Supreme Court of Texas to Issue Decision on Spoliation of Evidence

The Surpreme Court of Texas heard argument in September 2012, in Brookshire Bros., Ltd. v. Aldridge, No. 12-08-00368-CV, 2010 WL 2982902 (Tex. App.—Tyler July 30, 2010, pet. granted) (mem. op.). The issues presented involve whether the trial court erred by admitting evidence of spoliation and including a spoliation instruction in the jury charge of a slip-and-fall case.


Aldridge slipped and fell on a liquid substance at a Brookshire Brothers store. He notified Brookshire Brothers of the incident immediately after it happened, but the full extent of his injuries did not appear until days later. Aldridge returned to the store and informed Brookshire Brothers of his increased pain. The company documented the incident and Aldridge’s injuries. During this time, Brookshire Brothers also preserved a short segment of a surveillance video recording of the day in question, but later allowed the remainder to be recorded over by the recording system. The preserved segment, which was less than eight minutes in length, showed Aldridge entering the store, falling, and leaving. But it did not include portions of the original recording that could have shown the source of the substance on the floor, additional employees that may have seen the substance, or the amount of effort necessary to clean the substance from the floor.


Aldridge eventually sued Brookshire Brothers for premises liability. The trial court admitted evidence relating to the destruction of the video recording. The trial court also charged the jury with a spoliation instruction. The jury reached a verdict in favor of Aldridge and the trial court rendered judgment on the verdict.


Before any failure to produce material evidence may be viewed as discovery abuse, the opposing party must establish that the nonproducing party had a duty to preserve the evidence in question. There must be a sufficient foundational showing that the party who destroyed the evidence had notice both of the potential claim and of the evidence’s potential relevance thereto.


The Tyler Court of Appeals found Brookshire Brothers had a duty to preserve the unpreserved portions of the recording because it had control of the entire video recording, Aldridge had notified Brookshire Brothers of his injury, and Aldridge had requested to see a portion of the video recording from the day in question.


Brookshire Brothers’ failure to preserve the recording prejudiced Aldridge because the video would have been some evidence of when the spill occurred, the length of time that the spill remained, and the cleanup efforts and any immediate investigation, both demonstrating the size of the spill. Thus, the trial court did not abuse its discretion by admitting spoliation evidence.


By saving a small portion of video and allowing the remainder to be destroyed, Brookshire Brothers engaged in the “intentional spoliation of evidence relevant to a case.” Therefore, the Tyler Court of Appeals found the trial court did not abuse its “broad discretion” by charging the jury with the spoliation instruction.


- Michael H. Bernick, Haley & Olson, P.C.


Toyota Hit With Temporary Restraining Order

In what appears to be the first case in Texas to be filed against Toyota seeking to reopen previously settled product liability cases, Judge T. John Ward, who presides over the United States District Court, Eastern District of Texas, Marshall Division, signed and entered a temporary restraining order against Toyota Motor Corporation, Toyota Motor Sales, USA, Inc. and several in-house counsel for Toyota regarding document retention related to Toyota motor vehicles. 

The temporary restraining order arises out of a civil RICO complaint filed in Judge Ward's court by Raul Lopez, a plaintiff who previously settled a personal injury case with Toyota years ago.  Mr. Lopez filed a RICO complaint on September 25 seeking to reopen his case after Dimitrious Biller, a former in-house attorney for Toyota, filed a federal lawsuit in California alleging Toyota has illegally withheld and destroyed evidence in hundreds of rollover injury and death cases over  the past several years. 

The temporary restraining order issued by Judge Ward yesterday orders Toyota, and essentially anyone who works for or with Toyota, to:

  1. Issue litigation holds on all documents in any form pertaining to any make, model or year platform vehicle;
  2. Issue litigation holds on all documents in any form pertaining to any non-production vehicle evaluation pertaining to product liability or crashworthiness issues;
  3. Issue litigation holds on all documents in any form pertaining to research projects that involve issues related to product liability or crashworthiness issues;
  4. Issue litigation holds on all documents that are presently or will be subject to any type of document retention policy;
  5. Issue litigation holds on all documentation and all communications sent to outside Counsel, outside experts, or outside contractors.

Judge Ward also set a show cause hearing  for October 7, 2009, at 1:30 pm, for Toyota to show why the temporary restraining order should not be converted to a preliminary injunction.

The style of the case is Raul Lopez, et. al. v. Toyota Motor Corporation, et. al., Cause No. 2:09-CV-292.


Toyota Attorney Accuses Company Of Hiding/Destroying Evidence

Dimitrios Biller, a former in-house attorney for Toyota Motor Sales USA, Inc. has accused the car maker in a lawsuit filed in federal court in California of illegally withholding evidence in hundreds of rollover injury and death cases in a "ruthless conspiracy" to keep evidence of its vehicles "structural shortcomings" from becoming known.  Biller alleges that his complaints to Toyota executives about the illegal conduct cost him his job.  Biller also complains that Toyota misled the National Highway Traffic Safety Administration when the government was considering tougher regulations for roof strength.  While Toyota has denied Mr. Biller's allegations, this has created a mess for Toyota which could lead to the reopening of hundreds of cases that were previously resolved through settlement or trial.