DON’T LET SPOLIATION
SPOIL YOUR DAY
TEXAS SPOLIATION LAW IN LIGHT OF
BROOKSHIRE BROTHERS, LTD. V. ALDRIDGE
Presented by
Jerry L. Mitchell
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WHAT IS SPOLIATION?
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WHAT IS SPOLIATION?
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The wrongful destruction of discoverable evidence.
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Evidentiary concept; not a cause of action.
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Traditionally, courts have had wide discretion to fashion
remedies.
Spoliation instruction to the jury has long been a common
remedy.
See: Armory v. Delamarie, 93 Eng. Rep. 664 (K.B. 1722).
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Roots of Spoliation Law in Texas
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Spoliation is not a new or recent concept.
Rationale for fashioning remedy for spoliation is found in Old English
common law concept:
“omnia presumuntur contra spoliatorem” (all things are to be
presumed against a despoiler or wrongdoer).
Texas Supreme Court first wrote on spoliation in 1852 in Cheatham v. Riddle,
8 Tex. 162 (1852).
Until this summer, relatively sparse guidance from the Texas Supreme
Court.
Law developed by Courts of Appeals – sometimes not consistently.
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Roots of Spoliation Law in Texas
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Currently no Texas Rule of Civil Procedure on spoliation. Unlike FED.R.CIV.P. 37(e)
(amended as of Dec. 1, 2015).
Technological developments and dramatic increase in electronic data discovery have strained
courts’ abilities to keep up.
“Gotcha” spoliation motions have become prevalent litigation strategy.
Judge Lee Rosenthal summarized problem in Rimkus Consulting Group, Inc. v. Cammarata, 688
F. Supp. 2d 598 (S.D. Tex. 2010).
“Spoliation of evidence – particularly of electronically stored information – has
assumed a level of importance in litigation that raises grave concerns. Spoliation
allegations and sanctions motions distract from the merits of a case, add costs to
discovery, and delay resolution. The frequency of spoliation allegations may lead to
decisions about preservation based more on a fear of potential future sanctions than on
reasonable need for information.”
Texas Supreme court finally provides what it calls a “complete analytical framework” for
spoliation issues in Brookshire Bros. Ltd. v. Aldridge, 438 S.W. 3d 9 (Jul. 2014).
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Brookshire Bros. Ltd. v. Aldridge – The Facts
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Plaintiff Aldridge slipped and fell at Brookshire Bros. grocery store.
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At time of fall, Aldridge did not tell store he was injured.
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Store did not investigate or do an incident report.
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1 ½ hours later, Aldridge goes to the emergency room complaining of pain.
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5 days later, Aldridge returns to the store to report his injuries – manager trainee
completes incident report.
Fall was captured on store video camera. VP decides to retain 8 minutes of video (from
Aldridge’s arrival until shortly after the fall).
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11 days after the incident, Aldridge requests a copy of the video, but his request is denied.
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30 days after the incident, the store’s security system records over the day of the fall
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BROOKSHIRE BROS., LTD. V. ALDRIDGE – THE LAWSUIT
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Aldridge files suit in Angelina County.
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Aldridge requests production of approximately 2 ½ hours of additional video that had been overwritten.
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Trial court permits jury to hear evidence regarding whether Brookshire Bros. spoliated evidence.
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In jury charge trial court:
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Allowed jury to decide whether spoliation had occurred.
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Gave following spoliation instruction:
“In this case, Brookshire Brothers permitted its video surveillance system to record over certain
portions of the store surveillance video of the day of the occurrence in question. If you find that
Brookshire Brothers knew or reasonably should have known that such portions of the store video
not preserved contained relevant evidence to the issues in this case, and its non-preservation has not
been satisfactorily explained, then you are instructed that you may consider such evidence would
have been unfavorable to Brookshire Brothers.”
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Jury Verdict for Aldridge for more than $1 million.
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Brookshire Bros. appealed. Tyler Court of Appeals affirmed.
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WHY SUPREME COURT WROTE THIS OPINION
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Court acknowledged spoliation is a “serious issue”.
Prevalence of electronic data and uncertainties associated with
preserving data have resulted in “all-time high” in spoliation
sanctions.
To “enunciate with greater clarity” the standards governing
whether spoliation occurred and parameters of court’s
discretion to fashion a remedy.
Court sets out detailed framework for determining spoliation
issues.
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WHO DETERMINES SPOLIATION ISSUES?
