On July 3, the Supreme Court provided an analytical framework for determining whether spoliation has occurred, and if so, what remedies are available. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562 (Tex. July 3, 2014).
The case arose out of a slip and fall at a grocery store. The fall was captured by a surveillance camera that recorded in a continuous loop that, after approximately 30 days, recorded over prior events. The store retained only an eight–minute segment of the footage beginning just before the customer entered the store and ending just after the fall. When the customer sued and requested the entire day’s worth of footage, the store could produce only the eight–minute segment.
Arguing that the additional footage would have been helpful to the key issue of whether the substance was on the floor long enough for employees of the store to have discovered it, the customer moved for a spoliation instruction. The trial court allowed evidence of spoliation to be admitted at trial and submitted this instruction to the jury:
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.
The jury returned a verdict in favor of the customer for more than $1 million. The Supreme Court reversed and remanded, holding that the trial court abused its discretion in giving a spoliation instruction. In doing so, the Court set out an analytical framework to guide future cases.
The Court first held that a spoliation analysis involves a two–step judicial process:
- the trial court must determine, as a question of law, whether a party spoliated evidence and,
- if spoliation occurred, the court must assess an appropriate remedy.
To conclude that a party spoliated evidence, the court must find that:
- the spoliating party had a duty to reasonably preserve evidence, and
- the party intentionally or negligently breached that duty by failing to do so.
Spoliation findings––and their related sanctions––are to be determined by the trial judge, outside the presence of the jury, to avoid unfairly prejudicing the jury by the presentation of evidence unrelated to the merits.
When is there a duty to preserve evidence?
A duty to preserve evidence arises only when a party knows or reasonably 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.”
What remedies can a trial court impose?
Upon a finding of spoliation, a trial court has discretion to impose a remedy that is proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the non–spoliating party.
When can a trial court give a spoliation instruction?
The harsh remedy of a spoliation instruction is warranted only when the court has found:
- the spoliating party acted with specific intent to conceal discoverable evidence and no lesser remedy will suffice to overcome the prejudice the spoliation caused, or
- a party negligently failed to preserve evidence and the non–spoliating party has been irreparably deprived of any meaningful opportunity to present a claim or defense.
What about “willful blindness”?
Intentional spoliation includes the concept of “willful blindness,” in which a party does not directly destroy evidence known to be relevant and discoverable, but nonetheless allows its destruction.
The standards applied.
Applying these standards, the Supreme Court held that the trial court abused its discretion in submitting a spoliation instruction because there was no evidence that the grocery store intentionally concealed or destroyed the video in question, or that the customer was deprived of any meaningful ability to present his claim to the jury.
In a dissenting opinion, Justices Guzman, Devine and Brown expressed concern that the majority’s opinion unduly restricted a trial court’s discretion to craft appropriate remedies for spoliation and permitted a party to escape liability for destruction of relevant evidence by simply demonstrating the destruction occurred in accordance with existing document retention policies.