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Lessons from the Texas Supreme Court’s Recent Case on Spoliation
By:  Michael J. Ritter

The Texas Supreme Court recently addressed the intentional destruction of evidence—or “spoliation”—in Brookshire Bros. v. Aldridge. It held that (1) a trial judge, rather than a jury, must determine whether a party spoliated evidence, and (2) a trial judge must almost always find that a party spoliated evidence in bad faith before informing a jury about the party’s misfeasance. Although the issues before the court were narrow, Aldridge provides guidance to courts and practitioners dealing with spoliation issues.

The unavailability of relevant evidence, a dispute over how the evidence became unavailable, and how the prejudice to the other party should be addressed, might present unconsidered questions for young attorneys and new litigators. The following are just a few considerations for attorneys unfamiliar with spoliation issues.

Understand the Spoliation Two-Step. Aldridge explains that there are two steps in a spoliation analysis. Before imposing a remedy, the trial court must (1) find that evidence was intentionally or negligently destroyed, and (2) determine that the chosen remedy proportionally addresses the harm to the nonspoliating party. The case describes each step and explains policies underlying each.  Understanding those policies is important to effectively arguing in favor of or in opposition to a motion for a spoliation remedy.

Spoliation probably occurs more than one would think. The case also notes that “sanctions concerning spoliation of electronic information have reached an all-time high.” A theme in Aldridge was the prevalence of programmatic deletion of electronically stored information pursuant to document retention policies. Because of the severity of spoliation sanctions, attorneys should inquire whether a client facing a lawsuit has such a policy and advise on the need for a litigation hold, as the case might require. Conversely, litigators should assess whether an opposing party’s denial of the existence of evidence in discovery is due to the opposing party’s own fault or bad faith.

If you have a good faith belief that an opposing party spoliated evidence, quickly file a motion and request a hearing. If an opposing party has spoliated evidence, it is highly unlikely that the party will come and bring it your attention. Most spoliation issues will likely come to light during discovery (if not beforehand), and will sometimes come up during trial. Determining that spoliation occurred is initially the lawyer’s job. If it comes to light that relevant evidence inexplicably went missing, a party should move for a hearing on the issue and request a remedy that would adequately address the resulting prejudice. A key point from Aldridge is that this hearing must occur outside the presence of the jury. Furthermore, an attorney’s failure to timely resolve whether a spoliation remedy is appropriate can damage the attorney’s credibility in arguing that the spoliation was in bad faith or substantially prejudicial.

Be cautious about requesting a spoliation instruction. Although Aldridge discusses spoliation remedies, the case is really about the specific remedy of spoliation instructions. Aldridge explains that spoliation is a form of discovery abuse for which the full range of discovery sanctions provided in the Texas Rules of Civil Procedure, in addition to a spoliation instruction, are available. The case admonishes courts to consider lesser sanctions prior to submitting a spoliation instruction because in the court’s view, an instruction can be almost as severe as a death penalty sanction. Most if not all cases in which a Texas appellate court has held that a spoliation instruction was improper (including Aldridge), the case was reversed and remanded for a new trial. Thus, unless a spoliation instruction is somewhat necessary, an attorney should carefully consider whether to request it.

Remember your ethical obligations. An attorney who becomes aware that a client is spoliating evidence may be subject to disciplinary action. Under Rule 3.04 of the Texas Rules of Disciplinary Conduct, an attorney “in anticipation of a dispute [shall not] unlawfully alter, destroy or conceal a document or other material that . . . has potential or actual evidentiary value.” Rule 3.04 also prohibits assisting a client to spoliate evidence. Therefore, young attorneys should be mindful that they may be held accountable for their client’s spoliation.

Michael J. Ritter is a solo practitioner at the Law Office of Michael J. Ritter. He received his J.D. from The University of Texas School of Law and his B.A. from Trinity University in San Antonio. He and Justice Rebecca Simmons co-authored Texas’s Spoliation “Presumption,” 43 St. Mary’s L.J. 691 (2012), quoted by the Texas Supreme Court in Brookshire Bros. v. Aldridge.