In Texas, spoliation is an evidentiary concept not a separate cause of action. Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998).  A spoliation determination involves a two step judicial process.  First, the trial court must determine, as a question of law, whether a party spoliated evidence.  In order to conclude that a party spoliated evidence, the court must find that the spoliating party had a duty to reasonably preserve evidence and that the spoliating party intentionally or negligently breached that duty by failing to reasonably preserve evidence.  Brookshire Brothers, Ltd. v. Jerry Aldridge, 439 S.W.3d 9 (Tex. 2014).  Second, if it is determined that spoliation occurred, the court has broad discretion in the assessment of a remedy as long as the remedy directly relates to the conduct that is the subject of the litigation. Id. at 23-26.  

The considerations that go into whether this remedy is provided include the level of culpability of the spoliating party and the degree of prejudice suffered by the non-spoliating party. Id.  A spoliation determination and the appropriate sanctions are to be determined by the trial judge outside of the presence of the jury as to avoid unfairly prejudicing the jury by the presentation of any evidence that is unrelated to the facts underlying the lawsuit. Id.  Moreover, any evidence that addresses directly whether a party spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit. Id.  The inquiry regarding whether a spoliation sanction or presumption is justified requires a court to consider the following: (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliating party breached that duty to preserve evidence; and (3) whether the spoliation prejudiced the non-spoliating party's ability to present its case or defense. Miner Dederick Construction, LLP v. Gulf Chemical & Mettallurgical Corp., 403 S.W.3d 451, 465 (Tex. App.-Houston [1st. Dist.] 2013, pet. denied).  

The duty to preserve evidence is not raised unless a party knows or reasonably should know that there is a substantial chance that a claim will be filed and the evidence is relevant and material. Id.  A party knows or reasonably should know that there is a substantial chance that a claim will be filed if a reasonable person would conclude from the severity of the incident, and other circumstances surrounding the incident, that there was a substantial chance for litigation at the time of the alleged spoliation. Id.  Although a party that has a duty to preserve evidence need not take extraordinary measures to preserve the evidence, the party does have a duty to exercise reasonable care in the preservation of potentially relevant evidence. Trevino v. Ortega, 969 S.W.2d 950, 957 (Tex. 1998).  A spoliating party can defend against an assertion of negligent or intentional destruction by providing explanations to justify its failure to preserve evidence. Miner Dederick Construction, 403 S.W.3d at 466.  A party's claim that the evidence was destroyed in the ordinary course of business will not excuse the obligation to preserve when the party's duty to preserve the evidence arises before the destruction. Id.  

If the trial court finds that spoliation has occurred, the trial court may submit a spoliation instruction only if it finds (1) the spoliating party acted with intent to conceal discoverable evidence, or (2) the spoliating party acted negligently and caused the non-spoliating party to be irreparably deprived of any meaningful ability to present a claim or defense. Brookshire Brothers, at 23-26.  A common jury instruction for spoliation provides: You, the jury, are instructed that Party A destroyed, lost, or failed to produce to this Court material evidence that by law should have been produced as evidence for your deliberations. You are further instructed you may, but are not required to, presume this evidence is unfavorable to Party A.