CHAPTER 14 - 14-4 Permissible Discovery Sanctions

• Jurisdiction: United States

14-4 Permissible Discovery Sanctions

A trial court has several options when deciding how to respond to discovery abuse.¹¹⁸ For example, Texas Rules 215.2 and 215.3 specify orders a court may impose as sanctions.¹¹⁹ In addition, Texas Rule 215.2 authorizes a trial court to craft its own sanctions orders "as are just."¹²⁰ A trial court also has inherent power to impose sanctions for discovery abuses. Finally, in remedying the spoliation of evidence, a trial court may impose the sanctions orders listed in Texas Rule 215.2(b) or "craft other remedies it deems appropriate in light of the particular facts of the individual case, including the submission of a spoliation instruction to the jury."¹²¹

Although the trial court has broad discretion in determining whether to impose discovery sanctions and which sanctions to impose, its discretion is bounded by the parameters addressed in sections 14-3:1 and 14-3:2 of this Chapter. Moreover, spoliation sanctions (sometimes called "spoliation remedies") are subject to the unique considerations addressed in section 14-4:3 of this Chapter.

14-4:1 Sanctions Orders Specified in Texas Rule 215

Texas Rule 215.2(b) sets forth a nonexclusive list of sanctions orders that a trial court can issue,¹²² with respect to certain specified discovery abuses,¹²³ after "notice and hearing [:]"¹²⁴

• an order disallowing any further discovery of any kind or of a particular kind by the disobedient party;¹²⁵
• an order charging all or any portion of the expenses of discovery or taxable court costs or both against the disobedient party or the attorney advising him;¹²⁶

• an order that matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;¹²⁷

• an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;¹²⁸

• an order striking out pleadings or parts thereof or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party;¹²⁹
• an order staying further proceedings until the order is obeyed;¹³⁰

• an order treating as a contempt of court the failure to obey any orders;¹³¹ and

• an order requiring the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.¹³²

Several of these orders may also be an "appropriate sanction" pursuant to Texas Rule 215.3 if the court finds that "a party is abusing the discovery process in seeking, making or resisting discovery or if the court finds that any interrogatory or request for inspection or production is unreasonably frivolous, oppressive, or harassing, or that a response or answer is unreasonably frivolous or made for purposes of delay."¹³³ But, as indicated above, Texas Rule 215.3—unlike Texas Rule 215.2(b)—provides an exclusive list of the appropriate sanctions.¹³⁴

14-4:2 A Trial Court's Inherent Power to Impose Sanctions

In addition to being able to impose the sanctions listed in Texas Rule 215, trial courts may impose sanctions pursuant to their inherent power to sanction abusive conduct.¹³⁵ But "[t]he scope of a trial court's discretion in this context is limited by the recognition that this power 'exists to the extent necessary to deter, alleviate, and counteract bad faith abuse of the judicial process, such as any significant interference with the traditional core functions of Texas courts.'"¹³⁶ Thus, "'for inherent power to apply, there must be some evidence and factual findings that the conduct complained of significantly interfered with the court's legitimate exercise of one of these powers.'"¹³⁷

Texas courts have used their inherent power to impose monetary sanctions¹³⁸ and community-service requirements against attorneys.¹³⁹ The Texas Supreme Court also has recognized that, under certain circumstances, the production of attorney-work product may be an appropriate sanction for discovery abuse.¹⁴⁰

14-4:3 Spoliation

To remedy the spoliation of evidence, a trial court may impose any of the sanctions listed in Texas Rule 215.2(b) or "craft other remedies it deems appropriate in light of the particular facts of the individual case, including the submission of a spoliation instruction to the jury."¹⁴¹ But as with other discovery sanctions, a spoliation sanction "must relate directly to the conduct giving rise to the sanction and may not be excessive."¹⁴² Relying on federal precedent, the Texas Supreme Court set forth the following specific standards for spoliation sanctions:

Upon finding that spoliation occurred, the trial court must exercise its discretion in imposing a remedy. In determining what remedy, if any, is appropriate, the court should weigh the spoliating party's culpability and the prejudice to the nonspoliating party. Prejudice is evaluated based on [(1)] the spoliated evidence's relevancy to key issues in the case, [(2)] whether the evidence would have been harmful to the spoliating party's case (or, conversely, helpful to the nonspoliating party's case), and [(3)] whether the spoliated evidence was cumulative of other competent evidence that may be used in its stead.¹⁴³

