This article first appeared in The Journal of Civil Litigation, a publication of the Virginia Association of Defense Attorneys. It appears here with permission.
I. Law on Preservation of Evidence
Upholding the duty to preserve evidence is of the utmost importance to a defense attorney in the early stages of litigation. The duty begins as soon as litigation is reasonably foreseeable, can last through the lifetime of the claim, and brings with it serious consequences should either party fail to meet this obligation. While this duty has long existed in some form in Virginia and is based largely on federal law, it was not codified by the General Assembly until 2019 and is still evolving. To protect clients from consequences of inadvertently failing to meet the duty to preserve evidence and to advance clients' interests by holding the opposition accountable, defense attorneys should follow developments in this area of law from all state and federal courts in Virginia.
A. Virginia State Law
In 2019, the General Assembly passed legislation codifying a duty to preserve evidence. Virginia Code section 8.01-379.1:1 burdens "any party or potential litigant" with "a duty to preserve evidence that is relevant to the reasonably foreseeable litigation." Failing to preserve evidence that is relevant to litigation may be considered spoliation and lead to significant sanctions of a party should litigation arise. However, the point at which this duty arises is not cut and dried.
To determine the point at which a party becomes burdened with preserving evidence, a court will consider "the totality of the circumstances." This consideration will focus primarily on "the extent to which the party...was on notice that specific and identifiable litigation was likely and that the evidence would be relevant." Failure to meet this burden can occur either when a party does not take reasonable steps to preserve evidence or when it has been "otherwise disposed of, altered, concealed, destroyed, or not preserved."