Sanctions for Loss or Destruction of Evidence – SB1619

Under a new Virginia law that will go into effect July 1, 2019[1], parties to lawsuits now have a duty by statute to preserve evidence that may be relevant to litigation. The measure, SB1619, authorizes courts to punish parties and potential parties to lawsuits alike for failing to preserve, disposing of, altering, or concealing evidence that should have been preserved in anticipation of litigation (in legal terms, the “spoliation” of evidence). Determining when the duty to preserve arises will depend on all the facts and circumstances, especially the factor of when the party or potential party had notice that litigation was likely and that the evidence would be relevant. Significantly, the duty may arise even before a lawsuit is filed.[2] The statute does not impose a duty of evidence preservation on non-parties. When a party is prejudiced by the loss of potential evidence by spoliation, judges are authorized to fashion a sanction proportional to the value of the lost evidence.[3] When the party to be punished acted recklessly or with intent to deprive the other party of the evidence, however, more dramatic sanctions will be available, including dismissal of the lawsuit, entry of default judgment against the spoliator, or an instruction to jurors that they may presume the evidence would have been unfavorable to the party that lost it.[4] The anti-spoliation statute is a reaction to the Virginia Supreme Court’s holding in Emerald Point, LLC v. Hawkins[5], in which the Supreme Court reversed a jury verdict for plaintiffs injured by carbon monoxide poisoning and remanded the case for a new trial. Although the Court reversed on the ground that...