CAUSE NO. CC-20-01579-E
`
`WILLIAM GOFFasPersonal
`Representative of BETTY JO MCCLAIN
`THOMAS, deceased; CHRISTOPHER
`THOMAS,as Guardian of CHARLES
`THOMAS; CINDY RINGNESS;
`CHERYL GOFF; and CHARLOTTE
`GLOVER,
`
`Plaintiffs,
`
`Vv.
`
`ROY JAMES HOLDEN,JR. and
`CHARTER COMMUNICATIONS, LLC,
`
`Defendants.
`
`CanCODCODLODLONLODLODLODLODLODLOD40DLODLON401Um
`
`FILED
`8/26/2022 10:55 PM
`JOHN F. WARREN
`COUNTY CLERK
`DALLAS COUNTY
`
`IN THE COUNTY COURT
`
`AT LAW NO. 5
`
`DALLAS COUNTY, TEXAS
`
`DEFENDANT CHARTER COMMUNICATIONS, LLC’S
`MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
`
`Defendant Charter Communications, LLC (Charter) files its Motion for Judgment
`
`Notwithstanding the Verdict, and showsasfollows:
`
`-|-
`
`

`

`TABLE OF CONTENTS
`
`INTRODUCTION..-cccsssscccsssseccssssssssssssesssssscsssssvecessvecssssusessasssessssssessessscssssssessssssssssasessssasesessseeees 4
`
`ARGUMENT AND AUTHORITIES... cccccecessssesessesesetseseseescsessessseeecsensessseeesaeseesssesesseeeseaees 8
`
`I,
`
`II.
`
`Standards Governing Motions For Judgment Notwithstanding The
`VETICE.. se eceeceseeseeecseeeeecsesseceesevseescseesssaesessessesaeseesessesssaeeessaseesaesaeseeseesessesesaesessecaecaeeasseeaees 8
`
`Giving The Jury A Spoliation Instruction Was In Error Because Plaintiffs
`Presented No Evidence That Charter Had The Specific Intent To Conceal
`Or Destroy Discoverable Evidence, ..0..........:ccceccseesesseseesenseseeseeecaceeseseeesecseseneeseeseneeaeens 8
`
`A.
`
`B.
`
`Like Brookshire, Charter’s inadvertent failure to preserve more
`video does not demonstrate a specific intent to conceal or destroy
`discoverable evidence necessary to justify a spoliation instruction............. 8
`
`Plaintiffs failed to provide legally sufficient evidence that Charter
`destroyed the remaining video with the specific intent to spoliate
`OVIGENCE,00. seecessssesescesesesseseseeesseseeseseesssesseseueessessseseesesssessesessenscesaesesseaesesaesesaseeees 13
`
`III].
`
`The Evidence Is Legally Insufficient To Support The Jury’s Finding In
`Question 2 That Charter Proximately Caused Ms. Thomas’s Death, As
`There Is No Evidence Of Foreseeability..........cccccceccsccesseseesesserecseeeesecesseeeeseesensenee 18
`
`A.
`
`B.
`
`C.
`
`The evidenceis legally insufficient to find that Holden’s intentional
`criminal act was foreseeable to Charter. ...........c:ccccccscseseeseescsesesevseeeeecesevseeeees 18
`
`The evidenceis legally insufficient to find that Holden’s intentional
`criminal act, committed while off duty and without authorization to
`be at the residence, was not a new and independentor superseding
`cause Of Plaintiffs’ injuries. ....0....0cc ccc ccceceecsesseseseescsessesesecsesessesenecseseeseseneees 28
`
`The evidenceis legally insufficient to find that Charter had a duty to
`control Holden’s off-duty activities. .....0cccccceccesccscsessesesecseseeseseecseseeseseneees 29
`
`IV.
`
`V.
`
`VI.
`
`The EvidenceIs Legally Insufficient To Support The Jury’s Answer To
`Question 4 Regarding Pain And Mental Anguish of Ms. Thomas...............c.:ecee33
`
`The EvidenceIs Legally Insufficient To Support The Jury’s Findings Of
`Pecuniary Loss For Ms. Thomas’s Four Adult Children In Questions 5-8. ...........34
`
`A.
`
`B.
`
`The nature of pecuniary 1OSS......... ccc cceccecsesceseescscereeceecseceesecsenscseenecaeeecseneaes 35
`
`No evidence supports any pecuniary or monetary loss by Plaintiffs.......... 38
`
`‘The EvidenceIs Legally Insufficient To Support The Jury’s Finding In
`Question 9 That By Clear And Convincing Evidence The Death Of Ms.
`Thomas Resulted From Charter’s Gross Negligence...........cccccccsccssesesseseeseeeenseeeeenee40
`
`A.
`
`The jury’s finding is not supportedbylegally sufficient evidence.............. 40
`
`-2-
`
`

