Evidence Preservation and Spoliation in Texas Wrongful Death Cases

Case-folder and city-skyline cover for the Texas wrongful-death claims guide.

Missing recordings vehicles and records before trial

A missing recording or a dismantled vehicle can change a wrongful death case, but a sanction isn't guaranteed. Protect the evidence early, and document any loss precisely.

• Duty and breach: Brookshire Brothers Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), has the court examine the duty to preserve and its breach before choosing a remedy.
• How it was lost. Automatic overwrite, deletion, repair and deliberate destruction lead to different remedies. Petroleum Solutions Inc. v. Head, 454 S.W.3d 482 (Tex. 2014), applies the same framework, so check its later treatment before relying on it.
• What harm resulted. List what remains, such as a second recording, an eyewitness, photos or an agency measurement, before arguing the case can't be tried.

Follow the item through every transfer

• A vehicle can move from police custody to a tow yard, an insurer, a repair shop and a salvage buyer. A letter to one doesn't stop another.
• For a company system, find out who the vendor is, who administers it and what the retention settings are.

Build an evidence preservation plan that can be carried out

• Be specific about the incident date, place, equipment and time window, and agree on an inspection protocol before anyone touches a vehicle or part.
• Agree on an inspection protocol before anyone touches a vehicle or part.

Design discovery around the proof that remains missing

• Texas Rules of Civil Procedure 192 and 193 govern scope and responses. A fatality doesn't make every corporate file discoverable.
• For electronic data, see Rule 196.4 and In re State Farm Lloyds, 520 S.W.3d 595 (Tex. 2017). Ask for native files only for a reason, such as metadata.
• Access to an opponent's system is limited by In re Weekley Homes LP, 295 S.W.3d 309 (Tex. 2009).

Discuss the work your family claim requires

This work helps the firm decide what to preserve now and what the family should decide first.

Aaron A. Herbert is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. His trial history is on the firm's published background page, and reported recoveries are on its case results page. Compare them with what your own case needs. Results differ because facts, proof, law and insurance differ.

To talk with the firm, request a free consultation with The Law Firm of Aaron A. Herbert PC or call 214 200 4878. Mention the incident and death dates, any deadline coming up, and whether anyone has offered a release or is about to repair or dispose of evidence. Ask who would handle your matter and how fees and expenses work.

Attorneys and referral partners can use the same contact information. Confirm the firm has accepted the matter before handing off responsibility. See also the Texas Wrongful Death Knowledge Hub and Texas Wrongful Death Claims and Litigation Strategy.

Related resource: Investigating a Fatal Accident in Texas.

Families who need grief programs, funeral and survivor benefit help, or a needs assessment can use our Wrongful Death and Family Support Center.

Legal sources

Texas Civil Practice and Remedies Code chapter 71 sections 71.002 through 71.011 and 71.021.

Brookshire Brothers Ltd v Aldridge 438 SW3d 9 Tex 2014, discussed in Petroleum Solutions Inc v Head.

Petroleum Solutions Inc v Head 454 SW3d 482 Tex 2014 discussing Brookshire Brothers.

In re State Farm Lloyds 520 SW3d 595 Tex 2017.

In re Weekley Homes LP 295 SW3d 309 Tex 2009 discussed in In re State Farm Lloyds.

Texas Rules of Civil Procedure current official edition.

Texas Rules of Evidence and Appellate Procedure current official index.

This material provides general information about Texas law. The applicable facts, law, policy, court orders, and procedural posture govern each matter. Hypothetical examples illustrate analysis rather than reported firm cases.