Brookshire Brothers, Ltd. v. Jerry Aldridge ( 2014 )


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    THE SUPREME COURT OF TEXAS
    Post Office Box 12248
    Austin, Texas 78711
    (512)463-1312
    July 03, 2014
    Mr. Darrin M. Walker                             Mr. Robert T. Cain Jr.
    Law Office of Darrin Walker                      Alderman & Cain PLLC
    6134 Riverchase Glen Drive                       P.O. Box 153237
    Kingwood, TX 77345                               Lufkin, TX 75915-0237
    RE:         Case Number: 10-0846
    Court of Appeals Number: 12-08-00368-CV
    Trial Court Number: 39,829-06-08
    Style: BROOKSHIRE BROTHERS, LTD.
    v.
    JERRY ALDRIDGE
    Dear Counsel:
    Today the Supreme Court of Texas issued an opinion(s) and judgment in the above-
    referenced cause. You may obtain a copy of the opinion(s) and judgment through Case Search
    on our Court's webpage at: http://www.suprcmc.courts.state.tx.us/. On the Case Search page
    simply enter the case number and push the Search button to find the docket page for your case.
    Sincerely,
    fV. vV^ssk^-—
    Blake A. Hawthorne, Clerk
    by Claudia Jenks, Chief Deputy Clerk
    c Ms. Reba
    c Squyres
    :   Clerk
    Ms. Diana L.
    Faust
    Ms. Cathy S.
    Lusk
    Mr. Brock C.
    Akers
    Ms. Allison
    FILE COPY
    THE SUPREME COURT OF TEXAS
    Post Office Box 12248
    Austin, Texas 78711
    (512)463-1312
    Haver
    Gabbert
    IN THE SUPREME COURT OF TEXAS
    FILED IN COURT OF APPE
    No. 10-0846            12th Ourt cf '              rict
    Brookshire Brothers, Ltd., Petition
    v
    V.
    CATHY S. LUSK, (
    Jerry Aldridge, Respondent
    On Petition for Review from the
    Court of Appeals for the Twelfth District of Texas
    Argued September 12, 2012
    Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht,
    Justice Green, Justice Johnson, Justice Willett, and Justice Boyd joined.
    Justice Guzman filed a dissenting opinion, in which Justice Devine and Justice Brown
    joined.
    A fundamental tenet of our legal system is that each and every trial is decided on the merits
    of the lawsuit being tried. After all, reaching the correct verdict is the goal of a fair and impartial
    judiciary. However, when the spoliation of evidence is at issue, this goal is hampered in conflicting
    ways. First, as is the case when evidence is lost or destroyed for any reason, spoliation can deprive
    the factfinder ofrelevant evidence, which can in turn negatively impact the fairness ofthe trial. Trial
    courts therefore must have wide discretion in remedying such conduct and in imposing sanctions to
    deter it.   However, the imposition of a severe spoliation sanction, such as a spoliation jury
    instruction, can shift the focus ofthe case from the merits of the lawsuit to the improper conduct that
    was allegedly committed by one of the parties during the course of the litigation process. The
    problem is magnified when evidence regarding the spoliating conduct is presented to a jury. Like
    the spoliating conduct itself, this shift can unfairly skew a jury verdict, resulting in a judgment that
    is based not on the facts of the case, but on the conduct of the parties during or in anticipation of
    litigation.
    Modern technology has added another layer ofcomplexity to these competing concerns. Due
    to the exponential increase in the volume of electronic data being generated and stored, maintaining
    the balance between the significant interest in preserving relevant evidence and the burdens
    associated with doing so has become increasingly difficult.
    Today we enunciate with greater clarity the standards governing whether an act of spoliation
    has occurred and the parameters of a trial court's discretion to impose a remedy upon a finding of
    spoliation, including submission ofa spoliation instruction to the jury. We first hold that a spoliation
    analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law,
    whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an
    appropriate remedy. To conclude that a party spoliated evidence, the court must find that (1) the
    spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or
    negligently breached that duty by failing to do so.          Spoliation findings—and their related
    sanctions—are to be determined by the trial judge, outside the presence of the jury, in order to avoid
    unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying
    the lawsuit. Accordingly, evidence bearing directly upon whether a party has spoliated evidence is
    not to be presented to the jury except insofar as it relates to the substance of the lawsuit. Upon a
    finding of spoliation, the trial court has broad discretion to impose a remedy that, as with any
    discovery sanction, must be proportionate; that is, it must relate directly to the conduct giving rise
    to the sanction and may not be excessive. Key considerations in imposing a remedy are the level of
    culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating
    party.
    While the spectrum of remedies that may be imposed range from an award of attorney's fees
    to the dismissal of the lawsuit, the harsh remedy of a spoliation instruction is warranted only when
    the trial court finds that the spoliating party acted with the specific intent of concealing discoverable
    evidence, and that a less severe remedy would be insufficient to reduce the prejudice caused by the
    spoliation. This intent requirement is congruent with the presumption underlying a spoliation
    instruction—that the evidence would have hurt the wrongdoer. A failure to preserve evidence with
    a negligent mental state may only underlie a spoliation instruction in the rare situation in which a
    nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or
    defense.
    In the underlying slip-and-fall premises-liability case, we are asked to determine whether the
    trial court erred in charging the jury with a spoliation instruction when a premises owner retained
    the requested portion of surveillance video footage of the plaintiffs fall, but allowed additional
    footage to be automatically erased. Applying the standard enunciated today, we hold that imposition
    of the severe sanction of a spoliation instruction was an abuse of discretion. We need not address
    the propriety of a particular lesser sanction because none was requested or imposed. We further hold
    that the trial court erred in admitting evidence of the circumstances of the spoliating conduct.
    Because these errors were not harmless, we reverse the court of appeals' judgment and remand the
    case for a new trial in accordance with this opinion.
    I. Background
    On September 2, 2004, Jerry Aldridge slipped and fell near a display table at a Brookshire
    Brothers grocery store. At the time of the fall, Aldridge did not tell store employees that he was
    injured, and the store did not investigate the fall or complete an incident report. However, about an
    hour-and-a-half after leaving the store, Aldridge went to the emergency room because of pain. On
    September 7, Aldridge returned to the store and reported his injuries. Jon Tyler, a store manager
    trainee, prepared an incident report based on Aldridge's statements and the recollections of the
    assistant manager who was on duty at the time of Aldridge's fall. The incident report stated that
    "Aldridge slipped on grease that had leaked out of a container by the 'Grab N Go.'" The Grab-N-
    Go, which featured rotisserie chickens that were cooked and packaged in the store's deli, was located
    approximately fifteen feet from the area of the fall.
