Protecting Your Organization: Rules on Attorney Contact with Employees

Wednesday, September 17th, 2025

In Virginia, there is an ethical rule that prohibits attorneys that are representing a client from speaking about the subject of representation with another person that is represented by another attorney for that matter.[1]  For example, say Employee A has hired Attorney A to represent her in a claim against Organization B before the Virginia Workers’ Compensation Commission (“Commission”).  The rule prohibits Organization B’s attorney from talking about the claim with Employee A without either Attorney A’s presence or permission, i.e. Organization B’s attorney could not have an ex parte communication with Employee A.

But what about the reverse?  Does Attorney A have to go through Organization B’s attorney to speak about the claim with every individual associated or employed with Organization B?  The answer is no, but there are categories of individuals associated with Organization B where Attorney A must go through Organization B’s attorney.

Along with the ethical rules that attorneys must adhere to in Virginia, there are comments that help attorneys in interpreting and applying the ethical rules in various cases.[2]  One of the comments to the rule on ex parte communications between attorneys and represented parties deals specifically with represented organizations.[3]  Prior to January 6, 2021, that comment to the rule indicated that it was prohibited for an attorney to communicate with the “organization’s ‘control group’ as defined in Upjohn v. United States, 449 U.S. 383 (1981).”[4]  Essentially, if an organization’s employee could bind the organization based on their status or position, then an attorney could not have an ex parte communication with that employee.[5]

However, the comment on ex parte communications between attorneys and represented parties was rewritten and adopted on January 6, 2021.[6]  The rewritten comment expanded the class of employees that attorneys cannot have ex parte communications with from individuals in the organization’s “control group” to three categories of individuals that either (1) supervise, direct, or regularly consult with the organization’s attorney concerning a represented matter; (2) have authority to obligate the organization with respect to a represented matter; or (3) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.[7]  Additionally, the employee must still be employed by the organization.[8]

The employees of an organization who use to fit into the definition of “control group,” e.g. officers, directors, and managers, will most likely always fit into of these new three categories, particularly the second or third, based on their inherent authority and the possible imputation of their acts or omissions to the organization.[9]  But, depending on the facts and circumstances of a claim before the Commission, other employees may or may not fit into one of these categories.[10]

Going back to the above example, say another employee, Employee C, who has no managerial duties witnessed the accident where Employee A was injured.  Employee C would most likely not fit into one of the rule’s three categories, so Attorney A would most likely be able to have ex parte communications with Employee C.[11]

However, say a third employee, Employee D, who also has no managerial duties caused in the course of his duties the accident that injured Employee A.  Employee D could possibly fit into the third category of the rule since his act may be imputed to Organization B for civil liability, so Attorney A would likely have to go through Organization B’s attorney to communicate with Employee D.[12]

While the updated comment to the rule provides help in determining whether an attorney is prohibited from ex parte communications with an employee, the analysis to reach this determination can still be tough.  In going through this analysis, there are two questions that can help: (1) does this employee have access and knowledge of privileged communications between the organization and the organization’s attorney that might be revealed in an ex parte communication; and (2) can the statements of this employee in an ex parte communication bind the organization to certain actions regarding a claim before the Commission?  If the answer is yes to either one, the employee is likely one that an attorney prohibited from having ex parte communications.

So what does it mean if an attorney can have an ex parte communication with a particular employee?  In dealing with this issue under the previous version of the comment to the rule, the Commission stated that the organization and its attorneys had to turn over the names, addresses, telephone numbers, and dates of employment to the employee and his attorney that filed a claim so that the employee’s attorney could talk with each of those employees without the presence or permission of the organization’s attorney.[13]  However, in a later case, the Commission ruled that an employer had to turn over this information with respect to employees that worked in close physical proximity and time to the employee that filed a claim.[14]

Therefore, if an employer organization is facing a claim from an employee and is asked to provide contact information from potential witnesses as part of discovery, it is essential to do an analysis under the rule to see whether the organization has to turn over certain employee-witness information.  The employee-claimant’s attorney might not be able to speak with certain employee-witnesses without the presence or permission of the organization’s attorney.

[1] Va. Rule of Professional Conduct 4.2.
[2] See generally Va. Rules of Professional Conduct.
[3] Comment 7 of Va. Rule of Professional Conduct.
[4] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006) (citing the Note to Rule 4.2 that dealt with represented organizations).
[5] See id.
[6] See Va. Rule of Professional Conduct 4.2.
[7] Comment 7 of Va. Rule of Professional Conduct 4.2.
[8] Id.
[9] See id.
[10] See id.
[11] See id.
[12] See id.
[13] See Nava v. Hanover Country Club, VWC File No. 223-30-02 (Mar. 7, 2006).
[14] See Lynch v. VC Health Sys. Auth., VWC File No. VA000-0017-7807 (Sept. 30, 2010).

When Words Cross the Line: Lessons from a $1 Million Defamation Verdict

Monday, September 15th, 2025

In July 2022, a former Virginia state senator, Brandon Bell, and his wife, Deborah Bell, sent a letter on state Senate letterhead accusing a 15-year-old Cave Spring High School student of sexually assaulting their daughter. Three years later, a Roanoke County jury ruled that the Bells’ accusations were not only false but defamatory per se, and awarded the plaintiff, Jane Doe, $1 million in damages plus pre-judgment interest.

Background: The dispute traces back to 2021, when Jane Doe, then a high school sophomore, and the Bells’ daughter, began a same-sex relationship after meeting in band. Both testified that the relationship involved kissing, hugging, and hand-holding, but no sexual activity.

The Bells’ daughter eventually disclosed the relationship to her parents, who instructed their daughter to break off the relationship. A few weeks later, the Bells’ daughter reported to them that Jane Doe had touched her back because her hands were cold, and Jane Doe had kissed her without asking for consent.

