By Robert Tobey
On July 3, 2014, the Texas Supreme Court set forth new standards for proof of spoliation of evidence in Brookshire Brothers, Ltd. v. Aldridge, 2014 Tex. LEXIS 562. This decision is important for every company that has a document retention policy.
On September 2, 2004, Aldridge slipped and fell near a display table at a Brookshire Brothers grocery store. Aldridge later went to the emergency room, but did not report his injuries to the grocery store until September 7. Aldridge stated that he slipped on grease that had leaked out of a container in the deli area.
Aldridge’s fall was captured by a surveillance camera mounted near the checkout counters. The floor where Aldridge fell was obscured by a display table which was covered with a cloth that extended to the floor. Robert Gilmer of Brookshire decided to retain and copy about 8 minutes of the video, which started just before Aldridge entered the store and concluded shortly after his fall. At the time of the fall, the cameras recorded in a continuous loop that, after approximately 30 days, recorded over prior events. Aldridge requested a copy of the video, but Gilmer refused to produce it.
Brookshire initially agreed to pay Aldridge’s medical expenses, but ceased paying by June 2005. In August 2005, Aldridge retained counsel who sent Brookshire a letter for the first time requesting approximately 2 ½ hours of additional footage from the store cameras. By that time, the footage had been recorded over almost a year earlier.
Eventually, suit was filed and at trial, the trial court allowed the jury to hear evidence bearing on whether Brookshire spoliated the video, submitted a spoliation instruction to the jury, and permitted the jury to decide whether spoliation occurred during its deliberations on the merits of the lawsuit. The jury determined Brookshire’s negligence proximately caused Aldridge’s fall and awarded Aldridge damages of $1,063,664. The holding was affirmed by the Court of Appeals.
The Supreme Court held that a spoliation analysis involves a two-step judicial 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 any 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. Accordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except in so far as it relates to the substance of 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 to the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the non-spoliating party.
The 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. A spoliation instruction may be given after a negligent destruction of evidence only if the non-spoliating party has been irreparably deprived of any meaningful ability to present a claim or defense.
Based on the standards set forth by the Supreme Court, the judgment in favor of Aldrich was reversed. The Supreme Court held that it was an abuse of discretion by the trial court to give a spoliation instruction to the jury under the facts of the case and remanded the case for a new trial in accordance with the opinion.
In a strongly worded dissent, Justice Guzman criticized the Court’s standard as a substantial limit on the broad discretion that trial courts had to craft an appropriate remedy for spoliation. Justice Guzman also criticized the holding because it articulated a standard that may permit the destruction of relevant evidence, so long as it is done in accordance with a stated document retention policy. Justice Guzman cautioned courts to ensure that companies cannot “blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.” Justice Guzman concluded the litigants in our system of justice deserve a spoliation framework that fosters the preservation of relevant evidence by equipping trial courts with the discretion to tailor remedies to the offenses committed which the Court is abolishing in its decision.
On July 11, 2014, the Texas Supreme Court decided Petroleum Solutions, Inc. v. Head, 2014 Tex. LEXIS 579, which affirmed the Brookshire standard and added that the same restrictions regarding spoliation instructions also limit a trial court’s discretion to issue other remedies akin to death penalty sanctions, such as striking a party’s claims or defenses.
The Texas Supreme Court has made it clear that its intent is to significantly limit the permissible grounds for the imposition of spoliation instructions or death penalty sanctions by trial courts. To get a spoliation instruction, a party must prove either that the spoliation party acted with the specific intent of concealing discoverable evidence or negligently destroyed evidence such that the non-spoliating party has been irreparably deprived of any meaningful ability to present a claim or defense. While the scope of this ruling will be determined in the first instance by trial courts, it is clear that a routine document retention policy will be the first line of defense to be asserted by parties alleged to have spoliated evidence.