spoliation, litigation holds, and other things that keep lawyers awake at night

Spoliation, Litigation Holds, and Other Things That Keep Lawyers Awake at Night

James W. Bartlett, Jr.

Client Lawyer Law

Three Pieces of the Spoliation Puzzle

Presentation SummaryConcept

and History

Brookshire Brothers

Lingering Questions

Post-BB

Evidence Preservatio

Litigation Holds

FRCP Changes

What is Spoliation?Loss, destruction, or alteration of relevant evidence “Serious issue”

Fundamentally alter trial

Picture = 1,000 words

What is a Spoliation Instruction?Severe remedy for spoliation

English common law

Restore parties to “rough approximation”

Intended to “tilt” or “nudge” jury

Unintended consequences

Texas Spoliation JurisprudenceNot an independent cause of action!

Not addressed in TRCP or TRE

Evidentiary issue – discovery abuse

Trial courts – wide latitude

Inconsistent approaches to spoliation

9/2/04

9/7/04

9/04 10/04 06/2005 08/2005

September 2, 2004Aldridge falls in store

Brookshire Brothers – Timeline of Events

September 7, 2004Aldridge reports fall and injuries

September 13, 2004Aldridge requests footage of “fall”

August 2005Aldridge’s attorney asks for 2 ½ hours of footage

9/13/04

September 2004BB preserves eight minutes of footage

Early October 2004All footage of day of fall erased

June 2005BB denies responsibility

“I fell”

The LawsuitSuit filed in Angelina County

Spoliation motion – missing footage

Spoliation-related evidence at trial

Spoliation instruction submitted to jury

The LawsuitJury permitted to decide spoliation issue“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 LawsuitJury verdict for more than $1,000,000

Affirmed by court of appeals

Texas Supreme Court

“much-needed clarity”

The Trial Court as Gatekeeper

Spoliation findings solely by trial court

Existence of spoliation/remedy

Evidentiary hearing

Abuse of discretion standard

Jury not involved!

Three Step ProcessRequired findings of the trial court

Step 1 – Duty

Objective “reasonable person” standard

Arises when “substantial chance” claim will be filed

Party possesses relevant and material evidence

Can be triggered before notice of potential litigation

Burden on spoliation proponent

Was a duty to preserve triggered?

Step 2 – Breach

Failed to exercise reasonable care

Must be negligent or intentional

Burden on spoliation proponentNo-fault spoliation not actionable

Was a duty to preserve breached?

Step 3 – RemedyWhat sanctions are available?

Spoliation = discovery abuse

Rule 215.2 sanctions available

Other sanctions permitted

Including spoliation instruction

Remedy must be proportionate!

Proportionality – Two RequirementsRemedy imposed must:

Have a direct relationship to act of spoliation; and

Not be excessive

Proportionality – Direct RelationshipRemedy imposed must:

Be directed against the wrongful conduct; and

Properly tailored to remedy the prejudice

Assessing PrejudiceAdoption of Trevino factorsRelevance of the spoliated evidence – key issues

Harmful or helpful effect of spoliated evidence

Whether spoliated evidence was cumulative

Assessing PrejudiceGuiding principles

If intentional, relevance and harm can be assumed

Negligent spoliation requires proof of content

Cumulative nature of missing evidence not assumed

Proportionality – Excessiveness

Consider whether lesser sanctions would suffice

Usually required to actually test lesser sanctions

Spoliation Instruction

“Subjective purpose of concealing or destroying discoverable evidence”

“Willful blindness” – permits relevant and discoverable evidence to be destroyed

Almost always requires intentional conduct

Spoliation Instruction“Rare exception” for negligent spoliation

Spoliation has irreparably prevented the nonspoliating party from having any meaningful opportunity to present a claim or defense

Silvestri v. General Motors Corporation

Spoliation Conduct (Generally) Inadmissible

Most spoliation-related evidence has no bearing on merits

Admission of evidence regarding spoliation-related conduct unduly prejudicial

Evidence bearing solely on whether spoliation occurred or a party’s spoliation culpability inadmissible

Exception – legitimate references to missing evidence for other purposes, e.g., content of document

Very limited exception!

