spoliation instruction in Texas

2025And as the supreme court pointed out in Brookshire Brothers, “a party’s intentional destruction of evidence may, ‘[a]bsent evidence to the contrary,’ be sufficient by itself to support 3 “The most severe sanction for evidence spoliation is to dismiss the action or render a default judgment.” Trevino v. Ortega, 969 S.W.2d 950, 959 (Tex. 1998) (Baker, J., concurring). 4 I note that the spoliation instruction submitted to the jury is the less severe of the two types of presumptions identified by Justice Baker in his Trevino concurrence because “[i]t is merely an adverse presumption that the evide

2017The trial court may only submit a spoliation instruction “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.” Id. (quoting Petroleum Sols., 454 S.W.3d at 489 (citing Brookshire Bros., 438 S.W.3d at 23-26 )).

2022Yet the Aldridge court recognized that a spoliation instruction is “among the harshest sanctions a trial court may utilize to remedy an act of spoliation,” as it has the “propensity to tilt a trial in favor of a nonspoliating party [and] it can, in some sense, be tantamount to a death-penalty sanction.” Id. at 23 , citing Wal-Mart Stores, 106 S.W.3d at 724 ; TransAmerican Nat.

2022If a spoliation instruction should not have been, “the likelihood of harm from the erroneous instruction is substantial, particularly when the case is closely contested.” Id. (quoting Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003)).

2025See Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489 (Tex. 2014); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014). 26 an ‘exceptional case’ where lesser sanctions would not promote compliance,” a spoliation instruction to the jury is an abuse of discretion.

2025Indeed, the Court in Brookshire Brothers capped off its cautions by saying that “an improper spoliation instruction presents a substantial likelihood of harm” and that “it is ‘very difficult to overlook the likely impact’ of the spoliation evidence and the instruction.” See id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865 , 883–84 (Tex. 2014)).

1999OPI next argues that the trial court abused its discretion in giving the spoliation instruction because "the spoliation rule applies only when evidence has been intentionally destroyed, not merely lost." In support of this contention, OPI cites Brewer v. Dowling, 862 S.W.2d 156 (Tex.App.—Ft.

1999OPI next argues that the trial court abused its discretion in giving the spoliation instruction because "the spoliation rule applies only when evidence has been intentionally destroyed, not merely lost." In support of this contention, OPI cites Brewer v. Dowling, 862 S.W.2d 156 (Tex.App.—Ft.

2019Coop. v. Dillard, 171 S.W.3d 201, 208 (Tex. App.—Tyler 2005, no pet.); Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex. App.—Fort Worth 1993, writ denied); see also Jones v. State, 531 S.W.3d 309, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (discussing spoliation instruction in the context of a criminal case); Snell v. State, 324 S.W.3d 682 , 684 n.1 (Tex. App.—Fort Worth 2010, no pet.) (containing proposed form of spoliation instruction in a criminal case).

2013See Dillard, 171 S.W.3d at 208 ; Brewer v. Dowl-ing, 862 S.W.2d 156, 159 (Tex.App.-Fort Worth 1993, writ denied).

2001Power Co-op., Inc., 918 S.W.2d 639, 642-44 (Tex.App.—Waco 1996, writ denied), the trial court abused its discretion by refusing to include a spoliation instruction in the jury charge, where the defendant negligently destroyed a key piece of evidence, the condition of which was in controversy.

2001Power Co-op., Inc., 918 S.W.2d 639, 642-44 (Tex.App.-Waco 1996, writ denied), the trial court abused its discretion by refusing to include a spoliation instruction in the jury charge, where the defendant negligently destroyed a key piece of evidence, the condition of which was in controversy.

2012Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex.2003) (citing Anderson v. Taylor Publ’g Co., 13 S.W.3d 56, 61 (Tex.App.-Dallas 2000, pet. denied)).

2012Wal-Mart Stores, Inc. v. Johnson , 106 S.W.3d 718, 721 (Tex. 2003) (citing Anderson v. Taylor Publ’g Co. , 13 S.W.3d 56, 61 (Tex. App.—Dallas 2000, pet. denied)).

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc. , 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. (footnote: 11) See Trevino, 969 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex. App.—Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457 .

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc., 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. 11 See Trevino, 969 *361 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex.App.-Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457.

