On July 3, 2014, the Texas Supreme Court gave Brookshire Brothers, Ltd. an added reason to celebrate the next day. Citing abuse of discretion in the submission of a spoliation instruction to the jury, it reversed the court of appeals’ judgment against the grocery store company and remanded the case to the trial court for a new trial. A dissenting opinion and the defense of a spoliation framework followed.
On September 2, 2004, Jerry Aldridge slipped and fell near a display table in a Brookshire Brothers grocery store in Jacksonville, Texas. At the time, he did not inform the store that he had been injured, and the store did not investigate. Within a couple hours, however, Aldridge was experiencing pain and sought a hospital emergency room.
On September 7, Aldridge returned to the grocery store in East Texas and reported his injuries. It was discovered that a surveillance camera recorded his fall. After he reported his injuries to the store, Robert Gilmer, the company’s vice president of human resources and risk management, retained and copied approximately eight minutes of the video footage: just before Aldridge entered the store and shortly after his fall.
When Aldridge learned about the footage, he requested it on September 13 but was denied. According to the claims department, only one copy of the eight-minute footage was in existence. By sometime in early October 2004, the complete original footage was recorded over.
By June 2005, when Gilmer reviewed the trimmed video footage still in existence, he contacted Aldridge to inform him that Brookshire Brothers would no longer pay for Aldridge’s medical expenses. In August, Aldridge’s attorney requested approximately two-and-a-half hours’ worth of additional store footage — footage that no longer existed because it had been recorded over nearly a year earlier. Aldridge then sued the grocery store company for his injuries.
The trial court permitted the jury to hear evidence on whether Brookshire Brothers spoliated the video, submitted a spoliation instruction to the jury, and permitted the jury to determine whether spoliation had occurred during its deliberations on the merits of the lawsuit. The spoliation instruction read:
“In this case, Brookshire Brothers permitted its video surveillance system to record over certain portions of the store surveillance video of the day of the occurrence in question. If you find that Brookshire Brothers knew or reasonably should have known that such portions of the store video not preserved contained relevant evidence to the issues in this case, and its non-preservation has not been satisfactorily explained, then you are instructed that you may consider such evidence would have been unfavorable to Brookshire Brothers.”
The jury found that that the company’s negligence cause the plaintiff’s fall and awarded him more than $1 million in damages. The court of appeals subsequently supported this decision, confirming that the trial court did not abuse its discretion in admitting spoliation evidence or submitting a spoliation instruction to the jury.
Enter the Texas Supreme Court.
This month, it ruled [PDF] that, with rare exception, a party must intentionally spoliate evidence in order for a trial court to submit a spoliation instruction in Texas. It found no evidence that Brookshire Brothers intentionally concealed or destroyed the video footage. It concluded, among others findings, that the “submission of a spoliation instruction in any form was an abuse of discretion.” It then reversed the court of appeals’ judgment and remanded the case to the trial court for a new trial — but not without a respectful dissension [PDF].
“The Court maintains that it need not concern itself with the rulemaking process because there is not a current rule in Texas addressing spoliation. But the absence of a rule does not mean we should de facto implement a rule without the thorough vetting the rulemaking framework affords. … Litigants and our system of justice deserve a spoliation framework that fosters the preservation of relevant evidence by equipping trial courts with the discretion to tailor remedies to the offenses committed. Until today, such a framework existed in Texas.”
Spoliation framework in Texas — come and take it.