CHAPTER 9.II. Sample Motions

• Jurisdiction: United States

II. Sample Motions

A. Motion to Exclude Reference to Lost or Destroyed Evidence

NO.__________

__________

v.

__________

IN THE DISTRICT COURT

__________ JUDICIAL COURT

__________ COUNTY, TEXAS

Motion to Exclude Reference to Lost or Destroyed Evidence

Comes now___, Defendant in this cause, and files this, his Motion to Exclude Reference to Lost or Destroyed Evidence, and in support thereof, Defendant would show the Court the following:

1. FACTUAL BACKGROUND

This is an unfair competition case in which the Plaintiff alleges that the Defendant, a former employee, improperly utilized in-house software development information to advance his business interests. A key issue in this case relates to the content of the Plaintiff's network server ("server") during the two-week period prior to Defendant's departure from plaintiff's place of employment.

During discovery, the Defendant served a proper request to examine Plaintiff's backup data for this crucial time period. Initially, Plaintiff was cooperative, and a date was set for examination. Then, just twenty-four (24) hours before the scheduled examination date, Plaintiff's counsel advised that the backup data had been accidentally destroyed during the Plaintiff's analysis of this evidence. In follow-up discovery, the Plaintiff denied having any test results or other analysis relating to this data.

The Defendant moves herein for an order excluding any and all reference to the backup data and any tests or other analysis that Plaintiff or Plaintiff's expert or other agents may have conducted prior to the accidental destruction.

2. THIS COURT MAY EXCLUDE PREJUDICIAL EVIDENCE PURSUANT TO TEXAS RULE OF EVIDENCE 403

Texas Rule of Evidence 403 states: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Brookshire Bros v. Aldridge, 438 S.W.3d 9, 26 (Tex. 2014) (evidence that raises a risk of prejudice and confusion of the jury should be excluded); Farmers Texas County Mutual Insurance Co. v. Pagan, 453 S.W.3d 454, (Tex. App.—Houston [14th Dist.] 2014, no pet.) (evidence should have been excluded where its probative value was outweighed by danger of confusion of issues and misleading jury). In...