Duty to Preserve Evidence

Trial Lawyer Austin Texas

Jan 4, 2013 — by Jeff Mundy
Tags: Civil Procedure


B. Law of Spoliation

The inquiry regarding whether a spoliation sanction or presumption is justified requires a court to consider (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. Clark, 317 S.W.3d at 356 (citing Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 356--57 (Tex. App.-Fort Worth 2007, pet. denied)); Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.-Houston [1st Dist.] 1998, no pet.)). With these principles in mind, we determine whether the trial court abused its discretion by denying Miner Dederick's request for spoliation sanctions or a spoliation presumption.

C. Analysis

1. Duty to Preserve Evidence

The duty to preserve evidence is not raised unless (1) a party knows or reasonably should know that there is a substantial chance a claim will be filed, and (2) evidence is relevant and material. Clark, 317 S.W.3d at 356--57 (citing Johnson, 106 S.W.3d at 722).

A party knows or reasonably should know that there is a substantial chance a claim will be filed if a reasonable person would conclude from the severity of the incident, and other circumstances surrounding it, that there was a substantial chance for litigation at the time of the alleged spoliation. See Tex. Elec. Coop. v. Dillard, 171 S.W.3d 201, 209 (Tex. App.-Tyler 2005, no pet.) (citing Johnson, 106 S.W.3d at 722). "A party should not be able to subvert the discovery process and the fair administration of justice simply by destroying evidence before a claim is actually filed." See Trevino, 969 S.W.2d 950, 955 (Tex. 1998) (Baker, J., concurring).

A party must preserve what it knows, or reasonably should know, is relevant in the action or is reasonably calculated to lead to the discovery of admissible evidence. 

As recognized by the Supreme Court of Texas, trial courts "have broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions." Trevino, 969 S.W.2d at 953. A trial court may also choose to exclude testimony or other evidence. Trevino, 969 S.W.2d at 959 (Baker, J., concurring). "As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case." Trevino, 969 S.W.2d at 953.

Miner Dederick Construction LLP v. Gulf Chemical & Metallurgical Corp. (Tex. App. - Houston [1st Dist.] 2012).

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