The Bells reported these events to the school principal as sexual assaults. But when the principal spoke to the Bells’ daughter, she did not corroborate the sexual assault allegations and admitted that she had lied to her parents about continuing the relationship with Jane Doe. The principal relayed that information back to the Bells.

Despite this, four months later the Bells drafted a letter, sent on Mr. Bell’s retired Senate letterhead, accusing Jane Doe of sexually assaulting his daughter “on two occasions” at their high school. He copied the entire Roanoke County School Board, the state superintendent of education, the secretary of education, and several state legislators. Jane Doe filed suit for defamation, defamation per se and insulting words.

Defamation Per Se:  Virginia recognizes certain categories of false statements as defamation per se, including false allegations of (1) a crime of moral turpitude; (2) contagious diseases; (3) related to a person’s fitness to perform their job; or (4) that directly harm the person’s ability to earn a living in their profession or trade.

A crime of moral turpitude is a crime involving lying, cheating, or stealing or a crime that is punishable by imprisonment or an act otherwise base and vile and against community standards. The Court ruled that false allegations of sexual assault are defamatory per se – thus damages were presumed.

Jane Doe nonsuited the defamation and insulting words claims and proceeded only on the defamation per se claim.

Qualified Privilege: One of the central legal questions was whether the Bells’ communications were shielded by the qualified privilege. Virginia law recognizes a privilege when a person makes a statement to others who share a corresponding interest or duty in the subject matter — in this case, parents communicating with school officials about their child’s welfare.

The Court ruled that the Bells’ letter initially qualified for this protection.

A plaintiff can overcome the privilege by proving by clear and convincing evidence that the defendants abused the privilege. The defendants abuse the privilege when they make the statement (1) knowing it was false or with a reckless disregard for the truth; (2) to additional persons having no interest or duty in the subject matter; (3) in bad faith; (4) with unnecessarily insulting words or strong language disproportionate to the circumstances; or (5) out of personal ill will, spite or hatred.

At trial, the two main issues on liability were whether the sexual assault allegations were false and whether the Bells abused the privilege. In making the first determination, the jury relied on “the common understanding” in the community. The evidence showed that the cold hand on the back incident was not sexual in nature, and was a joke rather than an intentional, unwanted touching. The evidence also showed that while Jane Doe did not ask permission to kiss the Bells’ daughter, they had previously kissed and the Bells’ daughter wrote Jane Doe a note a couple days before the kiss, saying she could not wait to kiss Jane Doe again.

The evidence also showed that the Bells had no information to suggest either incident was a sexual assault and the principal informed them that their daughter had confessed to lying about continuing the relationship. The Bells never took their daughter to the police until after Jane Doe filed her lawsuit and over 250 days after the alleged assaults occurred. The evidence also showed that the visit was not out of concern for their daughter — but instead to stop the lawsuit.

The Bells tried to frame their actions as simply those of concerned parents. In doing so, they blamed their daughter for lying to them, and they blamed the principal and other school officials for not addressing their concerns in a manner that satisfied them.

After three days of trial, the jury found both of the Bells liable for defamation per se and that both of them abused the privilege. They awarded Jane Doe $500,000 in compensatory damages, $500,000 in punitive damages, and also awarded pre-judgment interest.

Does My Virginia Lawsuit Belong in General District Court, Circuit Court, or Federal Court?

Thursday, September 11th, 2025

As a plaintiff personal injury attorney, clients often wonder which court their case will be filed in. This article will discuss the three trial courts in which a Virginia civil lawsuit can potentially be filed—general district court, circuit court, and federal district court.

General District Court

In Virginia, general district courts have jurisdiction over almost all types of civil claims up to $50,000.[1] In other words, any claim for breach of contract, personal injury, or property damage not exceeding $50,000 can be filed in general district court.[2] If you have a contract, personal injury, or property damage claim for $4,500 or less, then it must be filed in general district court.[3] In general district court, a judge will hear your case—there are no juries. General district court can be an advantageous place to file a lawsuit if you have a small claim. This court is designed to handle a large volume of smaller claims, which means that your case will go to trial much faster than in circuit court or federal court. Additionally, litigation is much cheaper in general district court because the filing fees are lower and the discovery process is very limited.

Circuit Court

In Virginia, circuit courts have jurisdiction over all civil claims exceeding $4,500.[4] This means that if you have a contract, personal injury, or property damage claim between $4,501 and $50,000, then you have a choice of filing your case in either general district court or circuit court. If your claim is for more than $50,000, then you must file it in either circuit court or federal court, but it can only be filed in federal court under certain circumstances, as discussed below.

In circuit court, both judges and juries decide cases, depending on the nature of the dispute and whether a jury trial has been demanded by the parties. In circuit court, parties can conduct a significant amount of discovery by taking depositions and sending written interrogatories, requests for production of documents, requests for admission, subpoenas duces tecum, etc. Due to the higher value of the claims and additional discovery methods, circuit court cases often do not go to trial until a year or two after they are filed. The additional discovery methods also increase litigation costs and attorney’s fees when compared to general district court.

Federal District Court

Certain types of lawsuits can be filed in federal district court. Generally, these lawsuits fall into two buckets: (1) cases involving a federal question, and (2) cases involving diversity of citizenship where the amount in controversy is $75,000 or more.[5] Federal question jurisdiction is when your claim arises under the Constitution, laws, or treaties of the United States.[6] In other words, if you are seeking a court order to hold that a law is unconstitutional or you are suing someone for a cause of action that is provided under a federal statute, then you can file your lawsuit in federal district court.[7] You can also file your case in federal district court if the defendants are citizens of states different from your state of citizenship and the amount in controversy is $75,000 or more.[8] This is called diversity of citizenship jurisdiction.

