In MRT, Inc., et. al. v. Vounckx, et. al., 2009 Tex. App. LEXIS (Ct. App. Tex. Dallas Oct. 30, 2009), Judge Joseph B. Morris writing for the majority upheld the trial court's ruling and rejected plaintiffs' requested spoliation instruction based on defendant IMEC's destruction of back-up tapes during litigation.

The case was predicated upon plaintiffs' claims that defendants allegedly misrepresented and failed to disclose information regarding a loan and guarantee funds for the purpose of marketing a new jointly developed micro-electronic technology.  At trial, in addition to the jury's verdict, the trial court rendered a "take-nothing" judgment in favor of the defendants. On appeal, plaintiffs raised several issues including defendant IMEC's failure to produce back-up tapes pursuant to Texas Code of Civil Procedure 196.4. The court ruled that plaintiffs failed to specifically request information or even refer to the backup tapes as required by the statute and that the parties failed to discuss their electronic information systems prior to the document request. 

The appellate court, citing the Texas Supreme Court's recent opinion In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. August 28, 2009) noted that specificity requirement of rule 196.4 is designed to ensure requests for electronic information are clearly understood and disputes avoided. Acknowledging cooperation and agreements between parties and their attorneys as a fundamental tenet of our discovery rules, the Weekley court stated that before tendering requests for electronic information, parties should share relevant information concerning electronic systems and storage methodologies so that agreements regarding protocols may be reached and trial courts have the necessary information to rule on discovery issues when the parties cannot agree.   Here, the parties did not exchange information about their electronic systems and, according to the court, had different expectations of what the various requests for electronic discovery entailed, resulting in much confusion and multiple discovery motions before the trial court. The appellate court held that defendant IMEC had no duty to object to the production of back up tapes because plaintiff's document request did not identify back up tapes specifically as a source of information for production.

The appellate court rejected plaintiffs' contention that it was denied a needed to continuance to search backup tapes for potentially relevant information holding that plaintiff had previously turned down the court's offer to continue to continue that case.  The court also rejected plaintiffs' claim that IMEC spoliated evidence when it destroyed its pre-2000 backup tapes. As a foundation for the submission of the spoliation instruction, the party requesting the instruction bears the burden of establishing that the alleged spoliator had a duty to preserve the evidence because it knew or reasonably should have known that there was a substantial chance that a claim would be filed and the evidence in the party's possession or control would be material and relevant to the claim.  Here, although, defendant destroyed the backup tapes after plaintiff filed their lawsuit, there is no evidence to suggest that the information on the backup tapes that was material and relevant to the case.