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May 04, 2022 Feature


Drew Williamson

In our adversarial system, it is imperative that litigants have access to information possessed or controlled by the opposing party that is necessary to present their claims or defenses. The purpose of discovery is to seek the truth so disputes may be decided by what facts are revealed, not by what facts are concealed. Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). The discovery process is governed by rules intended to safeguard these principles and promote justice. The purpose of sanctions is to secure compliance with the rules, deter future violation of the rules, punish parties that violate the rules, and also remedy harm caused by failure to abide by these rules. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).

What is spoliation? Spoliation is the improper loss or destruction of relevant evidence and can include altering evidence. Spoliation occurs when a party has a duty to preserve evidence and conceals, alters, or destroys evidence that it could have reasonably preserved.

Analyzing a claim of spoliation is a two-step process. First, the court must determine whether a party spoliated evidence. Second, if the court finds that the party spoliated evidence, the court then must determine what remedy is warranted. This determination must be made by the trial court—not the jury. This is because spoliation is a form of discovery abuse as opposed to a separate cause of action in and of itself.

For a court to determine that a party spoliated evidence, the court must find that the spoliating party (1) had a duty to preserve the evidence and (2) breached that duty by not preserving the evidence. Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 20 (Tex. 2014). The party requesting the evidence has the burden to establish both the existence of the duty and the breach.

A party has a common law duty to preserve evidence as soon as it knows or reasonably should know that (1) there is a substantial chance that a claim will be filed and (2) evidence in its possession or control will be material and relevant to that claim. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003). For there to be a substantial chance that a claim will be filed, there must be more than the mere possibility or unwarranted fear of litigation. Brookshire Bros., 438 S.W.3d at 20. However, a party can anticipate a claim will be filed and be under a duty to preserve without receiving actual notice of a suit. The court will use an objective standard to determine whether there is a substantial chance of a claim being filed.

The dynamic nature of electronically stored information makes it particularly challenging to preserve—an electronic file is technically altered every time it is opened, closed, or saved. Because electronic information is easily altered or destroyed in ways that conventional information is not, in preparing for electronic discovery, a party should give all other potential parties notice to keep them from altering or destroying relevant evidence.

Once a duty to preserve evidence has been established, the requesting party must then show that the producing party breached that duty to preserve material and relevant evidence. The standard of care is reasonable care, which includes a duty not to alter evidence’s condition. Extraordinary measures to preserve evidence are not necessary nor does the common law duty to preserve evidence require a party to keep every document or item in its possession. Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 357 (Tex. App. 2007), petition denied. A party must, however, preserve evidence that it knows or reasonably should know is relevant to the claim, is likely to be requested in discovery, or is actually the subject of a discovery order. Id. at 357–58.

To rebut the spoliation claim, the producing party can directly challenge the requesting party’s allegations or provide a reasonable explanation. One example of a reasonable explanation for the loss or destruction of the evidence is a showing that the loss or destruction was beyond the party’s control, such as an act of God. Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 477 (Tex. App. 2006), no petition. Another such example of a reasonable explanation for the loss or destruction of the evidence is a showing that the evidence was destroyed or discarded in the ordinary course of business, such as in compliance with a corporate retention policy. However, when the party’s duty to preserve evidence arises before it destroys evidence, the fact that the party followed a corporate retention policy will not justify the destruction. Adobe Land, 236 S.W.3d at 360.

If the court determines that the party spoliated evidence, the court must assess and impose an appropriate remedy. In determining an appropriate remedy, the court must assess the culpability of the producing party and evaluate the prejudice suffered by the requesting party. A court may impose sanctions against a party who spoliates evidence. If spoliation is determined to have occurred, the Texas Supreme Court opined that the appropriate remedy is largely based on the culpable mental state involved. “Upon a finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise to the sanction and may not be excessive.” Brookshire Bros., 438 S.W.3d at 21.

In evaluating the culpability of the spoliating party, the court must consider the amount of prejudice to the nonspoliating party and whether the spoliating party was negligent or acted intentionally in breaching their duty to preserve evidence. Id.

Negligent spoliation occurs when a party conceals or destroys discoverable evidence but does not deliberately do so. The party lacks the state of mind of a “wrongdoer.” Id. at 23.

Intentional spoliation, also referred to as bad-faith or willful spoliation, occurs when a party acts with a subjective purpose to conceal or destroy discoverable evidence. Id. at 24. Intentional spoliation includes “turning a blind eye” to the destruction of relevant and material evidence, even though the party does not personally or directly destroy the evidence. Id.

Before imposing a remedy, the court must evaluate the prejudice to the requesting party. In assessing prejudice, a court must consider (1) the relevance of the missing evidence to key issues in the case; (2) whether the missing evidence would have been harmful to the spoliating party’s case, or the converse; and (3) whether there is other competent evidence available to replace the missing evidence. Trevino v. Ortega, 969 S.W.2d 950, 955–58 (Tex. 1998) (Baker, J., concurring).

A party’s intentional spoliation of evidence may, on its face, be sufficient to support a finding that the missing evidence is relevant and harmful to the producing party. Brookshire Bros., 438 S.W.3d at 21. A party’s negligent spoliation of evidence, however, cannot support those findings without some proof, even circumstantial, of what the missing evidence would show and how it is relevant to the case. Trevino, 969 S.W.2d at 954 (Baker, J., concurring).

The final step the court must take in evaluating the prejudice to the requesting party is evaluating whether there is other competent evidence available to replace the missing evidence. The type and quality of the available evidence compared to the missing evidence are critical in analyzing prejudice. The presence of other alternative evidence does not automatically mean there is no prejudice.

After assessing the culpability of the producing party and the prejudice to the requesting party, the court can impose an appropriate remedy. The harshest of remedies is warranted only when the spoliating party acted with the specific intent of concealing discoverable evidence and a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation.

The court can impose sanctions on the producing party. Sanctions can include an award of attorney fees and costs, the exclusion of evidence, striking a party’s pleadings, or dismissing a party’s claims. Trevino, 969 S.W.2d at 959–60 (Baker, J., concurring).

Another remedy at the court’s disposal is to give a spoliation instruction for the jury to presume that the missing evidence is relevant and harmful to the producing party. Brookshire Bros., 438 S.W.3d at 22. A spoliation instruction is an example of an adverse inference instruction. Generally, an adverse inference instruction tells the jury that a party committing any number of discovery abuses, including failure to produce a particular piece of discovery or producing weaker evidence when stronger evidence is available, may justify the inference that the evidence or exhibit would have been unfavorable to that party.

A spoliation instruction can operate as a death-penalty sanction because it likely tilts a trial in favor of the requesting party by shifting the focus of the case from the merits to the improper conduct. Petroleum Sols. v. Head, 454 S.W.3d 482, 489 (Tex. 2014). As such, a spoliation instruction is considered to be a severe sanction and can generally only be an appropriate remedy where the court finds that the producing party intentionally spoliated evidence. In rare circumstances, a spoliation instruction may be appropriate when the producing party negligently spoliated evidence if the spoliation resulted in the requesting party being irreparably prevented from presenting a claim or defense.

The court can also impose any other remedy for the spoliation of evidence that it deems appropriate based on the facts of the case and the analysis outlined above.

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Drew Williamson is an associate with KoonsFuller’s Southlake, Texas, office. His practice focuses on divorce, child custody litigation, child support matters, protective orders, and domestic violence.