Federal district court is more like Virginia circuit court than general district court. In federal district court, both judges and juries decide cases, depending on the nature of the dispute and whether a jury trial has been demanded by the parties. Just like circuit court, parties can conduct a significant amount of discovery by taking depositions and sending written interrogatories, requests for production of documents, requests for admission, subpoenas duces tecum, etc. It generally takes a year or more for your case to go to trial. Although there are many similarities between federal district court and Virginia circuit court, there are also many differences. Federal district courts adhere to their own rules of civil procedure and rules of evidence. Additionally, in federal district court, juries are selected from a larger geographic area.

Which Court Do I File My Lawsuit In?

If you file your lawsuit in the wrong court, it will likely be dismissed and depending on whether the statute of limitations has run, you might not be able to refile the lawsuit in the correct court. All three courts have different rules, which can greatly influence your chances of prevailing. Often, claims can be filed in multiple courts, and there are many practical and strategic considerations when deciding where to file. Additionally, sometimes a case can be transferred, appealed, or removed from one court to another. This is why it is imperative to retain a Virginia trial lawyer that handles cases in all three courts. An attorney that handles cases in all three courts will be intimately familiar with the rules of each, and they will be able to properly advise you where your Virginia lawsuit belongs.

If you have questions about where your lawsuit should be filed or need guidance navigating Virginia’s court system, the experienced trial attorneys at Gentry Locke are here to help. Our team regularly represents clients in general district court, circuit court, and federal court, and we understand the strategies and nuances unique to each. Contact us today to discuss your case and learn how we can protect your rights and pursue the best possible outcome for you.

[1] See Va. Code § 16.1-77.
[2] See id.
[3] See id.
[4] See id.; Va. Code § 17.1-513.
[5] See 28 U.S.C. § 1331; 28 U.S.C. § 1332.
[6] See 28 U.S.C. § 1331.
[7] See id.
[8] See 28 U.S.C. § 1332.

Advisory Note: Recent Ruling Deems Certain Tariffs Unlawful

Tuesday, September 2nd, 2025

A federal appeals court ruled on Friday that President Trump’s attempt to bypass Congress and impose sweeping tariffs on foreign products was unlawful. The Trump administration had argued that import duties are necessary to strengthen the U.S. economy, but the U.S. Court of Appeals for the Federal Circuit ruled 7-4 that the Trump administration went too far when he declared national emergencies to justify tariffs on other countries writing that “it seems unlikely that Congress intended to… grant the President unlimited authority to impose tariffs.” The ruling did not take effect immediately and provided the administration time to appeal to the U.S. Supreme Court.

Small businesses and Democratic states brought the case challenging the tariffs and argued that the President has exceeded his authority in issuing the import duties. The appeals court’s decision is focused on the tariffs President Trump imposed in April on most trading partners, along with earlier levies on China, Mexico, and Canada. On April 2 — or Liberation Day as it was called — the administration imposed so-called reciprocal tariffs of up to 50% on countries with which the U.S. runs a trade deficit and 10% baseline tariffs on almost everybody else. Many of the tariffs have been on and off again as the administration suspended tariffs from time to time.

The administration justified the taxes under the 1977 International Emergency Economic Powers Act, or IEEPA, by declaring longstanding U.S. trade deficits “a national emergency.” In February, the administration invoked the law to impose tariffs on Canada, Mexico and China, saying that illegal immigration and drug trafficking amounted to a national emergency and that the three countries needed to do more to stop it.

The U.S. Constitution gives Congress the power to set taxes, including tariffs. But lawmakers have gradually let presidents assume more power over tariffs — and President Trump has made the most of it.

The court’s ruling does not encompass the levies on foreign steel, aluminum and autos that the administration imposed under a different regulation after Commerce Department investigations concluded that those imports were threats to U.S. national security. Nor does it include tariffs that President Trump imposed on China in his first term — and President Biden kept — after a government investigation concluded that the Chinese used unfair practices to give their own technology firms an edge over rivals from the U.S. and other Western countries.

On to the Supreme Court.

The President vowed to take the fight to the Supreme Court. The dissenting judges foreshadowed a possible argument for the administration that the 1977 law allowing for emergency actions “is not an unconstitutional delegation of legislative authority under the Supreme Court’s decisions” that have allowed the legislature to grant some tariffing authorities to the President.

If President Trump’s tariffs are struck down, it might have to refund some of the import taxes that it has collected. Tariffs are paid by U.S. importers, such as American manufacturers or retailers that rely on foreign-made products. While the U.S. companies typically swallow some of the cost, they pass on much of the added expenses to consumers in the form of higher prices.

Future Tariffs By Different Authority?

For instance, in its decision in May, the trade court noted that President Trump retains more limited power to impose tariffs to address trade deficits under another statute, the Trade Act of 1974. But that law restricts tariffs to 15% and to just 150 days on countries with which the U.S. runs big trade deficits.

The administration could also invoke levies under a different legal authority — Section 232 of the Trade Expansion Act of 1962 — as it did with tariffs on foreign steel, aluminum and automobiles. But that requires a Commerce Department investigation and cannot be imposed at the President’s sole discretion.

What About the Tariffs That Businesses Already Paid?

If the ruling that the tariffs were unlawful stands, payors or duties will have 180 days to file a claim for duties previously paid. Courts have consistently recognized the right to recover unlawfully collected tariffs, provided claimants adhere to procedural requirements. Administrative remedies must be pursued before initiating litigation, a principle applicable to customs refunds under 19 U.S.C. § 1514 and 19 U.S.C. § 1520.

When a tariff is declared unlawful, importers must pursue administrative remedies through U.S. Customs and Border Protection (CBP) before seeking judicial relief. These remedies are governed by the Tariff Act of 1930:

• 19 U.S.C. § 1514: Allows importers to file a protest against a CBP decision within 180 days of liquidation. This is the primary statutory mechanism to contest the imposition of duties.

• 19 U.S.C. § 1520(a)(4): Permits refunds based on clerical error, mistake of fact, or other inadvertence, but not errors of law. This provision may apply in certain procedural missteps related to entry documentation.

