Spoliation & Preservation of Evidence in Virginia Personal Injury Lawsuits

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.”).