    Aldridge's fall was captured by a surveillance camera mounted near the check-out counters.
    Because of the camera's placement, the floor where Aldridge fell was in the background and was
    obscured by a display table, which was covered with a cloth that extended to the floor. At the time
    of the fall, the cameras recorded surveillance video in a continuous loop that, after approximately
    thirty days, recorded over prior events. After Aldridge reported his injuries to Brookshire Brothers,
    Robert Gilmer, Brookshire Brothers' Vice President of Human Resources and Risk Management,
    decided to retain and copy approximately eight minutes of the video, starting just before Aldridge
    entered the store and concluding shortly after his fall.
    Aldridge learned that Brookshire Brothers possessed video footage of the incident and, on
    September 13, asked the claims department for a copy so he could see his fall. Gilmer testified that
    he instructed the claims department not to provide the tape to Aldridge, as Gilmer believed it would
    be improper. The claims department wrote Aldridge a letter on September 29 stating that there was
    only one copy of the video at that time and that it therefore could not provide him with a copy. The
    camera presumably recorded over the September 2 footage by early October.
    Brookshire Brothers initially paid Aldridge's medical expenses,1 but ceased paying by June
    2005, when Gilmer wrote Aldridge a letter stating that he had reviewed the video and determined
    that Brookshire Brothers was going to deny responsibility. In August 2005, Aldridge' s attorney sent
    Brookshire Brothers a letter requesting approximately two-and-a-half hours of additional footage
    from the store cameras. Brookshire Brothers was unable to comply with that request because the
    footage had been recorded over almost a year earlier.
    *
    Aldridge sued Brookshire Brothers, claiming injuries from a slip and fall under a premises-
    liability theory. To recover in a slip-and-fall case, a plaintiff must prove, inter alia, that the
    defendant had actual or constructive knowledge of a dangerous condition on the premises such as
    a slippery substance on the floor, Keech v.Kroger Co., 845 S.W.2d 262,264 (Tex. 1992), which may
    be accomplished with a showing that "(1) the defendant placed the substance on the floor, (2) the
    1With respect to customers injured in its store, Brookshire Brothers had a routine practice of paying an initial
    medical bill as well as paying for one follow-up visit and associated prescriptions. As to Aldridge, Brookshire Brothers
    also authorized payment for a visit to a neurosurgeon and several weeks of physical therapy.
    5
    defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the
    condition existed long enough to give the premises owner a reasonable opportunity to discover it,"
    Wal-Mart Stores, Inc. v. Reece, 
    81 S.W.3d 812
    , 814 (Tex. 2002). Aldridge argued in the trial court
    that Brookshire Brothers' failure to preserve additional video footage amounted to spoliation of
    evidence that would have been helpful to the key issue of whether the spill was on the floor long
    enough to give Brookshire Brothers a reasonable opportunity to discover it. Aldridge accordingly
    moved for a spoliation jury instruction.
    The trial court allowed the jury to hear evidence bearing on whether Brookshire Brothers
    spoliated the video, submitted a spoliation instruction to the jury, and permitted the jury to decide
    whether spoliation occurred during its deliberations on the merits of the lawsuit. The principal
    witness to testify on the circumstances surrounding the preservation of the video was Gilmer, who
    had made the decision regarding the amount of video footage to preserve after Aldridge's incident
    report was completed. Gilmer testified at trial that he had instructed Tyler to save the portion
    showing the fall and the five or six minutes before the fall so as to try to identify Aldridge entering
    the store. He further testified that the purpose of saving the video was to verify that Aldridge had
    actually fallen and that Gilmer believed the rest of the video, which he had not viewed, "[wjasn't
    relevant." Gilmer verified his understanding that a key legal issue in a slip-and-fall case is whether
    store employees knew or shouldhaveknowntherewas something on the floorthat causedthe fall.2
    However, he maintained that when the decision was made to preserve the video he "didn't know
    2 Gilmer testified that he had worked in the grocery store business for forty-four years. As Vice President of
    Human Resources and Risk Management, Gilmer headed Brookshire Brothers' risk management department, which
    included managing the company's litigation.
    there was going to be a case." At that time, "[i]t was just a man who made a claim that he slipped
    and fell in the store," and the actions relating to the video were not taken "in anticipation of this
    trial."
    The trial court submitted the following spoliation instruction to the jury:
    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 determined that Brookshire Brothers' negligence proximately caused Aldridge's fall and
    awarded Aldridge $1,063,664.99 in damages. The court of appeals affirmed the trial court's
    judgment on the verdict, holding that the trial court did not abuse its discretion in admitting evidence
    of spoliation or charging the jury with the spoliation instruction.
    II. Spoliation Analysis
    The spoliation of evidence is a serious issue. A party's failure to reasonably preserve
    discoverable evidence may significantly hamper the nonspoliating party's ability to present its claims
    or defenses, Wal-Mart Stores, Inc. v. Johnson, 
    106 S.W.3d 718
    , 721 (Tex. 2003), and can
    "undermine the truth-seeking function of the judicial system and the adjudicatory process," Justice
    Rebecca Simmons and Michael J. Ritter, Texas's Spoliation "Presumption", 43 St. Mary's L.J.
    691, 701 (2012); see also Trevino v. Ortega, 
    969 S.W.2d 950
    , 954 (Tex. 1998) (Baker, J.,
    concurring) (observing that "[ejvidence spoliation is a serious problem that can have a devastating
    effect on the administration of justice"). As one federal district court has explained, "[djocuments
    create a paper reality we call proof. The absence of such documentary proof may stymie the search
    for the truth." Zubulake v. UBS WarburgL.L.C., 
    220 F.R.D. 212
    , 214 (S.D.N.Y. 2003) (citations
    and internal quotation marks omitted). In some circumstances, a missing piece of evidence like a
    photograph or video can be irreplaceable. Testimony as to what the lost or destroyed evidence might
    have shown will not always restore the nonspoliating party to an approximation of its position if the
    evidence were available; sometimes a picture is indeed worth a thousand words.
    in light of these concerns, courts have broad discretion to utilize a variety of remedies to
    address spoliation, including the spoliation instruction.         See Andrew Hebl, Spoliation of
    Electronically StoredInformation, GoodFaith, and Rule 37(e), 29 N. III. U. L. Rev. 79, 86 (2008).
    The instruction is an important remedy, but its use can affect the fundamental fairness of the trial in
    ways as troubling as the spoliating conduct itself. As we have recognized, "[bjecause the instruction
    itself is given to compensate for the absence of evidence that a party had a duty to preserve, its very
    purpose is to 'nudge' or 'tilt' the jury" toward a finding adverse to the alleged spoliator. Wal-Mart
    
