HB1336: Spoliation of evidence; jury instruction.


HOUSE BILL NO. 1336
FLOOR AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by Senator Petersen
on March 5, 2018)
(Patron Prior to Substitute--Delegate Habeeb)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-379.2:1, relating to spoliation of evidence.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-379.2:1 as follows:

§ 8.01-379.2:1. Spoliation of evidence.

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 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 with the intent to deprive another party of the evidence'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.


HOUSE BILL NO. 1336
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee for Courts of Justice
on February 26, 2018)
(Patron Prior to Substitute--Delegate Habeeb)
A BILL to amend the Code of Virginia by adding a section numbered 8.01-379.2:1, relating to spoliation of evidence.

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-379.2:1 as follows:

§ 8.01-379.2:1. Spoliation of evidence; jury instruction.

A. For the purposes of this section:

"Evidence" includes any information, records, papers, documents, physical items, or any other materials that any party to pending or probable litigation may have desired to introduce at trial.

"Probable litigation" means those instances where there has been a specific threat of litigation from a party or the legal counsel of a party.

B. If a party, or such party's agents, employees, or servants, has possession, custody, or control of evidence that such party, or such party's agents, employees, or servants, has been put on notice that such evidence is material to pending or probable litigation, and such evidence is disposed of, altered, concealed, destroyed, or not preserved by such party, or such party's agents, employees, or servants, or by another person or entity at the direction or with the consent or knowledge of such party, or such party's agents, employees, or servants, a court may instruct that a jury may infer, subject to any explanation that may be made by such party, that, if such evidence had been introduced, such evidence would be detrimental to the case of such party.

The party seeking such instruction need not show that the disposal of, alteration of, concealing of, or failure to preserve such evidence was undertaken intentionally or in bad faith in order for such instruction to be given.

HOUSE BILL NO. 1336

Offered January 10, 2018
A BILL to amend the Code of Virginia by adding a section numbered 8.01-379.2:1, relating to spoliation of evidence.
Patron-- Habeeb

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-379.1:1 as follows:

§ 8.01-379.2:1. Spoliation of evidence; jury instruction.

A. For the purposes of this section, "evidence" includes any information, records, papers, documents, physical items, or any other materials that any party to pending or probable litigation may have desired to introduce at trial.

B. If a party, or such party's agents, employees, or servants, has possession, custody, or control of evidence that such party, or such party's agents, employees, or servants, knows or reasonably should know may be material to pending or probable litigation, and such evidence is disposed of, altered, concealed, destroyed, or not preserved by such party, or such party's agents, employees, or servants, or by another person or entity at the direction or with the consent or knowledge of such party, or such party's agents, employees, or servants, a court may instruct that a jury may infer that, if such evidence had been introduced, such evidence would be detrimental to the case of such party.

The party seeking such instruction need not show that the disposal of, alteration of, concealing of, or failure to preserve such evidence was undertaken intentionally or in bad faith in order for such instruction to be given.