United States: Texas Supreme Court Rules On Spoliation Instructions

Last Updated: July 18 2014
Article by Jennifer M. Williams

The court holds that, with rare exception, intent is required for spoliation instructions in Texas.

On July 3, the Texas Supreme Court issued its ruling in Brookshire Brothers, Ltd. v. Aldridge,1 holding, with a narrow exception, that a party must intentionally spoliate evidence in order for a trial court to give a spoliation instruction.


In Brookshire, a personal injury lawsuit, the plaintiff slipped and fell near a display table in a grocery store. The plaintiff did not immediately report the incident, but he returned to the store a few days later to report his injury. One of the store's surveillance cameras captured the fall on video. The store saved the video footage from just before the plaintiff entered the store until shortly after he left. However, additional footage from the day was destroyed pursuant to the store's retention policy, which provided for video surveillance on a continuous loop that recorded over prior events approximately every 30 days.

Almost one year after the fall, the plaintiff's lawyer sent the grocery chain a letter requesting that 2.5 hours of additional footage be saved. When the grocery store was unable to comply with the request because the video was recorded over almost one year earlier, the plaintiff sought a spoliation instruction, claiming that the additional footage was relevant to his claim that "it is more likely than not that the condition existed long enough to give [the defendant] a reasonable opportunity to discover it." The trial court allowed the jury to hear evidence regarding whether the grocery store spoliated evidence and submitted a spoliation instruction to the jury.

Supreme Court's Consideration of Spoliation

From the outset, the majority's opinion expressed concern that a spoliation instruction "can unfairly skew a jury verdict, resulting in a judgment that is based not on the facts of the case, but on the conduct of the parties during or in anticipation of litigation."2 Acknowledging that a spoliation instruction "is still inherently a sanction,"3 the court adopted a framework for assessing spoliation and the appropriate remedy for such conduct.

Determining Whether Spoliation Has Occurred

The Texas Supreme Court first provided an analytical framework for spoliation. Spoliation occurs when a spoliating party "had a duty to reasonably preserve evidence" and "the party intentionally or negligently breached that duty by failing to do so."4 The party alleging spoliation bears the burden to establish that a duty to preserve evidence existed and must demonstrate that the other party breached its duty.

The question of whether spoliation has occurred is a question of law that a trial court must first decide, both because spoliation is an evidentiary matter for a trial court to resolve and because "presenting spoliation issues to the jury for resolution magnifies the concern that the focus of the trial will shift from the merits to a party's spoliating conduct."5 The court further noted that evidence regarding whether a party spoliated evidence is not a "fact that is of consequence to the determination of the action."6

Fashioning an Appropriate Remedy for Spoliation: Assessing Culpability and Prejudice

Only after determining spoliation occurred may the trial court assess an appropriate remedy. Any discovery sanction "must have a direct relationship to the act of spoliation," "may not be excessive," and "must be proportionate."7 Key considerations for a court fashioning an appropriate remedy include "the culpability of the spoliating party and prejudice to the nonspoliating party."8

In assessing culpability, a trial court must determine whether a spoliating party acted intentionally. The court found, with a narrow exception, that "a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy."9 The court reasoned that a jury instruction on spoliation is based upon a "presumption of wrongdoing, so it follows that the more appropriate requirement is intent to conceal or destroy discoverable evidence."10 Such intent can include what the court deemed "willful blindness," in which a party does not directly destroy the evidence but allows its destruction to occur.11 The court noted that such willful blindness can exist when a party with control over automatic electronic deletion systems intentionally allows relevant information to be erased.

Yet, even if a party acts intentionally, a court must still find that a less severe sanction would be insufficient to remedy the prejudice caused by the spoliation. In evaluating the prejudice resulting from spoliation, Texas courts should consider (1) the relevance of the evidence to key issues in the case, (2) the harm caused by the spoliation or whether the evidence would have been helpful to the nonspoliating party's case, and (3) whether the spoliated evidence was cumulative of other evidence that may still be used.

Based on this culpability and prejudice analysis, the court further held that only in the rare circumstance where negligent spoliation "irreparably deprive[s the nonspoliating party] of having any meaningful ability to present a claim or defense" can a trial court issue a spoliation instruction for negligent spoliation.12

In applying this framework to Brookshire Brothers' conduct, the Texas Supreme Court found that there was no evidence of intent because no evidence indicated that Brookshire Brothers only saved a portion of the footage in order to purposefully conceal relevant evidence. The court then found the plaintiff was not irreparably deprived of any meaningful ability to present his claim because other evidence was still available to the plaintiff. Thus, the court held the trial court abused its discretion in issuing a spoliation instruction.


Going forward in Texas state courts, the sanctions available for spoliation will turn on a case-specific balancing of the alleged spoliator's culpability and the degree of prejudice suffered by the nonspoliating party. In all but the rarest circumstances, spoliation must be intentional for the imposition of a spoliation jury instruction.


1. No. 10-0846 (Tex. July 3, 2014), available here.  

2. Id., slip op. at 2.

3. Id. at 18.

4. Id. at 2.

5. Id. at 13.

6. Id. at 24.

7. Id. at 15.

8. Id.

9. Id. at 19.

10. Id. at 20.

11. Id. at 21–22.

12. Id. at 23–24.

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Strasburger & Price, L.L.P.
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Strasburger & Price, L.L.P.
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions