Oliver Wendell Holmes once said that "[t]he law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."⁽¹⁾ Unfortunately, this statement accurately describes the current Texas law on spoliation of evidence in that there are few hard and fast rules concerning the destruction of evidence. The best way to determine the law in your jurisdiction is to review the specific history of the court you are in.

A. What is Spoliation?

Though the Texas Supreme Court has not defined the term spoliation and different jurisdictions have applied different definitions to the term, the term broadly refers to the intentional, reckless, or negligent destruction, loss, material alteration or obstruction of evidence that is relevant to litigation.⁽²⁾ It is, however, still unclear if spoliation includes both negligent and intentional destruction of evidence, the loss of evidence, and/or evidence that was destroyed before litigation began.⁽³⁾

The first and only definite rule concerning spoliation is that there is no independent tort of spoliation for parties in a lawsuit in the State of Texas.⁽⁴⁾ This rule was recently determined in the Ortega and Malone cases that are discussed below. The second rule, also stated in these cases, is that Trial Court Judges have wide discretion in determining what remedy, if any to apply to allegations of spoliation. Though this ruling is a recent decision, the Courts of Appeals have a history that is likely to continue of taking different positions on when to reverse and remand a trial court's ruling on spoliation issues.⁽⁵⁾

C. Purpose of Paper

This paper will examine how Texas law deals with spoliation of evidence. In reviewing the law of spoliation this paper will start with a discussion of the recent Texas Supreme Court cases, Trevino v. Ortega and Malone v. Foster. The paper will then review the common factors that Texas courts have used to determine what, if any, remedies to impose in response to alleged spoliation and will then suggest other potential actions that can be taken outside of the underlying case against a party for spoliation. The paper will then conclude with a review of several different appellate cases that have dealt with spoliation in different areas of the law.

II. Trevino v. Ortega and Malone v. Foster

The Texas Supreme Court recently ruled in Trevino v. Ortega and its companion case, Malone v. Foster, that Texas does not recognize the independent tort of spoliation. In the Ortega decision the majority reasoned that destroying evidence is an evidentiary issue similar to perjury or embracey and is best dealt with within the context of an underlying lawsuit.⁽⁶⁾

A. Facts of the Cases

In Ortega, the plaintiff filed a suit against his daughter's physician for intentional spoliation of evidence (medical records of daughter's birth).⁽⁷⁾ The trial court granted the defendant's special exception based on failure to state a claim. On review the Corpus Christi Court of Appeals reversed and remanded the trial court decision stating that there was an independent tort of spoliation.⁽⁸⁾ The Supreme Court, however, reversed the appellate court's decision and rendered judgment.⁽⁹⁾ Though the Supreme Court ruled against the plaintiff on his spoliation cause of action, he still had a separate cause of action for medical malpractice pending at the time of the Appellate decision.⁽¹⁰⁾

In Malone, the plaintiff filed a claim for intentional destruction of evidence (hospital incident report) and a claim for medical malpractice against defendants.⁽¹¹⁾ In response to the spoliation claim, the defendants filed a partial motion for summary judgment on the spoliation claim that was granted by the trial court and affirmed by both the Dallas Court of Appeals and the Supreme Court.⁽¹²⁾

The underlying medical malpractice cause of action proceeded to trial and the jury reached a take nothing verdict.⁽¹³⁾ A key issue in the medical malpractice claim was that the plaintiff alleged that he had informed his doctors and the hospital staff that he was unable to move his legs and that the defendants failed to listen to his complaint and treat him in accordance with this information.⁽¹⁴⁾ In support of his allegation the plaintiff testified that he had specifically informed a nurse of his inability to use his legs after he fell in his room. At the time of the fall the nurse had filled out an incident report and nursing records.⁽¹⁵⁾ Unfortunately, the incident report was destroyed in compliance with hospital policy six months after the fall. In dealing with the missing document, the trial court admitted testimony concerning the creation of the incident report, but excluded testimony concerning the destruction of the report and did not impose either a sanction or a presumption.⁽¹⁶⁾

The appellate court affirmed the trial court's ruling stating that the appellant failed to properly preserve their objection to the trial court's ruling.⁽¹⁷⁾ The Supreme Court affirmed the appellate court's decision stating that the trial court has broad discretion in ruling on evidentiary issues.⁽¹⁸⁾

