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 the trial court had allowed the plaintiffs’ expert to testify on matters that had not been properly disclosed pretrial[6], the Court also examined a spoliation issue that was likely to arise again upon retrial. The defendant landlord had removed the offending natural gas furnace from the plaintiffs-tenants’ apartment shortly after they were poisoned by carbon monoxide gas, and the furnace was stored in a maintenance bay for more than a year before being disposed of before the complaint was filed. Although there was no evidence that the missing furnace had been disposed of in bad faith, the plaintiffs argued that it would have been material evidence, and the trial court gave an adverse inference instruction to the jury that “If a party has exclusive possession of evidence which a party knows, or reasonably should have known would be material to a potential civil action and the party disposes of that evidence, then you may infer, though you are not required to do so, that if that evidence had been available it would be detrimental to the case of the party that disposed of it.” [7] The Supreme Court, looking to federal appellate cases interpreting Federal Rule of Civil Procedure Rule 37(e), ruled that an adverse inference instruction may only be given when the court finds “an intentional loss or destruction of evidence in order to prevent its use in litigation,” and not for merely negligent spoliation.[8]

Although the Emerald Point defendants settled before retrial and before passage of the anti-spoliation statute, Va. Code § 8.01-379.2:1, the new law, will promote honesty and integrity in the judicial process and permit the severe sanction of an adverse inference instruction upon a showing of reckless spoliation—a lower degree of culpability than under the Federal Rules and precedent. Other, less profound sanctions will be available to Virginia trial courts for merely negligent spoliation, provided the sanction is proportional to the loss of evidence considering all the facts and circumstances. Although the statute states a duty of evidence preservation in anticipation of litigation and during the lawsuit, it does not provide an independent cause of action for negligent or intentional spoliation.[9]

Although the Emerald Point defendants settled before retrial and before passage of the anti-spoliation statute, Va. Code § 8.01-379.2:1, the new law, will promote honesty and integrity in the judicial process and permit the severe sanction of an adverse inference instruction upon a showing of reckless spoliation—a lower degree of culpability than under the Federal Rules and precedent. Other, less profound sanctions will be available to Virginia trial courts for merely negligent spoliation, provided the sanction is proportional to the loss of evidence considering all the facts and circumstances. Although the statute states a duty of evidence preservation in anticipation of litigation and during the lawsuit, it does not provide an independent cause of action for negligent or intentional spoliation.[9]

Spoliation issues can arise in all kinds of litigation at the trial court level and may affect any type of potential evidence, such as automobiles, traffic control devices, paper documents, electronic documents, social media postings, photographs, videos, medical devices, faulty products, etc. Counsel for any potential party to a reasonably foreseeable lawsuit should advise their client of the need to preserve evidence—even evidence that may be unfavorable to their claim or defense—, lest they suffer the penalty of its preventable spoliation.

Thomas M. Hendell, Esquire has a general civil litigation practice with a focus on medical malpractice and personal injury.


[1] To be codified as Virginia Code Section 8.01-379.2:1.

[2] Va. Code § 8.01-379.2:1(A).

[3] The “court . . . may order measures no greater than necessary to cure the prejudice . . . .” Id. at sub-§ (B)(i).

[4] Id. at sub-§ (b)(ii).

[5] 294 Va. 544, 808 S.E.2d 384 (2017).

[6] 294 Va. at 555, 808 S.E.2d at 390-91 (citing John Crane, Inc. v. Jones, 274 Va. 581, 650 S.E.2d 851 (2007) and Mikhaylov v. Sales, 291 Va. 349, 784 S.E.2d 286 (2016)).

[7] 294 Va. at 555-56, 808 S.E.2d at 390-91.

[8] 294 Va. at 558-59, 808 S.E.2d at 392-93.

[9] Va. Code § 8.01-379.2:1(C).

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