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From time to time, I will write about laws in Virginia that help shape our civil justice system and significant changes to them by the Virginia Legislature and signed into law by Governor Ralph S. Northam. As the 2019 legislative session concluded about a week ago, there are two bills that were passed by the legislature that address gaps in the law which will ultimately be helpful to those seeking justice in the Virginia Courts. The bill I will focus on this week addresses the need to preserve evidence in a civil matter.

Senate Bill SB 1619: Establishes a duty to preserve evidence.

This bill (not yet signed by the Governor but expected to be by March 23) establishes that parties to a pending lawsuit or a potential litigant (i.e. a person or entity with knowledge of a claim or potential claim) have a duty to preserve evidence that may be relevant to the pending or future litigation. “Spoliation” is the term used to describe when a party fails to preserve such evidence. Spoliation of evidence has long been recognized as a serious issue as it deprives a litigant of evidence that may be helpful to his or her case and as such frustrates the ability to obtain justice. Before passage of SB1619, there was a body of case law addressing spoliation but no clear cut agreement on how it was to be addressed.

SB1619 recognizes that spoliation of evidence can occur either unintentionally (i.e. the accidental deletion of emails) or intentionally (intentionally deleting emails after being instructed to preserve them). In situations where the court finds the spoliation was unintentional and the loss of the evidence prejudices the other party in pursuing his or her case, the Court is to take action limited to that needed to correct the prejudice. An example would be preventing the offending party from offering testimony on the issue to which the now unavailable evidence would have applied. In situations where the Court finds the spoliation of evidence was intentional and the offending party acted recklessly or with intent to prevent the other party from using the evidence, the Court can impose three possible remedies:

  1. The Court may assume the evidence was unfavorable (or negative) to the party who committed spoliation.
  2. The Court will instruct the jury that it may or shall assume the evidence was unfavorable to the offending party.
  3. The Court can dismiss the action if the offending party is the plaintiff or enter default judgment against the defendant if he or she were the offending party.

It is to be noted that SB1619 does not create a separate cause of action for the spoliation of evidence.

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