The specific process depends on the liquidation status of the entry, which is the final assessment of the amount due made after payment of the estimated duties. Before liquidation, importers may file Post-Summary Corrections (PSCs) to amend the entry and recover overpaid duties. After liquidation, importers must file a formal protest under 19 U.S.C. § 1514. While protests are generally submitted using CBP Form 19, any signed document that contests a CBP decision may qualify.

If CBP fails to act or denies relief, judicial review is available through the Court of International Trade. Importers should promptly assess the liquidation status of their entries and initiate the appropriate refund mechanism to preserve their rights.

Gentry Locke Can Help.

Spoliation & Preservation of Evidence in Virginia Personal Injury Lawsuits

Wednesday, July 23rd, 2025

Let’s say you were in the unfortunate situation of being involved in a traumatic accident where a lawsuit may be on the horizon. It could be a car wreck, tractor-trailer crash, motorcycle crash, boat crash, plane crash, medical malpractice, slip-and-fall accident, etc. You may be the injured person (potential plaintiff) or you may be the person at fault (potential defendant).

No matter the type of accident, if you are a potential plaintiff or potential defendant and the accident happened in Virginia, then you have “a duty to preserve evidence that may be relevant to reasonably foreseeable litigation.”[1] Failing to follow the law can result in “spoliation” sanctions. But what does this mean? What is spoliation? When does the duty to preserve evidence arise? What are the consequences of failing to preserve evidence? What do you do if the other party destroys evidence? This article will summarize Virginia spoliation law, with a focus on Virginia personal injury lawsuits.

What is Spoliation?

The Supreme Court of Virginia has stated: “[s]poliation of evidence occurs when a party is aware that there is pending or probable litigation involving evidence in the party’s custody or under its control, and such evidence if destroyed or otherwise not preserved will interfere with the ability of the adverse party to establish some element of its claim.”[2] Similarly, federal courts have stated: “[s]poliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[3] Basically, this means that you must save any and all relevant evidence once litigation is reasonably foreseeable, and if you do not save such evidence, then there may be legal consequences in future litigation.

When Does the Duty to Preserve Evidence Arise?

In Virginia, the judge determines “whether and at what point . . . a duty to preserve arose,” and the court must consider “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.”[4]

The most obvious form of spoliation is when someone intentionally deletes or destroys relevant evidence (such as documents, emails, etc.) after litigation is pending.[5] However, spoliation may also occur before litigation is instituted.

One way for potential litigants to protect themselves and to ensure that other parties preserve relevant evidence is to send a “litigation hold,” “preservation,” or “spoliation” letter to the other parties as soon as possible after the accident.

Spoliation letters do the following:

1. Inform the other parties that future litigation is likely;
2. Request the preservation of relevant information and documents;
3. Provide information about how to preserve relevant evidence; and
4. Caution the other parties of the potential consequences of their failure to preserve such evidence.

A good spoliation letter will be detailed and specifically list the types of documents and evidence that may be relevant to the contemplated litigation.

We routinely send preservation letters in our catastrophic injury and wrongful death cases. These letters protect a potential plaintiff’s rights. They serve two main purposes: (1) to persuade the other parties to preserve relevant evidence, and (2) to put the other parties on notice of litigation. That way, the highly relevant evidence is preserved, and if it is not, then we can seek a spoliation remedy against the spoliating party in future litigation.

Preservation letters should be sent to other parties as soon as possible and by as many methods as possible, including email, mail, and certified mail. Often, the at-fault parties are the ones in possession of the strongest evidence. For example, let’s say you were injured from a slip-and-fall incident at a retail store. The surveillance camera footage at such stores is often overwritten within 30 days. If the retail store does not receive a litigation hold letter requesting preservation of the footage within that time frame and the surveillance video is lost, then they will likely argue that they were not contemplating the litigation and the footage was overwritten without any fault of their own. However, if you have proof that the store received a preservation letter by certified mail shortly after the accident that specifically requested preservation of the video showing the accident, then you have a much stronger argument for a spoliation remedy. This is why it is important for those injured in traumatic accidents to retain a Virginia personal injury lawyer as soon as possible.

It should be noted that spoliation may even occur before the party receives a preservation letter.[6] The focus is on the “totality of the circumstances.” Obviously, a motorist with a dashcam who runs a red light, T-bones another vehicle, severely injures the occupants, is charged with failure to obey the traffic signal, and reports the crash to their liability carrier should know that they need to save the dashcam footage, even if they have not received a spoliation letter.

Consequences of Spoliation

Under Virginia law, courts may impose spoliation sanctions under Virginia Code § 8.01-379.2:1. Under federal law, “[t]he right to impose sanctions for spoliation arises from a court’s inherent power to control the judicial process and litigation.”[7] Federal Rule of Civil Procedure 37(e) governs spoliation of electronically stored information (ESI) in federal courts. The rationale for remedying spoliation “is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth.”[8]

Virginia Code § 8.01-379.2:1(B) states that if evidence “that should have been preserved in the anticipation . . . of litigation is lost because a party failed to take reasonable steps to preserve it . . . and it cannot be restored or replaced through additional discovery,” then the court can take certain measures to remedy the spoliation of evidence, depending on the spoliating party’s level of intent.

Negligent Spoliation

If the spoliating party negligently failed to preserve the evidence and the court finds prejudice to another party due to the loss of the evidence, then the court “may order measures no greater than necessary to cure the prejudice.”[9] Given that Virginia’s spoliation statute was enacted in 2019, there is limited caselaw on this issue, and attorneys should be creative when arguing for the proper remedy “necessary to cure the prejudice.”

