In this day and age, businesses have at their fingertips all sorts of electronically generated information. With the popularity of smartphones and relatively inexpensive surveillance camera systems, businesses also have video records of events that may ultimately lead to litigation. Litigants and their attorneys are now making greater demands upon the opposing side to have anticipated a lawsuit, taken steps to preserve electronically stored information, and to produce that information for trial. If the business cannot find it or it was destroyed, the plaintiffs routinely assert that the defendant improperly destroyed (or negligently allowed to be destroyed) relevant evidence. They routinely seek (and usually obtain) an instruction from the trial court to the jury that the evidence was destroyed because it was unfavorable to the destroying party and the jury should consider that in their deliberations. As a result, the case is decided less on the merits of the events and more on the inference that the defendant destroyed incriminating evidence based upon the jury instruction.
In two recent cases, the Texas Supreme Court issued new rules. First and foremost, the Court said that it was the trial court and not a jury that was to decide (1) whether the evidence should have been preserved or not; and (2) the legal consequences of the failure to preserve it. The trial court must also utilize the least harsh remedy available. For example, if the only evidence of an event was the destroyed evidence, that would increase the likelihood and propriety of a harsh sanction and an instruction to the jury that they should assume the evidence was harmful to the defendant and intentionally destroyed. Conversely if the evidence was cumulative of other available evidence, and there was no indication that the destruction was deliberate, then the trial court should not impose so harsh a sanction for its destruction.
Significantly, the Court cautioned (or warned) that a company may not simply create document retention policies that preserved documents for such a short duration that the policies result in early destruction of potentially relevant documents. Additionally, the Court warned that a defendant could not destroy (or allow to be destroyed) evidence if it was on notice that there was a potential or likelihood that a claim or litigation might result. The defendant could not use a notice of a lawsuit or demand from an attorney as a “bright line” test. Rather, the Court will look at all the surrounding facts and circumstances to determine if the defendant was on reasonable notice that a claim might result.
The foregoing rules are particularly important in scenarios where video, email, text messaging, or similar digital evidence comes into existence that may relate to a future claim. Businesses should have sound document retention policies. More importantly, a court will review those retention policies to make sure that the policies were drafted in a manner to preserve evidence unless and until it is no longer needed (such as beyond the statute of limitations) rather than to allow relevant evidence to be destroyed prematurely.
Of course, this is not an exhaustive discussion of the law applicable to these issues. For more information on this topic, please email Jim Robichaux, trial lawyer with BRANSCOMB |PC. His contact information is email@example.com or (361) 886-3800.