Quick answer
Missing video is not automatically unlawful destruction of evidence. Texas courts ask whether Walmart had a duty to preserve the material, whether it breached that duty and what prejudice followed. A routine overwrite policy does not necessarily excuse a loss once preservation duties apply. Equally, the fact that someone fell does not prove that every camera recording had to be kept. Identify what was recorded, what was lost, when the loss occurred and what Walmart knew about the potential claim at that time.
A customer asks for the store video and is told it is no longer available. Before treating that answer as proof of spoliation, find out what “no longer available” means. Was nothing recorded? Was a recording overwritten? Was a clip saved somewhere else? Does the person answering know?
Those are different situations. The Walmart knowledge hub explains the underlying injury claim; this article concerns the separate problem of lost evidence.
Why the Aldridge decision matters
In Brookshire Brothers, Ltd. v. Aldridge, 438 S.W.3d 9 (Tex. 2014), a grocery store retained a short recording of a customer's fall but did not preserve a longer period of footage. The Supreme Court used the case to explain how Texas courts should decide spoliation questions.
The judge decides whether evidence was improperly lost and what to do about it. A missing recording does not carry an automatic presumption against the store.
For a jury instruction on spoliation, Aldridge generally requires intentional destruction. Its narrow negligence exception concerns a loss so damaging that a party can no longer meaningfully present a claim or defense.
What could trigger a duty to preserve?
The facts known to the store matter. Under Aldridge, the inquiry includes whether a party knew or reasonably should have known there was a substantial chance of a claim and that the evidence would be material and relevant to it. A lawyer must apply that standard to the actual circumstances.
A detailed preservation request can help establish what was brought to the recipient's attention. Keep the request and delivery information. But do not assume that a duty can arise only after a letter, or that sending a broad letter proves every requested item had to be retained.
Put the overwrite date alongside the incident report, claim notice and letter-delivery dates. Leave a blank for any date the records do not establish.
Establish the recording's history
Start with camera coverage. A ceiling camera near the aisle may face somewhere else. A person familiar with the system can explain what it recorded, its retention settings and how exports were made. Do not assign a universal retention period to Walmart; the relevant system and circumstances need to be established.
Next, identify saved copies. A short clip may have been exported for an incident report, an insurer or counsel, even if the source recording later disappeared. Ask who selected the clip and its start and end points. Earlier footage can matter to constructive notice, so a recording of the fall alone may leave an important gap.
Keep file names, transmission messages and available export information. If a copy has been converted, find out what changed. A missing timestamp on a copy is not necessarily a missing timestamp in the source.
What question can no longer be answered?
Identify the missing event on the timeline: the spill appearing, an inspection, or a cone being placed. Then check the surviving cameras and witnesses. If they supply the same information, that bears on how much harm the loss caused.
A saved clip might show the fall but nothing of the previous hour. Describe that gap as a gap. Nobody can honestly say what the unseen hour would have proved.
Keep the response and the remaining evidence
“We will not release it” does not mean “we deleted it.” Save the actual response for counsel. While the video issue is investigated, keep photographs, witness contacts and inspection records. Those may support the injury claim even without a recording.
For the broader litigation process, read How to Litigate a Walmart Injury Case in Texas.
Discuss a Texas Walmart injury claim
Contact The Law Firm of Aaron A. Herbert, P.C., at (214) 200-4878 or request a consultation. Free consultation. No fees or expenses unless you recover.
This is general information about Texas law, not advice for a particular case. Reading it does not create an attorney-client relationship. Deadlines, available evidence and the applicable legal duties depend on the facts.
ABOUT THE ATTORNEY
Aaron A. Herbert
Founding Attorney
Board Certified in Personal Injury Trial Law
Aaron founded The Law Firm of Aaron A. Herbert in 2010 to focus on developing each client's case and seeking its maximum value. For over a decade, he has represented people seriously injured in major accidents and industrial catastrophes, pursuing trial verdicts and settlements while working to reduce the stress of litigation.
Education
- Texas A&M University · B.S., Criminal Justice, 1999
- University of Oklahoma College of Law · J.D., 2002; graduated in the top of his class
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers
Trial experience & approach
Aaron earned numerous jury verdicts at boutique personal injury litigation firms. According to his biography, he spent a year as the top-earning litigation attorney at a firm that frequently appeared in verdict searches as having one of the highest numbers of trial wins in Texas. At another Dallas personal injury firm, he moved from managing pre-litigation attorney to managing litigation attorney over seven years as the firm grew into one of Dallas's largest personal injury firms.
His biography describes a reputation as one of America's most aggressive trial lawyers, with noteworthy recoveries from judges and juries and substantial pretrial settlements. Most of those settlements included confidentiality agreements requested by the defense. Aaron has said the recoveries were justified by the injuries and losses involved, which no amount of money could make someone choose to experience.
His approach combines passion, preparation, persistence and courtroom imagination. He believes a well-supported, engaged and motivated team working cooperatively helps deliver strong representation, with the goal of achieving the best possible result for every client.
Dallas roots, military service & publication
Born and raised in Dallas, Aaron enlisted in the United States Marine Corps after high school and later received an Honorable Discharge. He completed his university and law degrees after his military service and became a lifelong Sooners football fan in law school.
Publication: “Litigating Dog Bite Cases,” Texas Dog Law Seminar, Dallas, 2009.
Professional affiliations & recognition
Professional affiliations and recognition listed in Aaron’s biography:
- State Bar of Texas
- American Bar Association
- Association of Trial Lawyers of America (now American Association for Justice)
- Texas Trial Lawyers Association
- Dallas Trial Lawyers Association
- Dallas Bar Association
- Tarrant County Bar Association
- Million Dollar Advocates Forum
- The National Trial Lawyers – Top 100 Trial Lawyers