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc. , 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. (footnote: 11) See Trevino, 969 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex. App.—Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457 .

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc., 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. 11 See Trevino, 969 *361 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex.App.-Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457.

2025See Petroleum Sols., Inc. v. Head, 454 S.W.3d 482, 489 (Tex. 2014); Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 21 (Tex. 2014). 26 an ‘exceptional case’ where lesser sanctions would not promote compliance,” a spoliation instruction to the jury is an abuse of discretion.

2025Petroleum Solutions, Inc. v. Head involved the imposition of both a spoliation instruction and the striking of the spoliating parties’ affirmative defenses in the absence of evidence supporting intentional spoliation. 454 S.W.3d 482, 487, 489-90 (Tex. 2014).

2015See Snell v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v. State, 125 S.W.3d 41 , 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743 , at *1 (Tex. App.— Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication) (holding that where the defendant could show only that the lost evidence might have been exculpatory and could not show bad faith on the part of the State, the trial court did not err by refusing the spoliation instruction). 3 Here, Meza has alleged, but not shown, that the video

2015See Snell v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v. State, 125 S.W.3d 41 , 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743 , at *1 (Tex. App.— Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication) (holding that where the defendant could show only that the lost evidence might have been exculpatory and could not show bad faith on the part of the State, the trial court did not err by refusing the spoliation instruction). 3 Here, Meza has alleged, but not shown, that the video

2016As a result, a spoliation instruction “often ends litigation because it is too difficult a hurdle for the spoliator to overcome.” Id. (internal quotation marks omitted) (quoting Zubulake v. UBS Warburg L.L.C., 220 F.R.D. 212, 219 (S.D.N.Y. 2003)).

2015Thus, an unfortunate consequence of submitting a spoliation instruction is that it ″often ends litigation″ because ″it is too difficult a hurdle for the spoliator to overcome.″ Zubulake, 220 F.R.D. at 219 .

2025Clark, 317 S.W.3d at 356 .

2023See Clark, 317 S.W.3d at 356 .

2022See Arizona v. Youngblood, 488 U.S. 51 , 58, 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."); see also Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.

2022See Arizona v. Youngblood, 488 U.S. 51 , 58, 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."); see also Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim.

2015See Snell v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v. State, 125 S.W.3d 41 , 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743 , at *1 (Tex. App.— Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication) (holding that where the defendant could show only that the lost evidence might have been exculpatory and could not show bad faith on the part of the State, the trial court did not err by refusing the spoliation instruction). 3 Here, Meza has alleged, but not shown, that the video

2015See Snell v. State, 324 S.W.3d 682, 684 (Tex. App.—Fort Worth 2010, no pet.); White v. State, 125 S.W.3d 41 , 43–44 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Gutierrez v. State, No. 11–10–00276–CR, 2011 WL 4135743 , at *1 (Tex. App.— Eastland Sept. 15, 2011, no pet.) (mem. op., not designated for publication) (holding that where the defendant could show only that the lost evidence might have been exculpatory and could not show bad faith on the part of the State, the trial court did not err by refusing the spoliation instruction). 3 Here, Meza has alleged, but not shown, that the video

2025“A spoliation instruction may be given when a party has deliberately destroyed relevant evidence.” Cire v. Cummings, 134 S.W.3d 835, 843 (Tex. 2004).

2014We held that a trial court may submit a spoliation instruction 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.3 Id. at ___.

2024Id.

2015See Napper, 322 S.W.3d at 238 ; see also Torres v. State, 371 S.W.3d 317, 319-20 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (A spoliation instruction was not required when the defendant failed to establish that potentially useful evidence was destroyed in bad faith.).

2024Id. at 8; see Guzman v. State, 539 S.W.3d 394 , 401–02 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

2024See Arthur, 2019 WL 3729499 , at *8; Guzman, 539 S.W.3d at 402 (concluding spoliation instruction was not required where defendant failed to establish potentially useful evidence destroyed in bad faith).

2015McCurdy & Co., Inc., 984 S.W.2d 264 (Tex. App.- Houston [P' Dist.] 1998).

