Legal Memorandum: Spoliation Instruction in TX

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

Area of Law: Litigation & Procedure
Keywords: Spoliation instruction; Duty to preserve evidence; Sufficient prejudice
Jurisdiction: Texas
Cited Cases: 977 S.W.2d 562; 13 F.3d 76; 298 S.W.3d 631; 969 S.W.2d 950
Cited Statutes: None
Date: 06/01/2013

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.

1.                  Duty to preserve evidence

A party on notice of potential or pending litigation has a duty to exercise reasonable care in preserving potential evidence.  Miner Dederick Const., LLP v. Gulf Chem. & Metallurgical Corp., No. 01-11-00325-CV, (Tex. App.–Houston [1 Dist.] April 11, 2013, no pet. h.); Trevino, 969 S.W.2d at 957 (Baker, J., concurring).  Implicit in the duty to exercise reasonable care in preserving evidence is the duty to refrain from altering […]