Changing the Rules of Spoliation - Texas Supreme Court

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August 2014
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In This Issue:
  • Spoliation - Brookshire Brothers, Ltd. v. Aldridge
In the News...

Changing the Rules of Spoliation

The facts in a case are often more instructive than the law announced. Brookshire Brothers, Ltd. v. Aldridge, a Texas Supreme Court case decided July 3, 2014, is a good example. The case  limits the use of one of the more severe penalties which the courts can assess against a party for losing or destroying evidence relevant to a case. This is important because such loss or destruction occurs more often now due to the massive quantities of information stored electronically and digitally. The case's facts are perhaps more important for teaching us how to prevent a company's safety goals from becoming safety standards  making the company liable when it fails to meet them.

 The Law - Brookshire's holding
The main subject of the opinion is what a court can do to penalize a party who loses or destroys relevant evidence during a case, called spoliation. Electronic or digital records can easily be erased, recorded over, or lost over time. Physical evidence can also be lost or destroyed. Spoliation can be intentional or negligent. Before Brookshire, one option a court had was to let the jury decide if spoliation had occurred and instruct the members to presume the missing evidence would have been unfavorable to the spoliator. When the judge chose that option, the evidence about whether the spoliation occurred could poison the jury against the spoliator and control the outcome of the underlying dispute. The law was uncertain as to whether the spoliation had to be intentional or could be negligent before the "presumption" instruction could be given to the jury.
The Supreme Court changed the law and held that the judge, not the jury, must hear the evidence about spoliation and decide whether it has taken place. The Court also said an instruction can be given to the jury to presume the missing evidence is unfavorable only if the spoliation is intentional, not negligent. The effect of this decision is potentially to reduce the adverse effect of losing or destroying evidence, especially when the loss or destruction is merely negligent.
The Facts - Lessons from Brookshire
Now let's look at some lessons the case's facts hold for us. The facts of Brookshire are an important reminder of how to craft safety policies and standards that promote safety and do not hoist the company on its own petard when someone gets injured.
The case involved a slip and fall in a grocery store. One of the things the injured person must prove in a slip and fall case is the property owner knew or should have known of the existence of the dangerous condition on the property which caused the fall, so he can take action to protect against it.. The court found evidence of Brookshire Bros' knowledge in part because a manager testified that a substance on the floor in that particular area of the store should not remain on the floor more than five minutes without being noticed and cleaned up, because all employees were trained to look out for spilled substances and several employees had walked by close to the area of the substance without noticing it.
The manager's testimony had the effect of transforming an unrealistic and unattainable goal — that every employee constantly be on the lookout for substances on the floor Â into a  policy or standard of conduct.  A policy or standard that every employee is and must be constantly engaged in floor substance patrol ignores the reality that an employee's attention is focused primarily on his particular job duties. Checkout stand cashiers are focused on checking the waiting line of customers through the stand, not what's on the floor ten or fifteen feet away.
Plaintiffs' lawyers, courts and juries are all too willing to stretch goals into standards without a company's help. To avoid this, the company should set a clear and reasonable standard to which it is willing to be held, the company should establish procedures/policies to meet the standard, it should perform the required procedures/policies, and it should be able to show that it performed its procedures/policies to meet the standard.

For a retail store, this might mean a thorough sweep through the store every 30 minutes by a designated employee who records in a permanent record the times and results of each sweep, so that the record is proof no substances were found on the floor anywhere in the store during the sweep. If the company is determined to set a goal that exceeds the standard it is willing to be held to, it should clearly distinguish between them in its internal documents and employee training. Of course, having no goal or standard is better than having one the company doesn't do anything to meet or fails to perform its own required procedures to meet.

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