    Stores, 106 S.W.3d at 724
    . Thus, 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
    . This "nudging" or "tilting" of the jury is magnified by the presentation
    of evidence that emphasizes the spoliator's wrongful conduct rather than the merits of the suit.
    Added to these concerns are the complexities surrounding evidence preservation in today's
    world, as technology has advanced to allow potential litigants to store larger volumes of electronic
    information. See Simmons and Ritter, Texas's Spoliation "Presumption", 43 St. Mary's L.J. at
    701. Thus, while electronic data can be a valuable source of evidence, it can also make compliance
    with one's responsibility to preserve and produce such data much more difficult and expensive. See
    
    id. at 702;
    Robert Hardaway, et al., E-Discovery's Threat to Civil Litigation: ReevaluatingRule 26
    for theDigital Age, 63 Rutgers L. Rev. 521,522 (2011). Because ofthe prevalence ofdiscoverable
    electronic data and the uncertainties associated with preserving that data, sanctions concerning the
    spoliation of electronic information have reached an all-time high. Dan H. Willoughby, Jr., et al.,
    Sanctions for E-Discovery Violations: By the Numbers, 60 DukeL.J. 789, 790 (2010).
    Because of these and other myriad concerns, the Federal Rules of Civil Procedure were
    amended in 2006 to prohibit federal courts from imposing sanctions when discoverable electronic
    evidence is lost "as a result ofthe routine, good-faith operation ofan electronic information system."
    Fed. R. Civ. P. 37(e).3 The Texas rules do not contain a comparable provision, but the challenges
    facing Texas courts are just as acute. Merits determinations are significantly affected by both
    spoliation instructions and the conduct that gives rise to them. We have observed that when a party
    is inherently prevented from having the merits of its case adjudicated, constitutional due process is
    implicated. TransAmerican Natural Gas Corp. v. Powell, 
    811 S.W.2d 913
    , 917-18 (Tex. 1991)
    (discussing constitutional limitations on the power of courts to adjudicate a party's claims without
    regard to the merits, but instead based on a party's conduct in discovery). In light of these concerns,
    3 Rule 37(e) is in the process of being amended again. Following the receipt of public comment, the Advisory
    Committee on Civil Rules recommended a proposed amended rule for adoption by the Committee on Rules of Practice
    and Procedure. See Hon. David G. Campbell, Advisory Committee on Civil Rules, Report ofAdvisory Committee on
    Civil Rules, 306-17 (May 2, 2014), http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/
    Standing/ST2014-05.pdf#pagemode=bookmarks. The Standing Committee approved the proposal at its May 29, 2014
    meeting. Thomas Y. Allman, Standing Committee OKs Federal Discovery Amendments, Law Technology News (June
    2, 2014), http;//www.lawtechnologynews.com/id=1202657565227?slreturn=20140505130019.
    we granted review of Brookshire Brothers' petition in order to bring much-needed clarity to our
    state's spoliation jurisprudence.
    A. Development of Spoliation Law in Texas
    In Texas, spoliation is an evidentiary concept rather than a separate cause of action. 
    Trevino, 969 S.W.2d at 952
    . In declining to recognize spoliation as an independent tort in Trevino, we
    acknowledged that courts must have "adequate measures to ensure that it does not improperly impair
    a litigant's rights." 
    Id. at 953.
    Thus, when evidence is lost, altered, or destroyed, trial courts have
    the discretion to impose an appropriate remedy so that the parties are restored to a rough
    approximation of what their positions would have been were the evidence available. Wal-Mart
    
    Stores, 106 S.W.3d at 721
    . As discussed further below, Texas courts necessarily enjoy wide latitude
    in remedying acts of discovery abuse, including evidence spoliation. 
    Trevino, 969 S.W.2d at 953
    .
    Neither the Texas Rules of Evidence nor the Texas Rules of Civil Procedure specifically
    address spoliation. However, this Court recognized the concept as early as 1852, when we adopted
    the principle that all things are presumed against the wrongdoer; this is known as the spoliation
    presumption. See Cheatham v. Riddle, 
    8 Tex. 162
    , 167 (1852) (citation omitted) (stating that
    "[ejverything is to be presumed in odium spoliatoris"); see also 
    Trevino, 969 S.W.2d at 952
    (observing that "[ejvidence spoliation is not a new concept" and that "all things are presumed against
    a wrongdoer"). However, our guidance in this area has been limited to a small spattering of cases
    in the nineteenth century4 and several more in the last twenty years.5
    See Curtis & Co. Mfg. v. Douglas, 
    15 S.W. 154
    , 155 (Tex. 1890) (noting that nonpreservation of evidence
    was "a circumstance to be considered by the jury"); Underwood v. Coolgrove, 
    59 Tex. 164
    , 170 (1883) (recognizing that
    the refusal to produce evidence in a party's possession without explanation as to why it was not produced creates the
    10
    The courts of appeals have generally followed two basic frameworks in evaluating the
    propriety of a spoliation remedy. The first is that established by Justice Baker's oft-cited concurring
    opinion in Trevino v. Ortega. Under this analytical framework, a party may be entitled to a remedy
    for the opposing party's spoliation of evidence if the party establishes three elements: (1) the party
    who destroyed or failed to produce evidence had a duty to preserve it; (2) the party either negligently
    or intentionally breached that duty by destroying the evidence or rendering it unavailable; and (3) the
    breach prejudiced the nonspoliating party. 
    Trevino, 969 S.W.2d at 955-58
    (Baker, J., concurring).
    In evaluating prejudice, Justice Baker suggested that courts should consider the destroyed evidence' s
    relevance, whether other cumulative evidence exists to take the place of the spoliated evidence, and
    whether the destroyed evidence supports "key issues in the case." 
    Id. at 958.
    The second distinct framework applied by the courts of appeals focuses on the so-called
    presumptions arising from a party's destruction ofor failure to produce evidence. As we recognized
    in Wal-Mart Stores, the courts of appeals have generally limited the use of a spoliation instruction
    to two circumstances (generally referred to as the "two rules"): (1) a party's deliberate destruction
    of relevant evidence, and (2) a party's failure to produce relevant evidence or explain its
    
    nonproduction. 106 S.W.3d at 721
    . Under the first rule, a presumption arises that a party who
    deliberately destroys evidence does so because it is unfavorable to the party's case. 
    Id. Under 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 is unable
    to explain its failure to produce the evidence. 
    Id. at 722.6
    Though we have never expresslyadopted
    these two rules, both derive from our nineteenth-century precedent. See 
    Cheatham, 8 Tex. at 167
    (recognizing that all things are presumed against a wrongdoer); 
    Underwood, 50 Tex. at 170
    (observing that a failure to produce evidence without explanation creates a belief that it would not
    aid the nonproducing party's case). Some courts of appeals have referred solely to the two rules in
    determining the propriety of a spoliation instruction, see, e.g.,Brumfieldv. Exxon Corp., 
    63 S.W.3d 912
    , 920 (Tex. App.—Houston [14th Dist.] 2002, pet. denied), while others—including the court
    of appeals in the instant case—have referred to both Justice Baker's framework and the two rules
    in determining whether the trial court abused its discretion in charging the jury with a spoliation
    instruction,       S.W.3d         ,     ; see also Doe v. Mobile Video Tapes, Inc.,43 S.W.3d 40,56 (Tex.
    App.—Corpus Christi 2001, no pet); Whiteside v. Watson, 
    12 S.W.3d 614
    , 621 (Tex.
    App.—Eastland 2000, pet. dism'd by agr.).
    B. Spoliation Framework
    Because we have never crafted a complete analytical framework for determining whether an
    act of spoliation has occurred, we first focus on the elements that must be satisfied to warrant a
    finding of spoliation and the corresponding imposition of an appropriate remedy. As an initial
    6 The Texas spoliation presumption is a confusing concept that has not been uniformly applied. See generally
    Justice Rebecca Simmons and Michael J. Ritter, Texas's Spoliation "Presumption ", 43 St. Mary's L.J. 691 (2012).
    In Texas, courts usually use the term "presumption," while federal courts generally refer to a spoliation instruction as
    an "adverse inference" instruction. See 
    id. at 716,
    769.
    12
    matter, however, we address whether it is the responsibility of the trial court or the jury to make this
    determination.
    1. The Trial Court Determines Whether Evidence Was Spoliated and the Proper Remedy
    As discussed above, spoliation is an evidentiary concept, not a separate cause of action. See
    