B. Dicta

The Supreme Court went on to say that though there is no independent tort of spoliation, "adequate measures" must be available to ensure that a litigant nonspoliator's rights are protected.⁽¹⁹⁾ The Court did not, however, state what these "adequate measures" are. In fact the Court in both Ortega and Malone gives Trial Court Judges wide discretion in handling issues of spoliation, but offers little guidance on what spoliation is or what rules should be applied to spoliation issues.⁽²⁰⁾ Despite the fact there is not a step by step procedure on spoliation from the Supreme Court, Justice Baker provided some guidance for Trial Judges to follow in his concurring opinion in Ortega.⁽²¹⁾ In his concurrence he reviewed the remedies that have been used by Texas trial courts to protect nonspoliating litigants and has offered some helpful guide lines to follow when spoliation is at issue.⁽²²⁾ The concurrence is discussed below in this survey of Texas law on spoliation and portions of the actual concurrence are in the companion paper written by Frank Southers.

C. No Independent Tort

In striking down the independent tort of spoliation, the Texas Supreme Court listed three policy concerns that support their decision. These concerns follow the Court's conservative trend of not creating any new torts and include ensuring the finality of judgments, avoiding duplicative litigation, and the speculative nature of determining damages caused by spoliation.⁽²³⁾

In failing to recognize an independent tort for spoliation the Texas Court followed the majority of states that have decided to deal with spoliation as an evidentiary issue and "to rectify any improper conduct within the context of the lawsuit in which it is relevant."⁽²⁴⁾ In doing so, the Supreme Court allows "Trial Judges broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions."⁽²⁵⁾

D. Justice Baker's Concurrence

In an attempt to assist Trial Judges apply their broad discretion in dealing with spoliation issues, Justice Baker has written a concurrence that discusses issues, policy considerations, and factors involving spoliation. This concurrence provides some guidance as to when a court should change a presumption in a jury instruction, impose a sanction, or ignore spoliation. The concurrence starts by discussing the underlying policy considerations of spoliation, then examines some common factors courts have used in determining spoliation issues, and concludes with a discussion of the remedies that are available to trial court judges when faced with spoliation issues.

1. Policy Considerations

According to Justice Baker, "[r]emedies for the spoliation of evidence serve three purposes. First, they punish the spoliator for destroying relevant evidence. Second, they deter future spoliators. And third, perhaps most importantly, they serve an evidentiary function…[by leveling] the evidentiary playing field."⁽²⁶⁾

2. Factors

Though there are no set factors that Texas law mandates trial courts use in determining when to impose a remedy for spoliation of evidence, Justice Baker sets forth that "[t]his legal inquiry involves considering: (1) whether there was a duty to preserve evidence; (2) whether the alleged spoliator either negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the nonspoliator's ability to present its case or defense."⁽²⁷⁾ All three of these factors are discussed in detail in the next section of this paper. This discussion includes information from Justice Baker's concurrence, a review of several Texas cases, and an examination of other CLE papers and law reviews on spoliation.

3. Remedies

According to Justice Baker, "[t]rial courts have broad power to police litigants and protect against evidence spoliation." This power comes from three main sources. First, Rule 215 of the Texas Rules of Civil Procedure grants trial courts the power to impose sanctions upon parties who abuse the discovery process.⁽²⁸⁾ Second, the Supreme Court held in Eichelburger that "trial courts have inherent judicial power to take action that will 'aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity.'"⁽²⁹⁾ According to Justice Baker this judicial power allows trial courts to remedy spoliation which has occurred prior to litigation.⁽³⁰⁾ And though Justice Baker doesn't discuss post litigation discovery of spoliation, the court implied that these powers may apply to spoliation discovered after litigation is complete.

