Virginia: Special Cases – a Lawyer’s Spoliation

Virginia: Special Cases – a Lawyer’s Spoliation

Senate Bill 1619 was passed by Virginia’s General Assembly in 2019, and becomes Va. Code §8.01-379.2:1 effective July 1, 2019. It establishes that a party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation. It further provides that the court: “(i) upon finding prejudice to another party from such loss, disposal, alteration, concealment, or destruction of the evidence, may order measures no greater than necessary to cure the prejudice, or (ii) only upon finding that the party acted recklessly or with the intent to deprive another party of the evidence’s use in the litigation, may (a) presume that the evidence was unfavorable to the party, (b) instruct the jury that it may or shall presume that the evidence was unfavorable to the party, or (c) dismiss the action or enter a default judgment.”