    Trevino, 969 S.W.2d at 952
    . It is well-established that evidentiary matters are resolved by the trial
    court. See, e.g., City of San Antonio v. Pollock, 
    284 S.W.3d 809
    , 823 (Tex. 2009).              Further,
    spoliation is essentially a particularized form of discovery abuse, in that it ultimately results in the
    failure to produce discoverable evidence, and discovery matters are also within the sole province of
    the trial court. Finally, presenting spoliation issues to the jury for resolution magnifies the concern
    that the focus ofthe trial will shift from the merits to a party's spoliating conduct. For these reasons,
    we agree with Justice Baker that the trial court, rather than the jury, must determine whether a party
    spoliated evidence and, if so, impose the appropriate remedy. See 
    Trevino, 969 S.W.2d at 954
    (Baker, J., concurring); see also Massie v. Hutcheson, 
    270 S.W. 544
    , 545 (Tex. Comm'n App. 1925,
    holding approved) (stating that determining whether a party intentionally destroyed evidence is a
    preliminary question for the court to decide). The trial court may hold an evidentiary hearing to
    assist the court in making spoliation findings, but not in the presence of the jury. Placing the
    responsibility on the trial court to make spoliation findings and to determine the proper remedy is
    a key mechanism in ensuring the jury's focus stays where it belongs—on the merits.
    2. Spoliation Finding
    With this background in mind, we turn to the elements that underlie a trial court's spoliation
    finding, beginning with the issue of duty. We have held that a party alleging spoliation bears the
    13
    burden of establishing that the nonproducing party had a duty to preserve the evidence. See Wal-
    Mart 
    Stores, 106 S.W.3d at 722
    . The standard governing the duty to preserve resolves two related
    inquiries: when the duty is triggered, and the scope of that duty. Specifically, we observed in Wal-
    MartStores that "[sjuch a duty arises only when a party knows or reasonably should know that there
    is a substantial chance that a claim will be filed and that evidence in its possession or control will
    be material and relevant to that claim." 
    Id. In turn,
    a "substantial chance of litigation" arises when
    "litigation is more than merely an abstract possibility or unwarranted fear." National Tank Co. v.
    Brotherton, 
    851 S.W.2d 193
    , 204 (Tex. 1993) (citation and internal quotation marks omitted); see
    also 
    id. ("Common sense
    dictates that a party may reasonably anticipate suit being filed . . . before
    the plaintiff manifests an intent to sue.").7
    Second, we have implicitly recognized, and now do so explicitly, that the party seeking a
    remedy for spoliation must demonstrate that the other party breached its duty to preserve material
    and relevant evidence. See Wal-Mart 
    Stores, 106 S.W.3d at 722
    (observing that the initial inquiry
    in determining if discovery abuse has occurred is whether a party has a duty to preserve evidence).
    If a party possesses a duty to preserve evidence, it is inherent that a party breaches that duty by
    failing to exercise reasonable care to do so. Otherwise, the nonspoliating party would have no
    legitimate reason to seek a spoliation remedy. Further, we agree with Justice Baker that the breach
    maybe either intentional or negligent. 
    Trevino, 969 S.W.2d at 957
    (Baker, J., concurring) ("Because
    7Federal courts have struggled withthe issueof whena duty to preserve is triggeredand the scope of that duty,
    especially as it relates to electronic data and "litigation holds." See generally Paul W. Grimm, et al., Proportionality
    in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions, 37 U. Balt. L. Rev. 381 (2008) (discussing the
    perplexing issue in federal courts of the duty to preserve as it relates to electronically stored information).
    14
    parties have a duty to reasonably preserve evidence, it is only logical that they should be held
    accountable for either negligent or intentional spoliation.").8
    3. Spoliation Remedies
    After a court determines that a party has spoliated evidence by breaching its duty to preserve
    such evidence, it may impose an appropriate remedy. Rule 215.2 of the Texas Rules of Civil
    Procedure enumerates a wide array of remedies available to a trial court in addressing discovery
    abuse, such as an award of attorney's fees or costs to the harmed party, exclusion of evidence,
    striking a party's pleadings, or even dismissing a party's claims. See Tex. R. Civ. P. 215.2—.3.
    These remedies are available in the spoliation context. 
    Trevino, 969 S.W.2d at 953
    . The trial court
    also has discretion to craft other remedies it deems appropriate in light of the particular facts of an
    individual case, including the submission of a spoliation instruction to the jury. 
    Id. In accordance
    with our well-settled precedent on remedying discovery abuse, however, the
    remedy must have a direct relationship to the act of spoliation and may not be excessive. See
    
    TransAmerican, 811 S.W.2d at 917
    . In other words, the remedy crafted by the trial court must be
    proportionate when weighing the culpability of the spoliating party and the prejudice to the
    nonspoliating party. See Schmidv. Milwaukee Elec. Tool Corp., 
    13 F.3d 76
    , 79 (3d Cir. 1994) (in
    crafting a remedy for spoliation, assessing (1) the degree of fault of party who failed to preserve
    evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether there is a lesser
    8 It follows that a party does not breach its duty to preserve relevant evidence if such evidence is- lost or
    destroyed through no fault of the party from whom the evidence is sought, such as by an act of God. Given that
    spoliation sanctions, while primarily remedial, also serve a punitive purpose, they are not appropriately imposed against
    an innocent party, regardless of the extent to which another party is prejudiced. See 
    Trevino, 969 S.W.2d at 957
    (Baker,
    J., concurring) (comparing the "culpable" spoliating party with the "innocent" nonspoliating party).
    15
    sanction that will avoid substantial unfairness to the opposing party); Maria Perez Crist, Preserving
    the Duty to Preserve: TheIncreasing VulnerabilityofElectronic Information, 
    58 S.C. L
    . Rev. 7,44
    (2006) (noting that federal courts generally follow the three-part test outlined in Schmid in
    determining the appropriate sanction for spoliation). This logically follows from the remedial
    purpose undergirding the imposition of a spoliation remedy under Texas law, which is to restore the
    parties to a rough approximation of their positions if all evidence were available. See Wal-Mart
    Stores, 106S.W.3dat721.
    The courts ofappeals evaluate prejudice largely on the considerations Justice Baker espoused
    in his Trevino concurrence.9 These include the relevance of the spoliated evidence to key issues in
    the case, the harmful effect of the evidence on the spoliating party's case (or, conversely, whether
    the evidence would have been helpful to the nonspoliating party's case), and whether the spoliated
    evidence was cumulative of other competent evidence that may be used instead of the spoliated
    evidence. 
    Trevino, 969 S.W.2d at 958
    (Baker, J., concurring); see, e.g., Offshore Pipelines, Inc. v.
    Schooley, 
    984 S.W.2d 654
    , 666 (Tex. App.—Houston [1st Dist.] 1998, no pet.). These factors have
    proved workable in the courts of appeals, are similar to the test followed by federal courts, and
    provide guidance to the trial courts in analyzing prejudice in a specific case. See, e.g., Rimkus
    Consulting Group, Inc. v. Cammarata, 
    688 F. Supp. 2d 598
    , 615-16 (S.D. Tex. 2010) (discussing
    the prejudice factor of adverse inference analysis). Accordingly, we adopt them.
    9 Justice Baker opined that prejudice should be analyzed both as a yes-or-no element of spoliation and as a
    factor in imposing a remedy. 
    Trevino, 969 S.W.2d at 955-58
    (Baker, J., concurring). We think this two-step analysis
    is unnecessary and that analyzing prejudice as a key factor in imposing a spoliation remedy contemplates that some
    degree of prejudice is required for the nonspoliating party to be entitled to a remedy.
    16
    In light of the difficulty ofconducting a prejudice analysis based on evidence that is no longer
    available forreview, we recognize thata party's intentional destruction of evidence10 may, "[ajbsent
    evidence to the contrary," be sufficient by itself to support a finding that the spoliated evidence is
    both relevant and harmful to the spoliating party. See 
    Trevino, 969 S.W.2d at 958
    (Baker, J.,
    concurring). This flows from the common-law spoliation presumption that all things are presumed
    against the wrongdoer." Conversely, negligent spoliation could not be enough to support such a
    finding without "some proof about what the destroyed evidence would show."12 
    Id. In any
    event,
    the trial court should of course consider all evidence bearing on the factors associated with
    evaluating prejudice to the nonspoliating party. 
    Id. We note,
    however, that a trial court should exercise caution in evaluating the final prejudice
    factor, which accounts for the existence of cumulative evidence. For example, a spoliating party
    might argue that no prejudice resulted from spoliation of a video of an incident because there is also
    eyewitness testimony regarding the incident. But many of the inherent problems with such
    testimony—inaccurate memory, poor eyesight, bias, etc.—are simply not present with a video
    recording. Again, a picture is often worth a thousand words. The same can be true with respect to
    testimony regarding the contents of a destroyed document, compared to the document itself. The
    10 We discuss in detail below what is required to demonstrate that a party "intentionally" spoliated evidence.
    11 Some federal courts endorse this viewpoint as well. See, e.g., ResidentialFunding Corp. v. DeGeorge Fin.
    Corp., 
    306 F.3d 99
    , 109 (2d Cir. 2002).
    12 This does not mean that the contents of the missing evidence must be conclusively proven, as they can be
    demonstrated through circumstantial evidence. See, e.g., Byrnie v. Town of Cromwell, Bd. ofEduc, 
    243 F.3d 93
    , 110
    (2d Cir. 2001) (observing that "a party seeking an adverse inference may rely on circumstantial evidence to suggest the
    contents ofdestroyed evidence"); 
    Reece, 81 S.W.3d at 817
    (noting that circumstantial evidence may establish a fact when
    that fact is "inferred from other facts proved in the case") (citation and internal quotation marks omitted).
    17
    differences in kind and quality between the available evidence and the spoliated evidence will thus
    be a key factor in analyzing prejudice to the nonspoliating party.
    C. Spoliation Instruction as a Remedy
    Having laid out the general framework governing spoliation findings and remedies, we turn
    to the particular remedy at issue in this case—the submission of an instruction to the jury to presume
    that the missing evidence would have been unfavorable to the spoliator. Though we have generally
    described the purpose of a spoliation remedy in remedial rather than punitive terms, see Wal-Mart
    