The language of Virginia’s spoliation statute is very similar to Federal Rule of Civil Procedure 37(e).[10] The Advisory Committee Notes to Rule 37(e) state the following:

Once a finding of prejudice is made, the court is authorized to employ measures ‘no greater than necessary to cure the prejudice.’ The range of such measures is quite broad if they are necessary for this purpose. There is no all-purpose hierarchy of the severity of various measures; the severity of given measures must be calibrated in terms of their effect on the particular case. But authority to order measures no greater than necessary to cure prejudice does not require the court to adopt measures to cure every possible prejudicial effect. Much is entrusted to the court’s discretion.

In an appropriate case, it may be that serious measures are necessary to cure prejudice found by the court, such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument. . . .[11]

However, if the spoliating party was merely negligent, then the court cannot do the following: (1) presume the evidence was unfavorable to the spoliating party, (2) instruct the jury that the evidence was unfavorable to the spoliating party, (3) dismiss the spoliating party’s action, or (4) enter default judgment for the non-spoliating party.[12] Those measures are reserved for a higher level of intent.

Reckless or Intentional Spoliation

If the spoliating party “acted recklessly or with the intent to deprive another party of the evidence’s use in the litigation,” then the court may:

1. “[P]resume that the evidence was unfavorable to the party,”
2. “[I]nstruct the jury that it may or shall presume that the evidence was unfavorable to the party,” or
3. “[D]ismiss the action or enter a default judgment.”[13]

Interestingly, although Virginia’s spoliation statute and Federal Rule of Civil Procedure 37(e) both state that there must be a finding of prejudice for the court to take measures to remedy negligent spoliation, the statute and rule do not specifically require a finding of prejudice when the spoliation was intentional.[14] This contemplates that a non-spoliating party could move for a spoliation sanction in instances where the spoliating party acted intentionally, even if the loss of the evidence was harmless, as long as such evidence “cannot be restored or replaced through additional discovery.”[15] Presumably, the statute and rule are worded in this manner to protect the judicial process by providing extra deterrent measures for intentional spoliation.

Can You Sue Someone For Spoliation?

No, neither Virginia nor federal law allow you to sue someone for spoliation. Virginia’s spoliation statute states: “Nothing in this section shall be interpreted as creating an independent cause of action for negligent or intentional spoliation of evidence.”[16] Caselaw makes it clear that there is no cause of action for spoliation under federal law either.[17] Claims for “spoliation” or “destruction of evidence” will be dismissed.[18]

Although you cannot sue someone for spoliation, if you are injured due to another’s negligence and you believe the other party has negligently or intentionally failed to properly preserve relevant evidence, then contact us today for a free consultation. Our Virginia personal injury and wrongful death attorneys are knowledgeable about Virginia’s spoliation law and we can take proper measures to protect your rights.

[1] Va. Code § 8.01-379.2:1(A).
[2] Emerald Point, LLC v. Hawkins, 294 Va. 544, 556 (2017) (emphasis added).
[3] Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d. Cir. 1999)).
[4] Va. Code § 8.01-379.2:1(A).
[5] See, e.g., Atl. Diving Supply, Inc. v. Komornik, 113 Va. Cir. 179, 190 (Norfolk 2024) (“There is also definitive proof that Hanford intentionally destroyed evidence . . . during the course of litigation.”).
[6] See id. at 193 (“The Court is not persuaded by Hanford’s arguments, including but not limited to his assertion that he had no duty preserve evidence prior to the date of the litigation hold letter.”).
[7] Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001).
[8] Id.
[9] Va. Code § 8.01-379.2:1(B).
[10] Compare Va. Code § 8.01-379.2:1(B) with Fed. R. Civ. P. 37(e).
[11] Fed. R. Civ. P. 37(e) advisory committee’s note.
[12] See Va. Code § 8.01-379.2:1(B).
[13] Id.; see, e.g., Atl. Diving Supply, Inc. v. Komornik, 113 Va. Cir. 179, 194 (Norfolk 2024) (presuming that the evidence the spoliating party failed to preserve was prejudicial to him where he acted in bad faith and failed to preserve material evidence while aware of pending or actual litigation).
[14] See Va. Code § 8.01-379.2:1(B); Fed. R. Civ. P. 37(e).
[15] Va. Code § 8.01-379.2:1(B).
[16] Va. Code § 8.01-379.2:1(C).
[17] Turner v. United States, 736 F.3d 274, 282 n.5 (4th Cir. 2013) (“Spoliation of evidence, standing alone, does not constitute a basis for a civil action under either federal or admiralty law.”); Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001) (“[T]he acts of spoliation do not themselves give rise in civil cases to substantive claims or defenses.”).
[18] See, e.g., Gill v. Food Lion, LLC, 2025 U.S. Dist. LEXIS 23838, at *27 (W.D. Va. Feb. 10, 2025) (“Because spoliation of evidence is not a recognized cause of action, the court must dismiss this claim as well.”); Mayhew v. Harris, 2023 U.S. Dist. LEXIS 27623, at *9 (E.D. Va. Feb. 17, 2023) (“Because spoliation of evidence is not a cause of action, Count III will be struck.”).

You or Your Loved One Is Scheduled for Surgery: A Checklist of Things to Do Before Admission

Thursday, July 17th, 2025

If you or your loved one is scheduled to have surgery in the near future, there are a number of things that you should do prior to admission to the hospital. Many of these things your attorney can help you accomplish and some you may accomplish on your own.

Investigate the Doctor or Surgeon

First, you should investigate the doctor and/or surgeon that will be the primary caregiver while you or your loved one is hospitalized. Investigation of a healthcare provider is relatively easy and can be accomplished by going on the Virginia Department of Health Professions official website and accessing the Virginia Board of Medicine Practitioner information page at Virginia Board of Medicine.

