                  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


                                     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 of relevant evidence, which can in turn negatively impact the fairness of the 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 of the 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 of complexity 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 of a 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

                                                   2
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 plaintiff’s 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

                                                   3
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,



                                                  4
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

         1
          With 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, “[w]asn’t

relevant.” Gilmer verified his understanding that a key legal issue in a slip-and-fall case is whether

store employees knew or should have known there was something on the floor that caused the 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.

                                                          6
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 “[e]vidence spoliation is a serious problem that can have a devastating

effect on the administration of justice”). As one federal district court has explained, “[d]ocuments

                                                     7
create a paper reality we call proof. The absence of such documentary proof may stymie the search

for the truth.” Zubulake v. UBS Warburg L.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 Stored Information, Good Faith, and Rule 37(e), 29 N. ILL. 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, “[b]ecause 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

                                                   8
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: Reevaluating Rule 26

for the Digital Age, 63 RUTGERS L. REV . 521, 522 (2011). Because of the prevalence of discoverable

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 DUKE L.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 of the routine, good-faith operation of an 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 of Advisory 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, L AW T ECH N O LO GY N EW S (June
2, 2014), http://www.lawtechnologynews.com/id=1202657565227?slreturn=20140505130019.

                                                         9
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

“[e]verything is to be presumed in odium spoliatoris”); see also Trevino, 969 S.W.2d at 952

(observing that “[e]vidence 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

        4
           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 of or 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.

         5
          See Trevino, 969 S.W .2d at 952 (refusing to recognize an independent tort of spoliation); Wal-Mart Stores,
106 S.W .3d at 722 (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 expressly adopted

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., Brumfield v. 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 S T . M ARY ’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 of the 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-

Mart Stores that “[s]uch 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

may be either intentional or negligent. Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (“Because



         7
           Federal courts have struggled with the issue of when a duty to preserve is triggered and 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. B ALT . L. R EV . 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 Schmid v. 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: The Increasing Vulnerability of Electronic 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, 106 S.W.3d at 721.

         The courts of appeals 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). W e 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 of conducting a prejudice analysis based on evidence that is no longer

available for review, we recognize that a party’s intentional destruction of evidence10 may, “[a]bsent

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.11 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
              W e 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., Residential Funding 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. of Educ., 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 of destroyed 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 of Evidence 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 of Evidence 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.” Spohn Hosp. 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); Greyhound Lines, 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. Ill. 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 Kick Mgmt. 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 believe this 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.3d at 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 of Electronically Stored Information, Good Faith, and Rule 37(e),

29 N. ILL. 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 R U TGERS L. R EV . at 529 (discussing the “staggering costs” in discovery
because of the volumes of electronically stored information in computers and other databases around the country);
W right, Note, Federal Rule of Civil Procedure 37(e): Spoiling the Spoliation Doctrine, 38 H O FSTRA L. R EV . 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 generally an 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 M otors following a motor vehicle accident, 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 plaintiff’s 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 of undue delay, or needless presentation of cumulative 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 of Evidence, 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-Haul Int’l, 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 of footage 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, which corresponded 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
            W e 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 would have shown in concluding that 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 off a trial in which both liability and the extent of Aldridge’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 of judgment

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 of Aldridge’s claim. One of the 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’l Dev. & 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 of appeals’ 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
