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Elements of the Torts of Spoliation under West Virginia Law

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From Williams v. Great West. Cas. Co., 2009 U.S. Dist. LEXIS 46247 (N.D. W.V. June 1, 2009):

A. Negligent Spoliation

***To prevail on a claim for the tort of negligent spoliation by a third party under West Virginia law, a plaintiff must show that (1) a pending or potential civil action existed; (2) the alleged spoliator had actual knowledge of the pending or potential civil action; (3) the alleged spoliator had a duty to preserve evidence on the basis of a contract, agreement, statute, administrative rule, voluntary assumption of duty, or other special circumstances; (4) the evidence was spoliated; (5) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; and (6) damages resulted. Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560, 569-70 (W. Va. 2003); Mace v. Ford Motor Co., 221 W. Va. 198, 653 S.E.2d 660, 664 (2007).

B. Intentional Spoliation

***In West Virginia, the tort of intentional spoliation consists of seven elements:

(1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages.

Hannah, 584 S.E.2d at 573. As noted by the West Virginia Supreme Court, "[t]he gravamen of the tort of intentional spoliation is the intent to defeat a person's ability to prevail in a civil action." Id.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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