Texas A&M Law Review

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In July 2014, the Texas Supreme Court issued a new framework for analyzing and remedying the destruction of evidence, holding that spoliation jury instructions are warranted only when a trial court finds that a party acted with the specific intent to conceal discoverable evidence or that a party’s negligent destruction wholly prevented another from presenting a claim or defense. The Court addressed whether the trial court abused its discretion in submitting a spoliation instruction in a slip-and-fall case in which the defendant premises owner retained only eight minutes of video of the plaintiff’s fall and allowed the remaining footage to erase automatically. Although the Court recognized that a party’s willful blindness is sufficient to satisfy the intent requirement, according to critics, the Court’s application of the rule raises questions about the actions constituting willful blindness in the spoliation context and will likely invite parties to freely destroy relevant evidence without fearing a spoliation instruction or other harsh sanction. Although a thorough analysis of Texas spoliation law shows that the Brookshire framework largely follows the Trevino test previously used by a majority of Texas courts, the Court’s application of the framework indicates that spoliation instructions will now be nearly impossible for litigants to obtain.

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