                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                             NO . 10-0846
                                          444444444444


                       BROOKSHIRE BROTHERS, LTD., PETITIONER,
                                                   v.


                               JERRY ALDRIDGE, RESPONDENT

           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                    COURT OF APPEALS FOR THE TWELFTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


        JUSTICE GUZMAN , joined by JUSTICE DEVINE and JUSTICE BROWN , dissenting.


        Courts exist as a mechanism for administering justice and arriving at truth. Spoliation,

whether done negligently or intentionally, jeopardizes this essential function and cannot be

condoned. Today, the Court articulates a spoliation framework that departs in significant ways from

decades of spoliation jurisprudence as developed by our capable courts of appeals. In doing so, the

Court places substantial limits on the trial court’s discretion in crafting an appropriate remedy for

acts of spoliation, and articulates a standard that, as applied by the Court, may permit the destruction

of relevant evidence so long as it is—in name—done in accordance with a stated retention policy.

Because I do not believe the Court’s framework provides trial courts with the necessary discretion

to appropriately remedy the wrongful destruction of evidence in an era where limited duration

retention policies have become the norm, I respectfully dissent.
                                            I. Background

        Jerry Aldridge slipped and fell while shopping at a Brookshire Brothers grocery store on

September 2, 2004. Though initially unaware of the extent of his injury, Aldridge suffered a

substantial spinal injury as a result of the fall. He sought medical attention later that day. On

September 7, 2004, Aldridge returned to the store and reported his injuries to Jon Tyler, the store

manager trainee on duty at the time. Tyler completed a customer incident report documenting

Aldridge’s fall.

        Additionally, store surveillance cameras captured footage of the fall. After Aldridge reported

the incident to Tyler, Robert Gilmer, the Vice President of Human Resources and Risk Management

for Brookshire Brothers, instructed Tyler to view the surveillance video. Despite notice of the

accident and the availability of footage covering the entire day of Aldridge’s fall, Gilmer chose to

copy and save only an eight-minute segment of footage, beginning just before Aldridge entered the

store and concluding just after his fall.

        Although Aldridge had yet to file a lawsuit, he requested a copy of the footage of his fall on

September 13—less than one week after reporting his injuries. In a letter dated September 14, Gina

Sorrell of Brookshire Brothers’ claims department wrote to Aldridge and notified him that “[a]s a

token . . . for being such a valuable customer,” Brookshire Brothers agreed to pay for Aldridge’s

“first initial medical aid bill along with a follow-up visit and prescriptions for those visits.” In a

subsequent letter dated September 29, though Sorrell explained that Brookshire Brothers would

additionally cover the costs of a visit with a neurosurgeon and “several weeks of physical therapy



                                                  2
along with the prescriptions,”1 she indicated Brookshire Brothers would not comply with Aldridge’s

request for a copy of the footage of his fall because she “only ha[d] one copy at this time.” Shortly

thereafter, Brookshire Brothers allowed the tape containing the entire day’s worth of footage, with

the exception of the eight-minute segment showing Aldridge’s fall, to automatically erase, rendering

it unable to comply with Aldridge’s request when he did file suit.2

         Brookshire Brothers continued to cover Aldridge’s medical expenses for nearly a year until

June 2005, when Gilmer “re-reviewed the video recording” and determined that Brookshire Brothers

would deny any responsibility with respect to Aldridge’s claim. Aldridge retained an attorney, who

requested a copy of the video referenced in Gilmer’s June 2005 letter declining Aldridge coverage.

Brookshire Brothers provided the eight minutes of footage covering the fall. But when Aldridge’s

attorney requested copies of additional surveillance footage beyond the preserved eight minutes

(specifically, from 4:00pm until 6:30pm on the day of the incident), Brookshire Brothers declined

to provide the footage. And, rather than explaining that the footage had been automatically recorded-

over pursuant to a standard and routine practice, Gilmer stated:

         The video you have requested does not focus on the area where Mr. Aldrige “fell.”
         Please understand that short of litigation, I have been reasonably generous in what


         1
           Brookshire Brothers has a routine practice of covering the costs of an initial doctor’s appointment and
prescriptions. However, testimony at trial indicated that it was not routine practice for Brookshire Brothers to pay for
the cost of a referral to a neurosurgeon and several weeks of physical therapy, as the September 29 letter indicated
Brookshire Brothers would cover. Thus, on September 29, when the entirety of the September 2 footage was still
available, Brookshire Brothers’ claims department had agreed to cover the costs of more than the routine initial doctor’s
appointment.