The third source of power is Rule 277 of the Texas Rules of Civil Procedure. This rule gives a trial court broad power to shift the burden of proof or make a presumption against a spoliator.⁽³¹⁾ The determination of which of these powers to use, if any, is a question of law.⁽³²⁾

a. Sanctions

Rule 215 and the broad judicial powers that trial courts have been granted allow them to impose a variety of sanctions on a party for spoliation of evidence.⁽³³⁾ Thus, Courts have the ability to punish or sanction spoliators whenever a party has been found to have abused the discovery process by spoliating evidence or when a potential litigant interferes with the administration of justice by destroying evidence.⁽³⁴⁾ The type of sanction imposed can vary from a severe death penalty sanction to limiting the spoliating party's ability to admit a particular piece of evidence. Justice Baker echoes the majority of the court when he suggests that sanctions should be imposed on a case by case basis and that they should be properly tailored to fit each case.

b. Presumption

Courts also have wide discretion in instructing juries. This discretion allows a court to submit a spoliation presumption instruction.⁽³⁵⁾ The instruction can either be a rebuttable presumption or shift the burden from one party to the other. The rebuttable presumption is more severe and includes a jury instruction that the spoliating party intentionally or negligently destroyed evidence that is harmful to their case and that the jury should presume that the missing evidence would have been harmful to its case.⁽³⁶⁾ This type of presumption follows the legal maxim "omnia praesumuntur contra spoliatorem" which is all things are presumed against the spoliator.⁽³⁷⁾ The second less severe action is the shifting of burden that merely shifts the burden of proof from one party to the other.⁽³⁸⁾

III. Factors to Consider in Determining Remedy

It is apparent from a review of Justice Baker's concurrence, a review of several appellate court decisions, and other papers on spoliation that trial courts rely on several factors in determining what remedy, if any, is appropriate to apply to allegations of spoliation. Below is a discussion of these factors.

A. Duty to Preserve

Several courts have determined that a spoliator must have a duty to preserve evidence before a sanction should be imposed or a presumption applied.⁽³⁹⁾ In determining whether the spoliator had a duty to preserve evidence courts have looked to statutes, regulations, codes of ethics, and business procedures as well as applied a common sense approach as to whether the spoliator had notice that litigation would follow.

Statutory duties to preserve evidence include the Texas Health and Safety Code that prohibits destruction of hospital records for a certain period of time after the discharge of a patient.⁽⁴⁰⁾ A regulatory duty can arise through federal regulations such as 42 CFR 482.24⁽⁴¹⁾ that imposes a duty on certain hospitals to maintain medical records for five years or state regulations such as the Texas Board of Nurse Examiners Rules and Regulations (Tex. Admin. Code §§ 217.11, 217.13, and 217.15).⁽⁴²⁾

Justice Baker also points out that a duty may arise from a code of ethics that requires professionals such as attorneys⁽⁴³⁾ and medical doctors⁽⁴⁴⁾ to preserve evidence. This duty can become complicated as illustrated by several ethical questions such as: What do you do when your client brings you the smoking gun that will prove your opponent's case beyond a shadow of a doubt? Does the omission of an unfavorable medical report, driving record, history of substance abuse or other unfavorable evidence amount to spoliation? Is burying a crucial piece of evidence in a large pile of discovery (also known as "dump truck" discovery) considered spoliation?

It can also be argued that a business's polices, procedures, and course of doing business can create a duty to preserve evidence. An example of this is where a party has a business practice or in house policy of keeping records for a certain period of time. Any violation of this practice may definitely raise scrutiny of why this practice or policy was not followed in a particular situation.

Industry standards, programs and guidelines may also create a duty to preserve evidence for a certain period of time. I recently encountered an example of this in a case where our client was transfused with hepatitis infected blood in 1985. After filing suit we discovered that the defendant had destroyed all donor cards and it was impossible for us to prove which unit of blood was infected with hepatitis. In reviewing national blood bank programs for preservation of records, we discovered that a program called that Look Back Program had been instituted prior to the destruction of these records. This program preempted local policies and put blood banks on notice that they should preserve donor records for possible litigation in cases where blood tainted with hepatitis or HIV may have been transfused into recipients.⁽⁴⁵⁾

There is also a common law duty that Justice Baker states is not the law in Texas, but exists in several other jurisdictions. This duty arises pre-litigation and requires a party to maintain certain evidence if there is a reasonable expectation of litigation in the future. Though this common law duty has not been recognized by the Texas Supreme Court, Justice Baker suggests strongly that a common law duty should be adopted in the future. This duty he states should be based on "viewing the totality of the circumstances, whether the party either actually anticipated litigation or a reasonable person in the party's position would have anticipated litigation".⁽⁴⁶⁾

Despite Justice Baker's assertion that this duty does not exist in Texas, it appears from some of the appellate cases that are listed below that some courts are applying a common law duty to preserve evidence. Though in some of these cases, the duty was not explicitly stated, several courts appear to be applying a common sense test of whether litigation is likely to occur from the position of the spoliator.⁽⁴⁷⁾ Despite this practice other courts have decided not to impose spoliation remedies even though litigation may have been reasonable because spoliation occurred before litigation and no statutory, regulatory, or ethical duty existed.

