Unless you are an attorney, you probably never heard of spoliation.  Spoliation is a fancy way of saying that someone has destroyed evidence.  Whether that evidence is a document, videotape, or picture, when a person or entity deliberately or negligently destroys a piece of evidence that tends to prove or disprove something, that person or entity has committed a civil wrong.  How do courts punish those persons or entities that engage in spoliation?


In Texas, a recent Texas Supreme Court ruling has many attorneys and legal minds opining that spoliation is dead.  The case, Brookshire Brothers., LTD, v. Aldridge, 438 S.W. 3d 9 (2014)., attempted to define the parameters of sanctions when a party is thought to have committed spoliation and what jury instructions are proper.  The Court’s opinion is important because it clearly bifurcated the use of a jury charge based on whether the party thought to have destroyed evidence, destroyed that evidence negligently or willfully.  The former allowing a jury charge only in the rarest of situations and the latter allowing when a party acts “with the subjective purpose of concealing or destroying discoverable evidence.”  However, it should be noted that even when spoliation has occurred, a trial court does not automatically have to charge a jury with spoliation instructions.  A trial court may use a lesser sanction to remedy the destruction of evidence if the trial court believes it will be sufficient.  In conclusion, the Texas Supreme Court opinion severely limits a trial court’s discretion when deciding whether a party is entitled to spoliation jury instructions.  Negligent spoliation will almost never warrant spoliation instructions and intentional spoliation must be unequivocal in order to have a jury consider sanctions against the party thought to have destroyed evidence.


In contrast, Washington State applies a different standard when considering destruction of evidence and the penalties against the destroying party.  The leading case detailing spoliation in Washington State is Pier 67, Inc. v. King County, 89 Wash.2d 379, 573 P.2d 2 (Wash. 1977).  In Pier, the Court held, “ where relevant evidence which would properly be part of a case is in control of a party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference the finder of fact may draw is that such evidence would be unfavorable to him.”  Pier makes clear that when a party learns of another party’s failure to produce evidence that is unfavorable to the non-producing party, a jury must assume the non-producing party failed to produce the evidence because it was detrimental to the non-producing party’s case.  However, the non-producing party is sometimes afforded the right to give “satisfactory explanation.”  Explanations must describe the importance of the missing evidence and the fault of the non-producing party.  That is, how detrimental was the non-produced evidence to the non-producing party’s case and whether it was not produced due to willfulness or negligence.


Requesting a court of law to charge a jury with spoliation instructions in Texas is a much more difficult request than in Washington State.  It is a fine example of how laws in different jurisdictions affect litigants.  Whether you are seeking justice in Texas, Washington, or any other state in our country, Roth & Associates has an understanding of even the most nuanced of laws and will seek just compensation for you and your family.