         2
          Gilmer testified that Brookshire Brothers’ surveillance cameras are “on a clock,” and the footage is recorded
over every thirty-one days. Thus, the entirety of the September 2 video footage was presumably recorded over sometime
in the beginning of October, roughly three weeks after Aldridge filed a customer incident report with Brookshire
Brothers.

                                                           3
         I have provided thus far. It is a “slip & fall” case. Seems we know how these
         ultimately resolve. If you decide to pursue a legal action on behalf of your client, you
         are well aware that we would be obligated to furnish certain information at that time.
         We are not going to assist you further in helping you build your case.

         When asked at trial why Brookshire Brothers allowed the footage to be erased, Gilmer

testified he saved the selected eight minutes of video simply to verify Aldridge had actually fallen

and that he “didn’t get what [he] got in anticipation of this trial” because “[i]t wasn’t a lawsuit when

it happened.” But Gilmer also acknowledged his awareness of the fact that a key issue in slip-and-

fall cases is whether a store employee knew or reasonably should have known that a substance was

on the floor. In fact, at the time of trial, Gilmer testified that he had over four decades of experience

working in the grocery store business, eighteen years of which he worked in the risk management

department overseeing Brookshire Brothers’ litigation. Despite Gilmer’s knowledge and experience

regarding slip-and-fall litigation, despite Aldridge’s request for a copy of the footage of his fall less

than two weeks after the fall occurred, and despite Brookshire Brothers’ September 29 authorization

of payment for Aldridge’s medical expenses above and beyond the company’s routine practice, the

sole reason Gilmer provided for failing to preserve any more of the video was that he believed the

rest of the footage “wasn’t relevant” and that he “didn’t know there was going to be a case” at the

time the rest of the footage was automatically erased.3




         3
           Of course, Brookshire Brothers’ duty to preserve the footage is not limited to whether Gilmer knew “there was
going to be a case;” rather, as we articulated in Wal-Mart Stores, Inc. v. Johnson, the relevant inquiry in determining
whether there was in fact a duty to preserve evidence is whether Gilmer “[knew] or reasonably should [have known]
that there [was] a substantial chance that a claim will be filed and that evidence in [Brookshire Brothers’] possession
or control will be material and relevant to that claim.” 106 S.W .3d 718, 722 (Tex. 2003) (emphases added).

                                                           4
         Arguing that the additional footage would have been helpful to the key issue of whether the

substance was on the floor long enough for the employees of Brookshire Brothers to reasonably have

discovered it, Aldridge moved for a spoliation instruction at trial.4 The trial court allowed evidence

of the spoliation to be admitted at trial and submitted an instruction to the jury. This instruction was

one of the milder spoliation instructions, allowing, but not requiring, the jury to presume harm if the

jury found Brookshire Brothers had spoliated evidence.5 The jury returned a verdict in favor of

Aldridge and awarded damages to compensate Aldridge for medical expenses and lost earning

capacity.6 The court of appeals affirmed.

                            II. A Significant Departure from “Broad Discretion”

         Today, the Court eliminates a core component of our spoliation jurisprudence: the trial

court’s broad discretion in constructing an effective remedy. In Trevino v. Ortega, we specifically

noted “there is no one remedy that is appropriate for every incidence of spoliation; the trial court

must respond appropriately based upon the particular facts of each individual case.” 969 S.W.2d


         4
           Additionally, Aldridge’s attorney argued, and Gilmer agreed, that “the video [Brookshire Brothers] had before
it was erased would have shown someone standing at that area, getting some help, and cleaning up [the] chicken grease.”
Though it is undisputed the view of the floor itself was obscured by a table in the video, surveillance footage of the clean-
up process could have provided evidence of the size of the spill by revealing, for example, the number of employees and
the amount of time it took to clean up the spill.

         5
             Specifically, the trial court instructed the jury:

         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.

