Monthly Archives: July 2015



The loss or destruction of evidence―from physical evidence to e-mails and surveillance videos―often results in claims of spoliation of evidence against defendants. Based upon an allegation of spoliation, courts routinely allow the jury to decide whether a defendant engaged in the spoliation of relevant evidence by instructing the jury it can draw an adverse or negative inference against the defendant because it may have lost or destroyed “missing” evidence in the case.

An adverse inference jury instruction can be fatal to a defendant’s case on the merits of litigation against it. Juries presented with an allegation of spoliation by a defendant often focus on the defendant’s alleged wrongful conduct in failing to preserve evidence―not the merits of the defendant’s case. Smart plaintiff’s counsel with weak cases on liability “play the spoliation card” to distract, prejudice and inflame the jury against a defendant who allegedly spoliated evidence.

The Texas Supreme Court in Brookshire Bros. Ltd. v. Aldridge, et al., 438 S.W. 3d 9 (Tex. 2014), restricted the availability of the “adverse inference” instruction for spoliation of evidence by requiring the judge, not jury, to decide in a pre-trial hearing whether spoliation occurred and to impose the adverse jury instruction as a discovery sanction by the court. Under this procedure, the jury hears no evidence of whether spoliation, in fact, occurred, and focuses on the merits case without being prejudiced by conduct involving the alleged spoliation of evidence.

The Brookshire case involved a slip-and-fall injury in the defendant’s grocery store. Plaintiff’s fall was recorded on video surveillance. The store manager preserved video of one minute before and seven minutes after plaintiff’s fall, but plaintiff claimed two hours of video before and after the fall was relevant and should have been preserved. Plaintiff argued that the defendant grocery store, therefore, spoliated this “missing” evidence, and asked the jury to draw an adverse inference against defendant for spoliation of the “missing” surveillance tape.

The trial court gave the “adverse inference” instruction on spoliation of evidence, and let the jury decide if spoliation had, in fact, occurred. The jury verdict was in favor of plaintiff, and affirmed on appeal. The Texas Supreme Court reversed and remanded.

In its decision, the Court explained that the purpose of the adverse inference instruction is “. . . to compensate for the absence of the evidence that a party had a duty to preserve, [and] its very purpose is to ‘nudge’ or ‘tilt’ the jury toward a finding adverse to the alleged spoliator . . . . Thus, an unfortunate consequence of submitting a spoliation instruction is that it ‘often ends litigation’ because ‘it is too difficult a hurdle for the spoliator to overcome.”

The Texas Supreme Court then fashioned a remedy to “neutralize” or “gut” the harm to the alleged spoliator with the jury deciding if spoliation occurred. The Court held:

  • Spoliation of evidence is a pre-trial discovery abuse that deprives a party of relevant evidence at trial;
  • The trial court, not jury, must make a pre-trial fact determination in an evidentiary hearing if a party spoliated evidence, and treat spoliation as a discovery sanction;
  • The party claiming spoliation has the burden of proving that the spoliating party had a duty to preserve certain evidence and breached the duty to preserve that evidence;
  • To prove intentional spoliation, there must be proof that the spoliating party was in bad faith (similar to the burden of proof in a federal “death penalty” discovery sanction) and had a subjective intent to conceal or destroy the evidence; and
  • In rare circumstances, a court may allow an adverse inference instruction for negligent spoliation by a party if the non-spoliating party is irreparably deprived of any meaningful ability to present a claim or defense by the absence of the “missing”

With this ruling, the Texas Supreme Court has helped level the playing field in spoliation disputes by eliminating the potential jury prejudice from the jury deciding at trial whether spoliation occurred and distracting them from the merits of a case. Other states should follow the lead of the Texas Supreme Court in the Brookshire decision based upon the road map laid out by the court using general principles of discovery and evidence currently available in federal and state courts throughout the country.