Embed Size (px)
Citation preview
Spoliation, Litigation Holds, and Other Things That Keep Lawyers Awake at Night
James W. Bartlett, Jr.
Copyright 20152
Client Lawyer Law
Three Pieces of the Spoliation Puzzle
Copyright 20153
Presentation SummaryConcept
and History
Brookshire Brothers
Lingering Questions
Post-BB
Evidence Preservatio
n
Litigation Holds
FRCP Changes
4 Copyright 2015
What is Spoliation?Loss, destruction, or alteration of relevant evidence “Serious issue”
Fundamentally alter trial
Picture = 1,000 words
Copyright 20155
What is a Spoliation Instruction?Severe remedy for spoliation
English common law
Restore parties to “rough approximation”
Intended to “tilt” or “nudge” jury
Unintended consequences
6 Copyright 2015
Texas Spoliation JurisprudenceNot an independent cause of action!
Not addressed in TRCP or TRE
Evidentiary issue – discovery abuse
Trial courts – wide latitude
Inconsistent approaches to spoliation
7 Copyright 2015
9/2/04
9/7/04
9/04 10/04 06/2005 08/2005
September 2, 2004Aldridge falls in store
Brookshire Brothers – Timeline of Events
September 7, 2004Aldridge reports fall and injuries
September 13, 2004Aldridge requests footage of “fall”
August 2005Aldridge’s attorney asks for 2 ½ hours of footage
9/13/04
September 2004BB preserves eight minutes of footage
Early October 2004All footage of day of fall erased
June 2005BB denies responsibility
“I fell”
Copyright 20158
The LawsuitSuit filed in Angelina County
Spoliation motion – missing footage
Spoliation-related evidence at trial
Spoliation instruction submitted to jury
Copyright 20159
The LawsuitJury permitted to decide spoliation issue“In this case, Brookshire Brothers permitted its video surveillance system to record over certain portions of the store surveillance video of the day of the occurrence in question. If you find that Brookshire Brothers knew or reasonably should have known that such portions of the store video not preserved contained relevant evidence to the issues in this case, and its non-preservation has not been satisfactorily explained, then you are instructed that you may consider such evidence would have been unfavorable to Brookshire Brothers.”
Copyright 201510
The LawsuitJury verdict for more than $1,000,000
Affirmed by court of appeals
Texas Supreme Court
“much-needed clarity”
Copyright 201511
The Trial Court as Gatekeeper
Spoliation findings solely by trial court
Existence of spoliation/remedy
Evidentiary hearing
Abuse of discretion standard
Jury not involved!
12 Copyright 2015
Three Step ProcessRequired findings of the trial court
Copyright 201513
Step 1 – Duty
Objective “reasonable person” standard
Arises when “substantial chance” claim will be filed
Party possesses relevant and material evidence
Can be triggered before notice of potential litigation
Burden on spoliation proponent
Was a duty to preserve triggered?
Copyright 201514
Step 2 – Breach
Failed to exercise reasonable care
Must be negligent or intentional
Burden on spoliation proponentNo-fault spoliation not actionable
Was a duty to preserve breached?
Copyright 201515
Step 3 – RemedyWhat sanctions are available?
Spoliation = discovery abuse
Rule 215.2 sanctions available
Other sanctions permitted
Including spoliation instruction
Remedy must be proportionate!
16 Copyright 2015
Proportionality – Two RequirementsRemedy imposed must:
Have a direct relationship to act of spoliation; and
Not be excessive
17 Copyright 2015
Proportionality – Direct RelationshipRemedy imposed must:
Be directed against the wrongful conduct; and
Properly tailored to remedy the prejudice
Copyright 201518
Assessing PrejudiceAdoption of Trevino factorsRelevance of the spoliated evidence – key issues
Harmful or helpful effect of spoliated evidence
Whether spoliated evidence was cumulative
Copyright 201519
Assessing PrejudiceGuiding principles
If intentional, relevance and harm can be assumed
Negligent spoliation requires proof of content
Cumulative nature of missing evidence not assumed
20 Copyright 2015
Proportionality – Excessiveness
Consider whether lesser sanctions would suffice
Usually required to actually test lesser sanctions
21 Copyright 2015
Spoliation Instruction
“Subjective purpose of concealing or destroying discoverable evidence”
“Willful blindness” – permits relevant and discoverable evidence to be destroyed
Almost always requires intentional conduct
Copyright 201522
Spoliation Instruction“Rare exception” for negligent spoliation
Spoliation has irreparably prevented the nonspoliating party from having any meaningful opportunity to present a claim or defense
Silvestri v. General Motors Corporation
Copyright 201523
Spoliation Conduct (Generally) Inadmissible
Most spoliation-related evidence has no bearing on merits
Admission of evidence regarding spoliation-related conduct unduly prejudicial
Evidence bearing solely on whether spoliation occurred or a party’s spoliation culpability inadmissible
Exception – legitimate references to missing evidence for other purposes, e.g., content of document
Very limited exception!
