IS THIS A MATTER OF MALFEASANCE/MISFEASANCE/ NONFEASANCE AND THE SPOLIATION OF EVIDENCE UNDER VIRGINIA LAW?

Does Virginia Recognize Spoliation?

Virginia law recognizes a spoliation or missing evidence inference.

Specifically, the evidentiary inference, sometimes called a presumption of fact, says that when one party has within its control material evidence and does not offer it, there is an inference that the evidence would have been unfavorable to it.

Put a different way: Proof of the first fact (that the party had evidence but lost, destroyed, or altered it) permits the judge or jury to find the second fact (that the evidence would have hurt the party’s case).

This missing evidence inference, however, does not compel the judge or jury to find the destroyed evidence harmful to the party that lost or altered it.

Federal and state courts in Virginia can punish a party for failing to preserve evidence. Their authority to do so, however, comes from different sources.

A State Court’s Authority to Punish for Spoliation (Focusing on Virginia)

Three sources give Virginia state courts the power to sanction a party for failing to preserve evidence. But these sources differ from those granting authority to federal court judges.

First, the Virginia General Assembly passed a law governing the destruction of evidence in 2019.

This statute, Code Section 8.01-379.2:1, codifies when the spoliation doctrine applies and what courts may do to remedy the loss or destruction of evidence;

  § 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 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'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. (2019, c. 732.)

Virginia Code  § 8.01-379.2:1

Second, the common law (past judicial opinions) suggests situations where a court may find spoliation and what sanctions are appropriate.

Third, civil procedure rules give courts and administrative tribunals the power to sanction a party for failing to preserve evidence it should have or violating a court order regarding discovery.

For example, the Rules of the Workers Compensation Commission and the Supreme Court of Virginia give deputy commissioners and judges the power to punish a party for violating an order regarding the preservation of evidence.

A Federal Court’s Authority to Levy Sanctions for Spoliation

Two sources of federal law give federal district courts the authority to sanction a party that intentionally destroys or alters evidence or fails to preserve it.

First, the United States Supreme Court has held that a federal court has the inherent power to control the judicial process and litigation and redress conduct that abuses the judicial process.

Second, a party’s spoliation violating a court order regarding pretrial discovery may result in sanctions under the Federal Rule of Civil Procedure (FRCP) 37.

Violating a court order opens the door to spoliation sanctions.

When Does the Duty to Preserve Evidence Begin?

A party must preserve material and relevant evidence when litigation is reasonably foreseeable. This duty to save evidence extends during the litigation.

The mere existence of a disagreement does not automatically mean that a party should reasonably anticipate litigation or that the duty to preserve evidence arises.

Instead, the court will consider all the circumstances to determine when a party first had the duty to preserve the evidence, including:

The extent to which the party or a potential litigant knew that specific and identifiable litigation was likely 

Whether the party or potential litigation should have known the destroyed, lost, or altered evidence would be material or relevant to the claim or lawsuit. 

However, a court will find a party’s duty to preserve evidence triggered when you send a spoliation of evidence letter to that party. Pre-lawsuit communications between the litigants, including settlement demand letters, provide constructive notice that litigation is likely.

So send a spoliation letter by certified mail to other parties, attorneys for those parties, involved insurance companies, and potential witnesses to help you win a spoliation motion in the future.

What Evidence Should a Potential Litigant Preserve to Avoid an Adverse Inference for Spoliation?

The type of lawsuit you bring determines the evidence you and potential defendants should preserve to avoid a spoliation allegation that harms the claim or defense.