Once on the webpage, click on the Practitioner Information tab. Scroll to the bottom, where you can enter the name of the doctor or surgeon. After selecting the physician, you will be presented with a menu of available information, including:

• General information
• Education and certifications
• Practice areas
• Insurance
• Honors and awards
• Academic appointments and publications
• Disciplinary proceedings, actions, convictions, and paid claims

All of this information can be very helpful in determining whether you believe that the physician is someone that you would be confident in allowing to provide care to you or your loved one. In particular, you will be able to see whether the doctor has settled any malpractice claims and whether the Board of Medicine has issued any actions or censure for the doctor’s conduct.

Confirm Board Certification

This information is also helpful in confirming whether the doctor has the necessary credentials and experience to render adequate care. For example, is the physician Board certified in their specialty? Board certification is granted after passing a comprehensive exam administered by the relevant medical board to ensure the doctor has sufficient knowledge in their area of practice. Most doctors are required to recertify periodically to maintain their certification.

Arrange for an Advocate

Before admission, it’s wise to arrange for someone to act as an advocate for you or your loved one while in the hospital. It is always a good idea to have someone with you or your loved one when meeting with doctors or other healthcare professionals. This person can ask additional questions and help you or your loved one remember what was discussed with medical personnel. It is always good to take notes during these meetings.

Establish a Power of Attorney (POA)

Another important step is to have a Power of Attorney (POA) in place prior to being hospitalized. A POA allows you or your loved one to give another person the power to make decisions in case you or your loved one is unable to do so. The person appointed as POA should be a person that understands your or your loved one’s wishes and is trustworthy. An attorney can help execute a valid POA.

Consider an Advance Medical Directive

You or your loved one should consider executing an Advanced Medical Directive. People often refer to this document as a living will. An attorney can help do this as well. An Advanced Medical Directive will govern what medical treatments are wanted or not wanted in case you or your loved one are unable to make those decisions. For example, an Advanced Medical Directive will let healthcare providers know of your or your loved one’s wishes concerning being kept alive with article measures such as ventilators or feeding tubes. It will also determine whether you or your loved one wish to be resuscitated.

Your lawyer can help you or your loved one prepare for an admission to the hospital. He or she can prepare the appropriate legal documents and can assist looking into the healthcare provider that will be rendering your or your loved one’s care. If you have questions about preparing for surgery or need assistance with legal documents such as a Power of Attorney or Advance Medical Directive, our experienced attorneys at Gentry Locke are here to help. We can guide you through the process to ensure that you and your loved ones are protected and informed.

EEOC Opens Portal for EEO-1 Filing

Tuesday, May 27th, 2025

On May 20, 2025, the Equal Employment Opportunity Commission (“EEOC”) opened the portal for the submission of the 2024 EEO-1 Component No. 1 Report. All private sector employers with 100 or more employees are required to file their annual workforce demographic report by no later than 11:00pm EDST on June 24, 2025.[1]

The EEOC has a dedicated landing page for this portal, and has provided an updated 2024 EEO-1 Component Instruction Booklet and a host of Fact Sheets, FAQs and other guidance documents to assist with the filing which can be accessed here.

Since 1966, larger employers have been required to submit EEO-1 reports which contain sensitive demographic data (sex and race or ethnicity) on their workforce using 10 job categories set by the EEOC. The report must include the required data on all full-time and part-time employees employed by the company during any part of the “snapshot period” – that is the pay period falling within the 4^th Quarter of 2024 (October 1, 2024 – December 31, 2024) selected by the employer. This means all employees who worked for the company even one day during the snapshot period must be accounted for in the EEO-1 report, as well as those who employment terminated after the snapshot period.

The EEOC uses the information submitted to investigate charges of employment discrimination against employers and to publish periodic reports that use aggregate numbers obtained from the EEO-1’s workforce demographics. Otherwise, EEO-1 reports are confidential and may not be made public by the EEOC unless it files a Title VII claim involving such information.[2] If an employer fails to timely file the 2024 report, the employer will be “out of compliance” with their mandatory filing obligations. No late submissions will be accepted, and the EEOC may file suit to obtain an order requiring the providing of the data.

The same day the portal for 2024 data was opened EEOC’s Acting Chair Andrea Lucas issued a message cautioning employers not to use of the collected and reported demographic data to “facilitate unlawful discrimination” based on race, sex, or other characteristics protected by Title VII. She noted in that in her view “there is no ‘diversity’ exception to Title VII requirements,” and she reminded employers of President Trump decision to “deprioritize disparate impact enforcement.” In closing she made a final cautionary observation to employer by saying “you must not use the information collected and reported in … the EEO-1 report to justify treating employees differently based on their race, sex or other protected characteristic.”  [See full message here.]

KEY POINTS

EEO-1 reports can only be filed electronically through the EEOC’s web-based data collection application referred to as the On-Line Filing System (“OFS”). Reports submitted in paper submission or electronically outside the OFS system will not be accepted.

Some companies may be required to file more than one report based on structure and size. Companies are only required to report on establishments located in the United States, not in foreign countries.

A foreign-owned company that has more than 100 employees working within the US must file one or more reports depending on the establishment structure.

Companies must include remote workers working in the US in the EEO-1, and these employees are to be included in report for the establishment to which that employee reports, or the location where their manager or supervisor is based. The employee’s home address is never to be used.

Employers do not need to use the same workforce snapshot period in this 2024 report that it used when submitting reports in prior years.

EEO-1 reports require employers to submit the demographic data utilizing 10 job categories established by the EEOC. The EEOC has issued a Fact Sheet that helps explain each category to help assist employers to select the category which best reflects the job function performed by its employees. Here is a link to this fact sheet.

The person filing the EEO-1 report must be an employee of the company submitting the report and must have their own user account associated with their email. This person will be the “Certifying Official” who must certify under penalty of law that “the information, including the workforce demographic data, provided is correct and true to the best of my knowledge and was prepared in conformity with the directions set forth in the form and accompanying instructions.”

If you have any questions regarding your company’s obligations to make this type of report and proper means to do so, please do not hesitate to contact any member of Gentry Locke’s Employment Team.

