Liability
Spring 2018

Virginia Supreme Court Addresses Elements Necessary for a Spoliation of Evidence Inference at Trial

In a case of first impression decided December 28, 2017, the Virginia Supreme Court clarified the requirements for a spoliation of evidence jury instruction where there is no “bad faith” associated with the loss of evidence.  In doing so, the court reversed a verdict for the plaintiff and remanded the case for a new trial.

Spoliation of evidence occurs when a party is aware that litigation is pending or probable involving evidence in the party’s possession or control, and the destruction or failure to preserve the evidence will adversely affect the opposing party’s ability to prove its claims at trial.  If the court finds spoliation of evidence has occurred, it may take various remedial measures depending on the severity of the situation.

In Emerald Point, LLC et al. v. Lindsey Hawkins, et al., the plaintiff tenants alleged that they suffered carbon monoxide exposure as a result of the defendant landlord’s failure to properly maintain the furnace, vents, and flues, resulting in serious bodily injuries.  They filed suit in Virginia Beach Circuit Court for negligence in 2014.

The old furnace that was in place when the carbon monoxide was first discovered was removed from the plaintiffs’ apartment and stored for more than one year.  It was later disposed of before the plaintiffs’ filed suit.  The court agreed to give an instruction to the jury on spoliation of evidence that, “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 the jury may infer that the evidence would be detrimental to the case of the party that disposed of it.

 The jury found in favor of the plaintiffs.  The defendant appealed the decision on several grounds, including an objection to the instruction on spoliation of evidence that was given to the jury at trial.  The defendant argued that such an instruction was not warranted, as it was not reasonably on notice of the litigation at the time the furnace was disposed of.  Second, the defendant questioned whether any relief for spoliation of evidence was appropriate without an express finding that it had acted in bad faith in disposing of the furnace.

The Virginia Supreme Court held that “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 spoliation inference.”  Negligent destruction of evidence is not sufficient to warrant an inference of spoliation of evidence.  Therefore, the trial court erred in giving a spoliation of evidence jury instruction without an express finding that the furnace was intentionally discarded.

This decision is a welcome one, as it raises the bar for a spoliation of evidence inference at trial and avoids penalizing a party that may negligently, but without bad faith, discard or destroy evidence when there is a possibility of litigation.

2018 Legal Technology Trends

The start of a new year brings with it reflections as well as predictions.  Here’s a brief look at some of the technology trends expect to impact the legal world and improve outcomes for clients.

  1. Big data and e-discovery: The use of computer technology in the discovery process continues to evolve. It’s expected that in 2018 big data algorithms will become more mainstream, allowing a wide range of businesses, including law firms, to run more efficiently. Specifically, algorithms with predictive analytics can be used to reduce the costs of document review in e-discovery.
  1. Blockchain: The technology behind Bitcoin is expected to find application in other industries as well. Because Blockchain is impossible to hack or forge, it is used to track financial assets.  It is also being used in the so-called “smart contracts” – electronic contracts that utilize the technology to verify and store a user’s signature rather than physically signing a paper contract or clicking various confirmation buttons on an electronic contract.  The technology is expected to be of great use in the financial, healthcare, and insurance industries.  For more about Bitcoin, please see our article from F&P’s Mind Your Own Business newsletter.
  1. Internet of Things: Experts estimate that approximately 8 billion “things” worldwide are now Internet connected, from cell phones and smartwatches to refrigerators and wireless printers.  Electronic personal assistants such as Amazon Echo and Google Home are also becoming more mainstream.  It is possible that data from an appliance or wearable electronic device will become a prevalent source of evidence in litigation.