         6
           Notably, the jury awarded damages solely to compensate Aldridge for past and future medical expenses and
past and future loss of earning capacity. It did not award Aldridge damages for physical pain and suffering, mental
anguish, or physical impairment— so-called “soft” damages— casting doubt on the Court’s presumption that the jury was
unfairly prejudiced or inflamed by the presentation of the spoliation issue.

                                                                  5
950, 953 (Tex. 1998). And in Wal-Mart Stores, Inc. v. Johnson, we likewise explained “[a] trial

judge should have discretion to fashion an appropriate remedy to restore the parties to a rough

approximation of their positions if all evidence were available.” 106 S.W.3d 718, 721 (Tex. 2003).

Before today’s decision, trial courts did possess the discretion to effectively craft spoliation remedies

befitting of the particular facts and circumstances of each individual case.

        Trial courts have had the ability to address the spoliation of evidence in a variety of

circumstances precisely because the spoliation remedies at a trial court’s disposal vary in severity.

For instance, the court might allow recovery of the fees and expenses resulting from the spoliation,

exclude evidence adduced from spoliated evidence, or hold a party in contempt. See TEX . R. CIV .

P. 215.2; Trevino, 969 S.W.2d at 959 (Baker, J., concurring). In particularly egregious cases of

spoliation, the court may even strike pleadings or dismiss claims or defenses. Trevino, 969 S.W.2d

at 959. And, before today, a trial court also had the option of allowing discussion of spoliation at

trial, Lively v. Blackwell, 51 S.W.3d 637, 641 (Tex. App.—Tyler 2001, pet. denied), or submitting

any one of the following varieties of jury instructions:

        (1) The jury may presume evidence is harmful if it finds intentional spoliation, Ordonez v.

        M.W. McCurdy & Co., 984 S.W.2d 264, 273 (Tex. App.—Houston [1st Dist.] 1998, no pet.);

        (2) The jury must presume evidence is harmful if it finds intentional spoliation, Wal-Mart

        Stores, 106 S.W.3d at 721;

        (3) That intentional spoliation has occurred, and the jury may presume the evidence is

        harmful, id.; or



                                                   6
         (4) That intentional spoliation has occurred, and the jury must presume the evidence is

         harmful, Trevino, 969 S.W.2d at 952.

         Though the Court purports to “enunciate with greater clarity . . . the parameters of a trial

court’s discretion to impose a remedy upon a finding of spoliation,” __ S.W.3d at __, in effect the

Court imposes new and significant restrictions on the trial court’s discretion to submit a spoliation

instruction to the jury. In essence, after today, trial courts may submit one, and only one spoliation

instruction to the jury: an instruction that the trial court has found intentional spoliation has occurred,

and therefore the jury must presume the evidence is harmful. All “milder” instructions, which permit

the jury to exercise its judgment regarding the potential harm of the lost evidence to the spoliator’s

case, would require the jury to weigh the evidence of spoliation. This becomes an impossible task

after the Court has concluded that, because of “the tendency of such evidence to skew the focus of

the trial from the merits,” such evidence of spoliation is inadmissible at trial. __ S.W.3d at __.7 At

bottom, the trial court’s discretion is eliminated: it may only issue one instruction (requiring the jury

to presume harm) and only in rare circumstances (when the court has found (1) the spoliating party

acted with specific intent to conceal discoverable evidence and no lesser remedy will suffice to

overcome the prejudice the spoliation caused, or (2) a party negligently failed to preserve evidence

and the nonspoliating party has been irreparably deprived of any meaningful opportunity to present

a claim or defense).


         7
           The Court hedges its conclusion regarding the admissibility of evidence, explaining that “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.” __ S.W .3d at __. But the Court’s holding still deprives the trial court of the discretion to
submit questions regarding spoliation issues to the jury and curtails the ability of the trial court to utilize the Rules of
Evidence to ensure juries are not exposed to unduly prejudicial evidence.