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Courts traditionally have had discretion to permit juries to
determine whether spoliation occurred.
After Aldridge:
Court is to determine whether spoliation occurred and what
remedy to apply.
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Want juries to focus on merits, not the sideshow.
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Court may conduct evidentiary hearing.
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THE FRAMEWORK
Trial Court is to conduct two-step analysis:
1. Must determine whether spoliation occurred; and
2. If so, must assess appropriate remedy.
To find a party spoliated evidence Court must find:
1. The spoliating party had a duty to reasonably preserve
evidence; and
2. The party intentionally or negligently breached that duty.
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ELEMENT ONE: DUTY
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Burden on moving party to establish duty existed.
Two issues:
(1) When did duty arise?
(2) Scope of duty.
Duty arises when party “anticipates litigation”, that is, knows
or should know that there is a substantial chance that a claim
will be filed and that evidence in its possession or control will
be material and relevant to that claim.
A “substantial chance” of litigation arises when litigation is
more than “merely an abstract possibility or unwarranted fear.”
“substantial chance” can arise before the plaintiff manifests an
intent to sue.
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ELEMENT TWO: BREACH
 Can be intentional or negligent.
 Includes failure to take steps to prevent destruction.
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REMEDIES
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Trial court has “broad discretion” (though limited as detailed below).
TEX.R.CIV.P. 215.2 remedies available for spoliation
(1) disallowing discovery by offending party;
(2) expenses and/or court costs related to discovery;
(3) order that matters or facts be deemed established;
(4) refuse to allow party to support or oppose designated
claims or defenses;
(5) striking pleadings or parts thereof, or dismissing claims; and
(6) attorneys fees and costs.
In addition, Court may craft other remedies “it deems appropriate” in light
of the particular facts of an individual case.
Remedy may include spoliation instruction in appropriate cases.
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FACTORS GUIDING DISCRETION ON REMEDIES
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Purpose of remedy is remedial, not punitive.
Remedy must have direct relationship to act of spoliation and may not be
excessive.
Remedy must be proportionate when weighing culpability of the spoliater
and prejudice to the other party.
Trial court should consider:
(1) relevance of the evidence.
(2) harmful effect of evidence on spoliating party’s case (or
helpfulness to other party).
(3) whether evidence was cumulative of other evidence nonspoliating party can use.
Note:
Court says “mere absence of evidence” may be enough to support finding
relevance and harm in intentional cases (absent contrary evidence). In negligence cases,
must have some proof about what the destroyed evidence would show.
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SPOLIATION INSTRUCTION AS A REMEDY
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Spoliation instruction is a sanction.
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Among the harshest sanctions a trial court may utilize to remedy spoliation.
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Can be tantamount to a death penalty sanction because of danger of tilting jury.
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Should be used cautiously.
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Must have intentional spoliation to get instruction.
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No instruction for negligent spoliation.
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Exception: “rare” occasions where negligent spoliation irreparably prevents other
party from presenting claim or defense.
Trial court must also conclude that a lesser remedy would not be sufficient.
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WHAT IS INTENTIONAL SPOLIATION?
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Party acted with the subjective purpose of concealing
or destroying discoverable evidence.
Includes willfully allowing evidence to be destroyed.
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EVIDENCE OF SPOLIATION
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Not to be presented to jury if unrelated to merits and
only to spoliation.
Opportunity for Advocacy.
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APPELLATE REVIEW
Abuse of discretion.
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Finding of spoliation
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Remedy
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Admission of evidence
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WHAT COMES NEXT?
Supreme court extended its ruling in Aldridge by holding that other remedies akin to
death penalty sanctions, such as striking claims or defenses, also require finding of
intentional spoliation. Petroleum Solutions, Inc. v. Head, No. 11-0425, 2014 WL 3511509
(Tex. July 11, 2014).
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Open questions:
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What should a spoliation instruction say? “may” vs. “must”.
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Pattern jury charge instruction punts on the issue.
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Dissenting opinion in Aldridge argues only option is “must”.
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How closely tied to the merits must evidence be to admit at trial? Is impeachment
enough?
500-pound gorilla: What does “reasonably preserve” mean in the electronic data
context? Scope? How long must data be preserved?
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CONCLUSION
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Q & A Session
Jerry L. Mitchell, Partner
Fulkerson Lotz LLP
4511 Yoakum Blvd., Suite 200
Houston, Texas 77006
713-654-5837
[email protected]
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