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Are those texts actually deleted?

On Behalf of | Jul 26, 2022 | Divorce

The Congressional investigation into the events on January 6, 2021, has yielded a wealth of information about who did what and said what on the day. Witnesses provided much of this information, but investigators have also sought or subpoenaed data, papers and electronic evidence. So it was with the Secret Service details protecting the president and vice president, but they responded that the texts sent by agents on that day might have been wiped from their devices in a system migration.

The messages may not be lost, whether it is a person deleting texts or emails from their phone or accounts or because of system migration. Quite the opposite – the average person’s messages are recoverable regardless of whether the device is destroyed or the messages were deleted, particularly if the government, law enforcement or the courts want that information.

Of course, it can take time and effort by experts in digital forensics and data recovery. Still, the average person should assume that anything sent electronically will be saved somewhere, no matter how thorough the sender or recipient is in deleting the messages.

According to experts, deleting messages, photos or files does not eliminate them. Instead, it makes the deleted file space available for the operating system to copy new files on top of the old ones. So they remain until a time when the device’s memory gets so full that it must overwrite the old files. Even then, investigators can still recover the old files written over.

What’s this have to do with divorce?

It is increasingly common, especially in divorces that are contentious or involve valuable assets. Suppose one side suspects the other is not being truthful in sharing financial information or not forthright on some other key issue. In that case, the spouse may be able to recover the data or get a forensic report, which shows how and when information was altered – this is called “spoliation” (deliberate destruction) of evidence.

It is best to be careful

While it is tempting, deleting or altering evidence is easy to detect. Moreover, the attempt alone implies that there was a need to hide something. Conversely, the suspicious spouse must be careful not to violate all applicable laws. Those with questions about digital evidence or a spouse who acts suspiciously during divorce can consult with an experienced divorce attorney to determine the most effective approach to address the concerns.