Evidence starts at the incident
The most common evidence failure in litigation happens before any lawyer is hired: the footage overwrites, the vehicle gets repaired, the thread gets deleted. This desk teaches what the Texas doctrine actually says — in the Supreme Court's own pinned sentences — what tends to disappear first, and which lawful doors exist for evidence someone else holds. It does not conclude that anyone owes a duty, draft a demand, or pick a route: preservation STRATEGY is a licensed Texas attorney's work, and every card below routes there.
Spoliation in the Court's own sentences
When the duty arises — the Court's own trigger
The preservation duty is not triggered by an abstract possibility of a lawsuit. The Supreme Court of Texas states the standard itself:
“substantial chance that a claim will be filed and that evidence in its possession or control will be material and relevant to that claim”
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) — pinned, docket 10-0846 →
The judge decides — as a question of law
Spoliation is not argued to the jury first. The Court's two-step process belongs to the bench:
“a spoliation analysis involves a two-step judicial process: (1) the trial court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the court must assess an appropriate remedy”
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) — pinned, docket 10-0846 →
The instruction threshold — severe, and reserved
The spoliation instruction is not the default remedy. For negligent loss, the Court reserved it for one rare situation, in one sentence:
“A failure to preserve evidence with a negligent mental state may only underlie a spoliation instruction in the rare situation in which a nonspoliating party has been irreparably deprived of any meaningful ability to present a claim or defense”
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) — pinned, docket 10-0846 →
The ESI layer rides esi and the proportionality lever — Electronically stored information rides Rule 196.4 (request in the form specified) and the Rule 192.4 proportionality limits — and In re Weekley Homes restrains direct forced access to an opponent's devices absent a showing. Preserve broadly; produce proportionally. (In re Weekley Homes is NAMED here, not quoted — it is not pinned in this corpus.)
The zero-hour list — what a party does with its OWN material
- 1Stop deleting — anything, anywhere, including things that look bad. Selective preservation is its own problem.
- 2Do not repair, clean, discard, reset, or sell the thing in dispute — photograph it where it sits.
- 3Do not close, deactivate, or 'clean up' accounts — export archives where the platform offers them.
- 4Write down every place evidence might live and WHO CONTROLS it — yours to preserve, theirs to request.
- 5Capture the perishable first: camera footage on overwrite cycles, message threads, dashcam files.
- 6Keep originals original — work from copies; note dates, devices, and where each file came from.
- 7Whether someone ELSE has a duty to preserve — and what to demand of them — is a lawyer's call. Bring the inventory; counsel brings the strategy.
The source inventory — what disappears, and who controls it
Identify, protect what is yours, and note the controller of what is not. Whether and how to demand preservation from someone else is counsel's call.
Communications
Messages delete themselves on schedules nobody remembers setting — identify the accounts and STOP deletions before anything else.
Social media and the web
Cleaning up a profile mid-dispute is itself evidence — preservation cuts both ways, favorable and not.
Business systems
The system's audit logs are often shorter-lived than the records they explain.
Video and imaging
Retention windows on camera systems are measured in days — the overwrite cycle does not wait for a lawsuit.
Vehicle and telematics data
A repaired, sold, or salvaged vehicle takes its data with it.
Physical items and scenes
Repair, cleaning, and disposal are one-way doors — a changed condition cannot be unphotographed.
Medical and laboratory
Native images and instrument data live behind different doors than the chart.
Institutional files
Third parties owe you nothing without lawful process — the doors below exist for exactly this.
The duty to preserve
The duty to preserve evidence arises when a party knows or reasonably should know that the evidence is relevant to reasonably anticipated litigation. A litigation hold — written, specific, and issued to every custodian and IT holder — is how parties discharge it. The duty reaches paper, ESI, devices, and third-party-held data within the party's control.
- ✓Identify the trigger: when did anticipated litigation become reasonable?
- ✓Issue a WRITTEN litigation hold to every custodian and to IT.
- ✓Suspend auto-delete / retention purges that would reach relevant data.
- ✓Map the data: email, files, devices, cloud, texts, third-party-held.
- ✓Document the hold and re-issue reminders — a hold is a process, not a memo.
- ✓Preserve in native form where metadata matters (the form is a Rule 196.4 fight).
The lawful doors — for evidence someone else holds
A preservation letter is not a subpoena, and a subpoena is not casual. Each door below is shown in the loaded rule's own words — and invoking one is litigation work.
Presuit depositions — Rule 202
Before any suit exists, a court can authorize a deposition — for two stated purposes, on a verified petition, with findings. It is a court-supervised door, not early self-help discovery.
“to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit”
A verified petition with required findings — counsel's filing, start to finish.
Subpoenas — Rule 176
The compulsory instrument for witnesses and things, with its own formalities from the first line.
“Every subpoena must be issued in the name of "The State of Texas"”
Scope, service, and enforcement carry duties to the recipient — attorney-run.
Nonparty discovery — Rule 205
A person outside the case hands nothing over casually — the rule states the only ways.
“A party may compel discovery from a nonparty--that is, a person who is not a party or subject to a party's control--only by obtaining a court order under Rules 196.7, 202, or 204, or by serving a subpoena”
Order or subpoena — the nonparty's protections ride along; counsel navigates both.
Public information — Gov't Code ch. 552
Government-held records travel a PUBLIC door any person can open — the Act's own policy sentence says so.
“each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees”
The one door a self-represented reader can open directly — exceptions and timing still apply, and a denial is a lawyer question.
Native ESI — Rule 196.4
Electronic data must be requested SPECIFICALLY, in a specified form — the rule is why screenshots are not a production strategy.
“the requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced”
Form-of-production fights are discovery practice — counsel's lane.