Deleted Emails and Lost Data: Spoliation Consequences in Texas

What spoliation is

Spoliation is the destruction, alteration or loss of evidence that a party had a duty to preserve. In business disputes it almost always means electronic data: emails, text messages, chat threads, files on a laptop, accounting entries, server logs, a CRM record. It can be deliberate, such as wiping a phone before handing it over. More often it is routine: a 90-day auto-delete setting, a departing employee's account closed by IT, a laptop reimaged for the next hire.

The law treats the two differently, but both have consequences. This article explains the Texas framework, the federal rule, and what to do when data is already gone.

When the duty to preserve begins

In Brookshire Brothers, Ltd. v. Aldridge, decided in 2014, the Texas Supreme Court set out the governing framework. The duty to preserve arises when a party knows or reasonably should know that there is a substantial chance a claim will be filed and that evidence in its possession or control will be material and relevant to that claim. A "substantial chance" means more than an abstract possibility; it means litigation is reasonably likely.

In practice that moment often comes well before a lawsuit is filed:

• when a demand letter arrives or is sent;
• when a customer disputes an invoice in terms that threaten legal action;
• when a key employee resigns and the company suspects data was taken;
• when a partner accuses another of misusing funds;
• when a litigation hold letter is received.

The duty covers evidence the party controls, including data held by employees on company accounts and, in many cases, data held by vendors on the company's behalf. It extends to the people likely to have relevant information, not just the owner.

How Texas courts decide a spoliation complaint

Under Brookshire Brothers, spoliation is a question for the trial judge, decided outside the presence of the jury. The court makes two findings: whether the party had a duty to preserve the evidence and breached it, and if so, what remedy fits. Evidence of the spoliating conduct itself is generally kept from the jury, because an accusation of destroyed evidence can swamp the actual merits of the case.

The remedy must be proportionate. The court weighs the level of culpability (negligent or intentional) and the degree of prejudice to the other side, including whether the lost evidence can be replaced from another source, and it must consider lesser remedies before imposing severe ones.

Sanctions under Rule 215

Texas Rule of Civil Procedure 215 supplies the tools. A court may award the expenses and attorney's fees caused by the failure, order that certain facts be taken as established, refuse to let the spoliating party support or oppose designated claims or defenses, exclude evidence, strike pleadings, dismiss the case or render a default judgment, or hold the party in contempt. For negligent loss the usual remedies are fees, exclusion of related evidence, or an order that the party cannot contest a fact the lost evidence would have shown.

The spoliation instruction

The most feared remedy is an instruction telling the jury that it may presume the missing evidence would have been unfavorable to the party that lost it. Brookshire Brothers limited it. A spoliation instruction is available only when the court finds the party acted intentionally, meaning with the subjective purpose of concealing or destroying discoverable evidence, or in a negligence case only when the loss irreparably deprived the other side of any meaningful ability to present a claim or defense. Negligent deletion that leaves other proof available does not justify the instruction.

The federal rule: Rule 37(e)

In federal court, including the Northern District of Texas, lost electronically stored information is governed by Fed. R. Civ. P. 37(e). Three prerequisites apply: the information should have been preserved in anticipation or conduct of litigation, the party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. If those are met, the court may order measures no greater than necessary to cure the prejudice. Only on a finding that the party acted with the intent to deprive another party of the information's use may the court presume the information was unfavorable, instruct the jury that it may or must so presume, or dismiss the action or enter a default judgment. Negligence, even gross negligence, does not support those severe measures.

The Texas and federal frameworks reach similar places by different paths, and both reward a company that took reasonable preservation steps even if something was still lost.

What counts as reasonable steps

A company that can show it did the following is in a very different position from one that did nothing:

• Issued a written litigation hold to the people likely to have relevant information, describing what to keep.
• Suspended automatic deletion for those people's email, messaging and file accounts.
• Preserved the accounts and devices of anyone who had left or was leaving, before reassignment or wiping.
• Identified where data lives outside email: phones, chat tools, shared drives, accounting software, cloud services, personal devices used for work.
• Documented who was told, when, and what was done.

What a litigation hold letter requires sets out the process step by step, and what evidence to save before suing covers the plaintiff's side.

If data has already been deleted

The instinct to say nothing is the wrong one. Concealing a loss turns a negligence problem into an intent problem, and in Texas tampering with evidence in connection with a pending or anticipated official proceeding can be a crime under Penal Code Section 37.09. The right steps are:

1. Stop any further deletion immediately and preserve what remains.
2. Tell your lawyer exactly what was lost, when, how and by whom.
3. Find out whether it can be recovered: backups, the recipient's copy, the cloud provider's retention, a forensic examination of the device. Much "deleted" data is recoverable, and a replaced document is not spoliation under either framework.
4. Let counsel decide how and when to disclose the loss to the other side. Early, accurate disclosure through counsel is usually far less damaging than discovery of a cover-up in a deposition.

When the other side has deleted evidence

The same rules work for you. Signs of spoliation include gaps in email production around key dates, missing text threads where the other side's own documents reference texts, a phone "replaced" shortly after the dispute began, or metadata showing files edited after the hold date. The tools to prove it are discovery itself: interrogatories about retention policies and devices, a deposition of the company's IT custodian, requests for backups and logs, and, with a court order, forensic imaging of a device. Investigating a departing employee's devices and accounts covers what an employer may examine and how.

A motion for spoliation sanctions should ask for a remedy proportionate to what was lost and should show prejudice concretely: what the missing evidence would have shown and why nothing else can show it.

Example

Suppose a Dallas distributor sues a former sales manager for taking customer pricing to a competitor. The manager, after receiving the demand letter, performs a factory reset on the personal phone he used for work texts. In the lawsuit the distributor proves the reset date from the carrier's records and shows that the manager's own emails reference texts with the competitor in the week before he left. The trial court, outside the jury's presence, finds the manager knew a claim was likely, controlled the phone, and wiped it with the purpose of destroying the texts. That finding supports a spoliation instruction, and the jury is told it may presume the texts would have been unfavorable to him. Had the phone instead been lost before the demand letter, with no reason to anticipate a claim, there would be no breach of duty at all.

Tina Wysk handles trade secret, partnership and contract cases in which electronic evidence and its preservation decide the outcome, in Dallas state and federal courts.