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 relevant and material on a key issue, the evidence would have been harmful to the spoliator’s case or helpful to the non-spoliator’s case; and the evidence was not cumulative.

Sanctions imposed must be proportional, that is, they must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations are:  the level of culpability of the spoliator and the degree of prejudice to the opposing party. Sanctions may include the following:

  • an order prohibiting further discovery by the spoliator;
  • an order designating certain facts established;
  • a contempt order;
  • exclusion of the evidence;
  • award of attorney’s fees and/or costs;
  • dismissal with or without prejudice;
  • striking pleadings, default judgment; and
  • a jury instruction.

The Brookshire Brothers opinion specifically stated that a jury instruction is to be used as a last resort – only when the spoliation is intentional, with one exception. If the spoliation is merely negligent, but it deprives the opposing party of any meaningful ability to present its claim, the jury instruction may be given. After Brookshire Bros., The Pattern Jury Charge was amended. PJC § 1.12 (2016) provides the following:

[The spoliating party] [destroyed/failed to preserve] [describe evidence]. You [must/may] consider that this evidence would have been unfavorable to [spoliating party] on the issue of [describe issue(s)] to which evidence would have been relevant. This allows argument to the trial court over whether to use must or may.

Spoliation and Texas Criminal Law

Texas criminal law has more rigorous standards. To receive an instruction, a defendant must prove the State lost or destroyed the evidence in bad faith. This requires showing improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining useful evidence. The State’s duty to preserve evidence is limited to that which has exculpatory value that was apparent before the evidence was destroyed. The defendant must also show that the lost evidence was favorable and material to his/her defense. See Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2011).

Federal Courts and Spoliation

Federal courts follow standards similar to Texas courts and civil cases. Certain remedies for spoliation are listed in FRCP 37, and the trial court has broad inherent power to craft other remedies. There is a federal rule specific to ESI – FRCP 37(e)(1).  The trial court must find

  • a duty to preserve (which extends only to “key players”),
  • that there was a culpable breach of that duty, and
  • that the breach prejudiced the innocent party.

The finding required for an adverse inference jury instruction is “bad faith” or “bad conduct.” Guzman v. Jones, 804  F.3d 707, 713 (5th Cir. 2015).  Federal law applies the same standards in criminal cases. A notable difference from the Texas standard is that the jury may hear evidence of the circumstances of spoliation.

Avoiding Spoliation

To avoid a spoliation claim, counsel your clients about document retention policies and warn them that if an accident or equipment malfunction occurs, they should preserve the evidence, even if they believe it will not lead to litigation. Make sure your clients understand that even if they carry workers’ compensation insurance (which would prevent a finding of liability for negligence), they can be sued for gross negligence, which implicates all the evidence preservation issues involved in an ordinary negligence case. Some industries, such as trucking and insurance, have specific federal regulations regarding preservation of evidence.

If you represent an injured potential plaintiff, immediately send a litigation hold letter instructing the potential defendant to preserve certain types of possible evidence. These letters are becoming very comprehensive and thorough, just as discovery questions did before limitations were imposed on the Texas Rules and a proportionality standard was adopted for the Federal Rules of Civil Procedure. There are several examples of comprehensive hold letters to be found on the Internet. You may want to provide copies to your manufacturing, trucking, retail, or other appropriate clients to use in forming their document retention policies.

For assistance with spoliation questions, documentation, or to book Julia Pendery to speak, contact her at 214-672-2143.


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Julia Pendery is an attorney in the Cowles and Thompson Appellate Law section.