On July 3, 2014, the Texas Supreme Court announced significant changes in how Texas courts address claims that evidence has been destroyed — so-called “spoliation.” The trial judge is now the sole arbiter of whether spoliation occurred, and jurors cannot be told evidence was lost except in the most egregious cases. Of critical importance, but unclear in the opinion, is how the new rules apply in cases involving confidential information where jurors necessarily decide what was taken.

In Brookshire Brothers, Ltd. v. Aldridge, the plaintiff, Aldridge, alleged he slipped near a rotisserie-chicken display at a Brookshire grocery store. When he reported his injury to the store a few days later, employees preserved eight minutes of security-camera footage showing his entry to the store and subsequent fall. The rest of the footage was routinely deleted after 30 days, so it was long gone when Aldridge’s attorney filed suit and requested it a year later.

Aldridge alleged spoliation, the trial judge instructed jurors they could presume the missing video was harmful to Brookshire, and the trial focused as much on the store’s video-retention policy as on the condition of its floors. The upshot was that the jury awarded Aldridge more than $1 million (a large award in a slip-and-fall case), and the Tyler Court of Appeals affirmed.

The Texas Supreme Court granted review. As neither the Texas Rules of Evidence nor of Procedure address spoliation, the Court set out to clarify the common-law rules that govern such cases. Several of the rules the Court announced are nothing new:

• there is no duty to preserve evidence until a party knows or should know a claim is likely and the evidence is relevant; and

• the remedy for spoliation depends on the culpability of the conduct and the nature of the evidence destroyed.

The Court also held that a “spoliation instruction” ― which tells jurors they can assume a party destroyed evidence because it was harmful, was appropriate only in two circumstances:

• intentional spoliation done to conceal evidence; and

• spoliation of the very subject of the claim (e.g., the product in a product-defect case) that forestalls any chance for defense.

While this limit is new to some trial judges, most already have been refusing to give spoliation instructions when evidence was lost accidentally or due to routine retention policies.

But in an entirely new twist, the Court held that trial judges alone must decide whether spoliation occurred, and evidence bearing solely on that issue cannot be admitted at trial. This is a sharp departure from prior practice, which generally left the spoliation issue to jurors if the trial judge found some proof that material evidence was destroyed. The Court reasoned that letting jurors decide spoliation could unfairly skew their verdict, leading to judgments based less on how the parties acted before the incident than on how they handled the claim after the incident.

Applying these rules was relatively easy in the Brookshire case. There was no evidence the store destroyed relevant evidence intentionally; to the contrary, it preserved the most relevant parts, and the remainder likely made no difference due to the poor quality, distant location, and obstructed viewpoint of the camera. Accordingly, the trial judge erred by admitting evidence about the lost video and giving the jury a spoliation instruction, and Brookshire was entitled to a new trial free of those errors.

But the opinion addresses only obliquely how the new rules apply in cases where the spoliation and merits of the case overlap. For example, when a former employee allegedly takes confidential information on a computer or thumb drive, but the device is later wiped clean, the lost evidence relates not just to spoliation but to the merits of the case. Unless jurors can hear evidence about that, it is hard to see what the trial will be about.

Companies at risk for losing critical information, especially electronic information that is easily copied and easily destroyed, should pay special attention to how broadly Texas trial courts apply these new rules.