This article gives a brief overview of when and to whom a duty to preserve evidence applies under Texas law, and discusses why it is usually important to clearly put your employer on notice as soon as possible if you have a legal claim against it.
Many times when someone first hires a lawyer to pursue an employment claim, they ask about getting information or evidence from the employer. Despite how the media present things, there generally is no legal requirement for an employer to turn over any information whatsoever to a current or former employee, even under threat of a lawsuit. Texas rules generally allows so-called “pre-suit discovery” in limited circumstances, like to preserve information or testimony that might otherwise be lost (for example, by the death of a witness).
Usually then, an employee has to file suit and then conduct formal discovery to actually get information from their employer related to their claims. If, by that time, that evidence is conveniently gone, what a plaintiff might be left with is only seeking remedies after the fact for “spoliation,” or the unlawful destruction of evidence. Courts may penalize a party that destroys evidence in various ways, such as by instructing a jury to conclude that the destroyed evidence was exactly what the other party says it was, assessing monetary penalties, or even dismissing legal claims brought by the responsible party. Generally, the more unreasonably the party that destroyed evidence behaved, the worse the penalties.
In Texas, the party making the accusation of spoliation has the burden of proving that the other side (1) had a duty to preserve evidence, and (2) that it either intentionally or negligently failed to do so. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14, 20 (Tex. 2014).
For the first element, the duty, the other party must have known or reasonably should have known that there was a substantial chance that a claim would be filed, and that evidence in its possession or control would be material and relevant to that claim. Because of this, it is important that if you have a legal claim against your employer, you clearly let them know about that. Otherwise, it might claim ignorance all while destroying evidence. A vague complaint or a complaint that does not clearly state how the law has been violated might not trigger a duty to preserve evidence.
An employer on notice of its duty to preserve evidence might still try to get around that by claiming it did not know a particular document would be evidence. It may be useful to specifically name documents you want the employer to preserve. And when evidence might be in the possession of individual employees (like personal text messages), it is important to tell your employer that those sorts of things must be preserved as evidence too.
For the second element, the failure to preserve, the other party must have failed to take reasonable steps to preserve the evidence. A completely accidental loss is usually not going to be considered spoliation. Employers may have and apply document retention and destruction policies, but the duty to preserve evidence can supersede that. An employer should not continue applying policies like that willy-nilly after being put on notice of a claim against it. And an employer should not be able to hide behind an inconsistently applied or fictional document destruction “policy” as an excuse for destroying evidence.
Finally, employees should remember that these rules can apply to you as well. Because of that, if you believe your employer may be engaging in illegal conduct, it is important that you, too, take care to save anything and everything that might be important in your case or how the employer harmed you—and that includes things that might hurt your case too. Otherwise, even if you lost a piece of evidence by accident, you can be sure an employer will try to use that against you, either by saying it never really existed in the first place (if it was helpful to you), or possibly even accusing you of spoliation (if it would have helped their defense).
If you are concerned your employer is violating your rights and may try to cover up its actions, you should talk to an employment attorney like those at Rob Wiley, P.C.