Virginia's March Toward Adopting the Federal Spoliation Rules

From The Journal of Civil Litigation, Published Quarterly by the Virginia Association of Defense Attorneys, VOL. XXXI, NO. 1, Spring 2019. It appears here with permission.

For more than one hundred years, Virginia courts have recognized the issue of spoliation of evidence and have struggled to dole out proportionate punishment for a party that destroys or fails to preserve evidence. In December 2015, Rule 37(e) of the Federal Rules of Civil Procedure was revised to make explicit the consequences of failing to preserve electronically stored information, making the federal spoliation analysis and potential punishment thereof much easier for courts and parties alike to navigate. Two years later, the Supreme Court of Virginia arguably issued its most significant decision regarding spoliation in the case of Emerald Point, L L C v. Hawkins, which set off legislative efforts to “correct” the Court’s new spoliation standards. This article examines the evolution in the treatment Virginia courts have given spoliation and considers where the courts and law may be headed in the future.


Virginia courts have recognized the concept of spoliation for well over a century. In Neece v. Neece, the Supreme Court stated that “[i]n general, a party’s conduct, so far as it indicates his own belief in the weakness of his cause, may be used against him as an admission” and that such “falsehood is a badge of fraud, and a case which is sought to be supported by means of deception may prima facie, until the contrary be shown, be taken to be a bad and dishonest case.” In addition, the Court noted that “[c]oncealing or destroying material is likewise admissible; in particular the destruction (spoliation) of documents as evidence of an admission that their contents are as alleged by the opponents.”

The Supreme Court of Virginia evaluated a defendant’s alleged failure to pre-
serve evidence almost forty years later in Blue Diamond Coal Co. v. A istrop, when after an accident in a coal mine, a body was found in a room that had been
exposed to poisonous gas. Read full article.