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Brookshire Brothers, Ltd. v. Aldridge: Texas Supreme Court Clarifies Spoliation Standards
Author: By Mark T. Craig and Kristina A. Kiik
The Texas Supreme Court in Brookshire Brothers, Ltd. v. Aldridge recently clarified an important spoliation issue: a party must intentionally spoliate evidence in order for a trial court to give a spoliation instruction. Brookshire Brothers outlines critical new rules for storing records and using computers, and it provides guidance on how businesses can be sanctioned in court—or lose their case entirely—due to a failure to preserve appropriate records.
The Case. “Spoliation” is the failure to preserve evidence, and an adverse spoliation instruction will now be issued to the jury only when a court finds a specific intent to conceal or destroy evidence. Consequently, businesses can relax knowing that diligent efforts to retain electronic information or data will likely negate the need for a spoliation instruction to the jury, so long as there is no evidence of intentional or deliberate destruction of evidence.
Brookshire Brothers arises from a slip-and-fall incident in a grocery store a decade ago. On September 2, 2004, Plaintiff Jerry Aldridge slipped on grease on the floor, but he did not report his injuries until five days later. Brookshire Brothers grocery store saved an eight-minute security video clip showing Mr. Aldridge entering the store and then falling. When Mr. Aldridge's attorney asked for more than two hours of security footage, the grocery store admitted that the only video that had been saved or retained was the eight-minute clip. Consequently, the trial court judge in the case issued a spoliation instruction to the jurors. This allowed the jury to decide whether the store should have known that the remaining video could have proven relevant to the case.
The Texas Supreme Court, however, found no evidence that Brookshire Brothers intentionally concealed or destroyed the security video footage, and thus ruled that the lower court had abused its discretion in submitting a spoliation instruction to the jury.
Real-world implications. First, a court—not a jury—must determine whether a party spoliated evidence. Second, the court must assess an appropriate remedy if spoliation occurred. The Brookshire Brothers Court further clarified that to support a finding of spoliation, a court must find that: (1) the party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached the duty by failing to do so. This process does not risk unfairly prejudicing a jury because it is handled entirely by the judge.
The Brookshire Brothers approach takes into account that a party that spoliated evidence through negligence does not have the state of mind of a “wrongdoer” and, therefore, it does not follow that the missing evidence would be unfavorable to that party’s case. The “narrow caveat” to this rule is that even where spoliation occurred as a result of negligence, if the destruction of the evidence irreparably prevents the non-spoliating party from having a meaningful chance to present a claim or defense, then the spoliation instruction is appropriate.
The responsibility to preserve and produce electronic data has become more difficult and expensive, resulting in an all-time high in spoliation instructions. Noting that many federal courts take a more measured approach with regard to spoliation and electronic discovery, the Brookshire Brothers Court reached a result that makes the culpability (or lack thereof) of the spoliating party of paramount importance in determining a remedy, thereby harmonizing federal and state law.To be clear, Brookshire Brothers does not prevent the need for reasonable document-retention policies that are effectively communicated to personnel in a position to implement and enforce those policies. Nevertheless, this opinion signals a measured approach acknowledging the inherent issues with handling voluminous electronic records retention and attempts to make remedies for failure to keep those records proportionate to any mistakes made with the preservation.