Spoliation Of Evidence In Texas ' 2019 Update

• Jurisdiction: Texas,United States,Federal
• Law Firm: Cowles & Thompson, PC
• Subject Matter: International Law, Litigation, Mediation & Arbitration, Export Controls & Trade & Investment Sanctions, Court Procedure, Professional Negligence
• Author: Ms Julia F. Pendery
• Published date: 23 March 2023

One of the most active areas of litigation in recent years is the spoliation of evidence. Although the Supreme Court of Texas' opinion in Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) defined both the type of spoliation that may be sanctioned and the type of sanctions available, litigation continues to be abundant. There are many state Courts of Appeals' opinions and a few Texas Supreme Court opinions. Since federal trial judges issue written opinions, there are several that offer guidance on the specific types of evidentiary destruction and the appropriateness of sanctions imposed. A state trial court judge may consider such cases persuasive if the facts are very similar.

Spoliation Defined

Spoliation occurs when a party owes a duty to preserve relevant and material evidence then breaches that duty by failing to exercise reasonable care to preserve the evidence. Common types of evidence in spoliation disputes are electronically-stored information (ESI), motor vehicles and maintenance records, security camera footage, construction site damage, malfunctioning equipment, medical notes, social media posts, and IoT information (the Internet of Things - yes, that's a thing).

Brookshire Bros. - The Leading Texas Decision

Brookshire Bros. was a grocery store slip and fall case in which the plaintiff had said he was not injured at the time. Shortly thereafter, he said he was injured, so the store manager preserved the surveillance video footage from two hours before the incident through several hours afterward. The plaintiff's attorney wanted more than two hours before the incident, but that had been recorded over under the store's general 30-day video loop. The trial court allowed the jury to hear evidence of the destruction of the video and submitted the spoliation instruction. The Court of Appeals affirmed.

The Supreme Court reversed, finding an abuse of discretion. It decided that as a matter of law the trial judge determines whether spoliation has occurred and what sanctions, if any, to impose. Evidence of the spoliating conduct is inadmissible. It is the complaining party's burden to prove there was a duty to preserve, i.e., that the accused party knew there was a substantial chance a claim would be filed (not just an abstract possibility). If there was a duty, the court determines whether the breach was intentional or negligent and whether the complaining party was prejudiced. Prejudice is proved by showing that the spoliated evidence was...