    Stores, 106 S.W.3d at 721
    , a spoliation instruction is still inherently a sanction, see 
    Trevino, 969 S.W.2d at 953
    .13 Further, it is among the harshest sanctions a trial court may utilize to remedy an
    act of spoliation. See, 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").     Because a spoliation instruction has the propensity to tilt a trial in favor of a
    nonspoliating party, it can, in some sense, be tantamount to a death-penalty sanction. See Wal-Mart
    
    Stores, 106 S.W.3d at 724
    ; 
    TransAmerican, 811 S.W.2d at 917
    -18; 
    Zubulake, 220 F.R.D. at 219
    -20.
    At the same time, the destruction of relevant evidence can also unfairly skew the outcome of a trial.
    Thus, improper use of a spoliation instruction can deprive either party of the right to a fair trial on
    the merits of the case. It follows that an instruction should be available to address spoliation in
    certain circumstances, but should be used cautiously. See 
    TransAmerican, 811 S.W.2d at 917
    .
    13 See also, e.g., Beaven v. U.S. Dep't of Justice, 
    622 F.3d 540
    , 553 (6th Cir. 2010) (describing an adverse
    inference instruction as a sanction); Hodge v. Wal-Mart Stores, Inc., 
    360 F.3d 446
    , 449 (4th Cir. 2004) (same).
    18
    1. Culpability
    The competing considerations outlined above have led courts to grapple with the specific
    issue of whether a spoliation instruction can ever be an appropriate remedy for negligent spoliation.
    Though the issue has split both federal and state courts,14 there has been little discussion of this issue
    in our courts of appeals,15 and we previously left open the question of the requisite culpable mental
    state to warrant submission of a spoliation instruction. See Wal-Mart 
    Stores, 106 S.W.3d at 722
    (declining to decide whether a spoliation instruction is justified when evidence is unintentionally lost
    or destroyed).
    For several reasons, and with a narrow exception we will explain below, we conclude that
    a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an
    appropriate remedy. Although some Texas courts of appeals have approved spoliation instructions
    on the basis of negligent spoliation, this approach lacks a basis in Texas common law. See, e.g.,
    Adobe Land Corp. v. Griffin, L.L.C., 
    236 S.W.3d 351
    , 360-61 (Tex. App.—Fort Worth 2007, pet.
    denied). First, we have expressly stated that a spoliation instruction may be given when a party
    deliberately destroys evidence. 
    Cire, 134 S.W.3d at 843
    . Second, a person who merely negligently
    destroys evidence lacks the state of mind of a "wrongdoer," and it makes little sense to infer that a
    party who only negligently lost or destroyed evidence did so because it was unfavorable to the
    party's case. Courts that allow a negligent state of mind to warrant the submission of a spoliation
    14 See Margaret M. Koesel and Tracey L. Turnbull, Spoliation of Evidence: Sanctions and Remedies for
    Destruction ofEvidence in Civil Litigation 64-65 (Daniel F. Gourash ed., 2d ed. 2006).
    15 See Simmons and Ritter, Texas's Spoliation "Presumption", 43 St. Mary's L.J. at 757.
    19
    instruction tend to reason that the need to deter and punish spoliation is a sufficient basis for the
    instruction.   See Koesel and Turnbull, Spoliation of Evidence: Sanctions and Remedies for
    Destruction ofEvidence in Civil Litigation, at 65-66. However, in Texas, the instruction is based
    on the presumption of wrongdoing, so it follows that the more appropriate requirement is intent to
    conceal or destroy discoverable evidence.
    Our analysis of Rule 215 discovery sanctions in TransAmerican and its progeny, in which
    we held that there must be a direct relationship between the offensive conduct and the sanction
    imposed, and that the sanction may not be excessive, also compels our conclusion. 
    TransAmerican, 811 S.W.2d at 917
    . As we observed, "sanctions that are so severe as to inhibit presentation of the
    merits of a case should be reserved to address a party's flagrant bad faith or counsel's callous
    disregard for the responsibilities of discovery under the rules." SpohnHosp. v. Mayer, 
    104 S.W.3d 878
    , 883 (Tex. 2003). Though TransAmerican specifically interpreted a requirement in Rule 215
    that any sanction imposed be "just," the spirit of its analysis applies equally in the context of
    spoliation instructions. See 
    TransAmerican, 811 S.W.2d at 917
    . To allow such a severe sanction
    as a matter of course when a party has only negligently destroyed evidence is neither just nor
    proportionate. 
    Id. Finally, our
    approach aligns with a majority of the federal courts of appeals. See United
    States v. Laurent, 
    607 F.3d 895
    , 902-03 (1st Cir. 2010) (requiring bad faith for adverse inference
    instruction); Henning v. Union Pac. R.R. Co., 
    530 F.3d 1206
    , 1219-20 (10th Cir. 2008)
    (intentionality or bad faith necessary for spoliation instruction); Faas v. Sears, Roebuck& Co., 
    532 F.3d 633
    , 644 (7th Cir. 2008) (spoliator must intentionally destroy evidence in bad faith to warrant
    20
    adverse inference instruction); GreyhoundLines, Inc. v. Wade, 
    485 F.3d 1032
    , 1035 (8th Cir. 2007)
    (observing that a spoliation sanction requires a finding of intentional destruction that indicates a
    desire to suppress the truth); 
    Hodge, 360 F.3d at 450
    (adverse inference instruction is only available
    when the spoliating party knew the evidence was relevant to an issue at trial and his willful conduct
    resulted in the evidence's loss or destruction); King v. III. Cent. R.R., 
    337 F.3d 550
    , 556 (5th Cir.
    2003) (nonspoliating party must show that spoliating party destroyed evidence in bad faith to
    establish entitlement to an adverse inference); Penalty KickMgmt. Ltd. v. Coca Cola Co., 
    318 F.3d 1284
    , 1294 (11th Cir. 2003) (adverse inference may only be drawn when the failure to preserve
    evidence is done in bad faith).16 We believethis approach is consistent with our jurisprudence and
    is the most practical in this era of complex electronic discovery.
    Because of the significant consequences stemming from a finding that spoliation is
    intentional, further discussion of the meaning of "intentional" in this context is warranted. By
    "intentional" spoliation, often referenced as "bad faith" or "willful" spoliation, we mean that the
    party acted with the subjective purpose of concealing or destroying discoverable evidence. This
    includes the concept of "willful blindness," which encompasses the scenario in which a party does
    not directly destroy evidence known to be relevant and discoverable, but nonetheless "allows for its
    16 But see Beavem, 622 F.3dat 554 (adverse inference appropriate when a party destroys evidence knowingly
    or negligently); Residential Funding 
    Corp., 306 F.3d at 108
    (same); Glover v. BIC Corp., 
    6 F.3d 1318
    , 1329 (9th Cir.
    1993) (spoliation instruction may be given when spoliator acts with less than bad faith).
    21
    destruction."17 Hebl, Spoliation ofElectronically Stored Information, GoodFaith, andRule 37(e),
    29 N. III. U. L. Rev. at 97-98.
    Accordingly, we hold that a trial court's finding of intentional spoliation pursuant to the
    analysis set forth above is a necessary predicate to the proper submission of a spoliation instruction
    to the jury. In the event the trial court makes such a finding and concludes, as with any sanction, that
    a lesser remedy would be insufficient to ameliorate the prejudice caused by the spoliating party's
    conduct, the trial court is within its discretion in submitting an instruction. See 
    TransAmerican, 811 S.W.2d at 917
    (holding that, because a discovery sanction "should be no more severe than necessary
    to satisfy its legitimate purposes," the trial court must determine that lesser sanctions constitute an
    insufficient remedy); 
    Cire, 134 S.W.3d at 842
    (holding that the trial court."must analyze the
    available sanctions and offer a reasoned explanation as to the appropriateness of the sanction
    imposed").
    2. Caveat Authorizing Instruction in Context of Negligent Spoliation
    Our conclusion regarding the requisite state of mind to justify a jury instruction, however,
    must include a narrow caveat. On rare occasions, a situation may arise in which a party's negligent
    17 The issue of willful blindness is especially acute in the context of automatic electronic deletion systems. A
    party with control over one of these systems who intentionally allows relevant information to be erased can hardly be
    said to have only negligently destroyed evidence, though we recognize the complexities of these determinations when
    a potential litigant who controls massive volumes of electronic data is attempting to determine, prelitigation, which
    information is likely to be discoverable. See, e.g., Hardaway, et al., E-Discovery's Threat to Civil Litigation:
    Reevaluating Rule 26 for the Digital Age, 63 Rutgers L. Rev. at 529 (discussing the "staggering costs" in discovery
    because of the volumes of electronically stored information in computers and other databases around the country);
    Wright, Note, Federal Rule of Civil Procedure 37(e): Spoiling the Spoliation Doctrine, 38 Hofstra L. Rev. 793, 806
    (2009) (discussing the discovery problems when electronically stored information is routinely deleted from a business's
    computers, and the need for courts to remedy spoliation while also remembering that "[i]n a world where the very act
    of deletion is integral to normal operations, it is unfair to treat the inadvertent or negligent loss of [ESI] as indicative of
    an intent to destroy evidence and to thereby infer spoliation") (citation and internal quotation marks omitted).
    22
    breach of its duty to reasonably preserve evidence irreparably prevents the nonspoliating party from
    having any meaningful opportunity to present a claim or defense. See Wal-Mart 
    Stores, 106 S.W.3d at 721
    (recognizing that "the loss or destruction of evidence may seriously impair a party's ability
    to present its case"). In such circumstances, the destruction or loss of the evidence, regardless of
    motive, could completely subvert the factfinder's ability to ascertain the truth.
