Spoliation of evidence is the destruction or failure to preserve evidence in one’s possession when the actor knew or should have known that a claim would be filed and the evidence material.
While many states have different remedies for the negligent or intentional destruction of material evidence, Texas has rejected the adoption of an independent tort for such conduct. See
Trevino v. Ortega, 969 S.W.2d 950, 960 (Tex. 1998).
Instead, Texas at one time dealt with the issue by creating a presumption that evidence would have been unfavorable to the party that destroyed the evidence. This inference has been well-established under prior Texas case law. See John Deere Co. v. May, 773 S.W.2d 369, 377 (Tex. App.–Waco 1989).
However, a recent Texas Supreme Court case has changed the approach used in Texas and clarified how a spoliation claim should be handled and the appropriate remedy determined. Brookshire Brothers, Ltd. v. Aldridge, No. 10-0846, 2014 Tex. LEXIS 562, 2014 WL 2994435 (Tex. July 3, 2014).
The Brookshire case involved a slip and fall where the plaintiff alleged that the videotape of the scene was not properly preserved. The scene had been videotaped by store cameras and the defendant preserved the portion that showed the fall but did not preserve the portion preceding the fall which the plaintiff alleged was material to the case.
Ultimately, the plaintiff was awarded a sizable verdict which was affirmed by the Court of Appeals and later reversed by the Texas Supreme Court.
In the Brookshire opinion, the court clarifies the rules that apply in Texas for spoliation of evidence and sets forth a two-part analysis.
It is the trial court in Texas that must determine whether a party had a duty to preserve the evidence and failed to preserve the evidence. The reasoning is that this question is a question of law and therefore the court should decide the issue. Should the court find that spoliation did occur, then it is up to the court to determine a remedy that is appropriate for the action.
The first step, the determination of whether or not spoliation occurred, should be conducted outside the presence of the jury. The court must find a duty upon the spoliating party to preserve evidence and that the party either negligently or intentionally breached the duty to preserve the evidence.
According to the court, a duty to preserve evidence rises in Texas only when “a party knows or reasonably should know that there is a substantial chance of the claim will be filed and that evidence in its possession or control the material and relevant to the claim” Brookshire Bros. at 22.
If the duty is established, the party alleging spoliation must prove the other party breached their duty of reasonable care in preserving the relevant evidence.
It is upon the court to determine what the appropriate remedy should be in each individual case. Remedies should be in a direct relationship to the actions. Considerations the court can utilize in its analysis:
- Relevance of the evidence to key issues
- Whether the evidence would have been helpful to the other party’s case
- Whether or not the evidence could be developed through other evidence
In determining whether or not the remedy is appropriate, the Texas Supreme Court has stated that allowing a spoliation instruction is one of the harshest sanctions the trial court can use. Brookshire at 30; and the instruction should be limited to situations where intentional destruction is found or in rare occasions where negligence irreparably prevents a party from having a meaningful opportunity to present a claim or defense.
Personal injury victims will be well served to retain counsel as soon as possible after an accident and ensure that the attorney notifies the potential defendants to preserve evidence that may be material to the proving the case.
By providing proper notification and also specifying which evidence should be preserved, the plaintiff should satisfy the first prong of the duty test. Likewise, personal victims should also preserve evidence in their possession that is relevant to a defense that may be claimed.
While many jurisdictions provide much more meaningful sanctions for intentional or negligent destruction of evidence, with the Brookshire case, the rules for dealing with failure to preserve relevant evidence have been made clear. If you have questions for a Texas personal injury lawyer– give us a call at (281) 587-1111!
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