Spoliation of Evidence
Spoliation of evidence cases arise most often in premises liability and product liability cases. In particular if a potential defendant is in possession of evidence, whether it be photographic, documentary or some other type of evidence, that bears directly on how the incident occurred and that defendant intentionally loses or destroys the evidence in order to prevent its use in litigation then the court may allow the other party to present a spoliation of evidence instruction to the jury. That spoliation of evidence instruction typically would allow the jury then to conclude that the evidence would have been harmful to that party where that party intentionally failed to preserve the evidence in order to prevent its use in either pending or reasonably probable litigation Emerald Point, LLC, et al. v. Lindsey Hawkins, et al. 808 S.E.2d 384 (2017).
Spoliation of Evidence Instruction Given In Limited Cases
The Emerald Point case marks a departure from what had seemingly been the prior law in Virginia dealing with spoliation of evidence. The prior standards for a spoliation instruction were seemingly more relaxed to allow such an instruction to be given when the conduct was not intentional but simply negligent. That is, if a party negligently destroyed the evidence then that may have been sufficient to allow a spoliation instruction to be given allowing the jury to then conclude that the evidence would have been adverse to that party.
One issue that probably should be considered in looking at instances of spoliation of evidence is who benefits from the spoliation. Such an analysis to some extent begs the issue because without the actual original evidence there is a gap in knowledge and as such typically it can’t be determined who may benefit. It certainly is conceivable however that in some instances the plaintiff may have benefited from the destruction of the evidence. If the defendant does not benefit from the loss of the evidence and/or there is no detriment to the plaintiff from the loss of the evidence it seems that those are factors that should at least be considered by the court.
Typically it is the defendant who has the evidence and destroys it, but not always. If the evidence has been destroyed by a plaintiff who should have known that the evidence is critical and who should have known that a claim is at least possible then that may be a consideration as to whether or not the claim can even go forward or should be governed by an adverse instruction against the plaintiff.
The spoliation issue is especially compelling in light of Virginia Rule 2:1002 which says that “To prove the content of a writing, the original writing is required except as otherwise provided in these rules, Rules of the Supreme Court of Virginia or in a Virginia statute”. As such at least in regard to documentary evidence there is a strong preference for preservation of the original. Rule 2:1004 says that the original is not required and other evidence of the content of a writing is admissible if all originals are lost or have been destroyed unless the proponent lost or destroyed them in bad faith. This latter rule however does not relieve the proponent of the document from still proving the document is authentic and true.
Spoliation of Evidence Cases
In the case of Starr Whitlow Robey v. Richmond Coca Cola Bottling Works, Incorporated, 192 Va. 192 (1951) the evidence was that a damaged carton remained in the possession of the defendant after the plaintiff’s injury. The plaintiff confirmed with the defendant thereafter that the carton was still in the defendant’s possession. The carton was eventually destroyed however when it was believed that the plaintiff’s injuries were superficial and that there was no reason to expect a lawsuit. The court concluded that the existence of the carton would not have thrown any additional light on how the injury occurred and as such there was no basis for a spoliation instruction.
In Gentry v. Toyota Motor Corporation, 252 Va. 30 (1996) the plaintiff’s expert witness removed parts of a vehicle in a product liability action. That was done without the consent or knowledge of the plaintiff or plaintiff’s attorney. The trial court punished the plaintiff by dismissing the case. The Supreme Court held that was an abuse of discretion since the sanction did not punish the wrongdoer but rather punished the plaintiff. In addition the plaintiff’s current theory of the case was unrelated to the part of the vehicle that was destroyed.
The Emerald Point case mentioned above involved an instance where the plaintiff was injured as a result of alleged faulty maintenance of a natural gas furnace which resulted in carbon monoxide poisoning. The injury occurred on November 26, 2012. The old furnace was removed from the plaintiff’s apartment on January 4, 2013 and was disposed of approximately a year later. The defendant was not reasonably on notice that the furnace was likely to be the subject of litigation in discarding the furnace and was not acting in bad faith with any deliberate intent to deprive the plaintiff of its use at trial.
The Virginia Supreme Court’s application of a standard requiring proof that the party intentionally failed to preserve the evidence in order to prevent its use at trial is going to be a high bar to meet. If the destroying party has any reasonable excuse as to why the evidence was lost or destroyed then that probably is going to be sufficient to defeat a spoliation of evidence instruction.