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Civil Litigation No. 01-0441, 5/22/2003. Click here for the full text of this decision FACTS: The court decides whether the trial court abused its discretion when it instructed the jury that it could presume that certain missing evidence, had it been preserved, would have been adverse to defendant, Wal-Mart Stores Inc. Holding that the trial court had not abused its discretion in submitting this spoliation instruction, the court of appeals affirmed the judgment in favor of the plaintiffs, Monroe and Brandy Johnson. Wal-Mart petitioned for review, arguing that submitting this instruction was an abuse of discretion because the evidence in question (a decorative reindeer) was not spoliated, but rather was innocently disposed of in the normal course of business before Wal-Mart had notice of the Johnsons’ claim. HOLDING: Reversed and remanded. The courts of appeals have generally limited the use of the spoliation instruction to two circumstances: 1. the deliberate destruction of relevant evidence; and 2. the failure of a party to produce relevant evidence or to explain its nonproduction. Anderson v. Taylor Publ’g Co., 13 S.W.3d 56 (Tex. App. – Dallas 2000, pet. denied). Under the first circumstance, a party who has deliberately destroyed evidence is presumed to have done so because the evidence was unfavorable to its case. Under the second, the presumption arises because the party controlling the missing evidence cannot explain its failure to produce it. Watson v. Brazos Elec. Power Co-op. Inc., 918 S.W.2d 639 (Tex. App. – Waco 1996, writ denied). 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. Such a duty arises only when a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. Wal-Mart argues that it had no duty to preserve the reindeer as evidence because it had no notice that they would be relevant to a future claim. Specifically, Wal-Mart contends that it did not learn of the Johnsons’ claim until all of the reindeer had been disposed of in the normal course of business. The Johnsons point out that Wal-Mart’s extensive investigation on the day of the accident indicates its awareness of the potential claim and the reindeer’s importance to it. Wal-Mart responds that it routinely investigates all accidents on its premises, and this particular investigation revealed that Johnson had not been seriously injured and never indicated that he might seek legal relief. The court agrees that nothing about the investigation or the circumstances surrounding the accident would have put Wal-Mart on notice that there was a substantial chance that the Johnsons would pursue a claim. As a foundation for the submission of the spoliation instruction in this case, the Johnsons had to show that Wal-Mart disposed of the reindeer after it knew, or should have known, that there was a substantial chance there would be litigation and that the reindeer would be material to it. The plaintiffs failed to do this. The court agrees with Wal-Mart that the trial court abused its discretion when it submitted the spoliation instruction to the jury because the Johnsons failed to establish that Wal-Mart had a duty to preserve the reindeer. The court believes an unnecessary spoliation instruction is particularly likely to cause harm. Because the instruction itself is given to compensate for the absence of evidence that a party had a duty to preserve, its very purpose is to “nudge” or “tilt” the jury. Thus, if a spoliation instruction should not have been given, the likelihood of harm from the erroneous instruction is substantial, particularly when the case is closely contested. OPINION: Phillips, C.J., delivered the opinion of the court.

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