SUPREME COURT ARTICULATES COMPREHENSIVE FRAMEWORK FOR DEALING WITH SPOLIATION OF EVIDENCE

Brookshire Brothers, Ltd. v. Aldridge
Supreme Court of Texas, No. 10-0846 (July 3, 2014)
Justice Lehrmann (Opinion), Justice Guzman (Dissent)
In a 6-3 decision, the Supreme Court of Texas articulated a new, comprehensive framework for dealing with spoliation issues, addressing both the procedures by which alleged spoliation is to be determined by a trial court and the remedies to be imposed when spoliation is found to have occurred.

Aldridge slipped and fell in a Brookshire’s food store. He contended his fall was caused by grease that had leaked from a hot food display. When he reported the accident to the store, the company located and retained 8 minutes of video from a surveillance camera mounted near the site of the accident, to confirm that Aldridge had in fact fallen in the store. But the surveillance system was on a continuous loop, set to record over existing footage every month. Having saved the 8-minute clip, Brookshire’s allowed the remainder of the footage from that day to be recorded over, consistent with its customary practice. So, when Aldridge later asked for 150 minutes of the video surveillance—to establish whether Brookshire’s knew or should have known of the dangerous condition on the floor—that footage, aside from the 8-minute clip, was no longer available. At Aldridge’s request, the trial court took evidence at trial on whether Brookshire’s had “spoliated” the video evidence, asked the jury to decide whether spoliation had occurred, and instructed the jury that if it found Brookshire’s had spoliated the video evidence it “may consider such evidence would have been unfavorable to Brookshire Brothers” on the merits. The Supreme Court granted Brookshire’s petition for review “in order to bring much-needed clarity to [the] state’s spoliation jurisprudence” and, because the trial court had diverged at almost every turn from the new procedures announced in its opinion, the Court reversed and remanded for a new trial.

Because the Supreme Court’s goal was to establish for the first time a clear system for dealing with spoliation issues, it articulated its holding almost as if promulgating a new rule:
[A] spoliation analysis involves a two-step 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 assess 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. Spoliation findings—and their related sanctions—are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit. … 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. 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 nonspoliating party. … [T]he harsh remedy of a spoliation instruction is warranted only when the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the spoliation.
In explaining the framework it had fashioned, the Court expressed particular concern about the use of a spoliation instruction, in which a jury is told that it may or must infer that the lost evidence would have been unfavorable to the spoliating party, and about allowing the jury to hear evidence regarding the alleged conduct of spoliation that is unrelated to the merits of the underlying dispute. Both, the Court felt, interfere with a fair trial and distract from the jury’s proper task of evaluating the facts on the merits. It characterized a spoliation instruction as “among the harshest sanctions a trial court may utilize to remedy an act of spoliation” and “tantamount to a death-penalty sanction.”

The Court announced a narrow exception to its requirement that spoliation be deliberate before an instruction may be given: a failure to preserve evidence with a negligent mental state may support a spoliation instruction “in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.” It also explained that the “specific intent” required to support a spoliation instruction “includes the concept of ‘willful blindness,’ which encompasses the scenario in which a party does not directly destroy evidence …, but nonetheless ‘allows for its destruction’”—e.g., by not countermanding an automatic document destruction policy or process that the party knows will eliminate discoverable evidence.

Justice Guzman dissented, joined by Justices Devine and Brown, arguing that creation of such a sweeping new framework would be better left to the rulemaking process, that the approach adopted by the majority needlessly constrains trial courts’ discretion in remedying spoliation, and that the standards adopted by the majority may fail to adequately protect against the loss of evidence that occurs when data are destroyed pursuant to an established document retention/destruction policy.

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