B. Intentional or Negligent Conduct

The intentional or negligent conduct factor includes whether the evidence was destroyed intentionally or negligently. Justice Baker argues that based on the evidentiary rationale for remedying spoliation in both negligent and intentional spoliation cases, the spoliating party should be held accountable for spoliation regardless of intent because it is the culpable party. Justice Baker, however, does state that the issue of intent should be considered in determining who has the burden of proving relevancy.

While many courts use this factor to determine the severity of punishment to impose against the spoliator, other courts have used the intent factor to determine if a spoliator should be punished at all. Still other courts have held that sanctions or presumptions should not be imposed when evidence is lost due to negligence.⁽⁴⁸⁾

C. Prejudice (Relevancy and Availability of Secondary Evidence)

A third factor is the degree of prejudice the spoliation of evidence caused the nonspoliating party. As in the sports maxim "no harm, no foul" referees as well as judges are reluctant to penalize where the commission of the violation is not relevant to the outcome of a game or case. To put it another way the impartial third party is often reluctant to determine the outcome through taking actions. As such, if the spoliated evidence is not relevant to the contested issues in the underlying case or there is an abundance of credible secondary sources of evidence there is often no reason for a court to take action.

a. Relevance

Determining the relevancy of destroyed or missing evidence can often be difficult because the non-spoliator and Court do not know what the spoliated evidence would have shown. For this reason, Justice Baker suggests that there should be a presumption of relevancy placed against the spoliating party in situations where evidence was intentionally destroyed. If on the other hand the evidence is destroyed negligently, the nonspoliating party should be required to prove the relevancy of the evidence to the cause of action at hand.⁽⁴⁹⁾

The relevancy of spoliated evidence is a hotly contested issue. Some Courts have found claims of spoliation to be mere trial tactics to confuse or prejudice the jury, while others have found spoliated evidence to be the heart of a party's case. Though as discussed above it is often difficult to prove what missing evidence would have shown, courts have generally been able to look at the circumstances surrounding the spoliation of evidence to determine who to place the presumption of relevancy on.

b. Secondary Evidence

The availability of secondary sources of evidence can also impact the degree that spoliation prejudices a non-spoliator's rights. The crucial test in determining secondary sources of evidence is determining the credibility of these sources. This is especially true, when the spoliator may have influence on these secondary sources such as witness testimony of the spoliator's hired employees or experts as well as records that were created by the spoliator with an eye towards litigation. In a review of the case law, it is apparent that several courts have found the availability of credible secondary evidence as the most significant factor in imposing sanctions or a presumption.

IV. Other Remedies for Spoliation

In addition to requesting sanctions under Rules 215 and the trial court's implied judicial power to administer justice and shift the presumption through a jury instruction, Texas law has other remedies that can be imposed on spoliators. These additional remedies include the Texas Penal Code, Texas Disciplinary Rules of Professional Conduct, Health & Safety Code, Texas Board of Nurse Examiners Rules, and Texas Rule of Civil Procedure 167.⁽⁵⁰⁾

Attorneys should also be aware of the fact that intentional or negligent spoliation of their client's evidence could lead to a legal malpractice or grievance problem. This situation can occur where an attorney loses crucial evidence or advises a client that it is not necessary to preserve or maintain certain records or other tangible evidence.

V. How Texas Courts Have Handled Spoliation

Though the Texas Supreme Court has not spoken on a specific step by step procedure for handling spoliation, several courts of appeals have reviewed different trial courts' handling of spoliation issues. The cases below include different cases where the issue of spoliation has been raised.