    The United States Court of Appeals for the Fourth Circuit has explained in detail the
    rationale for occasionally imposing a severe sanction—in that case, dismissal—when evidence is
    negligently destroyed. In Silvestri v. General Motors Corp., evidence spoliation deprived General
    Motors of the only available evidence from which it could develop its defenses. 
    271 F.3d 583
    , 594
    (4th Cir. 2001).18 The court recognized that, although negligence is generallyan insufficient level
    of culpability to warrant a severe spoliation sanction like an instruction, such a remedy may
    nevertheless be justified if the prejudice to a party is "extraordinary, denying it the ability to
    adequately defend its case." 
    Id. at 593.
    Similarly, we do not believe a spoliation instruction would be excessive if the act of
    spoliation, although merely negligent, so prejudices the nonspoliating party that it is irreparably
    deprived of having any meaningful ability to present a claim or defense. See 
    id. We therefore
    conclude that, in this rare circumstance, a court should have the discretion to remedy such extreme
    18 In Silvestri, the plaintiff sued General Motors following a motor vehicleaccident, alleging the air bag in the
    car he was driving had failed to 
    deploy. 271 F.3d at 586
    . In anticipation of filing suit, the plaintiffs attorney hired
    experts to inspect the car and the crash site, but failed to notify General Motors of the accident for three years, by which
    time the car had been sold and repaired. 
    Id. at 587.
    23
    and irreparable prejudice to the nonspoliating party with a spoliation instruction, even if the trial
    court determines that the evidence was only negligently lost or destroyed.
    D. Admission of Spoliation Evidence at Trial
    An issue that commonly arises when a party is accused of spoliation is the admissibility of
    evidence at trial relating to whether spoliation occurred and the culpability of the spoliating party.
    Under the Texas Rules of Evidence, admissible evidence must be relevant, which is defined as
    "having any tendency to make the existence of any fact that is of consequence to the determination
    of the action more probable or less probable than it would be without the evidence." Tex. R. Evid.
    401. Further, a trial court may exclude even relevant evidence "if its probative value is substantially
    outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
    considerations ofundue delay, or needless presentation ofcumulative evidence." Tex. R. Evid. 403.
    The evidentiary issue presented here is whether evidence bearing solely on whether a party spoliated
    evidence or the party's degree of culpability in doing so relates to a "fact that is of consequence to
    the determination of the action." For the reasons set out below, we hold that it does not.
    Our holding that the trial court, not the jury, bears responsibility for making the required
    spoliation findings and imposing a remedy affects the propriety of admitting evidence regarding
    spoliation at trial. Again, when a party requests spoliation sanctions, the trial court decides whether
    the accused party owed and breached a duty to preserve relevant evidence, assesses the culpability
    level of the spoliator, evaluates the prejudice suffered by the nonspoliating party, and imposes a
    remedy. The evidence considered by the trial court in making these findings, however, often has no
    bearing on the facts that are "of consequence to the determination of the action" from the jury's
    24
    perspective. Tex. R. Evid. 401. This lack of relevance is reinforced by our longstanding refusal to
    recognize spoliation as an independent cause of action. 
    Trevino, 969 S.W.2d at 952
    . Further, the
    tendency of such evidence to skew the focus of the trial from the merits to the conduct of the
    spoliating party raises a significant risk of both prejudice and confusion of the issues.
    That said, we recognize that all references to missing evidence, whether lost due to a party's
    spoliation or missing for some other reason, cannot and should not be foreclosed. For example, to
    the extent permitted by the Texas Rules ofEvidence, parties may present indirect evidence to attempt
    to prove the contents of missing evidence that is otherwise relevant to a claim or defense, such as
    a person's testimony about the content of a missing document, photo, or recording. See Tex. R.
    Evid. 1002 (noting the general rule that an original writing, recording, or photograph is required to
    prove the content thereof); see also, e.g., Tex. R. Evid. 1004(a) (noting an exception to the general
    rule when the originals are lost or destroyed, "unless the proponent lost or destroyed them in bad
    faith"). However, there is no basis on which to allow the jury to hear evidence that is unrelated to
    the merits of the case, but serves only to highlight the spoliating party's breach and culpability.
    While such evidence may be central to the trial court's spoliation findings, it has no bearing on the
    issues to be resolved by the jury.
    III. Application
    We review a trial court's imposition of a spoliation remedy, including the submission of a
    spoliation instruction to the jury, for an abuse of discretion. Wal-Mart 
    Stores, 106 S.W.3d at 723
    ;
    Walker v. Packer, 
    827 S.W.2d 833
    , 839-40 (Tex. 1992) (trial court's factual findings reviewed for
    abuse of discretion). We similarly evaluate the court's admission of evidence under an abuse-of-
    25
    discretion standard. U-Haullnt 7, Inc. v. Waldrip, 
    380 S.W.3d 118
    , 132 (Tex. 2012). The trial court
    in this case admitted evidence at trial regarding Brookshire Brothers' alleged spoliation of video
    footage and, as noted above, submitted the spoliation issue to the jury in the following instruction:
    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.
    Under the analysis set forth herein, both the admission of such evidence and the submission of the
    instruction were improper.
    Further, based on our review of the considerable amount of record evidence surrounding the
    spoliation issue, we hold that the submission of a spoliation instruction in any form was an abuse
    of discretion. Assuming without deciding that Brookshire Brothers had and breached a duty to
    reasonably preserve evidence by saving an insufficient amount of video footage before allowing the
    additional footage to be erased, prejudicing Aldridge, there is no evidence that it did so with the
    requisite intent to conceal or destroy relevant evidence or that Aldridge was irreparably deprived of
    any meaningful ability to present his claim.
    Shortly after Aldridge reported his fall, Gilmer instructed an assistant manager to review
    video footage from the day of the fall and to preserve any footage showing the fall as well as several
    minutes before the fall. As a result, Brookshire Brothers saved footage that showed Aldridge
    entering the store and continued until approximately one minute after he fell. Gilmer testified that,
    when he made the decision regarding the amount offootage to save, he did not believe any additional
    26
    footage would be relevant and did not anticipate a lawsuit. A few days after the incident, Aldridge
    requested video footage of"the fall," which had already been preserved, but did not request any other
    footage. Although Aldridge's attorney requested additional footage almost a year later, there is no
    evidence that such a request was made when that footage was still available.19
    Tyler, the employee who copied the video, testified that he began watching the footage at the
    5:00 p.m. time stamp, whichcorresponded with the approximate time of the incident,20 and "played
    it from there." There is no evidence that a Brookshire Brothers employee viewed any additional
    footage from that day other than the eight preserved minutes. In turn, there is no indication that the
    decision regarding the amount of footage to save was based in any way on what the additional
    footage would have shown. Had Brookshire Brothers allowed all footage of the incident to be
    destroyed, the outcome might be different. But there is simply no evidence that Brookshire Brothers
    saved the amount of footage that it did in a purposeful effort to conceal relevant evidence. To the
    contrary, it is undisputed that Brookshire Brothers preserved exactly what it was asked to
    preserve—footage of the fall.21
    19 We are in no way suggesting that parties may immunize themselves from the consequences of evidence
    spoliation by hiding behind unreasonable limited-duration retention policies. Our opinion today does not address the
    reasonableness of Brookshire Brothers' policy, which is not challenged. Rather, we review whether the amount of video
    footage Brookshire Brothers chose to preserve was sufficient.
    20 The preserved video starts at 5:01 p.m. and ends at just before 5:09 p.m. It shows that Aldridge entered the
    store at about 5:02 p.m. and fell just before 5:08 p.m.
    21 The dissent speculates about what the deleted video wouldhave shownin concludingthat Brookshire Brothers
    engaged in willful blindness. Minimizing the fact that the area of the fall was obscured by a table covered with a cloth
    that extended to the floor and the fact that the low quality of the video makes details very difficult to discern, the dissent
    would improperly assume, based on speculation rather than evidence, that Brookshire Brothers knew what the video
    would or even could have shown, particularly with respect to how long the substance was on the floor before Aldridge
    slipped and fell.
    27
    Further, any prejudice to Aldridge resulting from Brookshire Brothers' failure to preserve
    additional video footage did not rise to the rare level required to justify an instruction in the absence
    of intentional spoliation. This narrow exception to the intent requirement is meant to address
    situations akin to those presented in Silvestri, in which the only available evidence from which
    General Motors could develop its defenses—the car in which an air bag allegedly failed to
    deploy—was irreparably altered before General Motors even had a chance to examine it. See
    
