Few things in the course of litigation can come back to bite you with the ferocity of a spoliation instruction. Even the threat of one can cause seasoned litigators to lose sleep and ponder the extent to which their case can be damaged, despite the months or years of hard work in building a defense. Worse yet, these fiascos tend to catch lawyers off-guard, as they seemingly come out of nowhere when opposing counsel inquires about the location of a certain document.

Up until a few years ago, there was a lack of clarity among the courts as to what type of culpability was required in order to warrant a spoliation instruction. Some courts went so far as to punish a defendant even when the destruction of evidence was unintentional. However, in 2014 the Texas Supreme Court issued a decision in Brookshire Brothers, Ltd. v. Aldridge that (somewhat) clarified the landscape of this area of law. The Court held that a party must act intentionally in the destruction of evidence in order to have a spoliation instruction issued against them. Further, a party’s negligent destruction of evidence can only be punishable when it deprives the requesting party of any meaningful ability to present its claim.

On the surface, this sounds like good news for defendants since it seems to take negligent destruction out of play. But it doesn’t take a stretch of the imagination to envision a movant arguing that the destruction of evidence, even if accidental, deprived them of the smoking gun they needed to prove their claim. These smoking guns are now more aptly described as needles in a haystack given today’s massive exchange of electronic data during a lawsuit. And it only takes one needle to give rise to a spoliation instruction.

Therefore, the takeaway from Brookshire Brothers is that clients should be just as diligent in preserving evidence as they have always been. Reasonable document retention policies must be maintained at all times, and lawyers should be in constant communication with their clients about the types of information that will be discoverable in a case and the best efforts to preserve that information. A few years from now we should have more guidance from the courts as to what type of unintentional actions are worthy of punishment. But until then, it is better to be safe than sorry.