After Spoliation Decision, Businesses Should Reconsider Limited-Duration Retention Policies

In theory, businesses use limited-duration retention policies to minimize the financial burden associated with retaining and managing electronic data generated in the normal course of business. With respect to litigation, these businesses assume the risk that their retention policies comply with their duties to preserve evidence that may be material and relevant to a claim or defense. A recent decision by the Supreme Court of Texas may cause these businesses to reconsider this risk.

The court’s July 3 decision in Brookshire Brothers, Ltd. v. Aldridge changes the spoliation landscape under Texas law. According to Justice Debra Lehrmann’s majority opinion, in a slip-and-fall case, the grocery store’s surveillance camera captured the plaintiff’s fall. At the time, the grocery store had a standard 30 day retention policy for surveillance footage. After learning of the plaintiff’s injury, the grocery store recorded over all but an eight minute segment of the video, starting just before the plaintiff entered the store and concluding shortly after the fall.