    Silvestri, 271 F.3d at 594
    . By contrast, in this case, even without the missing video footage, other
    evidence was available to Aldridge to prove the elements of his slip-and-fall claim.
    Again, the portion of the video showing the fall, several minutes before the fall, and one
    minute after the fall was preserved and shown to the jury at trial. The video showed the activity
    around the area of the fall, including the actions of various store employees, during this period of
    time. Aldridge also presented Brookshire Brothers' incident report confirming its conclusion that
    Aldridge had slipped in grease that leaked out of a container by the Grab-N-Go, which was located
    near the area of the fall. Finally, Aldridge himself testified at length about the circumstances
    surrounding his fall. Based on all the available evidence, we hold that Brookshire Brothers' failure
    to preserve additional video footage did not irreparably deprive Aldridge of any meaningful ability
    to present his claim.
    We therefore hold that the trial court abused its discretion in submitting a spoliation
    instruction. Further, the trial court erred in admitting evidence of the circumstances surrounding the
    failure to preserve additional video footage, though only to the extent such evidence was unrelated
    to the merits and served principally to highlight Brookshire Brothers' culpability. For example,
    28
    nonspeculative testimony relating to what the missing video would have shown, such as the
    testimony about the cleanup, was not problematic. Further, because a portion of the video was
    preserved and presented at trial, some degree of questioning about the creation of the video was
    reasonably pursued as background for its introduction to the jury. However, testimony that is
    relevant only to the issues of whether Brookshire Brothers breached a duty to preserve evidence or
    acted with the requisite intent was improperly admitted.
    The trial court's error is reversible, however, only if it "probably caused the rendition of an
    improper judgment." Tex. R. App. P. 61.1(a); see also Nissan Motor Co. v. Armstrong, 
    145 S.W.3d 131
    , 144 (Tex. 2004) (in determining whether erroneous admission of evidence is harmful, "[w]e
    review the entire record, and require the complaining party to demonstrate that the judgment turns
    on the particular evidence admitted"). In Wal-Mart Stores, we noted that "if a spoliation instruction
    should not have been given, the likelihood of harm from the erroneous instruction is substantial,
    particularly when the case is closely 
    contested." 106 S.W.3d at 724
    . Such a likelihood of harm
    existed in this case.
    The instruction capped offa trial in which both liability and the extent ofAldridge's damages
    were closely contested and in which significant emphasis was placed on the spoliation issue. In
    opening and closing arguments, Aldridge's attorney accused Brookshire Brothers of destroying the
    tape, hiding evidence, and acting deceptively.         Gilmer was questioned extensively about his
    motivation in preserving part of the video. The presentation of the spoliation issue to the jury also
    led the trial court to admit evidence regarding Brookshire Brothers' payment of a portion of
    Aldridge's medical expenses, even though such evidence was otherwise inadmissible. Tex. R. Evid.
    29
    409. Further, the preserved video footage suggests the highly speculative nature of a presumption
    that additional footage would have been harmful to Brookshire Brothers. The video is of poor
    quality, and the area of the fall is far from the camera and was obscured by a table covered with a
    cloth that extended to the floor. On this record, particularly when considered in conjunction with
    our holding in Wal-Mart Stores that an improper spoliation instruction presents a substantial
    likelihood of harm, it is "very difficult to overlook the likely impact" of the spoliation evidence and
    the instruction. Kia Motors Corp. v. Ruiz,      S.W.3d       ,    (Tex. 2014). Accordingly, we hold
    that the trial court's error probably caused the rendition of an improper judgment, and we reverse
    the judgment of the court of appeals.
    We note that this case highlights the need for guidelines and clarity in our spoliation
    jurisprudence, as the record reflects the significant effect that the spoliation allegations had on the
    course of this trial. Indeed, this case typifies the manner in which the focus of the trial can
    impermissibly shift from the merits of the case to the spoliating conduct when such guidance is
    missing. Because spoliation is not directly addressed in either our rules of evidence or our rules of
    procedure, courts must fill in the gaps to maintain the consistency and predictability that is basic to
    the rule of law in our society. The continued development of the State's common law, in which we
    engage today, is not only the province—but the responsibility—of this Court.
    IV. Legal Sufficiency Challenge
    Finally, we address Brookshire Brothers' assertion that it is entitled to rendition ofjudgment
    in its favor on legal sufficiency grounds. Brookshire Brothers argues that, regardless of whether the
    spoliation instruction is taken into account, the evidence is legally insufficient to support the
    30
    constructive notice element ofAldridge's claim. One ofthe grounds on which we will uphold a legal
    sufficiency challenge is if'"the evidence offered to prove a vital fact is no more than a scintilla.'"
    Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'lDev. & Research Corp., 
    299 S.W.3d 106
    , 115
    (Tex. 2009) (quoting Merrell Dow Pharms., Inc. v. Havner, 
    953 S.W.2d 706
    , 711 (Tex. 1997)).
    "Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise
    or suspicion that the fact exists." 
    Id. (citation and
    quotation marks omitted). In reviewing evidence
    in the context of a legal sufficiency challenge, "we credit evidence that supports the verdict if
    reasonable jurors could have done so and disregard contrary evidence unless reasonable jurors could
    not have done so." 
    Id. As is
    relevant here, to show Brookshire Brothers had constructive notice of the "condition"
    (i.e., a slippery substance on the floor), Aldridge had to prove that "it is more likely than not that the
    condition existed long enough to give the premises owner a reasonable opportunity to discover it."
    
