law-spoliation and fabrication or falsification of evidence | sanctions case law | inherent power to sanction |
Texas Law Concerning Spoliation of Evidence
The act of spoliation refers to destruction of evidence relevant to a case. Buckeye Ret. Co. v. Bank of Am., N.
A., 239 S.W.3d 394, 401 (Tex. App.--Dallas 2007, no pet.). Trial courts have broad discretion in taking
measures to address spoliation of evidence that include "measures ranging from a jury instruction on the
spoliation presumption to, in the most egregious cases, death penalty sanctions." Trevino v. Ortega, 969 S.W.
2d 950, 953 (Tex. 1998). "As with any discovery abuse or evidentiary issue, there is no one remedy that is
appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the
particular facts of each individual case." Id.
The inquiry as to whether a spoliation sanction or presumption is justified requires a court to consider (1)
whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3)
whether the spoliation prejudiced the non-spoliator's ability to present its case or defense. Adobe Land Corp.,
236 S.W.3d at 357; Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex. App.--Houston [1st Dist.]
1998, no pet.).
SPOLIATION
Under Texas law, there are three elements to determine if spoliation of evidence has occurred: "(1)
whether the accused party had a duty to preserve the evidence; (2) whether the accused party
negligently or intentionally spoliated evidence; and (3) whether the spoliation prejudiced the other
party's ability to present its case or defense." Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654,
666 (Tex. App.—Houston [1st Dist] 1998, no pet.) (citing Trevino v. Ortega, 969 S.W.2d 950,954-55
(Tex. 1998)).
Sanctions for Spoliation of Evidence
Sanctions are imposed to prevent abuse of the judicial system. Chambers v. NASCO, Inc., 501 U.S.
32, 44-45 (1991) (Included in a federal court's inherent powers is "the ability to fashion an appropriate
sanction for conduct which abuses the judicial process."). The Court may sanction bad faith conduct
through its inherent powers, by statute, or through the rules of procedure. Id. at 50. Where a party's
conduct is of such a disturbing nature that it is not adequately redressed through the rules, a court may
rely on its inherent powers to impose sanctions. Carroll v. The Jaques Admiralty Law Firm, P. C., 110
F.3d 290, 292 (5th Cir. 1997). However, there must be a specific finding that a party acted in bad faith
to impose sanctions through the Court's inherent powers. Toon v. Wackenhut Corr. Corp., 250 F.3d
950, 952 (5th Cir. 2001). "If a party with a duty to preserve evidence fails to do so and acts with
culpability, a court may impose appropriate sanctions." Smith, 365 B.R. at 681; see also Consol.
Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. 2006).
SPOLIATION / SANCTIONS CASELAW FROM HOUSTON
Clark v. Randalls Food (Tex.App.- Houston [1st Dist.] Feb. 25, 2010)(Jennings)
(premises liability suit, spoilation of evidence claim rejected, video recording of incident not preserved)
AFFIRM TC JUDGMENT: Opinion by Justice Elsa Alcala
01-08-00732-CV Ralph Clark v. Randalls Food
Appeal from 157th District Court of Harris County
Trial Court Judge: Hon. Randy Wilson
Carpenter v. The Kroger Co. (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Nuchia)
[premises liability, summary judgment, spoliation]
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice
Nuchia
Before Justices Nuchia, Keyes and Higley
01-06-00087-CV Suzanne S. Carpenter v. The Kroger Company and/or The Kroger Co.
Appeal from 113th District Court of Harris County (Hon. Patricia Hancock)
Discovery and Trial Sanctions
.
01-03-00034-CV
In issue 11, Long contends that United waived any complaint regarding the conduct by Long that the trial court
concluded was sanctionable because United was aware before trial of the sanctionable conduct and failed to
bring its challenges prior to trial. In issue 12, Long asserts that the trial court abused its discretion in ruling that
Long pay $45,000 to United as a sanction because (1) United did not raise its claim for sanctions until after the
trial began, (2) Long did not introduce the documents in question into evidence at the trial, but rather objected
to their introduction, and (3) the trial court’s conclusions are erroneous and unfounded.
“Failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes
waiver of any claim for sanctions based on that conduct.” Remington Arms Co. v. Caldwell, 850 S.W.2d 167,
170 (Tex. 1993) (holding that when party is aware of pretrial misconduct, such as abuse of discovery, party
must request pretrial hearing and ruling, or party waives right to complain about misconduct). Although a party
may not have conclusive evidence of misconduct until after the commencement of trial on the merits, a party’s
failure to obtain a pretrial ruling concerning pretrial misconduct, of which it is aware, results in waiver of the
right to complain about the pretrial misconduct. Meyer v. Cathey, 167 S.W.3d 327, 333 (Tex. 2005) (holding
that although Meyer obtained conclusive proof of misconduct during trial, Meyer failed to preserve claim for
sanctions by not objecting prior to trial because Meyer was aware from deposition testimony that Cathey made
false representations during discovery concerning content of resume). A party does not lose its right to obtain
sanctions during or after trial, however, when the party was unaware of the objectionable matter prior to trial or
when the objectionable matter occurred after the commencement of trial. Id.
The first mention of a motion for sanctions that appears in the record occurred on the second day of the jury
trial, when United asked the trial court to sanction Long for injecting false documents into discovery. Long’s trial
attorney responded to the motion for sanctions by asserting that it was brought untimely and was a surprise to
him. In explaining that he had not had time to prepare a response to United’s motion for sanctions, Long’s trial
attorney stated, “This is the first I’ve ever heard of a sanction motion, so I haven’t had time to prepare a
response to that.” The trial court responded to Long’s objections by stating, “Then you would not object to the
Court carrying this along and ruling at the conclusion of the jury verdict?” Long’s trial attorney then agreed to
address the sanctions issue after the receipt of the jury’s verdict. Most importantly, this discussion did not
occur until the second day of trial.
After the jury’s verdict, United filed its first written motion for sanctions requesting sanctions in an amount of
$75,000 for Long’s production of falsified documents during discovery. Footnote About two weeks later, United
filed an amended motion for sanctions that added assertions regarding Long’s conduct during trial.
Footnote The trial court held a hearing on the sanctions motion on September 20, 2002. At that hearing,
the court inquired whether any pretrial motion for sanctions was made by United, because the court’s file did
not contain a written pretrial motion for sanctions. A discussion then ensued about whether an oral motion for
sanctions was made prior to the commencement of trial. The record shows, as follows:
[The Court]: I had requested the parties to look for a Motion for Sanctions because I recalled one being
presented to the Court. There is no written Motion for Sanctions in the file. The Motion for Sanctions is one that
was made orally prior to the beginning of the trial. I at that time instructed the parties that I would take it up
posttrial and would not take it up during the trial. Mr. Scully, is that your recollection?
[Long’s attorney]: I don’t remember the substance of the Motion for Sanctions but I do remember Mr.
McCormick raising the issue prior to trial.
[The Court]: And that I refused to accept it at that time?
[Long’s attorney]: I believe that’s correct, Your Honor.
[The Court]:Is that your understanding, Mr. McCormick?
[United’s attorney]:Yes, Your honor; I just don’t remember the timing of it, Your Honor, when it was made.
[The Court]: I think it was just before I was about to bring in the jury for voir dire, which is not a good time to
bring a motion before the Court.
After determining that an oral motion for sanctions was made before the commencement of trial, the trial court
conducted an evidentiary hearing, at which Long and United’s attorney each testified. Long’s testimony at the
sanctions hearing acknowledged that before trial, no one, other than his own attorneys, was aware of his belief
that Exhibit 38 did not contain his original correspondence. Footnote
After the hearing, the trial court’s judgment ordered sanctions in the amount of $45,000.00 against Long for his
pretrial conduct that consisted of injecting forged documents upon the trial court in an attempt to avoid
payment of a legal debt and submitting other forged documents during the discovery process in this case and
his conduct during trial that consisted of denials, for the first time at trial, that the signature on the original
documents was his signature. Footnote
Two of the grounds for the imposition of sanctions in the trial court’s judgment plainly reference conduct that
occurred pretrial—the tendering of forged documents to avoid payment of a legal debt and submitting forged
documents during the discovery process. Because United was aware of these discovery abuses before trial,
United was required to obtain a pretrial ruling to avoid waiving its right to complain about sanctions for the
pretrial conduct. See Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170.
The record shows, however, that the trial court refused to hear and refused to rule on an oral pretrial motion
for sanctions made by United. But the record does not show the substance of United’s oral pretrial motion. We
cannot discern from the record before us that the trial court refused to hear, consider, or rule on the same
grounds for sanctions that were later asserted during trial. We conclude that United did not preserve its
pretrial, off-the-record oral motion for sanctions because it did not obtain a pretrial ruling on the issue of
fraudulent documents produced during pretrial discovery. Further, we hold that the trial court’s refusal to rule
on any oral pretrial motion for sanctions does not excuse United’s failure to make a record as to the basis for
sanctions, because the record does not show the substance of that motion on which the trial court refused to
rule and that the motion could have pertained to conduct other than the issue of the fraudulent documents.