                                                             7
         This narrowing of the trial court’s discretion stems from the Court’s conclusion that

spoliation instructions inappropriately shift the focus of the trial from the merits of the case to the

spoliation. Though the Court assumes the admission of evidence regarding spoliation will wrongly

shift the focus of litigation away from the merits of a case, it provides no evidence that this has been

a significant problem in Texas, and certainly no evidence that the problem is so widespread as to

require the displacement of decades of Texas spoliation jurisprudence affording trial courts broad

discretion.8 And although there is some risk that spoliation issues could shift the focus of litigation

away from the merits of the case, the Court fails to indicate how restricting the trial court’s discretion

would mitigate this risk.

         On the contrary, Texas already has a framework providing guidance for trial courts in

determining whether the jury may hear evidence of spoliation: the Texas Rules of Evidence. Despite

the admittedly fact-specific nature of cases involving spoliation, the Court concludes that such issues

are better resolved by a blanket rule that spoliation evidence is per se inadmissible at trial. But the

Rules of Evidence exist so that the Court need not engage in developing specific rules of

admissibility for each type of evidence a trial court might encounter, recognizing the value of

affording trial courts flexibility in making context-specific evidentiary rulings. Under Rule 402,

irrelevant evidence is inadmissible. TEX . R. EVID . 402. And under Rule 403, relevant evidence may

nevertheless be excluded if its probative value is substantially outweighed by, inter alia, the danger


         8
           As articulated above, our jurisprudence has allowed trial courts to craft spoliation instructions that permit the
jury to make certain spoliation findings. See Wal-Mart Stores, 106 S.W .3d at 721 (“The instruction informed the jury
that it must presume that the missing reindeer would have harmed W al–Mart’s case if the jury concluded that W al–Mart
disposed of the reindeer after it knew or should have known that they would be evidence in the case. Such an instruction
is a common remedy for spoliation, with roots going back to the English common law.” (emphasis added)).

                                                             8
of unfair prejudice, confusion of the issues, or misleading the jury. TEX . R. EVID . 403. There is no

indication that our trial courts are unable to appropriately apply Rules 402 and 403 to determine the

admissibility of spoliation evidence, and I would not so lightly displace it.

         Despite the benefits of affording trial courts broad discretion and the absence of evidence

indicating that Texas trial courts are regularly abusing that discretion, the Court concludes that it

must depart from this well-established precedent and significantly limit such discretion. Now, trial

courts are stripped of their discretion to decide which spoliation instruction is appropriate and no

longer have the option of allowing the jury to resolve factual disputes concerning spoliation.9




         9
           The Court maintains that its framework is in accordance with the majority of federal courts of appeals, but the
majority of federal circuits also afford district courts discretion as to whether evidence of spoliation is admitted at trial
and allow for a permissive (rather than mandatory) jury instruction. See, e.g., Flagg v. City of Detroit, 715 F.3d 165,
178 (6th Cir. 2013) (“W hether an adverse inference is permissive or mandatory is determined on a case-by-case basis,
corresponding in part to the sanctioned party’s degree of fault.”); Johnson v. Wells Fargo Home Mortg., Inc., 635 F.3d
401, 422 (9th Cir. 2011) (“[T]he District Court’s sanction, which permits the jury to decide if any documents were
destroyed . . . strikes us as precisely the kind of flexible and resourceful sanction order that district judges should be
encouraged to craft.”); Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1219–20 (10th Cir. 2008) (explaining that “[a]n
adverse inference is a powerful sanction as it . . . ‘necessarily opens the door to a certain degree of speculation by the
jury, which is admonished that it may infer the presence of damaging information in the unknown contents of an erased
audiotape’” (citing Morris v. Union Pac. R.R., 373 F.3d 896, 900–01 (8th Cir. 2004))); Stevenson v. Union Pac. R.R.
Co., 354 F.3d 739, 746–48 (8th Cir. 2004) (finding no abuse of discretion in the district court’s instruction to the jury
that “[y]ou may, but are not required to, assume that the contents of the voice tape and track inspection records would
have been adverse, or detrimental, to the defendant”); United States v. Wise, 221 F.3d 140, 156 (5th Cir. 2000) (“A
district court has discretion to admit evidence of spoliation and to instruct the jury on adverse inferences.”); Blinzler v.
Marriott Int’l, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996) (“The defendant also chastises the court for admitting evidence
of another missing record . . . . Once again, the ruling cannot be faulted. The defendant had no good explanation for
the missing log, and the jury was entitled to infer that the defendant destroyed it in bad faith.”); Vodusek v. Bayliner
Marine Corp., 71 F.3d 148, 157 (4th Cir. 1995) (“W e conclude that the district court acted within its discretion in
permitting the jury to draw an adverse inference if it found that Vodusek . . . caused destruction or loss of relevant
evidence.”); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994) (“The admissibility of spoliation
evidence and the propriety of the spoliation inference is well established in most jurisdictions.”); see also Pension Comm.
of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 470 (S.D.N.Y. 2010), abrogated on other
grounds by Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012) (“The least harsh instruction permits (but does
not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party.”).