    Reece, 81 S.W.3d at 814
    . Temporal evidence is the best indicator of whether the owner could have
    discovered and remedied the condition. 
    Id. at 816.
    As noted above, the exact area of the floor where Aldridge fell was obscured by a table in
    the video footage that was preserved, but the video does not appear to show a spill or leak occurring
    during the seven minutes before the fall. Tyler testified that substances reasonably should not remain
    on the floor of the store for longer than five minutes without being noticed and cleaned up. The
    video showed store employees walking past the area approximately three minutes and five minutes
    before Aldridge fell. It also showed an employee signaling for help to clean up the spill right before
    the video ended, suggesting the spill was too large to be cleaned by paper towels. This evidence,
    31
    even without the spoliation instruction, amounts to more than a scintilla favoring a finding that
    Brookshire Brothers had constructive notice of the condition.22
    V. Conclusion
    We hold that the trial court abused its discretion in submitting a spoliation instruction
    because there is no evidence that Brookshire Brothers intentionally concealed or destroyed the video
    in question or that Aldridge was deprived of any meaningful ability to present his claim to the jury
    at trial. Accordingly, we reverse the court ofappeals' judgment and remand the case to the trial court
    for a new trial in accordance with this opinion.
    Debra H. Lehrmann
    Justice
    OPINION DELIVERED: July 3, 2014
    22 As we noted recently in Kia Motors Corp., our review of the evidence in evaluating a legal sufficiency
    challenge is much narrower than our review in determining whether the trial court's error probably caused the rendition
    of an improper judgment.      S.W.3d at      . Our holding that the evidence is legally sufficient to support the verdict
    is thus fully consistent with our determination that the trial court's spoliation errors were harmful.
    32
    IN THE SUPREME COURT OF TEXAS
    No. 10-0846
    Brookshire Brothers, Ltd., Petitioner,
    Jerry Aldridge, Respondent
    On Petition for Review from the
    Court of Appeals for the Twelfth District of Texas
    JUDGMENT
    THE SUPREME COURT OF TEXAS, having heard this cause on petition for review from
    the Court ofAppeals for the Twelfth District, and having considered the appellate record, briefs, and
    counsel's argument, concludes that the court of appeals' judgment should be reversed.
    IT IS THEREFORE ORDERED, in accordance with the Court's opinion, that:
    1)     The court of appeals' judgment is reversed;
    2)     The cause is remanded to the trial court for further
    proceedings consistent with this Court's opinion; and
    3)     Brookshire Brothers, Ltd. shall recover, and Jerry
    Aldridge shall pay, the costs incurred in this Court
    and in the court of appeals.
    Copies of this Court's judgment and opinion are certified to the Court of Appeals for the
    Twelfth District and to the District Court of Angelina County, Texas, for observance.
    Opinion of the Court delivered by Justice Lehrmann, joined by Chief Justice Hecht, Justice
    Green, Justice Johnson, Justice Willett, and Justice Boyd
    A dissenting opinion delivered by Justice Guzman, joined by Justice Devine and Justice Brown
    July 3, 2014
    

Document Info

Docket Number: 12-08-00368-CV

Filed Date: 7/3/2014

Precedential Status: Precedential

Modified Date: 10/16/2015

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