by Julia Pendery

One of the most active areas of litigation in recent years is 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 Court of Appeals’ opinions, and, since federal magistrates and district judges issue written opinions, there are several that offer guidance on specific types of evidence destruction and appropriateness of sanctions imposed.

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).

In Brookshire Bros., a grocery store slip and fall case in which the store had not preserved videotape of the area from before the accident, the Court said 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 and 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.

The Pattern Jury Charge was amended after Brookshire Bros. 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.

Rules of Civil Procedure to review are Rule 192.3(a) (scope of discovery), Rule 196.2 (b)(4) (responses to requests for production), and Rule 215.2 (failure to comply with discovery requests). The State Bar Rules Committee’s proposed new Rule 215.7 is currently under review.

Federal courts follow standards similar to Texas courts. Specific remedies are available under FRCP. 37, and the court has inherent power to order others. The court must find a duty to preserve (which extends only to “key players”), that there was a culpable breach of that duty, and the breach prejudiced the innocent party. A notable difference from the Texas rule is that the jury may hear evidence of the circumstances of spoliation. Federal rules to review are FRCP 26(b)(1) (proportionality for scope of discovery), FRCP 34 (specificity of discovery objections), and FRCP 37(e)(1) (ESI). The finding required for an adverse inference jury instruction is “bad conduct.”

To avoid a spoliation situation, 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. Some industries, trucking and insurance, for example, have federal regulations regarding preservation of evidence.

If you represent a potential injured plaintiff, immediately send a litigation hold letter instructing the potential defendant to preserve certain types of possible evidence. These letters are getting more and more thorough, and it is a good idea to provide a copy of one to your manufacturing, trucking, hospital, or other appropriate clients to use in forming its document retention policies. There are several examples on the Internet.

State criminal law has 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 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).

Julia Pendery is board-certified in Civil Appellate Law. In addition to appeals, she often helps clients set aside default judgments, and she represents landowners in eminent domain matters. She can be reached at jpendery@cowlesthompson.com.


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