                                 CODE OF VIRGINIA

SPOLIATION OF EVIDENCE (§ 8.01-379.2:1)

A. A party or potential litigant has a duty to preserve evidence that may be
relevant to reasonably foreseeable litigation. In determining whether and at
what point such a duty to preserve arose, the court shall include in its
consideration the totality of the circumstances, including the extent to which
the party or potential litigant was on notice that specific and identifiable
litigation was likely and that the evidence would be relevant.

B. If evidence that should have been preserved in the anticipation or conduct of
litigation is lost because a party failed to take reasonable steps to preserve
it, or is otherwise disposed of, altered, concealed, destroyed, or not
preserved, and it cannot be restored or replaced through additional discovery,
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&#8217;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.

C. Nothing in this section shall be interpreted as creating an independent cause
of action for negligent or intentional spoliation of evidence.

HISTORY: 2019, c. 732.