Spoliation after Brookshire Brothers v. Aldridge
By: Kristen Kokenes
Prior to the 2014 case of Brookshire Brothers v. Aldridge, the rules for spoliation of evidence were not completely clear. Generally, courts followed two different frameworks when analyzing spoliation. First, courts followed the concurrence of Justice Baker in Trevino v. Ortega. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 18-19 (Tex. 2014). Under this framework, a party may be entitled to a remedy for spoliation by the opposing party if three elements were satisfied: (1) the spoliating party had a duty to preserve the evidence; (2) the party either negligently or intentionally breached that duty; and (3) the nonspoliating party was prejudiced by the breach. Trevino v. Ortega, 969 S.W.2d 950, 955-958 (Tex. 1998) (Baker, J., concurring).
The second analysis that courts followed focused on when a spoliation instruction was available. Brookshire, 438 S.W.3d at 19. These courts recognized two situations in which a spoliation instruction was appropriate: (1) when a party deliberately destroyed relevant evidence; and (2) when a party failed to produce relevant evidence or failed to explain its nonproduction. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003). If either of these situations was present, a presumption arose that the evidence was unfavorable to the spoliating party’s case. Id.
The Texas Supreme Court had not previously crafted an explicit analysis regarding spoliation and the proper remedy. As a result, the court addressed the correct analysis in 2014 with Brookshire Brothers v. Aldridge. In Brookshire, the Plaintiff slipped and fell at a Brookshire Brothers grocery store. Brookshire, 438 S.W.3d at 15. At the time of the fall, the Plaintiff did not report the fall to the store. Id. However, he went to the emergency room for pain. Id. Six days after the fall, the Plaintiff returned to the store and reported his injuries. Id. The fall was recorded on the store’s surveillance cameras; however, the surveillance video was recorded on a continuous loop and after thirty days, the cameras recorded over prior footage. Id. After the Plaintiff reported the fall, the store manager retained a copy of eight minutes of surveillance video, beginning when the Plaintiff entered the store and ending immediately after the fall. Id.
Nine months later, litigation ensued and the Plaintiff requested over two hours of the surveillance footage. Id. However, Brookshire Brothers was unable to comply with the request because the footage had been recorded over due to the cameras operating on a continuous loop. Id. The Plaintiff argued that the failure to preserve the surveillance footage amounted to spoliation of evidence and moved for a spoliation jury instruction. Id. at 16. The trial court allowed the jury to hear evidence regarding whether Brookshire Brothers had spoliated the video and subsequently submitted a spoliation instruction. Id. The jury found for the Plaintiff and the Court of Appeals affirmed. Id.
The Texas Supreme Court reversed and clarified the framework by which spoliation should be analyzed. Id. at 14. First, spoliation issues must be decided outside the presence of the jury. Id. at 20. The court explained that spoliation is an evidentiary concept and not a separate cause of action. Id. Because evidentiary matters are resolved by the trial court, so should spoliation matters. Id. Further, spoliation is a form of discovery abuse, which is also decided by the trial court. Id. Finally, allowing a jury to hear spoliation issues creates the concern that a jury will focus on the spoliation, rather than the merits of the case. Id.
Next, the spoliating party must have had a duty to preserve relevant evidence and subsequently breached that duty. Id. The burden of establishing that such a duty existed is on the party alleging spoliation. Id. The duty to preserve relevant evidence is breached by failing to exercise reasonable care to preserve the evidence. Id. Such breach may be either negligent or intentional. Id.
After the court has found that a party had a duty to preserve evidence and breached that duty, the court may then assess an appropriate remedy. Id. at 21. A wide range of remedies are available to the trial court, including an award of attorney’s fees or a spoliation instruction. Id. However, a spoliation instruction is “among the harshest sanctions a trial court may utilize to remedy an act of spoliation.” Id. at 22. The purpose of a spoliation remedy is to restore the parties to approximately their positions if all evidence were available. Id. at 21. Moreover, the remedy must be “proportionate when weighing the culpability of the spoliating party and the prejudice to the nonspoliating party.” Id. The factors to consider when evaluating whether a party has been prejudiced include the relevance of the spoliated evidence, the harmful effect of the evidence on the spoliating party’s case, and “whether the spoliated evidence was cumulative of other competent evidence that may be used instead of the spoliated evidence.” Id. at 21-22.
A trial court may impose a spoliation instruction as a remedy in two limited circumstances: (1) the spoliating party intentionally destroyed or concealed the evidence; and (2) the spoliating party negligently destroyed the evidence but the nonspoliating party has been irreparably deprived of any “meaningful opportunity to present a claim or defense.” Id. at 23-25. Spoliation is intentional when the party acted with the “subjective purpose of concealing or destroying discoverable evidence.” Id. at 24. Notably, intentional spoliation encompasses “willful blindness,” which occurs when a party does not directly destroy evidence known to be relevant, but “allows for its destruction.” Id. Additionally, even after a trial court has found that spoliation was intentional, the court must still find that a lesser remedy would be insufficient to “ameliorate the prejudice caused by the spoliating party’s conduct.” Id. at 25. After the court finds that a lesser remedy is insufficient, then it is within a trial court’s discretion to impose a spoliation instruction. Id.
In sum, when a party requests a spoliation sanction, the Brookshire analysis directs the trial court to (1) decide whether the party possessed and breached a duty to preserve relevant evidence; (2) decide whether the spoliation was intentional or negligent; (3) assess the prejudice suffered by the nonspoliating party; and (4) impose a remedy.