The record suggests that the motion for sanctions concerning the injection of forged documents through
pretrial discovery was first made during trial rather than pretrial. On the second day of trial, when United asked
the trial court to sanction Long for injecting false documents during discovery, Long’s trial attorney responded
by asserting that United’s motion for sanctions was brought untimely and that “This is the first I’ve ever heard of
a sanction motion, so I haven’t had time to prepare a response to that.” Thus, even if we were to conclude that
United raised its motion for sanctions at that point, this did not occur until the second day of trial, which was
untimely. Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170. Although Long’s attorney
agreed to defer discussion of the motion for sanctions from mid-trial to posttrial, that agreement was made after
an objection to the timeliness of the sanctions motion. Regardless of whether the sanctions issue was
discussed when it was first brought by United’s trial attorney on the second day of trial or whether the sanctions
matter was discussed after the jury trial by agreement of the parties, the motion was untimely asserted under
Remington Arms and Meyers because the motion, which pertained to pretrial discovery complaints, should
have been brought pretrial. Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170. We therefore
conclude that Long’s agreement to defer the discussion from mid-trial to posttrial does not constitute waiver of
his complaint that the sanctions motion concerning pretrial conduct was untimely asserted.
Part of the judgment for sanctions, however, was premised on Long’s denial for the first time at trial that the
signature on the documents was his signature, conduct that occurred after the commencement of trial.
Conclusion of Law number two states that “The assertion by defendant at trial and the sanctions hearing that
Exhibit 38 did not contain the documents that were tendered by the defendant as original documents pursuant
to a Motion to Secure Evidence interfered with the orderly and proper administration of justice, defiled the
institution of the judiciary, delayed trial of this cause, and needlessly increased the expenses of litigation.”
Footnote
When a trial court uses its inherent powers to sanction, the trial court’s discretion is limited in the following
ways: (1) there must be a direct relationship between the offensive conduct and the sanction imposed; and (2)
the sanction imposed must not be excessive. Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex. App.—Dallas
1993, writ. denied); State v. PR Investments & Specialty Retailers Inc., 180 S.W.3d 654, 673 (Tex. App.—
Houston [14th Dist.] 2005, no pet. h.). In other words, the punishment should fit the crime; the sanction must be
directed against the abuse and toward remedying the prejudice caused to the innocent party. Id. Because we
have concluded that United waived its right to assert the pretrial complaints that resulted in sanctions, we
further conclude that the trial court must reassess the sanctions imposed to address only the sanctionable
conduct that occurred after the commencement of trial. Moreover, we note that United presented the same
evidence regarding false documents produced by Long as a basis for the jury to award punitive damages. The
jury did so, and thus, United relies on this evidence to support the jury’s award of punitive damages against
Long. We therefore reverse the $45,000 sanctions award for redetermination in light of the holdings in this
opinion.
In issue 12, Long asserts that the trial court abused its discretion by ordering Long to pay United $45,000 as a
sanction because United did not raise its claim for sanctions until after the trial began. For the reasons
explained above, we sustain that portion of issue 12 that complains about the untimeliness of the sanctions
award concerning pretrial misconduct. Within issue 12, Long also asserts that he did not introduce the
documents in question into evidence at the trial, but rather objected to their introduction. The record reflects
that United’s attorney offered the documents into evidence to show Long’s pattern of deception to avoid
payment for the debt. Although United’s attorney offered the documents into evidence, the imposition of
sanctions was for Long’s conduct during trial for denying for the first time at trial “that the signature on the
documents was his signature.” Long also contends within issue number 12 that the trial court’s conclusions are
erroneous and unfounded. Long has not included any argument as to issue 12 to support his assertions within
the one and one-half pages that constitute the argument section of his entire brief. To the extent that Long is
challenging the trial court’s conclusions of law, Long’s failure to explain his assertion constitutes waiver of that
issue in this appeal. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
Long v. United Welding Supply (Tex.App.-Houston [1st Dist.] May 25, 2006)(Alcala)
[untimely motion for discovery sanctions, same pre-trial conduct already basis for exemplary damages,
sanctions award remanded for redetermination]
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Alcala
Before Chief Justice Radack, Justices Alcala and Bland
01-03-00034-CV Robert Long d/b/a MWT v. United Welding Supply, Inc.
Appeal from Co Civil Ct at Law No 1 of Harris County (Judge Jack Cagle)
We reverse the portion of the judgment awarding sanctions to United and remand the cause for
redetermination of sanctions after consideration of conduct that occurred only after the commencement of trial.
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