Spoliation

• Author: Drew Williamson
• Pages: 26-27

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Analyzing a claim of spoliation is a two-step process. First,

the court must determine whether a party spoliated evidence.

Second, if the court nds that the party spoliated evidence,

the court then must determine what remedy is warranted.

is determination must be made by the trial court—not the

jury. is is because spoliation is a form of discovery abuse as

opposed to a separate cause of action in and of itself.

For a court to determine that a party spoliated evidence,

the court must nd that the spoliating party (1) had a duty

to preserve the evidence and (2) breached that duty by not

preserving the evidence. Brookshire Bros. v. Aldridge, 438

S.W.3d 9, 20 (Tex. 2014). e party requesting the evidence

has the burden to establish both the existence of the duty

and the breach.

A party has a common law duty to preserve evidence as

soon as it knows or reasonably should know that (1) there is

a substantial chance that a claim will be led and (2)

evidence in its possession or control will be material and

relevant to that claim. Wal-Mart Stores, Inc. v. Johnson, 106

S.W.3d 718, 722 (Tex. 2003). For there to be a substantial

chance that a claim will be led, there must be more than the

mere possibility or unwarranted fear of litigation. Brookshire

Bros., 438 S.W.3d at 20. However, a party can anticipate a

claim will be led and be under a duty to preserve without

receiving actual notice of a suit. e court will use an

objective standard to determine whether there is a substantial

chance of a claim being led.

e dynamic nature of electronically stored information

makes it particularly challenging to preserve—an electronic

le is technically altered every time it is opened, closed, or

saved. Because electronic information is easily altered or

destroyed in ways that conventional information is not, in

preparing for electronic discovery, a party should give all

other potential parties notice to keep them from altering or

destroying relevant evidence.

Once a duty to preserve evidence has been established, the

requesting party must then show that the producing party

breached that duty to preserve material and relevant evi-

dence. e standard of care is reasonable care, which includes

a duty not to alter evidence’s condition. Extraordinary

measures to preserve evidence are not necessary nor does the

common law duty to preserve evidence require a party to

keep every document or item in its possession. Adobe Land

Corp. v. Grin, L.L.C., 236 S.W.3d 351, 357 (Tex. App.

2007), petition denied. A party must, however, preserve

evidence that it knows or reasonably should know is relevant

to the claim, is likely to be requested in discovery, or is

actually the subject of a discovery order. Id. at 357–58.

To rebut the spoliation claim, the producing party can

directly challenge the requesting party’s allegations or provide

a reasonable explanation. One example of a reasonable

explanation for the loss or destruction of the evidence is a

showing that the loss or destruction was beyond the party’s

In our adversarial system, it is imperative that litigants have

access to information possessed or controlled by the

opposing party that is necessary to present their claims or

defenses. e purpose of discovery is to seek the truth so

disputes may be decided by what facts are revealed, not by

what facts are concealed. Axelson, Inc. v. McIlhany, 798

S.W.2d 550, 555 (Tex. 1990). e discovery process is

governed by rules intended to safeguard these principles and

promote justice. e purpose of sanctions is to secure

compliance with the rules, deter future violation of the rules,

punish parties that violate the rules, and also remedy harm

caused by failure to abide by these rules. Chrysler Corp. v.

Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).

What is spoliation? Spoliation is the improper loss or

destruction of relevant evidence and can include altering

evidence. Spoliation occurs when a party has a duty to

preserve evidence and conceals, alters, or destroys evidence

that it could have reasonably preserved.

SPOLIATION

BY DREW WILLIAMSON

Published in Family Advocate, Volume 44, Number 4, Spring 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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