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Spoliation: Is Bad Faith Required for an “Adverse-Inference” Instruction?

March 15, 2018 By David D. Das

In Emerald Point, LLC v. Hawkins (December, 2017), the Virginia Supreme Court was faced with the following question: Can a trial court properly give a spoliation instruction to the jury, permitting an adverse inference where there was no “bad faith” associated with the loss of the evidence.

The textbook definition of spoliation is the failure to preserve and/or the destruction of evidence.  It can occur when a party: (1) is aware of pending or probable litigation; (2) is in control or has possession of evidence involved in the pending/probable litigation; (3) destroys or fails to preserve such evidence; and (4) such destruction or failure to preserve interferes with/ disrupts the other party’s case. 

Emerald Point, LLC involved a premises liability action brought by four co-tenants of an apartment against the property manager and the owner.  The tenants sued for damages caused by carbon monoxide exposure brought on by the faulty maintenance of the furnace and ventilation system. The furnace was removed from the tenants’ apartment and placed in maintenance storage on January 3, 2013.  It remained in storage for over a year and was then disposed of. Disposal occurred well before plaintiffs filed their suit, which was on November 13, 2014.

If a trial court finds that spoliation occurred, it has the option to grant a spoliation jury instruction, which is what happened in this case.  The jury instruction allows the jury to infer that the destroyed evidence, had it been available, would be detrimental to the case of the disposing party.  The trial court added that the defendant “did nothing in bad faith” in disposing of the furnace.  At the close of trial, the jury rendered verdicts for the plaintiffs and defendants appealed claiming multiple assignments of error, including that the trial court erred in granting the adverse jury instruction.  The Virginia Supreme Court agreed.

The Supreme Court ultimately held that: “the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation before the court may permit the adverse spoliation inference.” 1 Adverse-inference instructions were created on the premise that a party’s intentional destruction/loss of evidence to prevent use in litigation raises a reasonable inference that the evidence was unfavorable to the destroying party.  Such an inference is not warranted by negligent behavior.

Thus, when evidence is lost or destroyed in the course of usual practice, with no bad faith, the Emerald decision should prevent a spoliation instruction being given to the jury. 

The Court noted that the advisory notes to Federal Rule of Civil Procedure 37(e)(2)(B) provided guidance.