§ 8.01-379.2:1.Spoliation of evidence.

Evidence has a way of disappearing right when it becomes important — a video gets overwritten, a device gets wiped, a document gets shredded on a routine schedule that suddenly looks less routine. Section 8.01-379.2:1 tells Virginia litigants when the law expects them to stop that from happening and what a court can do when it happens anyway.

The duty to preserve attaches once litigation becomes reasonably foreseeable, not just once a suit is filed. Courts look at the totality of the circumstances — how clearly the party or potential litigant was on notice that specific, identifiable litigation was likely, and that the evidence at issue would matter to it. That timing question can end up being as contested as the underlying case.

When evidence that should have been preserved is lost, altered, concealed, or destroyed because a party did not take reasonable steps, and it cannot be replaced through more discovery, the court’s response depends on why it happened. If the loss caused prejudice to another party, the court can order measures no greater than necessary to cure that prejudice. If the party acted recklessly or with intent to deprive the other side of the evidence, the court can go further: presume the evidence was unfavorable to the spoliating party, instruct the jury it may or must draw that presumption, or dismiss the action or enter a default judgment outright.

What the section does not do is create a new lawsuit. It is a remedy available within existing litigation, not an independent cause of action for negligent or intentional spoliation that someone could sue over on its own.