You need evidence to win your product liability or car accident lawsuit, prove entitlement to workers compensation benefits, or negotiate a reasonable settlement of your insurance claim.
But how do you meet your burden of proof when there is missing evidence because the defendant has destroyed, lost, or altered it – negligently or intentionally?
This article answers questions about spoliation in tort claims: the legal term for the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
Follow these steps to increase the likelihood that the evidence you need will be available at trial. Or, if the other side has lost or destroyed the evidence, persuade the court to give an adverse inference jury instruction that helps you get a higher verdict.
Although this article focuses on when the spoliation doctrine applies to the destruction or alteration of evidence in Virginia, the same principles discussed apply in many other jurisdictions.
Keep reading to learn more.
And contact us for help with your personal injury claim. See why other attorneys and past clients have named us some of Virginia’s best attorneys in workers comp, disability, traumatic brain injury, motor vehicle crashes, and construction accidents.
Black’s Law Dictionary (11th Edition) defines spoliation as the intentional destruction, mutilation, alteration, or concealment of evidence.
Spoliation interferes with a party’s ability to investigate the facts to determine potential causes of action (or defend against claims and lawsuits).
If you prove the opposing party failed to preserve evidence it should have, you can use this failure to establish that the missing evidence was unfavorable to that party.
And the judge, jury, or Workers Compensation Commission may use this inference to rule in your favor on liability, damages, or compensability.
Yes.
Plaintiffs (those filing the lawsuit or bringing a claim) and defendants must preserve evidence.
Although this article focuses on how accident victims can get a spoliation inference against defendants, courts have given jury instructions unfavorable to plaintiffs when the plaintiff lost, altered, or destroyed evidence.
For example, manufacturers often raise spoliation of evidence arguments in crashworthiness claims where the plaintiff (or their expert witness) destroyed the automobile. Similarly, one Virginia court levied sanctions against a plaintiff and his attorney for removing photographs from a social media profile and not producing them in discovery.
Yes.
Virginia law recognizes a spoliation or missing evidence inference.
Specifically, the evidentiary inference, sometimes called a presumption of fact, says that when one party has within its control material evidence and does not offer it, there is an inference that the evidence would have been unfavorable to it.
Put a different way: Proof of the first fact (that the party had evidence but lost, destroyed, or altered it) permits the judge or jury to find the second fact (that the evidence would have hurt the party’s case).
This missing evidence inference, however, does not compel the judge or jury to find the destroyed evidence harmful to the party that lost or altered it.
Federal and state courts in Virginia can punish a party for failing to preserve evidence. Their authority to do so, however, comes from different sources.
Three sources give Virginia state courts the power to sanction a party for failing to preserve evidence. But these sources differ from those granting authority to federal court judges.
First, the Virginia General Assembly passed a law governing the destruction of evidence in 2019.
This statute, Code Section 8.01-379.2:1, codifies when the spoliation doctrine applies and what courts may do to remedy the loss or destruction of evidence.
Second, the common law (past judicial opinions) suggests situations where a court may find spoliation and what sanctions are appropriate.
Third, civil procedure rules give courts and administrative tribunals the power to sanction a party for failing to preserve evidence it should have or violating a court order regarding discovery.
For example, the Rules of the Workers Compensation Commission and the Supreme Court of Virginia give deputy commissioners and judges the power to punish a party for violating an order regarding the preservation of evidence.
Two sources of federal law give federal district courts the authority to sanction a party that intentionally destroys or alters evidence or fails to preserve it.
First, the United States Supreme Court has held that a federal court has the inherent power to control the judicial process and litigation and redress conduct that abuses the judicial process.
Second, a party’s spoliation violating a court order regarding pretrial discovery may result in sanctions under the Federal Rule of Civil Procedure (FRCP) 37.
Violating a court order opens the door to spoliation sanctions.
A party must preserve material and relevant evidence when litigation is reasonably foreseeable. This duty to save evidence extends during the litigation.
The mere existence of a disagreement does not automatically mean that a party should reasonably anticipate litigation or that the duty to preserve evidence arises.
Instead, the court will consider all the circumstances to determine when a party first had the duty to preserve the evidence, including:
However, a court will find a party’s duty to preserve evidence triggered when you send a spoliation of evidence letter to that party. Pre-lawsuit communications between the litigants, including settlement demand letters, provide constructive notice that litigation is likely.
So send a spoliation letter by certified mail to other parties, attorneys for those parties, involved insurance companies, and potential witnesses to help you win a spoliation motion in the future.
The type of lawsuit you bring determines the evidence you and potential defendants should preserve to avoid a spoliation allegation that harms the claim or defense.
But I recommend saving the following items if litigation is possible:
You must prove the following elements to win a motion for sanctions for spoliation in Virginia:
Once you make a threshold showing of destruction, the other party must prove that the alteration or destruction of the evidence did not prejudice you. To defeat the spoliation motion, the other party must persuade the court that there is no reasonable possibility that the missing evidence would produce evidence favorable to your claim.
The court has broad discretion to determine the proper sanctions for a party’s failure to preserve evidence.
The extent of this discretion depends on what court presides over your case and the opposing party’s conduct.
For example, in state courts in Virginia, the judge can only “order measures no greater than necessary to cure the prejudice” unless they find the party “acted recklessly or with the intent to deprive another party of the evidence’s use in litigation.”
Upon a finding of bad faith, the court may do the following:
Generally, the more evidence you provide showing the other party’s guilt and intent to deprive you of your legal rights, the more punitive the sanction levied by the court.
Other spoliation sanctions may be available, including evidence preclusion, attorney fees and costs assessed against the party that destroyed evidence, or remittitur (where the judge lowers the jury verdict).
No bright-line rule governs the deadline for moving for spoliation sanctions.
But courts will consider many factors to assess the timeliness of spoliation motions. And ultimately, how soon you file a spoliation motion after learning of it has a significant influence on the ruling.
You should move for sanctions during the pretrial discovery phase or within days of discovery closing. Waiting until the deadline for summary judgment motions or the trial starts increases the court’s likelihood of rejecting your position.
Many states, including Virginia, have declined to recognize a separate tort claim for spoliation against a litigant (first party) or a third party.
Indeed, Virginia has held that an employer does not have a duty to preserve evidence for an injured employee investigating a potential third-party civil action against a product manufacturer.
In most tort actions, the defendant has a greater risk of losing or destroying relevant evidence.
If the defendant fails to preserve evidence that could help you win your claim, move for discovery sanctions and an adverse inference jury instruction. Doing so will likely increase the claim reserves and scare the adjuster into offering a better auto accident or workers comp settlement.
You can handle procedural and evidentiary issues alone while healing, hoping you defeat the team of claims adjusters and insurance defense attorneys. Or, you can call our firm to start building your case: 804-251-1620 or 757-810-5614.
We look forward to working with you.