                                                             9
Because I do not believe the Court has laid the foundation to support this substantial departure from

settled spoliation jurisprudence, I cannot join its opinion.

                                       III. Willful Blindness

       In addition to depriving trial courts of the substantial discretion they once exercised in

remedying spoliation, the Court’s framework—more specifically, the manner in which the Court’s

framework is applied—in effect permits a party to escape liability for the destruction of relevant

evidence by simply demonstrating the destruction occurred in accordance with the party’s existing

document retention policy. On the contrary, “when a policy is at odds with a duty to maintain

records, the policy [should] not excuse the obligation to preserve evidence.” See Trevino, 969

S.W.2d at 957 (Baker, J., concurring).

       Under the Court’s framework, a trial court must first make a preliminary determination as

to whether spoliation occurred as a matter of law. This involves finding whether (1) the spoliating

party had a duty to preserve evidence, and (2) the party breached that duty by failing to preserve the

evidence. If the trial court finds both duty and breach, it must then assess the proper remedy. The

trial court may submit a spoliation instruction only in circumstances where the party intentionally

spoliated evidence and no lesser remedy will suffice to remedy the prejudice caused to the

nonspoliating party (or in the rare instance when as a result of negligent destruction of evidence a

party is “irreparably deprived of any meaningful opportunity to present a claim or defense”). __

S.W.3d at __. With regard to “duty,” the Court echoes the standard articulated in Wal-Mart Stores,

namely that the duty to preserve evidence “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

                                                  10
or control will be material and relevant to that claim.” 106 S.W.3d at 722. The Court then expressly

recognizes that “the party seeking a remedy for spoliation must demonstrate that the other party

breached its duty to preserve material and relevant evidence.” __ S.W.3d at __.

         Once the trial court determines that a party had the duty to preserve evidence and breached

that duty by failing to do so, the Court’s framework requires the trial court to assess an appropriate

remedy. For an instruction to be proper, the trial court must find both intentional destruction10 and

prejudice to the nonspoliating party. The Court correctly notes that “intentional” encompasses the

concept of “willful blindness” in which a party does not directly destroy evidence known to be

discoverable, but nevertheless “allows for its destruction.” __ S.W.3d at __. Thus, under the Court’s

definition of “intentional,” a party that is aware of circumstances that are likely to give rise to future

litigation but fails to take reasonable steps to ensure the relevant evidence is not destroyed pursuant

to “routine practice” may be found to have intentionally destroyed evidence.

         But the Court renders this notion of “willful blindness” ineffective, for it nevertheless

concludes (assuming without deciding that Brookshire Brothers breached a duty to reasonably

preserve evidence) “there is no evidence” that [Brookshire Brothers] failed to preserve the

surveillance footage “with the requisite intent to conceal or destroy relevant evidence . . . .” __

S.W.3d at __ (emphasis added). Curiously, the Court reaches this result despite the fact that at the

time Brookshire Brothers allowed the additional surveillance footage surrounding Aldridge’s fall to

automatically erase, Brookshire Brothers (particularly Gilmer) knew of Aldridge’s fall, knew

        10
          The Court’s framework also allows for a spoliation instruction when evidence is merely negligently destroyed,
but only under the exceptional circumstance that the spoliation irreparably deprives the nonspoliating party of any
meaningful ability to present a claim or defense.