[1] In addition, the EEOC’s 2024 Manual issued on May 20, 2025, indicates that federal government contractors with 50 or more employees and $50,000 or more in contracts continue to be obligated to file an EEO-1 report even though the Ex. Order 11246, which was the legal basis for this filing, was rescinded by President Trump on January 21, 2025.
[2] Additionally, the EEOC may share an EEO-1 report with the OFCCP, federal law enforcement agencies and state agencies under agreements that require protection of confidentiality.

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Should I Hire a Personal Injury Attorney?

Tuesday, May 20th, 2025

Many kinds of incidents can lead to the pursuit of a personal injury claim in Virginia. Recent data from the Centers for Disease Control and Prevention shows that close to 40 million Americans visit the hospital each year due to suffering a personal injury. The Insurance Research Council reports that personal injury settlements were 40% higher when claimants were represented by an attorney. 

Situations where a personal injury can occur include the following: 

•   Car accidents;
•   Tractor Trailer Accidents;
•   Boating Accidents;
•   Slip and fall;
•   Dog Bites;
•   Household Products Causing Injury;
•   Commercial/Industrial Products Causing Injury;
•   Medical Malpractice Injury; and
•   Medical Drug and Device Injury.

Each of these types of cases is complex and presents specific and unique issues that must be addressed in pursuing a personal injury case. There are also certain requirements and deadlines which must be met. A personal injury attorney’s experience in handling these matters is invaluable. 

Case Evaluation

Whether it’s a relatively minor injury from a slip and fall, a significant injury caused by a product defect, or catastrophic injuries caused by a tractor-trailer accident, your personal injury attorney must evaluate your case to determine its value. 

An attorney is experienced in gathering all necessary evidence about your personal injury claim. Your attorney can also interview witnesses and hire experts to begin building your case. Your attorney will need to analyze and evaluate liability issues in order to determine who is at fault for causing your personal injury. 

Your attorney will also have to assess and determine the amount of your damages. In a personal injury case, your damages include: 

•     Past Medical Expenses;
•     Future Medical Expenses
•     Lost Wages;
•     Loss of Future Wager;
•     Loss of Earning Capacity;
•     Pain and Suffering; and
•     Emotional Distress.

Negotiations With Insurance Company

Insurance companies are known for being difficult to work with. On your own, an insurance company will have an advantage over you. The insurance company’s goal is to resolve your case for as little money as possible as they put financial interests above all else.  

Insurance companies know the law and have experience negotiating with unrepresented claimants. They will make a lowball offer and try to convince you that it is in your best interests to accept it quickly when it clearly is not. 

A personal injury attorney has extensive experience in negotiating with insurance companies. Being represented by a personal injury lawyer effectively levels the playing field in dealing with an insurance company. 

Once your attorney completes the evaluation of your case and determines its value, it will be time to begin settlement negotiations with the insurance company. 

Going to Trial

If the insurance company knows you have an experienced personal injury trial lawyer, they will usually make a fair settlement offer before the trial. If the settlement offer is too low, you should have an experienced lawyer on board to try the case.

The Rules of the Court and the Rules of Evidence are extremely complex when it comes to trying a case. The typical personal injury trial process consists of jury selection, opening statements, witness testimony, cross-examination, closing arguments, jury deliberation, and entering a verdict. 

Each of these phases of the trial is complicated and governed by very strict rules of procedure and evidence. Having a personal injury attorney by your side ensures that you will have skilled representation.

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Speaking for the Dead: Who Can Pursue a Wrongful Death Lawsuit in Virginia

Thursday, May 15th, 2025

When someone dies, their loved ones are often left overwhelmed. Decisions need to be made. Paperwork needs to be filled out. Funeral and burial arrangements need to be planned. Steps need to be taken to protect the deceased individual’s assets. Of equal importance – especially in cases where the death was caused by another’s negligence – considerations need to be made to protect the interests of the decedent’s statutory beneficiaries. Statutory beneficiaries are the individuals that may have the right to recover damages [CDM1] for their loved one’s wrongful death.

The first question that needs to be determined is this “Who will represent the decedent, the estate, and the decedent’s statutory beneficiaries?” This individual will be the decedent’s voice throughout any litigation related to their death, and they must work to protect the interests of the decedent’s other beneficiaries and loved ones.

Virginia requires that any wrongful death action “be brought by and in the name of the personal representative of [a] deceased person.”[1] Who this “personal representative” should be, how they qualify, and the authority they have when they do qualify are all deeply complicated issues. The answers to each of these questions can be found in the Code of Virginia, but they are often concealed beneath layers of interlocking statutes and complicated legal jargon. Further, there are numerous traps that make it difficult for individuals to figure this process out on their own. For these reasons, it is always advisable to consult with an experienced wrongful death attorney in Virginia as soon as possible after a loved one dies.

It is possible that the decision has already been made for you. If the deceased individual died with a valid will may include within in it a named “executor” of the estate. This executor can simply qualify as the decedent’s personal representative by making an appointment with the Circuit Court Clerk’s office in the appropriate jurisdiction, taking an oath, and complying with the various administrative requirements the clerk imposes.[2]

If the decedent left a will but it fails to name an executor, or the named executor is unable or unwilling to serve in the role, “the court or clerk may grant administration with the will annexed to [another individual] . . . .”[3] Here there is the additional complication that only certain types of individuals can qualify during certain periods of time after the decedent’s death. In the first thirty days any “person who is a residual or substantial legatee under the will, or his designee” may qualify.[4] If no such person qualifies within thirty days after the death, any “person who would have been entitled to administration if there had been no will,” may qualify.[5]

If a person dies without a will (or no one qualifies as an administrator of the estate within thirty days after the death) the Code of Virginia provides an intricate timeline for when different types of individuals can qualify. During the first thirty days after the death, administration may be granted to any “sole distributee, or his designee, or in the absence of a sole distributee, to any distributee, or his designee, who presents written waivers of the right to qualify from all other competent distributes.”[6]