2015McCurdy & Co., 984 S.W.2d 264, 273 (Tex. App.—Houston [1st Dist.] 1998, no pet.); (2) The jury must presume evidence is harmful if it finds intentional spoliation, Wal-Mart Stores, 106 S.W.3d at 721 ; (3) That intentional spoliation has occurred, and the jury may presume the evidence is harmful, id.; or (4) That intentional spoliation has occurred, and the jury must presume the evidence is harmful, Trevino, 969 S.W.2d at 952 . [*34] Though the Court purports to ″enunciate with greater clarity . . . the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation,″ S

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc. , 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. (footnote: 11) See Trevino, 969 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex. App.—Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457 .

2007Therefore, Griffin’s spoliation severely hindered Appellants’ ability to present their case, Offshore Pipelines, Inc., 984 S.W.2d at 666 , and the trial court abused its discretion in not granting Appellants a spoliation presumption as a means of precluding a no-evidence summary judgment. 11 See Trevino, 969 *361 S.W.2d at 960 (Baker, J., concurring); Martinez v. Abbott Labs., 146 S.W.3d 260, 269 (Tex.App.-Fort Worth 2004, pet. denied); Aguirre, 2 S.W.3d at 457.

2016See City of Keller, 168 S.W.3d at 816-17, 819-20, 822 . 37 We review a trial court’s submission of a spoliation instruction to the jury for an abuse of discretion.

2009See City of Keller, 168 S.W.3d at 826 ; Jackson, 116 S.W.3d at 761 ; Pool, 715 S.W.2d at 635 .

2015See, e.g., Zubulake, 220 F.R.D. at 220 (describing a spoliation instruction as ″an extreme sanction″ that ″should not be given lightly″); Rimkus Consulting Group, Inc., 688 F. Supp. 2d at 619 (characterizing a spoliation instruction ″as among the most severe sanctions a court can administer″).

2014See, e.g., Zubulake, 220 F.R.D. at 220 (describing a spoliation instruction as “an extreme sanction” that “should not be given lightly”); Rimkus Consulting Group, Inc., 688 F.Supp.2d at 619 (characterizing a spoliation instruction “as among the most severe sanctions a court can administer”).

2014Under the belief that it would not aid the case of the nonproducing party); Cheatham, 8 Tex. at 162 . 5 See Trevino, 969 S.W .2d at 952 (refusing to recognize an independent tort of spoliation); Wal-Mart Stores, 106 S.W .3d at 722 (concluding that a party must possess a duty to preserve evidence in order for a spoliation instruction to be proper); see also Cire v. Cummings, 134 S.W .3d 835, 841 (Tex. 2004) (holding that party’s “deliberate[]” destruction of relevant evidence justified death-penalty sanctions). 11 second, the same presumption arises because the party who controls the missing ev

2014Under the belief that it would not aid the case of the nonproducing party); Cheatham, 8 Tex. at 162 . 5See Trevino, 969 S.W.2d at 952 (refusing to recognize an independent tort of spoliation); Wal-Mart Stores, 106 S.W.3dat722 (concluding that a party must possess a duty to preserve evidence in order for a spoliation instruction to be proper); see also Cire v. Cummings, 134 S.W.3d 835, 841 (Tex. 2004) (holding that party's "deliberate[]" destruction of relevant evidence justified death-penalty sanctions). 11 second, the same presumption arises because the party who controls the missing evidence

2010Citing Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351 (Tex. App.—Fort Worth 11 2007, pet. denied), DeNucci argues that summary judgment on his spoliation claim was improper because a spoliation instruction was later submitted to the jury.

2010Citing Adobe Land Corp. v. Griffin, L.L.C. , 236 S.W.3d 351 (Tex. App.--Fort Worth 2007, pet. denied), DeNucci argues that summary judgment on his spoliation claim was improper because a spoliation instruction was later submitted to the jury.

2025Indeed, the Court in Brookshire Brothers capped off its cautions by saying that “an improper spoliation instruction presents a substantial likelihood of harm” and that “it is ‘very difficult to overlook the likely impact’ of the spoliation evidence and the instruction.” See id. (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865 , 883–84 (Tex. 2014)).

2016See Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014).

2022Gas Corp. v. Powell, 811 S.W.2d 913, 917-918 (Tex. 1991).

2022Thus, it has observed that the improper grant or denial of a spoliation instruction can deprive a party of the right to a fair trial, and it “follows that an instruction should be available to address spoliation in certain circumstances, but should be used cautiously.” Id. at 23 , citing TransAmerican, 811 S.W.2d at 917 .