Legal Memorandum: Spoliation Instruction in TX

Issue: What is the standard for determining whether a spoliation instruction is justified in Texas?

A spoliation instruction is an instruction given to the jury outlining permissible adverse inferences they may make against a party who has lost, altered, or destroyed evidence.  Texas Elec. Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.–Tyler 2005, no pet.).  A trial court should be guided by the following three factors in determining whether a spoliation instruction is justified: (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator either negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the nonspoliator’s ability to present its case or defense.  Trevino v. Ortega, 969 S.W.2d 950, 954-55 (Tex.1998) (Baker, J., concurring); Whirlpool Corp. v. Camacho, 251 S.W.3d 88, 102 (Tex.App.–Corpus Christi 2008), rev’d on other grounds, 298 S.W.3d 631 (Tex. 2009).  The party seeking the spoliation presumption instruction has the burden of establishing the requisite elements.  Wal-Mart Stores Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003).  Each of these three factors are considered in order below.