A. Houston (1^st)

In Daniel v. Kelley Oil Corporation, 1998 WL 224011 (Tex. App--Houston. (1 Dist.) 1998), the Court of Appeals ruled that the trial court acted properly within its power, when it imposed the death penalty on the plaintiff's case for intentionally fabricating evidence. In this case the plaintiff had filed a claim against the defendant for sexual harassment, discrimination, and retaliation. Prior to going to trial, the court held a discovery hearing where the judge acted as the finder of fact and decided that the plaintiff had deliberately spoliated evidence by intentionally fabricating an audio tape and as such sanctioned her by dismissing her claim. Underlying the Appellate Court's decision was their opinion that the fabricated audio tape was the heart of the plaintiff's case against the defendant for sexual harassment and that because the plaintiff had resorted to the fabrication of evidence, she had no credible evidence to support her claim.

B. Fort Worth

In Brewer v. Dowling, 862 S.W.2d 156 (Tex. App.--Fort Worth 1993, writ denied), the Fort Worth Court of Appeals affirmed the trial court's decision not to grant plaintiffs request of a jury instruction for the defendant's loss of evidence. In this case the plaintiffs brought a medical malpractice claim alleging that defendants negligent care resulted in their child not receiving enough oxygen which ultimately caused brain damage. In affirming the trial court, the Appellate Court found it significant that there were other sources of "credible evidence" including nurse's notes made prior to the alleged malpractice and doctors' testimony of what the lost fetal monitor strip stated. Additionally, the Court found it significant that the missing fetal strip was not prejudicial because other monitoring equipment was being used in addition to the monitor to indicate that the fetus was in stress. Thus, the court reasoned that the lost fetal monitoring strip was not crucial to the plaintiffs' case.

In Dempsey v. Pfizer, Inc., 813 S.W.2d 205 (Tex.App.--Ft. Worth 1991, no writ), the Fort Worth Court of Appeals affirmed the trial court's decision to sanction plaintiffs by dismissing several of their claims with prejudice for their act of destroying evidence. In this case the plaintiffs brought suit on several causes of action based on defendant's mistreatment of one of the plaintiffs during an employment relationship. The Appellate Court found it significant that the hand written notes that the plaintiffs destroyed were of conversations that were the basis of their claims and the only source of credible evidence of crucial issues in this case. Also in affirming the trial court's decision the Appellate Court stated that their intent was to punish the plaintiffs for destroying evidence and to warn other parties that may be tempted to destroy evidence that there will be consequences.

C. San Antonio

In San Antonio Press, Inc. v. Custom Built Machinery, et al, 852 S.W.2d 64 ( Tex App.--San Antonio, 1993, no writ), the Court held that the trial court did not abuse its discretion when it decided to impose the less severe sanction (barring the spoliating party's expert's deposition testimony) than the plaintiff requested (striking the spoliating party's pleadings, instructing the jury that fan caused fire, or instructing jury to presume the pre-test condition was unfavorable to spoliating party). In this case the plaintiff brought suit against the manufacturer of a fan that allegedly caused a fire on its premises. In affirming the trial court's decision, the Appellate Court stated that "the choice of sanctions is largely a matter for the trial court's discretion". The Court also found it significant that the plaintiff had an opportunity to examine the fan prior to its destruction and there was no evidence that the destruction was intentional.

In Hernandez v. Altenberg, 904 S.W.2d 734 (Tex.App.--San Antonio 1995, writ denied), the San Antonio Court of Appeals faced the issue of spoliation again. In this case the Court reversed and remanded the trial court's directed verdict stating that a party cannot destroy evidence and then complain of lack of evidence. In this case, the relatives of the decedent filed suit against several physicians after learning via an anonymous letter that the decedent's physicians had left a wire in the decedent and then later conspired to remove this wire by setting up a second surgery. The Appellate Court decided that because the physicians had destroyed the wire they could not now complain that the plaintiff had no evidence that a blood clot had formed on the wire.

In Pace v. Sadler, 1998 WL 121635 (Tex.App.-San Antonio 1998), the San Antonio Court of Appeals affirmed the trial court's decision to exclude evidence of a missing EKG strip. In this case the plaintiff brought a medical malpractice action against the defendants for failing to correctly treat her husband's heart attack. In the discovery process the plaintiff found that the original EKG was missing from the defendant hospital's records. At trial the defendant sought to exclude evidence of the missing EKG because the plaintiff was able to get a copy of the EKG from the treating physician (alternative source of evidence) and the introduction of the missing EKG would be prejudicial. The Appellate Court also found it significant that the missing EKG was being used to prove a side issue of a pattern of gaps in the medical records, instead of a central issue of whether the Plaintiff received adequate medical treatment including a timely EKG.

