Spoliation of Evidence in a Texas Dram Shop Case

In Texas dram shop cases, victims of alcohol-related injuries and fatalities (like drunk driving accidents) can sue the bar or restaurant that over-served the wrongdoer. Central to a dram shop case is being able to prove that the bar violated the Texas Dram Shop Act and did not follow certain rules established by the TABC. In order to do this, it's important that all evidence pertaining to the case is available and that nothing be destroyed or lost.

But some bars (many, in fact) react to being sued by tampering with or destroying evidence that might prove their liability or negligence. In this article, Texas dram shop attorney, Michael Grossman explains how spoliation of evidence is addressed under Texas law, and how an attorney can keep defendants from destroying or failing to preserve evidence.

Questions Answered on This Page:

• What exactly is spoliation of evidence?
• What is a spoliation of evidence letter?

Why stopping spoliation is so important.

In dram shop cases, it is the plaintiff's burden to prove that the defendant bar sold, served, or provided alcohol to someone who was obviously intoxicated. And as with any other case, be it criminal, business, or personal injury, this must be done with evidence. In our nearly 30 years of practice, we've never seen a bar voluntarily admit that they violated the dram shop act and confess that they served too much alcohol to a patron, which means obtaining evidence that they did so is the only reliable way to hold them accountable.

Texas law and the rules of evidence recognize that allowing parties to a lawsuit equal access to critical evidence is vital for the court to perform its primary function. The way the court sees it, the right of both parties to a lawsuit to obtain, analyze, and challenge evidence that may be relevant to their case is an inviolable right that the court has an obligation to enforce. Make no mistake about it: if a bar or restaurant has evidence that may be detrimental to the case against them, they must not be allowed to destroy or tamper with it.

What sort of helpful evidence could the bar have? Here are just a few examples:

• Receipts. The sales receipt for the drinker who caused the accident could well show when their ticket was opened, how much alcohol the bar served, and when their ticket was closed. Evidence that the bar served the patron 7 drinks in an hour and a half, for example, could prove to be a "smoking gun." Bars often tamper with this kind of evidence. The way it normally works is they will hear that one of their customers killed himself or someone else, find their receipts in their system, and delete them.
• Surveillance footage. Many bars have security cameras that scan the bar during business hours. Obviously, if the footage from the day or night in question shows the drinker cavorting about, stumbling, getting into fights, etc., that will prove to be powerful evidence supporting the bar's liability.
• Internal notes, emails, memos, and text messages. After serious accidents, bar employees often communicate formally and informally with each other and management. There are often damaging admissions in these communications.

We want this information, and all the other relevant information, to use in your lawsuit. At the same time, many establishments panic after they get word that one of their intoxicated patrons was involved in a serious accident, and their first instinct is to start destroying evidence. Security camera footage ends up being erased, receipts get shredded, and texts, emails, and electronic communications are deleted.

While establishments are not supposed to destroy evidence once they suspect that it may be used in a case, the game they play is to pretend that they routinely delete electronic communications and surveillance videos and that they toss their receipts every month. How do you combat the destruction of evidence?

How we stop spoliation in dram shop cases.

In the hundreds of dram shop cases we've litigated, the first step we've always taken is sending over what's called a letter of spoliation. This places the bar on notice that they have a legal duty to preserve everything remotely relevant to our case. We take the extra precaution of spelling out exactly what we mean by listing out the specific pieces of evidence we require from the defendant.

You may be thinking, "So what? Can't they just ignore you?" Sure, but here's the rub: if they willfully destroy evidence, they face serious sanctions from the court. We've had cases where the judge fined the defendant tens of thousands of dollars. We've even had cases where the judge essentially called the case in our favor, a process known as summary judgment. The bottom line is that the bar faces enormous problems if they defy us.

Look at this sample:

Call Grossman Law Offices Today:

The quicker you act, the more evidence you can ensure stays preserved. Without the intervention of an experienced Texas dram shop attorney, it's only a matter of time before all the evidence in your case disappears. To speak with us about your case, call (855) 326-0000 today.

We have over 25 years of experience handling dram shop cases in the state of Texas, and we're confident we can put you in the best possible position to win your case. Give us a call today.

Other articles about Texas dram shop cases that may be helpful:

• Who Is Allowed to Bring a Dram Shop Claim in Texas?
• When Does Dram Shop Law Apply to Private Parties?
• Using the Amount of Alcohol Consumed as Evidence of Serving an Obviously Intoxicated Person