Mechanism 19

Spoliation — and why it is not for the jury

What happens in Texas when the other side destroys evidence?

Less than people expect, and by a route most get wrong. A spoliation instruction generally requires intent — the subjective purpose of concealing or destroying discoverable evidence. And the trial court, not the jury, decides spoliation, outside the jury’s presence. Putting the destruction story in front of a jury without that ruling is itself reversible.

By John P. Henry · Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) · Reviewed 2026-08-02

The authority

[A] party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy … a trial court may submit a spoliation instruction only if the trial court finds that the spoliating party acted with the specific intent of concealing discoverable evidence.Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014)

Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014)

When it applies

The video overwritten on a thirty-day loop, the phone traded in, the accounting file that existed in discovery responses and not in production. Also, from the other chair, the case where the opponent intends to try the case on your document retention rather than on the merits.

How it is proved up

Establish the duty to preserve first — when the party knew or reasonably should have known there was a substantial chance a claim would be filed and the evidence was material.
Ask for a hearing outside the presence of the jury, and ask for a finding. Spoliation is treated as a particularised form of discovery abuse, which means it is the court’s question and not the jury’s.
Prove intent, not carelessness. The subjective purpose of concealing or destroying is the standard, and negligence does not reach it.
Where you cannot show intent, plead the narrow exception: negligent spoliation that irreparably deprives you of any meaningful ability to present a claim or defence.
Ask for a lesser remedy in the alternative. Courts have a range of options short of an instruction and are far more willing to use them.

What defeats it

A routine retention policy applied evenly and before any duty arose.
Absence of intent, which defeats the instruction even where the loss is real and inconvenient.
Evidence available from another source, which defeats the irreparable-deprivation exception.
Trying it to the jury. The party that over-plays spoliation in front of the jury without a predicate ruling is the party that loses the verdict on appeal.

Where I have used it

Argued more often than won, which is the honest description. The value of the entry is the procedural point — a great deal of spoliation practice is conducted in front of juries where it does not belong, and knowing that is worth more than the instruction.

Questions

Does Texas require intent for a spoliation instruction?

Generally yes. Brookshire Brothers v. Aldridge holds that a spoliation instruction requires the specific intent of concealing discoverable evidence, with a narrow exception for negligent spoliation that irreparably deprives a party of any meaningful ability to present a claim or defence.

Who decides spoliation in Texas — the judge or the jury?

The trial court, and it must do so outside the presence of the jury. Spoliation is treated as a particularised form of discovery abuse rather than a fact issue for the jury.

When does the duty to preserve evidence arise in Texas?

When a party knows or reasonably should know that there is a substantial chance a claim will be filed and that evidence in its possession or control would be material and relevant to that claim.