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2018 SESSION

18107938D
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.