PJC Business

PJC 100.14

A DMONITORY I NSTRUCTIONS

Required findings by the court. Whether a spoliation instruction is appropriate is a question of law for the court. Brookshire Bros. , 438 S.W.3d at 20 (citing Trevino v. Ortega , 969 S.W.2d 950, 954–55, 960 (Tex. 1998) (Baker, J., concurring)). Before considering whether to instruct the jury on spoliation as a remedy for the loss, alter ation, or unavailability of certain evidence, a court must consider— 1. whether there was a duty to preserve the evidence at issue, 2. whether the alleged spoliator breached that duty, and 3. prejudice. Brookshire Bros. , 438 S.W.3d at 20. In evaluating prejudice the court must analyze— 1. relevance of the spoliated evidence to key issues in the case; 2. the harmful effect of the evidence on the spoliating party’s case (or con versely, whether the evidence would be helpful to the nonspoliating party’s case); and 3. whether the spoliated evidence was cumulative. Brookshire Bros. , 438 S.W.3d at 20; see also Petroleum Solutions, Inc. v. Head , 454 S.W.3d 482 (Tex. 2014). Because the imposition of a spoliation instruction is such a severe sanction, courts must first determine whether a direct relationship exists between the conduct, the offender, and the sanction imposed, and the sanction must not be more severe than necessary. Petroleum Solutions, Inc. , 454 S.W.3d at 489 (cit ing TransAmerican Natural Gas Corp. v. Powell , 811 S.W.2d 913 (Tex. 1991)). Use of “may” or “must.” In Brookshire Bros. , the majority does not articulate the specific language that should be included in the instruction, particularly whether the jury “may” or “must” consider that the missing evidence would have been unfa vorable to the spoliator. The dissent in Brookshire Bros. interpreted the majority as requiring the use of the term must . Brookshire Bros. , 438 S.W.3d at 34 (Guzman, J., dissenting). The overarching guideline, as with any sanction, remains proportionality. “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.” Brook shire Bros. , 438 S.W.3d at 14. Whether may or must is used should be based on the facts applied to the standards articulated above.

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