But I recommend saving the following items if litigation is possible:

Bills of lading to establish cargo
Broken container (if it caused a slip and fall)
Call logs
Cell phone data
Computer hard drives
Delivery records
Dispatch notes and records
Doctor disability letters
Documents
Electronically stored information (ESI)
Emails
Employment records for employees involved in the subject incident
Equipment (keep all the parts intact)
Foreign object (in food poisoning claims)
Footwear/shoes (in slip and fall accidents)
Incident reports (including letters reporting occupational injuries and accidents on others’ premises) 
Insurance contracts
Land records
Log books
Machinery
Materials related to the subject incident
Medical records
OSHA reports and citations for unsafe work conditions
Orthopedic appliances (including prosthetics)
Other tangible items
Photographs of the accident scene or injuries
Police crash reports
Post-injury repair records
Products
Product packaging
Product warning labels
Receipts
Recorded phone calls (including recorded statements taken by the claims adjuster)
Recordings from smart doorbells (Ring, Nest, etc.)
Satellite systems data
Social media profiles, posts, messages, and pictures (Facebook, Instagram, Twitter, etc.)
Smartwatch data
Store accident reports
Telephone records
Text messages
Vehicle black box information (data recorder) 
Vehicles
Vehicle inspection reports
Video surveillance footage 
Wearables data (Fitbit, Whoop, etc.)
Witness statements

Elements for Spoliation Sanctions

You must prove the following elements to win a motion for sanctions for spoliation in Virginia:

The party had notice of specific and identifiable litigation or that such litigation may be forthcoming;

The party had within its control relevant evidence;

The party did not offer this evidence, although you requested it;

The party lost, disposed of, altered, concealed, or destroyed the evidence;

The missing evidence cannot be restored or replaced through additional discovery; and
You suffer prejudice due to the party’s failure to preserve the evidence.

Once you make a threshold showing of destruction, the other party must prove that the alteration or destruction of the evidence did not prejudice you. To defeat the spoliation motion, the other party must persuade the court that there is no reasonable possibility that the missing evidence would produce evidence favorable to your claim.

What Sanctions Can the Court Give if I Prove Spoliation of Evidence?

The court has broad discretion to determine the proper sanctions for a party’s failure to preserve evidence.

The extent of this discretion depends on what court presides over your case and the opposing party’s conduct.

For example, in state courts in Virginia, the judge can only “order measures no greater than necessary to cure the prejudice” unless they find the party “acted recklessly or with the intent to deprive another party of the evidence’s use in litigation.”

Upon a finding of bad faith, the court may do the following:

Presume the evidence was unfavorable to the party,

Instruct the jury that it may or must presume that the evidence was unfavorable to the party, or

Dismiss the action or enter a default judgment. 

Generally, the more evidence you provide showing the other party’s guilt and intent to deprive you of your legal rights, the more punitive the sanction levied by the court.

Other spoliation sanctions may be available, including evidence preclusion, attorney fees and costs assessed against the party that destroyed evidence, or remittitur (where the judge lowers the jury verdict).

How Long Do I Have to File a Motion Seeking Spoliation Sanctions?

No bright-line rule governs the deadline for moving for spoliation sanctions.

But courts will consider many factors to assess the timeliness of spoliation motions. And ultimately, how soon you file a spoliation motion after learning of it has a significant influence on the ruling.

You should move for sanctions during the pretrial discovery phase or within days of discovery closing.

Waiting until the deadline for summary judgment motions or the trial starts increases the court’s likelihood of rejecting your position.

Can I Bring an Independent Cause of Action for Intentional or Negligent Spoliation of Evidence?

Many states, including Virginia, have declined to recognize a separate tort claim for spoliation against a litigant (first party) or a third party.

Indeed, Virginia has held that an employer does not have a duty to preserve evidence for an injured employee investigating a potential third-party civil action against a product manufacturer.

Use Spoliated Evidence to Win Your Personal Injury Claim

In most tort actions, the defendant has a greater risk of losing or destroying relevant evidence.

If the defendant fails to preserve evidence that could help you win your claim, move for discovery sanctions and an adverse inference jury instruction. Doing so will likely increase the claim reserves and scare the adjuster into offering a better auto accident or workers comp settlement.

MALFEASANCE / MISFEASANCE / NONFEASANCE

Malfeasance

Acts which some of you ought not do at all [malfeasance]

The commission of an act that is unequivocally illegal or completely wrongful.

Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person.

Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from Nonfeasance, which is a failure to act that results in injury.

The distinctions between malfeasance, misfeasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff.