24 Copyright 2015
Application of Framework to Aldridge’s Claim
Court “assumed without deciding” duty and breach
Decision turned on whether intentional spoliation occurred
Copyright 201525
Application of Framework to Aldridge’s Claim
“Subjective purpose of concealing or destroying discoverable evidence”
Brookshire Brothers majority found no evidence of this species of intentional spoliation
Relied heavily on fact that store employees did not actually view the destroyed footage
Credited Gilmer’s testimony that he did not believe footage would be “relevant”
Credited Gilmer’s testimony that he did not anticipate litigation
Intentional spoliation – species 1
Copyright 201526
Application of Framework to Aldridge’s ClaimIntentional spoliation – species 2
“Willful blindness” – permits relevant and discoverable evidence to be destroyed
Brookshire Brothers majority found no evidence of willful blindness
Focused on perceived value of the missing footage to the merits
Copyright 201527
Application of Framework to Aldridge’s ClaimNegligent spoliation
Where spoliation has irreparably prevented the nonspoliating party from having any meaningful opportunity to present a claim or defense.
Brookshire Brothers majority declined to apply this “narrow exception”
Found that other evidence was available to Aldridge to support his claim
28 Copyright 2015
Application of Framework to Aldridge’s Claim
Trial court abused discretion in admitting spoliation-related evidence
Instruction and spoliation-related evidence constituted reversible error
Other holdings
Copyright 201529
Questions and Issues Raised by Brookshire Brothers
What is spoliation conducted “with the subjective purpose of concealing or destroying discoverable evidence”?
Can “willful blindness” apply in the context of evidence destroyed pursuant to a document retention policy?
Where do trial courts draw the line in admitting spoliation-related evidence on grounds that it goes to the merits?
Copyright 201530
Texas PJC 1.12
[Name of spoliating party] [destroyed or failed to preserve] [describe evidence]. You [must/may] consider that this evidence would have been unfavorable to [name of spoliating party] on the issue of [describe issue(s) to which evidence would have been relevant].
31 Copyright 2015
Extension of Brookshire Brothers
Petro. Solutions, Inc. v. Head, No. 11-0425, 2014 Tex. LEXIS 1210, *12-20 (Tex. Dec. 19, 2014)
Extended Brookshire Brothers to encompass any remedies “akin to death-penalty sanctions, such as striking a party’s claims or defenses.”
32 Copyright 2015
1995 2000 2005 2010 2015
0.00100.00200.00300.00400.00500.00600.00700.00800.00900.00
1,000.001,100.001,200.00
$1,120
$11.00$1.24 $0.09 $0.03
From Paper to ESIPrice-per-gigabyte over time*
*Source: Statistic Brain
33 Copyright 2015
Exponential Increase in ESIBillions of devices on this planet
108 billion business emails
a day*
*Source: The Radicati Group
Create
Transmit
Store
Copyright 201534
Evidence Preservation Letter
Notice of retention for purposes of litigation
Description of incident or dispute
Identification of known “key” players
Description of examples of evidence to be preserved
Demand for halt to routine destruction systems
Request for further dissemination of letter
Essential components:
Copyright 201535
Evidence Preservation Letter
Don’t ask for something your own client cannot do
Don’t request too much
Be particular/educate your reader
Request the preservation of metadata
Consider timing of the letter as part of your strategy
Other considerations
Copyright 201536
The Litigation Hold Process
Interview “key” players to the incident or dispute
Interview company IT personnel (if applicable)
Interview document retention policy stewards (if applicable)
Prepare a comprehensive litigation hold letter
Initial steps after you are retained:
Copyright 201537
Litigation Hold Letter
Privilege assertion
Source of preservation obligation
Consequences to company for failure to comply
Description of the potential or pending litigation
Categories and scope of evidence to be preserved
Specific examples of types of evidence to be preserved
Essential components:
Copyright 201538
Litigation Hold Letter
Halt to routine destruction systems
Request for confidentiality unless necessary for business
Social media lockdown request
Contact information for questions
Affirmation block
Essential components:
Copyright 201539
Post-Litigation Hold Tasks
Follow up with client on distribution
Modify/redistribute as necessary
Release the hold when no longer needed
40 Copyright 2015
Proposed Amendments to FRCP 37(e)
Promote uniformity and to encourage desirable judicial responses
Relieve the pressures that have led many potential litigants to engage in massive and costly over-preservation.
Copyright 201541
Proposed Amendments to FRCP 37(e)
Violation if party fails to take reasonable preservation steps
Issue resolved if evidence can be restored through additional discovery
Instruction and similarly severe sanctions only available for intentional spoliation
Thumbnail summary
42 Copyright 2015
James W. Bartlett, Jr.Bush & Ramirez, [email protected]
Questions?Feel free to contact me.
