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Virginia Supreme Court Provides Clarity on Spoliation – Evidence of Bad Faith Required

August 5, 2020

While most people were enjoying some holiday downtime, the Virginia Supreme Court made a very important ruling in Emerald Point LLC v. Hawkins that will impact many areas of civil litigation.  On December 28, 2017, the justices overturned a $4.1 million verdict in favor of apartment tenants harmed by carbon monoxide poisoning and remanded the case back to the trial level.

An old gas furnace linked to the carbon monoxide issues was stored by the landlord in a maintenance area for over a year before it was ultimately thrown away (well before the tenants’ suit was filed).  Despite noting that there was no evidence of bad faith in the landlord’s actions, the trial judge permitted the following jury instruction on spoliation: “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 10 appropriate under all the facts and circumstances.” 

The landlord’s appeal found error in the trial court’s instruction since there was no evidence that the landlord acted in bad faith in disposing of the furnace.  Virginia’s highest court accepted the appeal and noted this case of first impression as to whether a spoliation instruction allowing the jury to make a permissible inference that the missing evidence would have been unfavorable to the party charged with its preservation is appropriate where there is no “bad faith” associated with the loss of the evidence.  After finding the Federal Court Rules of Civil Procedure regarding spoliation of electronic evidence persuasive, the Court noted that the reasoning the federal court rule should be applied to all evidence in Virginia.  The Court held the party requesting the spoliation instruction must present evidence of intentional loss or destruction of evidence in order to prevent its use in litigation before a court may permit the spoliation inference.  The Court noted that to allow such a severe sanction when a party has only negligently destroyed evidence is “neither just nor proportionate.”  As expected, the Court also noted that the determination is highly fact specific and that the totality of the circumstances must always be considered.

This clear guidance on spoliation is a relief to litigators who have been forced to evaluate potential spoliation issues with an abundance of caution given the lack of case law on this specific issue.  This decision will help to protect the inadvertent actor while still punishing a party with nefarious intent.