Application of Framework to Aldridge’s Claim

Court “assumed without deciding” duty and breach

Decision turned on whether intentional spoliation occurred

“Subjective purpose of concealing or destroying discoverable evidence”

Brookshire Brothers majority found no evidence of this species of intentional spoliation

Relied heavily on fact that store employees did not actually view the destroyed footage

Credited Gilmer’s testimony that he did not believe footage would be “relevant”

Credited Gilmer’s testimony that he did not anticipate litigation

Intentional spoliation – species 1

Application of Framework to Aldridge’s ClaimIntentional spoliation – species 2

“Willful blindness” – permits relevant and discoverable evidence to be destroyed

Brookshire Brothers majority found no evidence of willful blindness

Focused on perceived value of the missing footage to the merits

Application of Framework to Aldridge’s ClaimNegligent spoliation

Where spoliation has irreparably prevented the nonspoliating party from having any meaningful opportunity to present a claim or defense.

Brookshire Brothers majority declined to apply this “narrow exception”

Found that other evidence was available to Aldridge to support his claim

Trial court abused discretion in admitting spoliation-related evidence

Instruction and spoliation-related evidence constituted reversible error

Other holdings

Questions and Issues Raised by Brookshire Brothers

What is spoliation conducted “with the subjective purpose of concealing or destroying discoverable evidence”?

Can “willful blindness” apply in the context of evidence destroyed pursuant to a document retention policy?

Where do trial courts draw the line in admitting spoliation-related evidence on grounds that it goes to the merits?

Texas PJC 1.12

[Name of spoliating party] [destroyed or failed to preserve] [describe evidence]. You [must/may] consider that this evidence would have been unfavorable to [name of spoliating party] on the issue of [describe issue(s) to which evidence would have been relevant].

Extension of Brookshire Brothers

Petro. Solutions, Inc. v. Head, No. 11-0425, 2014 Tex. LEXIS 1210, *12-20 (Tex. Dec. 19, 2014)

Extended Brookshire Brothers to encompass any remedies “akin to death-penalty sanctions, such as striking a party’s claims or defenses.”

1995 2000 2005 2010 2015

0.00100.00200.00300.00400.00500.00600.00700.00800.00900.00

1,000.001,100.001,200.00

$1,120

$11.00$1.24 $0.09 $0.03

From Paper to ESIPrice-per-gigabyte over time*

*Source: Statistic Brain

Exponential Increase in ESIBillions of devices on this planet

108 billion business emails

a day*

*Source: The Radicati Group

Create

Transmit

Evidence Preservation Letter

Notice of retention for purposes of litigation

Description of incident or dispute

Identification of known “key” players

Description of examples of evidence to be preserved

Demand for halt to routine destruction systems

Request for further dissemination of letter

Essential components:

Evidence Preservation Letter

Don’t ask for something your own client cannot do

Don’t request too much

Be particular/educate your reader

Request the preservation of metadata

Consider timing of the letter as part of your strategy

Other considerations

The Litigation Hold Process

Interview “key” players to the incident or dispute

Interview company IT personnel (if applicable)

Interview document retention policy stewards (if applicable)

Prepare a comprehensive litigation hold letter

Initial steps after you are retained:

Litigation Hold Letter

Privilege assertion

Source of preservation obligation

Consequences to company for failure to comply

Description of the potential or pending litigation

Categories and scope of evidence to be preserved

Specific examples of types of evidence to be preserved

Litigation Hold Letter

Halt to routine destruction systems

Request for confidentiality unless necessary for business

Social media lockdown request

Contact information for questions

Affirmation block

Post-Litigation Hold Tasks

Follow up with client on distribution

Modify/redistribute as necessary

Release the hold when no longer needed

Proposed Amendments to FRCP 37(e)

Promote uniformity and to encourage desirable judicial responses

Relieve the pressures that have led many potential litigants to engage in massive and costly over-preservation.

Proposed Amendments to FRCP 37(e)

Violation if party fails to take reasonable preservation steps

Issue resolved if evidence can be restored through additional discovery

Instruction and similarly severe sanctions only available for intentional spoliation

Thumbnail summary

James W. Bartlett, Jr.Bush & Ramirez, PLLCjbartlett@bushramirez.com

Questions?Feel free to contact me.

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