After 30 days have passed, “the court or the clerk may grant administration to the first distributee, or his designee, who applies,” unless more than one distributee declares an intent to apply as administrator. If that occurs, the court or clerk must give each distributee who declared an intent to apply the chance to be heard on the issue.[7]

After 45 days have passed, certain nonprofit entities can be appointed as administrators if they meet certain notice and administrative requirements.[8] Finally, after 60 days, the clerk “may grant administration to one or more of the creditors or to any other person,” provided that they meet certain notice and administrative requirements.[9] Additionally, there is a catch all provision in the Code that allows the clerk to deviate from the provisions of this section if it determines that it is in “the best interests of a decedent’s estate.”[10]

The above provisions grant the appointed personal representative general authority to represent the estate. This means that they can do other necessary things to close out the decedent’s estate in addition to prosecuting a wrongful death action. This is often necessary if the deceased has assets or debts that need distribution or resolution.

There is an additional way that an individual can qualify as the personal representative of a decedent’s estate, however, when there is no need for the administrator to have general authority over the estate. The Code of Virginia allows an individual to qualify “solely for the purpose of prosecution or defense of any [personal injury or wrongful death] actions,” “if at least 60 days have elapsed since the decedent’s death and an executor or administrator of the estate has not been appointed under § 64.2-500 or 64.2-502 . . . .”[11] As the Code suggests, this grant of administration is much more limited than those discussed above. Their only power is to prosecute or defend a personal injury or wrongful death action.

When dealing with the death of a loved one, the last thing you should have to think about is who to qualify as personal representative and how to qualify them. Further, there are traps waiting for the unwary individuals that navigate this process alone. Instead, if you believe that your loved ones death was caused by the improper actions of another, you should consult with an experienced wrongful death attorney as soon as possible. Your loved one needs a voice, and your attorney can help you identify the right person to serve in that important role.

[1] Va. Code § 8.01-50(C).
[2] Id. at § 64.2-501.
[3] Id. at § 64.2-500(A).
[4] Id.
[5] Id.
[6] Id. § 64.2-502(A)(1).
[7] Id. at § 64.2-502(A)(2).
[8] Id. at § 64.2-502(A)(3).
[9] Id. at § 64.2-502(A)(4).
[10] Id. at § 64.2-502(B).
[11] Id. at § 64.2-454.
[CDM1] Cross reference Dec. 2023

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Biden-Era 2024 Independent Contractor Rule Shelved

Monday, May 5th, 2025

On May 1, 2025, the U.S. Department of Labor issued a field assistance bulletin, Wage and Hour Memorandum No. 2025-1, stating that it would no longer apply the 2024 Rule used to determine when workers are independent contractors or employees under the Fair Labor Standards Act. Instead, the DOL said it will enforce the FLSA in accordance with Fact Sheet #13 (July 2008) as informed by Opinion Letter FLSA2025-2, which involves service providers working in a virtual marketplace company.

The Trump DOL did not rescind the regulations that created the 2024 Biden-Era Rule, it simply stated it plans to not to use it. The 2024 Rule had laid out a comprehensive 6-prong economic reality test to determine whether a worker was an employee or an independent contractor. The 2024 Rule contrasted with the 2021 Rule issued during the last days of Trump 1.0 which emphasized two factors: the worker’s ability to control their work and the opportunity for profit as a result of personal investment. Notably, current Trump DOL did not simply revert to the 2021 Rule. Instead, the WHD says that it will enforce the FLSA in accordance with the 2008 Fact Sheet.

The 2008 Fact Sheets requires DOL to consider 7 distinct criteria:

• The extent to which the services provided are integral to the company’s business;
• The permanency of the working relationship;
• The amount of the worker’s investment in facilities and equipment;
• The nature and degree of control of a company;
• The worker’s opportunities for profit and loss;
• The amount of initiative, judgment or foresight in open market competition with others is required for the worker’s success; and
• The degree of independent organization and operation.

The Fact Sheet also notes that some factors are “immaterial” to the determination. For example, the place where the work is performed, the lack of a formal agreement, whether the worker is licensed by the state or local government, and the time or mode of payment for services are said to have no bearing on determinations of whether there is an employment relationship.

Overall, most commentators see the DOL’s position as creating room for future rulemaking and as demonstrating a commitment to protecting flexible and worker freedom.

The announcement that the 2024 Rule was being shelved was not unexpected, but the move to use the 2008 Guidance is somewhat of a surprise. Given that DOL enforcement staff is being reduced as part of the overall Trump initiative to downsize the federal bureaucracy, it seems likely that DOL will have fewer resources to aggressively pursue claims on behalf of workers. However, given Secretary Chavez-DeRemer’s strong labor background it is possible this misclassification issue might be a priority area for enforcement. Once Andrew Rogers is confirmed as the new WHD Administrator we will have a much better sense of how this misclassification issue play out during Trump 2.0.

Since 2020, we have seen a rise in the number of misclassification cases filed by individuals following the passage of the new misclassification rules adopted in Virginia, (Va. Code 58.1-1900, et. seq.) and the new Virginia statute authorizing claims of wage theft by employees (and groups of employees). When employees prevail on these claims the “employer” can be liable for the unpaid wages, 8% pre-judgment interest on those wages, liquidated damages equal to unpaid wages, plus attorney fees (Va. Code 401.-29). Virginia law also provides for civil fines and criminal exposure for willful violations committed with the intent to defraud.

We do not expect this new Trump enforcement guidance to have an impact on the number of misclassifications filed against Virginia companies. If your company or organization has questions about its use of independent contractors or the possible misclassification of certain workers, please contact any member of Gentry Locke’s Employment team for advice on the latest developments and guidance on how to address potential issues in this area.

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