During the discovery phase of a Virginia personal injury case, each of the parties can request that certain evidence is provided by the opposing side. As a general rule, parties must provide evidence when it is requested and ordered by the court, even if the evidence at issue is harmful to the case of the party who possesses it.
Given this reality, it may be tempting for a party who is in possession of adverse evidence to alter or destroy it. The legal term for the destruction or alteration of evidence is spoliation. Of course, the spoliation of evidence is prohibited, and parties who are found to have spoliated may face serious sanctions. One common sanction is an instruction to the jury allowing the jurors to take an adverse inference from the missing evidence. A recent case discusses this issue in detail.
The Facts of the Case
According to the court’s opinion, the plaintiff was injured in a slip-and-fall accident while a resident in the defendant nursing home. Evidently, the plaintiff’s fall was caught on video, which the nursing home administration was able to view several times. However, the nursing home did not preserve the video, and eventually, it was recorded over.