                                                          11
Aldridge had filed an incident report documenting the fall and requested a copy of the footage, and

had already agreed to cover Aldridge’s medical costs above and beyond the amounts Brookshire

covered pursuant to its routine practice.11 It was Gilmer’s conscious and intentional choice not to

review or retain any more than the eight minutes of surveillance footage capturing the fall, a choice

he made despite his admitted awareness that a key issue in a slip and fall case is whether employees

had actual or constructive notice that there was a substance on the floor. And this choice inevitably

resulted in the destruction of relevant evidence approximately thirty days after the fall occurred. If

the concept of “willful blindness” is to have any meaning, these circumstances must give rise to at

least some evidence of “willful blindness,” and therefore at least some evidence that Brookshire

Brothers acted with the requisite intent. But as it stands, the Court’s assurances that its spoliation

framework encompasses instances of “willful blindness” ring hollow given the Court’s application

of the concept to the facts of this case.

         As a result of new technology and the accompanying exponential increase in electronically-

stored data, document retention policies are now the rule rather than the exception. See, e.g., Arthur

Anderson LLP v. United States, 544 U.S. 696, 704 (2005). After all, “[n]o company possibly can,

or should, indefinitely retain all the documents that it receives or generates.” MARGARET M. KOESEL

& TRACEY L. TURNBULL, SPOLIATION OF EVIDENCE : SANCTIONS AND REMEDIES FOR DESTRUCTION

OF   EVIDENCE    IN   CIVIL LITIGATION 25 (2d ed. 2006). Retention policies have become a nearly-

essential part of the corporate landscape. And limited-duration retention policies have become


         11
          Again, Brookshire Brothers agreed to pay these additional medical costs in a letter dated September 29, 2004.
Nevertheless, Brookshire Brothers maintained it was not aware of circumstances likely to give rise to future litigation.

                                                          12
commonplace. See, e.g., In re Weekley Homes, L.P., 295 S.W.3d 309, 312 (Tex. 2012) (company’s

thirty-day document retention policy for email resulted in only one responsive email). These limited-

duration retention policies are designed not only to minimize the cost of discovery but also to assure

the destruction of potentially unfavorable evidence.12

         The proliferation of electronically stored information and the resulting increasing reliance

on retention policies make the concept of “willful blindness” all the more acute.13 Now more than

ever, courts must ensure that companies cannot “blindly destroy documents and expect to be shielded

by a seemingly innocuous document retention policy.” See Lewy v. Remington Arms Co., 836 F.2d

1104, 1112 (8th Cir. 1988). But the Court’s application of its spoliation framework opens the door

for corporations to do just that. A party may allow for the destruction of relevant evidence, despite

notice of circumstances likely to give rise to future litigation, and come away unscathed—an

“advantage” of document retention policies already recognized in the document management

services industry.14



         12
            For example, a prominent document management services provider notes that one reason to define a retention
policy is “[t]o reduce the dangers of eDiscovery. Minimizing the amount of electronic material an organization keeps
means it has less material to produce during eDiscovery— and consequently it is less likely to hand over incriminating
evidence.”        Iron M ountain, S etting R etention P olicy for E lectronic Inform ation, 2 (2011),
http://imknowledgecenter.com/~/media/Files/Iron%20Mountain/Knowledge%20Center/Reference%20Library/W hite
%20Paper/S/Setting%20Retention%20Policy%20for%20Electronic%20Information%20US.pdf.

         13
            Indeed, as recent events have brought to light, even six-month retention policies can have devastating effects
on the preservation of evidence. The Internal Revenue Service is currently under congressional investigation regarding
potential discrimination in the way it processed applications for tax-exempt status. It has now revealed that it “has lost
untold numbers” of emails relevant to the investigation as a result of computers crashing and, because pursuant to IRS
policy, the backup tapes were recycled every six months. See A SSO CIATED P RESS , Emails: IRS Official Sought Audit
of GOP Senator, T HE W ASHINGTO N P O ST , June 25, 2014, available at http://www.washingtonpost.com/business/archivist
-irs-didnt-follow-law-with-lost-emails/2014/06/24/d8e7f7be-fc01-11e3-b8bf-54b8afb537b6_story.html.