In Walmart v. Middleton, 1998 WL (Tex.App.-San Antonio 1998), the San Antonio Court of Appeals again faced the issue of spoliation and determined that the trial court had abused its discretion by improperly submitting a jury instruction with a presumption against the defendant for failing to produce two photos of an alleged dangerous condition (hole in tile floor) in one of the defendant's stores. In coming to this conclusion the appellate court stated that "two rules apply to presumptions that arise from the nonproduction of evidence." It appears from the opinion that the rules were derived from the Bruner, Brewer, and Watson decisions discussed in this paper. "One rule is that the deliberate spoliation of evidence relevant to a case raises a presumption that the evidence would have been unfavorable to the cause of the spoliator.... The second rule comes into play when the party controlling the evidence does not produce it and does not testify."

However, in applying these rules the appellate court decided that there was no intentional spoliation and the defendant's employees had provided a reasonable explanation for the missing photos. Unfortunately, the appellate court did not provide information on how they came to these conclusions. Further, it appears from the reasoning in this case that the sole source of these determinations came from the defendant's testimony after the parties were in litigation. After reviewing Texas law regarding spoliation of evidence, it is my opinion that this case may be an excellent vehicle for the Supreme Court to define the rules of spoliation as well as the roles of the trial and appellate courts.

D. Dallas

In Plorin v. Bedrock, 755 S.W.2d 490 (Tex. App. Dallas, 1988, writ denied) the Dallas Court of Appeals ruled that the trial court had power to impose death penalty sanctions for a party's failure to comply with a voluntary discovery agreement. In this case the plaintiffs brought action against the defendant for negligently repairing the foundation of their home. After the parties agreed to allow the defendant to inspect the foundation, but before the defendant had an opportunity to inspect the foundation or get a court order to inspect the foundation, the plaintiffs had another firm repair the foundation. As such the defendant did not have an opportunity to examine evidence of the central issue in this case.

In Ramirez v. Otis Elevator Company, 837 S.W.2d 205 (Tex. App.--Dallas, 1992, writ denied), the Dallas Court of Appeals held that the trial court acted properly when it denied plaintiff's request for death penalty sanctions against the defendant and submitted a jury instruction that the defendant's destruction of evidence raised a presumption against the spoliator. In this case the plaintiff brought suit against the defendant for injuries she sustained when struck by an elevator door. The trial court found that the defendant's destruction of the elevator's maintenance records was not intentional and therefore did not justify death penalty sanctions leading to a trial on the damages only. The trial court did, however, find that though the spoliation was not intentional, it did create a presumption against the spoliator.

E. Texarkana

In Armstrong v. Norris Cylinder Co., (Tex. App.-Texarkana 1996, writ dismissed w.o.j.), the Appellate Court affirmed the trial court's decision to grant summary judgment and agreed that missing evidence did not create a presumption against the defendant or a fact issue to defeat summary judgment. In this case plaintiff alleged wrongful termination against the defendant for systematically laying off workers that had filed workers compensation claims. In affirming the trial court's opinion the Court found it significant that a missing master document of all employees and their tenure was not as relevant to determining wrongful discharge as other sources of credible evidence including the actual lay off policy. Further, the Court found it significant that plaintiff raised no evidence that indicated the master document was relevant to the issues in the case.

F. Amarillo

In Williford Energy Company v. Submergible Cable Services, Inc., 895 S.W.2d 379 (Tex. App.--Amarillo, 1994, n.w.h), the Appellate Court found that the trial court did not abuse its discretion when it did not impose a sanction or create a presumption for spolaition of evidence. In this case the plaintiff brought negligence and contract actions against the manufacturer and installer of a pumping system for a well. The alleged spoliated evidence consisted of experimental bands that were used to test strength of the actual bands that were in a pumping system. In reviewing the opinion, the Appellate Court appeared to be giving the trial court broad discretion in determining the issue of spoliation. As such, the court held that the defendant's spoliation of materials used to reconstruct events surrounding the failure of the alleged defective pump was not a basis for sanctioning the defendant's expert's testimony or for applying a negative presumption against the defendant.

