Preserve evidence (Texas)
The duty to preserve starts before the lawsuit does. Texas has its own spoliation framework — get the litigation hold right and you protect the case; miss it and the remedy is the court's to set.
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.
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) — anchor (verify before citing)
Spoliation — the Texas framework
Under Brookshire Brothers the trial court, not the jury, decides spoliation: (1) whether a party had a duty to preserve, (2) whether it breached that duty by intentionally or negligently failing to preserve, and only then (3) the remedy. A spoliation instruction is reserved for intentional destruction (or the rare negligent case that irreparably deprives the other side of any meaningful ability to present a claim/defense). Remedies scale to the culpability and the prejudice — the harshest are last, not first.
Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014) — anchor
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, L.P., 295 S.W.3d 309 (Tex. 2009) — anchor · Tex. R. Civ. P. 196.4, 192.4
The litigation-hold checklist
- ☐ 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).
Anchors are pointers — verify each opinion before citing. This is legal information, not advice; whether and how to preserve in your matter is your call or a licensed attorney's.