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Spoliation of Evidence

Fairfax Injury Lawyer Brien Roche Addresses Spoliation of Evidence Cases

Brien Roche

Spoliation of evidence issues can arise in any case.   If a person has evidence that bears directly on how an incident occurred he has a duty to use care to preserve it. At least if it is likely the incident may result in litigation.

2019 Statute

Virginia has addressed this issue in Code section 8.01-379.1. This statute says where a person has such evidence fails to take reasonable steps to preserve it and the other party is prejudiced then the court may craft a cure. If the loss is due to reckless or intentional conduct then it may be presumed the evidence was not favorable. In addition the court has the power to dismiss or enter a default in extreme cases.

Emerald Point

Prior to this statute being passed the Virginia Supreme Court had spoken on the issue. Where a person loses or destroys evidence in order to prevent its use in litigation the court may allow a spoliation instruction.  That instruction would allow the jury then to conclude that the evidence would have been harmful to that party. This applies where that party intentionally failed to preserve the evidence in order to prevent its use.  Emerald Point, LLC, et al. v. Lindsey Hawkins, et al. 808 S.E.2d 384 (2017).

Spoliation of Evidence Instruction Is Limited

The Emerald Point case marked a departure from what had been the prior law in Virginia.  The prior standards for a spoliation instruction were more relaxed. They allowed 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 enough to allow a spoliation instruction. This would allow the jury to conclude that the evidence would have been adverse to that party. Call, or contact us for a free consult.

Who Benefits

One issue that should be considered in instances of spoliation is who benefits.  Such an analysis may beg the issue. Without the original evidence there is a gap in knowledge. As a result it may not be possible to determine who benefits.  However this is a factor to be weighed.

Quite often it is the defendant who has the evidence and loses or destroys it.  If the evidence has been destroyed by a plaintiff that may be a factor as to whether the claim can even go forward. Or perhaps it should be governed by an adverse instruction against the plaintiff.

Preference for Original

This issue is compelling in light of Virginia Rule 2:1002. This rule 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”.  In regard to documents there is a strong preference for the original.  However Rule 2:1004 says that the original is not required. Other proof of the content of a writing is admissible if all originals are lost or have been destroyed. This is so unless the proponent lost or destroyed them in bad faith.  However this latter rule 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 its possession.  However the carton was destroyed when it was believed that the plaintiff’s injuries were superficial. At that point 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. As such there was no basis for a spoliation instruction.

Gentry

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. The sanction did not punish the wrongdoer. Rather it punished the plaintiff.  In addition the plaintiff’s theory of the case was unrelated to the part that was destroyed.

The Emerald Point case mentioned above involved a plaintiff injured as a result of alleged faulty maintenance of a gas furnace. This caused carbon monoxide poisoning.  The injury occurred on November 26, 2012.  The old furnace was removed from the plaintiff’s apartment on January 4, 2013. It 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 the defendant was not acting in bad faith. There was no deliberate intent to deprive the plaintiff of its use at trial.

The Virginia Supreme Court’s applied a standard requiring proof of intentionally failing to preserve the evidence. This must be done to prevent its use at trial. This is a high bar to meet.  Any reasonable excuse as to why the evidence was lost or destroyed probably defeats the basis for a spoliation instruction under this case.

However this case is now superseded by the statute referenced above. This statute now sets the standard.

Call, or contact us for a free consult. For more information on spoliation of evidence see the pages on Wikipedia. Also for info on personal injury see the pages on this site.

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Spoliation of Evidence

Fairfax Injury Lawyer Brien Roche Addresses Spoliation of Evidence Cases

Brien Roche

Spoliation of evidence issues can arise in any case.   If a person has evidence that bears directly on how an incident occurred he has a duty to use care to preserve it. At least if it is likely the incident may result in litigation.

2019 Statute

Virginia has addressed this issue in Code section 8.01-379.1. This statute says where a person has such evidence fails to take reasonable steps to preserve it and the other party is prejudiced then the court may craft a cure. If the loss is due to reckless or intentional conduct then it may be presumed the evidence was not favorable. In addition the court has the power to dismiss or enter a default in extreme cases.

Emerald Point

Prior to this statute being passed the Virginia Supreme Court had spoken on the issue. Where a person loses or destroys evidence in order to prevent its use in litigation the court may allow a spoliation instruction.  That instruction would allow the jury then to conclude that the evidence would have been harmful to that party. This applies where that party intentionally failed to preserve the evidence in order to prevent its use.  Emerald Point, LLC, et al. v. Lindsey Hawkins, et al. 808 S.E.2d 384 (2017).

Spoliation of Evidence Instruction Is Limited

The Emerald Point case marked a departure from what had been the prior law in Virginia.  The prior standards for a spoliation instruction were more relaxed. They allowed 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 enough to allow a spoliation instruction. This would allow the jury to conclude that the evidence would have been adverse to that party. Call, or contact us for a free consult.

Who Benefits

One issue that should be considered in instances of spoliation is who benefits.  Such an analysis may beg the issue. Without the original evidence there is a gap in knowledge. As a result it may not be possible to determine who benefits.  However this is a factor to be weighed.

Quite often it is the defendant who has the evidence and loses or destroys it.  If the evidence has been destroyed by a plaintiff that may be a factor as to whether the claim can even go forward. Or perhaps it should be governed by an adverse instruction against the plaintiff.

Preference for Original

This issue is compelling in light of Virginia Rule 2:1002. This rule 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”.  In regard to documents there is a strong preference for the original.  However Rule 2:1004 says that the original is not required. Other proof of the content of a writing is admissible if all originals are lost or have been destroyed. This is so unless the proponent lost or destroyed them in bad faith.  However this latter rule 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 its possession.  However the carton was destroyed when it was believed that the plaintiff’s injuries were superficial. At that point 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. As such there was no basis for a spoliation instruction.

Gentry

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. The sanction did not punish the wrongdoer. Rather it punished the plaintiff.  In addition the plaintiff’s theory of the case was unrelated to the part that was destroyed.

The Emerald Point case mentioned above involved a plaintiff injured as a result of alleged faulty maintenance of a gas furnace. This caused carbon monoxide poisoning.  The injury occurred on November 26, 2012.  The old furnace was removed from the plaintiff’s apartment on January 4, 2013. It 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 the defendant was not acting in bad faith. There was no deliberate intent to deprive the plaintiff of its use at trial.

The Virginia Supreme Court’s applied a standard requiring proof of intentionally failing to preserve the evidence. This must be done to prevent its use at trial. This is a high bar to meet.  Any reasonable excuse as to why the evidence was lost or destroyed probably defeats the basis for a spoliation instruction under this case.

However this case is now superseded by the statute referenced above. This statute now sets the standard.

Call, or contact us for a free consult. For more information on spoliation of evidence see the pages on Wikipedia. Also for info on personal injury see the pages on this site.

Contact Us For A Free Consultation

Contact Us For A Free Consultation