G. El Paso

In Dillard Department Stores, Inc. v. Strom, 869 S.W2d 654 (Tex. App.--El Paso, 1994, writ dismissed by agr.), the Appellate Court affirmed the trial court's decision that the defedant's total lack of any financial records that should have been in its control created a presumption against the defendant. In this case the plaintiff alleged that the defendant had breached its contract and had committed fraud by failing to pass along compensation for services that the plaintiff had performed.

H. Waco

In H. E. Butt Grocery Co. v.Bruner, 530 S.W. 2d 340 (Tex.Civ.App.--Waco 1975, writ dism'd by agr), the Waco Court of Appeals affirmed the trial court's decision to impose a presumption against the defendant for intentionally spoliating evidence. In this case the plaintiff brought a premises liability action against the defendant for failing to clean up an onion stalk that had fallen on the floor and caused a customer to fall. The trial court determined that intentional spoliation and destruction of the onion stalk by the defendant's employees immediately after the accident created a presumption that its introduction into evidence would have been unfavorable to defendant. The Appellate Court in its review found it significant that the defendant's employees deliberately got rid of the onion stalk immediately after the fall and that the onion stalk was the only credible evidence available to determine the crucial issue of actual or constructive knowledge in this case.

In Watson v. Brazos Elec. Power Co-op, Inc., 918 S.W.2d 639 (Tex.App.--Waco 1996, writ denied), the Waco Court of Appeals revisited the issue of spoliation in the Watson case. In this case the plaintiff brought suit against the defendant for property damage caused by a fire that was allegedly started by a negligently maintained utility pole cross arm. The Court reversed and remanded a trial court's decision not to give a jury instruction because it found that the defendant's employees had deliberately destroyed the cross arm which was only credible evidence available to determine the crucial issue of causation in this case.

In both cases that Courts did not identify a specific statutory, regulatory, or ethical duty on the part of the defendant, but inferred a duty from the facts that the defendant's employees destroyed evidence after receiving notice of the accidents. This appears to be a common law duty based on notice. Additionally, the Courts did not classify defendant's employees' testimony as credible secondary evidence.

I. Eastland

In Union Transports, Inc. v. Braun, 318 S.W.2d 927, (Tex.Civ.App.--Eastland 1958) the Eastland Court of Appeals affirmed the trial court's decision that there was sufficient evidence to go to the jury on a question of excessive speed. As such, the appellate court noted that the defendant's failure to produce a tacometer (instrument that recorded the speed of the defendant's truck at the time of an accident), and failure to explain this failure is of itself some probative force on the question of whether defendant failed to maintain proper speed.

J. Corpus Christi

In Newton v. General Manager of Scurlock's Supermkt., 546 S.W. 76 (TexCivApp.--Corpus Christi 1976), the appellate court affirmed the trial court's decision not to grant a presumption or sanction in a premises liability action where the plaintiff had slipped and fallen on a substance thought to be chicken blood. As a basis for this decision the appellate court found it significant that an employee had inquired if the plaintiff was injured before he cleaned up the spill on which she fell and the plaintiff stated she was fine.

VI. Conclusion

From reviewing the above referenced cases and articles on spoliation, it is apparent that the current Texas law on spoliation of evidence includes little black letter law. The only rules that the Supreme Court has decided is that there is no independent tort of spoliation and that Texas Trial Courts have wide discretion and authority in handling spoliation issues. It is also apparent that each court analyzes spoliation issues differently and weighs the factors that it finds most significant more heavily in its determination of possible remedies.

In determining spoliation issues trial courts should be encouraged to consider the above mentioned factors as well as public policy interests. These policy interests should include protecting the rights of non-spoliating litigants, punishing past spoliators, detering future spoliators, avoiding the risk of punishing innocent parties without evidence of wrongdoing, and limiting the burden that parties face in preserving all possible evidence.

It should also be remembered that the act of intentionally, recklessly, or negligently destroying, hiding, altering or losing evidence of misdeeds is not a new concept. Humans have attempted to hide or destroy evidence of their wrongdoing since the beginning of time. From Adam and Eve attempting to hide evidence of their original sin to modern day politicians allegedly destroying and hiding evidence of their wrongdoing, spoliation of evidence is a common occurrence that is arguably part of human nature.

The Impact of Spoliation of Evidence: A Survey of Texas Law

Texas Trial Lawyers Association
9^th Medical Malpractice Conference
September 17-18, 1998
Houston, Texas

1. ¹ The Lawyer's Quotation Book, Edited by John Reay-Smith, P. 23.

