Evidence of Bad Faith Now Required for Spoliation Sanction in Virginia

Written by Brian A. Cafritz, Esq.

In the Commonwealth of Virginia, there is no independent cause of action for spoliation of evidence. Rather, spoliation is an evidentiary sanction that helps right a wrong caused by the destruction of necessary evidence. A judge is given wide latitude in the types of sanctions that can be ordered.  Such sanctions can include fines, limiting or prohibiting testimony of a witness or other evidence, the issuance of a negative jury instruction, or even striking defenses. Because of this, Plaintiff’s attorneys regularly seek these sanctions to lessen their burden of proof. In recent years, arguments have been strongly pushed that Virginia Courts should impose spoliation sanctions not just for intentional spoliation, but also for the negligent destruction of evidence.

Those attempts came to a screeching halt last month when the Virginia Supreme Court finally settled the dispute.

The case is Emerald Point v. Lindsey Hawkins, and it is premises liability case for 4 tenants’ personal injuries caused by carbon monoxide poisoning sustained in their apartment. The poisoning was caused by the incorrect connection of the furnace flue, which resulted in carbon monoxide being vented into the tenant’s’ apartment. The tenants sued for injuries alleging faulty maintenance of the furnace and flue system.

Discovery revealed that the landlord stored the subject furnace for more than a year, but that it then disposed of it. The disposal date, however, was well before the date when Plaintiffs filed their Complaint. When the Judge was advised of the furnace’s destruction during trial, he expressly noted that nothing indicated that the destruction of evidence was in bad faith. Nevertheless, he granted an adverse jury instruction based on the defendant’s disposal of the equipment. The instruction stated:

“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. You may give such inference whatever force or effect you think is appropriate under all the facts and circumstances.”

After a large verdict for the Plaintiffs, the landlord appealed. The Virginia Supreme Court considered whether the spoliation instruction was proper given the defendant’s lack of bad faith. In doing so, the Court confirmed the rule that “remedial action by the trial court, such as granting a spoliation instruction, will not be warranted unless the party seeking the instruction has offered evidence from which the trial judge can conclude that rational jurors could find that the party failing to preserve the evidence knew, or reasonably should have known from the totality of the circumstances, that the evidence was likely to be material in probable or pending litigation.” The Court then looked to the Federal Rules of Civ. Pro. and the accompanying notes on the spoliation of electronically stored information. These rules explain that an adverse instruction is proper when evidenced is intentionally destroyed to avoid its use at trial, because one can safely assume the evidence would not have been destroyed had it been beneficial to that party. That same rationale, however, does not apply when evidence is negligently destroyed. “Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have.” See Advisory Committee Notes to Rule 37(e) (2015).

The Virginia Supreme Court found this logic persuasive, and although it was written for electronic evidence, the Court felt one rule should apply to all spoliation issues. As such, it found the trial court’s instruction improper, and it held that “evidence must support a finding of intentional loss or destruction to prevent its use in litigation before the court may permit the spoliation inference.”

This ruling is likely to minimize the strong push for spoliation sanctions in Virginia State courts. However, a determination of intentional destruction of evidence to avoid use at trial is highly fact specific, and if there is any question about motives, it is likely that discovery and maybe an evidentiary pretrial hearing will be required for a determination on this precise issue.

If you have any questions on spoliation of evidence or any matter in Virginia, attorneys at KPM LAW are available to answer them.


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