         14
              See supra note 12.

                                                           13
       Our spoliation framework should not allow a party to pre-select the evidence that will be

available against it and escape liability for the destruction of unfavorable evidence under the guise

of a retention policy that preserves information for a limited time. Unfortunately, today’s holding

potentially provides future litigants with a blueprint for successfully shielding themselves from

spoliation liability: simply establish a document retention policy with a limited duration. Because

I believe the Court’s holding does not provide sufficient meaning to the concept of willful blindness

given the trend toward increasing reliance on limited-duration document retention policies, I cannot

join the Court in its new spoliation framework or its application to this case.

                                          IV. Rulemaking

       The spoliation of evidence, as the Court notes, is both an evidentiary concept, as well as a

particularized form of discovery abuse. Thus, spoliation issues are particularly well-suited to redress

via the rulemaking process. Indeed, the Federal Rules Committees have recognized this, and as this

Court acknowledges, are in the process of amending the Federal Rules to provide district courts with

guidelines for addressing the spoliation of evidence. See __ S.W.3d at __ n.3. Rather than follow

a similar path in Texas, the Court endeavors to create a spoliation framework outside of the

rulemaking process under the rationale that “the challenges facing Texas courts are just as acute.”

__ S.W.3d at __. But the Court has done nothing beyond considering this isolated case to determine

what spoliation challenges are facing Texas courts. In crafting a spoliation rule outside the

rulemaking process, the Court severely restricts the input of the bench, academy, and bar on what

the contours of the spoliation rule should be.



                                                  14
        As several former justices have observed, “[r]ather than make such changes by judicial

decree, the better practice is to enact these reforms in conjunction with our rulemaking procedure

. . . . A statute or rule could provide the precision that is lacking in the Court’s opinion.” In re Allied

Chem. Corp., 227 S.W.3d 652, 666 (Tex. 2007) (Jefferson, C.J., dissenting); see also Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 216 (Tex. 2001) (Baker, J., concurring); accord State Dep’t of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (“[W]e do not revise our rules

by opinion.”). Our rulemaking process is meant for situations such as this. The Constitution

requires our Court to “promulgate rules of civil procedure for all courts not inconsistent with the

laws of the state as may be necessary for the efficient and uniform administration of justice in the

various courts.” TEX . CONST . art. V, § 31. To gather input, we appointed a Supreme Court Advisory

Committee in 1940 to recommend rules of administration and procedure—which we continue to rely

on to this day. Misc. Docket No. 11-9259 at 1, Supreme Court of Texas, Dec. 28, 2011. The

committee—composed of fifty-two distinguished judges, professors, and attorneys—“solicits,

summarizes, and reports to the Court the views of the bar and public.” Id.15

        The Court maintains that it need not concern itself with the rulemaking process because there

is not a current rule in Texas addressing spoliation. But the absence of a rule does not mean we

should de facto implement a rule without the thorough vetting the rulemaking framework affords.

This is especially so because rules that impact how lawsuits are tried are best implemented with

input from those that are actually trying cases—trial judges and litigators. As “the principal



        15
             In contrast, this case has received a total of three amicus briefs, all supporting the petitioner.

                                                             15
mechanism for the regulation of proceedings in Texas courts,”16 the rulemaking process can

ultimately yield clarity and uniformity not otherwise attainable when this process is eschewed in

favor of judicially-crafted rules.

                                                 V. Conclusion

        As the Court itself acknowledges, trial courts have necessarily enjoyed broad discretion in

remedying acts of discovery abuse, including evidence spoliation. Rather than leave such discretion

intact, the Court displaces the discretion trial courts have properly used and in its place establishes

a formulaic process. Further, though the Court in name embraces the concept of “willful blindness,”

the Court’s application of its formulaic process to the facts of this case renders this concept

essentially meaningless. This is particularly troublesome given the increasingly common corporate

use of limited-duration document retention policies. Litigants and our system of justice deserve a

spoliation framework that fosters the preservation of relevant evidence by equipping trial courts with

the discretion to tailor remedies to the offenses committed. Until today, such a framework existed

in Texas. Because the Court unnecessarily abolishes it, I respectfully dissent.




                                                               ____________________________________
                                                               Eva M. Guzman
                                                               Justice


OPINION DELIVERED: July 3, 2014


       16
            W illiam V. Dorsaneo, The History of Texas Civil Procedure, 65 B AYLO R L. R EV . 713, 714 (2013).

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