Spoliation of Evidence in Texas: The Supreme Court Speaks

The advancement of technology, the preservation of electronic evidence, and concerns over imposing sanctions when discoverable electronic evidence is lost as a result of routine business, spurred the Texas Supreme Court to bring much-needed clarity to Texas law in the area of spoliation of evidence. Spoliation is the intentional, reckless, or negligent destruction, loss, alteration, or obstruction of evidence that is relevant to litigation. When a party fails to produce evidence in its control, the law presumes that, if produced, the evidence would operate against the party. The spoliation presumption started as a concept in 1852 that missing evidence was presumed against the wrongdoer. Since that time, however, no rule had been expressly adopted by the Texas high court and the presumption was not uniformly applied.

On July 3, 2014, the Texas Supreme Court issued an opinion in Brookshire Brothers, Ltd. v. Jerry Aldridge that adopted a roadmap on how courts should handle allegations of spoliation. The most important clarifications provide: (1) guidance on when a spoliation instruction—which tells jurors they can assume a party destroyed evidence because it was harmful—is appropriate; (2) that trial judges alone must decide whether spoliation occurred and the sanctions that are appropriate; and (3) that evidence bearing solely on spoliation cannot be admitted at trial.[1]

In Aldridge, the court reversed and remanded a $1.0 million jury verdict for former San Francisco 49ers football player, Jerry Aldridge based on a finding that the trial court abused its discretion in admitting spoliation evidence and by giving the jury a spoliation instruction. Aldridge filed suit against Brookshire Brothers for premises liability when he slipped and fell near a rotisserie chicken display at its store. The fall was captured by a surveillance camera, but Brookshire Brothers only retained an eight minute portion of the video—Aldridge entering the store through one minute after his fall. Brookshire Brothers allowed the rest of the video to be recorded over. During trial a significant emphasis was put on the spoliation issue. Aldridge’s attorney accused Brookshire Brothers of destroying the tape, hiding evidence, and acting deceptively. The trial focused as much on the store’s video-retention policy as on the condition of its floors.  Based on these facts, the Supreme Court held the impact of the spoliation evidence and the instruction in this closely contested case probably caused the rendition of an improper judgment.

Prior to Aldridge, judges had wide discretion in determining what remedy, if any, to apply to allegations of spoliation. The concern was juggling between the absence of evidence hiding the search for the truth, and skewing a jury verdict that was not based on the merits but on the conduct of the parties. A spoliation instruction is the harshest sanction a court can use because it has the propensity to tilt a trial in favor of the other party, the consequence of which “often ends litigation because it is too difficult a hurdle for the spoliator to overcome.” At the same time, the destruction of relevant evidence can also unfairly skew the outcome of a trial. Improper use of a spoliation instruction can deprive either party of the right to a fair trial on the merits of the case. These competing considerations caused courts to grapple with the specific issue of whether a spoliation instruction could ever be an appropriate remedy for negligent spoliation. In Aldridge, the Supreme Court concluded that negligent spoliation was not enough to support a spoliation instruction except in a narrow exception when there is spoliation of the very subject of the claim, i.e., the product in a product-defect case. Therefore, a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy except in the rare circumstance that negligent spoliation so prejudices an opposing party that it is irreparably deprives of a meaningful ability to present a claim or defense.

A spoliation analysis now involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must access an appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. After the court determines that a party has spoliated evidence by breaching a duty to preserve such evidence, it may impose an appropriate remedy. The remedy must be proportionate when weighing the culpability of the spoliating party and the prejudice to the other party.

Applying the newly-articulated standard to the facts of the Aldridge case, the Supreme Court held that there was no evidence the store destroyed the video intentionally or that Aldridge was irreparably deprived of any meaningful ability to present his claim. There was no indication that the decision regarding the amount of video to save was based on what the additional footage would have shown. There was no evidence that Brookshire Brothers purposefully concealed relevant evidence. The preserved video suggest that additional footage would not have been harmful to Brookshire Brothers because the video quality was poor and a table obscured the view of the floor. Any prejudice to Aldridge resulting from Brookshire Brothers’ failure to preserve additional video did not rise to the level required to justify an instruction in the absence of intentional spoliation. Therefore, the Supreme Court held that the trial court abused its discretion in submitting a spoliation instruction to the jury.

Further, the Supreme Court held that the trial court erred in admitting evidence that was relevant only to the issues of whether Brookshire Brothers breached a duty to preserve evidence or acted with intent. The Court determined that evidence bearing solely on whether a party spoliated evidence or the party’s degree of culpability in doing so does not meet the definition of relevant evidence pursuant to Texas Rule of Evidence 401, i.e., it is not a “fact that is of consequence to the determination of the action.” This does not preclude indirect evidence to prove the contents of missing evidence that is otherwise relevant to a claim or defense.  Brookshire Brothers actually preserved the most relevant parts of the video and the remainder of the video likely made no difference on the case. Therefore, the Supreme Court concluded that there was no basis on which to allow the jury to hear evidence that was unrelated to the merits of the case, but served only to highlight Brookshire Brothers’ culpability.

This case highlights the importance that companies have a written retention policy and that they follow the policy, any time an accident occurs and there is any possibility that litigation may result. The court clarified that intentional spoliation included the concept of willful blindness, which encompassed the scenario in which a party does not directly destroy evidence known to be relevant, but nonetheless allows its to be destroyed by failing to take proper precautions to prevent it from being destroyed. Failure to have or follow a retention policy may be grounds, in some cases, for “willful blindness” that would allow the court to give the much dreaded spoliation instruction to the jury.

[1] Brookshire Brothers, Ltd. v. Jerry Aldridge , -- S.W.3d --, 2014 WL 2994435 (Tex. July 3, 2014).

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