One exception is that under the law of Strict Liability, the plaintiff need not show the absence of due care. The law of strict liability usually is applied to Product Liability cases, where a manufacturer can be held liable for harm done by a product that was harmful when it was placed on the market. In such cases the plaintiff need not show any actual malfeasance on the part of the manufacturer. A mistake is enough to create liability because the law implies that for the sake of public safety, a manufacturer warrants a product’s safety when it offers the product for sale.

West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

malfeasance n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from “misfeasance,” which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing. Example: a city manager putting his indigent cousin on the city payroll at a wage the manager knows is above that allowed and/or letting him file false time cards is malfeasance; putting his able cousin on the payroll which, unknown to him, is a violation of an anti-nepotism statute is misfeasance. This distinction can apply to corporate officers, public officials, trustees, and others cloaked with responsibility.

MISFEASANCE

The improper doing of acts which some of you might lawfully do [misfeasance]

misfeasance A term used in Tort Law to describe an act that is legal but performed improperly.

Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff.

For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet.

In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed.

To illustrate, consider the example of the wet bathroom floor. One court could call a resulting injury the product of misfeasance by focusing on the wetness of the floor. The washing of the floor was legal, but the act of leaving the floor wet was improper. Another court could call a resulting injury the product of nonfeasance by focusing on the janitor’s failure to post a warning sign.

Nonfeasance

Activities of omissions of acts that some of you ought to do [nonfeasance].

Nonfeasance is a term used in Tort Law to describe inaction that allows or results in harm to a person or to property. An act of nonfeasance can result in liability if (1) the actor owed a duty of care toward the injured person, (2) the actor failed to act on that duty, and (3) the failure to act resulted in injury.
Originally the failure to take affirmative steps to prevent harm did not create liability, and this rule was absolute. Over the years courts have recognized a number of situations in which a person who does not create a dangerous situation must nevertheless act to prevent harm.Generally a person will not be held liable for a failure to act unless he or she had a preexisting relationship with the injured person. For example, if a bystander sees a stranger drowning and does not attempt a rescue, he cannot be liable for nonfeasance because he had no preexisting relationship with the drowning person. The bystander would not be liable for the drowning even if a rescue would have posed no risk to him.
However, if the victim is drowning in a public pool and the bystander is a lifeguard employed by the city, and if the lifeguard does not act to help, she may be held liable for the drowning because the lifeguard’s employment places her in a relationship with swimmers in the pool. Because of this relationship, the lifeguard owes a duty to take affirmative steps to prevent harm to the swimmers.
Courts have found a preexisting relationship and a duty to act in various relationships, such as the relationship between Husband and Wife, innkeeper and guest, employer and employee, jailer and prisoner, carrier and passenger, Parent and Child, school and pupil, and host and guest. A person who renders aid or protection to a stranger also may be found liable if the rescuer does not act reasonably and leaves the stranger in a more dangerous position, even if the rescuer had nothing to do with the initial cause of the stranger’s dilemma.
Courts have found a duty to act if a person does something innocuous that later poses a threat and then fails to act to prevent harm. For example, assume that Johnny loans a powerful circular saw to Bobby. If Johnny later remembers that the bolt securing the blade is loose and that the blade will dislodge in a dangerous manner when the saw is used, Johnny must try to warn Bobby. If Bobby is injured because Johnny failed to act, Johnny can be held liable for nonfeasance.
In theory nonfeasance is distinct from misfeasance and malfeasance. Malfeasance is any act that is illegal or wrongful. Misfeasance is an act that is legal but improperly performed. Nonfeasance, by contrast, is a failure to act that results in harm.
In practice the distinctions between the three terms are nebulous and difficult to apply. Courts in various jurisdictions have crafted different rules relating to the terms. The most difficult issue that faces courts is whether to imply a duty to act and find liability for the failure to act.
Originally courts used the term nonfeasance to describe a failure to act that did not give rise to liability for injuries. The meaning of the term reversed direction over time, and most courts now use it to describe inaction that creates liability.