As discussed in section 14-3:4.5 of this Chapter, an assessment of culpability entails determining whether the spoliating party acted negligently or intentionally. "Intentional" spoliation, which is often referred to as "bad faith" or "willful" spoliation, means "that the party acted with the subjective purpose of concealing or destroying discoverable evidence. This includes the concept of 'willful blindness,' which encompasses the scenario in which a party does not directly destroy evidence known to be relevant and discoverable, but nonetheless 'allows for its destruction.'"¹⁴⁴

"In light of the difficulty of conducting a prejudice analysis based on evidence that is no longer available for review, . . . a party's intentional destruction of evidence may, '[a]bsent evidence to the contrary,' be sufficient by itself to support a finding that the spoliated evidence is both relevant and harmful to the spoliating party."¹⁴⁵ This finding "flows from the common-law spoliation presumption that all things are presumed against the wrongdoer."¹⁴⁶ On the other hand, "negligent spoliation [is not] enough to support such a finding without 'some proof about what the destroyed evidence would show.'"¹⁴⁷ In any event, a trial court should "consider all evidence bearing on the factors associated with evaluating prejudice to the nonspoliating party."¹⁴⁸ The trial court should, however, "exercise caution in evaluating the final prejudice factor, which accounts for the existence of cumulative evidence[,]" and be cognizant of the fact that "difference[s] in kind and quality between the available evidence and the spoliated evidence will . . . be a key factor in analyzing prejudice to the nonspoliating party."¹⁴⁹

The distinction between intentional versus negligent spoliation is critical in assessing whether a trial court may impose spoliation remedies that are akin to death-penalty sanctions, such as striking a party's claims or defenses or submitting "an instruction to the jury to presume that the missing evidence would have been unfavorable to the spoliator."¹⁵⁰ A trial court may impose such remedies "only if it finds (1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the spoliating party acted negligently and caused the nonspoliating party to be irreparably deprived of any meaningful ability to present a claim or defense."¹⁵¹

Texas case law addressing spoliation instructions has flourished since the Supreme Court's 2014 opinion in Brookshire Brothers.¹⁵² And, in the fall of 2015, the State Bar of Texas Pattern Jury Charge Oversight Committee approved the following instruction on spoliation, "recommended for the adverse inference resulting from spoliation": "[Name of spoliating party] [destroyed/failed to preserve/destroyed or failed to preserve] [describe evidence]. You [must/may] consider that this evidence would have been unfavorable to [name of spoliating party] on the issue of [describe issue(s) to which evidence would have been relevant]."¹⁵³ In comments relating to the instruction, the committee attributed the ambiguous "must/may" option to a lack of sufficient guidance in Brookshire Brothers as to the language that should be used and asserted that, "[w]hether may or must is used should be based on the facts applied to the standards articulated" elsewhere in the comments.¹⁵⁴

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Notes:

^[118] Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 18 (Tex. 2014) ("Texas courts necessarily enjoy wide latitude in remedying acts of discovery abuse. . . ."); In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *33, 2020 WL 1887762 (Tex. App.—Eastland Apr. 16, 2020, orig. proceeding) (mem. op.) ("Rule 215 of the Texas Rules of Civil Procedure enumerates a wide array of remedies available to a trial court in addressing discovery abuse, such as an award of attorney's fees or costs to the harmed party, the exclusion of evidence, striking a party's pleadings, or dismissing a party's claims."). See also Chapter 14, section 14-4:1 (discussing sanctions orders authorized under Texas Rule 215.2(b)).

^[119] Tex. R. Civ. P. 215.2(b). See also Chapter 14, section 14-4:1 (discussing permissible sanctions orders).

^[120] Tex. R. Civ. P. 215.2(b); see In re Sw. Pub. Serv. Co., No. 13-19-00111-CV, 2020 Tex. App. LEXIS 3212, at *34, 2020 WL 1887762 (Tex. App.—Eastland Apr. 16, 2020,orig. proceeding) (mem. op.) ("[T]he punishment must fit the crime.")...