you consult with IT specialist to protect electronic data involved in the hold order. Keep all relevant documentation stored safely somewhere. You need to consider responding to the litigation hold letter. Our family law lawyers can help you with a letter that will specifically describe the steps you are taking to preserve the relevant evidence.

It's important to note there might be some wiggle room for negotiation on the terms of the letter. Our divorce and family law lawyers have experience helping people navigate a divorce related litigation hold letter in Los Angeles County.

Operation of a Litigation Hold Letter

Once you are contemplating a legal proceeding, such as divorce or child custody, then it is important to speak with an attorney, such as our Los Angeles family law and divorce attorneys, so that we may issue litigation hold letters upon all parties who may have evidence. This will ensure that evidence is preserved, and if it is not, it will open up the opposing party to penalties for destroying evidence.

We will further determine all parties that should be instructed to preserve evidence. Not only will the opposing party be instructed to preserve evidence, but also any third parties that may have evidence, such as financial institutions, family members, schools, etc. If during the course of our discovery process, we have reason to believe evidence has been destroyed, we will bring the destruction of evidence to the attention of the court so that the offending party is properly sanctioned.

Contact our Los Angeles Divorce and Family Law Attorneys

If you are contemplating filing a legal proceeding such as a divorce or child custody matter, it is important that evidence be preserved. Our Los Angeles divorce lawyers can guide you through the legal process including sending out litigation hold letters to make sure evidence favorable to your position does not get destroyed before trial. Contact our law firm at 818-528-3471 to ensure important evidence does not get destroyed.

Furman & Zavatsky LLP
Los Angeles Divorce and Family Law Attorneys
15821 Ventura Blvd #690 Encino, CA 91436

Related Resources:
Los Angeles County Family Law Courthouses

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Call a Los Angeles Divorce Lawyer

Family law disputes have the potential to have a significant impact on your quality of life and overall happiness. As a result, it is critical for you to protect your rights to the fullest extent possible when involved in a dispute related to family law. The lawyers of Furman & Zavatsky have the skill and experience to resolve your case as favorably as possible and provide compassionate and understanding legal counsel and representation. We also offer flat fee legal services for divorce and family law issues.

To schedule a free consultation with one of our Los Angeles divorce attorneys, call our office today at 818-528-3471. Read our blog on how to prepare for your first meeting with a divorce lawyer.

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