Spoliation sanctions that arise from a failure to preserve evidence are issues of central importance for plaintiff trial attorneys. Recently, the Texas Supreme Court submitted a controversial ruling regarding the negligent destruction of evidence in Brookshire Brothers, LTD., v. Jerry Aldridge No. 10-0846 (Tex. July 3, 2014).
Did the Recording Over of the Video Tape in Brookshire Brothers v. Aldridge Amount to Spoliation?
Plaintiff slipped and fell near a display table at Defendants’ grocery store on September 2, 2004. On September 7, Plaintiff returned to the store to report his injuries, and on September 13, Plaintiff requested a copy of the video footage detailing the fall after he learned that Defendants possessed footage of the incident.
Defendants refused Plaintiff’s request for the video. Subsequently, the footage of Plaintiff’s slip-and-fall was recorded over in early October. Defendants claimed that recording over video was a routine practice after thirty-one days.
Plaintiff argued for spoliation sanctions based on the fact that Defendants were aware of Plaintiff’s request for production of the videotapes in advance of them being recorded over.
The trial court submitted a mild spoliation instruction to the jury, which allowed, but did not require, the jury to presume harm if the jury found Defendants had spoliated evidence. The jury returned a verdict for the Plaintiff, with the appeals court affirming the trial court’s judgment.
Does the TX Supreme Court Dissent Have Stronger Reasoning in Brookshire Brothers?
The Texas Supreme Court reversed, holding that the adverse inference instruction was not appropriate for merely negligent destruction of evidence, as opposed to bad faith or willful destruction.
The dissenting opinion of Justice Guzman, joined by Justice Devine and Justice Brown, offered a markedly different opinion on the spoliation issue at hand and its implications on electronic discovery. The dissenting justices noted some key issues that would arise as a result of the majority opinion, including:
1. Trial courts in Texas are now stripped of their discretion to decide which spoliation instruction is appropriate;
2. Trial courts in Texas no longer have the option of allowing the jury to resolve factual disputes concerning spoliation; and
3. The new framework in effect permits a party to escape liability for the destruction of relevant evidence by simply demonstrating that the destruction occurred in accordance with the party’s existing document retention policy.
The Texas Supreme Court’s spoliation majority decision will assuredly have negative implications for plaintiffs when corporate entities “turn a blind eye” and act negligently regarding the destruction of electronically stored information (ESI), email correspondence and video. In effect, the majority creates an incentive for defendants to implement retention policies that do not serve the best interests of open and honest discovery practices.