2. ² See Richard Griffith and R. Jeffrey Layne, Spoliation of Evidence: Remedies and Implications, Texas Tech/St.Mary's Medical Malpractice Conference, (April 1995) P. 1; Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's Law Journal 351, 361-64 (1995); and Philip A. Lionberger, Interference with Prospective Civil Litigation by Spoliation of Evidence: Should Texas Adopt a New Tort, 21 St. Mary's Law Journal 209, 219-223 (1989).

3. ³ Bill Liebbe, Destruction and Loss of Evidence, TTLA Conferences (4/12/96, 3/22/96 & 3/29/96), P.3-4.

4. ⁴ Trevino v. Ortega, 41 Tex Sup. Ct. J. 907 (1998) and Malone v. Foster, 41 Tex. Sup. Ct. J. 923 (1998).

5. ⁵ See cases discussed below.

6. ⁶ Ortega at P. 909.

7. ⁷ Ortega v. Trevino, 938 S.W.2d 219, 220 (Tex.App.-Corpus Christi 1997).

8. ⁸ Id.

9. ⁹ Ortega, 41 Tex Sup. Ct. J. 907, 910.

10. ¹⁰ Ortega, 938 S.W.2d at 220 (footnote 1).

11. ¹¹ Malone v. Foster, 41 Tex. Sup. Ct. J. 923.

12. ¹² Id.

13. ¹³ Id.

14. ¹⁴ Id.

15. ¹⁵ Malone v. Foster, 956 S.W2d 573, 575 (Tex. App.-Dallas 1997).

16. ¹⁶ Id at 577.

17. ¹⁷ Id.

18. ¹⁸ Malone v. Foster, 41 Tex. Sup. Ct. J. 924.

19. ¹⁹ Ortega, 41 Tex Sup. Ct. J. 907, 909.

20. ²⁰ See Ortega and Malone.

21. ²¹ Ortega, P.910-16.

22. ²² Ortega, P. 910.

23. ²³ Id at P.909.

24. ²⁴ Id. See also Harry Wilson and Traci Justice Twait, Spoliation: The New Darling of the Defense Bar, Of Counsel Trail Lawyers, Volume 5 Issue 1 (Winter 1996).

25. ²⁵ Ortega at P. 909.

26. ²⁶ Id at P.910.

27. ²⁷ Id at P.911.

28. ²⁸ Id at P.914.

29. ²⁹ Id. (Justice Baker quoting Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979)

30. ³⁰ Id.

31. ³¹ Id at P.915.

32. ³² Ortega, P.911 . (Justice Baker cites Miller v. Stout, 706 S.W.2d 785, 787-88 (Tex.App.--San Antonio 1986, no writ) and Massie v. Hutcheson, 270 S.W. 544, 545 (Tex. 1925) which are discussed supra).

33. ³³ Tex.R.Civ.P.215.

34. ³⁴ Ortega, P.914. (Justice Baker Citing Tex. R. Civ. P. 215(3) and Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979)).

35. ³⁵ Id at 916.

36. ³⁶ Id.

37. ³⁷ Wilson and Twait, P. 1.

38. ³⁸ Ortega, P. 916.

39. ³⁹ Id at P.911.

40. ⁴⁰ Id.

41. ⁴¹ Id.

42. ⁴² Bill Liebbe, P. 5 and Malone, 956 S.W2d 573, 582.

43. ⁴³ Tex. Disc. R. Prof. Con., Rule 3.04.

44. ⁴⁴ Code of Medical Ethics, section 7.05.

45. ⁴⁵ Elizabeth Donegan, M.D., "Transmission of HIV in Blood Products", The Aids Knowledge Data Base (1990) P.2.

46. ⁴⁶ Ortega, P. 912.

47. ⁴⁷ See Bruner, 530 S.W.2d 349, and Watson , 918 S.W.2d 639, discussed below.

48. ⁴⁸ See Brewe , 862 S.W.2d 156, discussed below and Malone v. Foster, 956 S.W.2d 573, discussed above.

49. ⁴⁹ Ortega at P.913-14.

50. ⁵⁰ Bill Liebbe, Destruction and Loss of Evidence, Paper presented at conferences (3/22/96, 3/29/96, 4/12/96).

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