`

`B.
`
`C.
`
`D.
`
`E.
`
`Because Holden committed a crime, gross negligence alone cannot
`make Charterliable for punitive damages based on the conduct of
`TtS EMPLOYEE. oo... .ececcccesescesceseseesseseescseeseesesceseescssenecseseesecsecsessessesenecseesecseeeeseeaeenes A]
`
`There is no clear and convincing evidence that Charter acted with
`malice—a specific intent to cause Ms. Thomas’s death............cccccceeseseeeeee 43
`
`Thereis no clear and convincing evidence that Charter or a Charter
`managerratified or approved Holden’s assault and murderof Ms.
`THOMAS, .....c.cescesssessssesseeeseseesesssesseseusesscscsesesensvessesesenesecsesavsesesecaesassesesscaesrsasetens 46
`
`Thereis no clear and convincing evidence that Holden’s assault and
`murder of Ms. Thomas wasrecklessly tolerated by a high
`managerial agent of Charter acting within the scopeof the
`Manager's CEMPlLOYMENL,............ccececceecsecsecsececeseceecacenccssenscseesecssesecsseeseeseesteseesees AT
`
`VII.
`
`If Any Exemplary Damages Are Awarded, They Are Limited By § 41.008
`Because The Felony-Forgery Exception To The Exemplary Damages
`Limitations That Plaintiffs Alleged Against Charter Is Legally Inapplicable
`And, Even If Applicable, There Is No Evidence To Support The Jury’s
`Finding Of A Forgery With Intent To Harm Or Defraud.............cceccccceeeeseteeeeeees48
`
`A,
`
`B.
`
`C.
`
`There is no evidence of actual economic loss that could serve to
`increase the exemplary damages pursuantto 41.008(b)’s explicit
`VUES. occ eeeceecsescssessseesesesensuesseseusenscesseseusenssessesevsenesscsesavseeesscaesessseesssaeersasetees 48
`
`As a matterof law, there is no statutory basis for removing the
`limitations (so-called busting the caps) on exemplary damages.................. 50
`
`Thereis legally insufficient evidence beyond a reasonable doubt
`that Charter intended to defraud or harm Plaintiffs... eeeeeeeeees 57
`
`CONCLUSION AND PRAYER... ooo cccccccsececsseeecseeeeeneecsenseceeseeceseecesseecesaeecenseesenaeesenaeeees 60
`
`CERTIFICATE OF SERVICE... ...cccccccccccccccsececsseecesseceeseeceeseecesseeseseeseseecesaeesesseesenaeeeeaeeees 61
`
`APPENDIX 000... ececcccccccsccessseseceneneceneceuessceceneneceneneuessuececeseueneuausseceseseseuaneuageseceresesauaneaagesers 62
`
`-3-
`
`

`

`INTRODUCTION}
`
`While it is human nature to place blame for unspeakable events that transpire,
`
`underthefacts of this case, Texas law does not permit the jury to blame Charter for Roy
`
`Holden’s murder of Ms. Thomas.
`
`The improper submission ofa spoliation instruction effectively ended any chance
`
`for a fair trial and led to an improperverdict. Texas courts have repeatedly warned that
`
`intentional-spoliation instructions can effectively decide a trial or at best, tilt one. Such
`
`an instruction can only be submitted upon sufficient evidence that Charter acted with the
`
`intentional, subjective, purpose to conceal discoverable evidence. There is no such
`
`evidence here, only surmise and speculation, and inferences on inferences.
`
`In order to issue a valid spoliation instruction of any kind under Texas law,
`
`Plaintiffs had the burden to present evidence that Charter’s failure to preserve the video
`
`footage resulted from an intentional effort to conceal what that video footage would have
`
`shown. No such evidence exists. It is not enough that Charter failed to process a
`
`document-retention letter or search warrant before the video footage was overwritten in
`
`the ordinary course of business. Plaintiffs were required to provide more, and their
`
`outlandish, purely-speculative argumentthat Charter engaged in a conspiracy to cover up
`
`Holden’s murdernot only lacks an evidentiary basis but is contrary to what the evidence
`
`does show—namely, that Charter immediately and voluntarily aided law enforcement,
`
`which led to Holden’s arrest less than 24 hoursafter the murder.
`
`At the close of business this date, Plaintiffs filed a Motion to Enter Judgment and
`1
`a proposed final judgment that purports to substantially alter the verdict, which may
`impact arguments in Charter’s Motion for Judgment Notwithstanding the Verdict.
`Charter therefore reserves the right to amend or supplement this motion after a
`reasonable opportunity to review Plaintiffs’ filings.
`-4.
`
`

`

`Thereis no evidenceatall that anyone at Charter was involved in Holden’sterrible
`
`act. Further, and at minimum,the evidenceis legally insufficient to warrant adverse
`
`inferences on the numerousissues delineated in the spoliation instruction submitted to
`
`the jury, “issues” that provided a meansforthe jury to resolve the entire case in Plaintiffs’
`
`favor despite the absence of any corroborating evidence supporting Plaintiffs’ fantastical
`
`conspiracy theories.
`
`Thetrial-tilting impact of the spoliation instruction led to the jury’s finding that
`
`Holden’s off-duty murder of Ms. Thomas wasforeseeable to Charter because there is no
`
`evidenceatall of foreseeability. The Texas Supreme Court has held for decades that non-
`
`violent conductis legally insufficient to find future acts of violence foreseeable. Plaintiffs’
`
`evidence on this score consisted solely of non-violent conduct. They did not, and could
`
`not, present evidence that Charter knew or should have known of any potential of Holden
`
`to act violently towards others. Falsifying a job application is not violent. Nor are job
`
`performance issues relating to craftsmanship and procrastination. Nor is asking a
`
`supervisor for money. Andan isolated incident of being visibly upset due to a pending
`
`divorce, an event experienced by nearly half of married couples in American (according
`
`to the Centers for Disease Control), does not make future acts of violence against
`
`unrelated third parties foreseeable as a matter of law. Becauseit is well-settled in Texas
`
`that future acts of violence are not foreseeable absentprior violent acts of a similar nature
`
`committed by the criminal actor, the evidenceis legally insufficient to support the jury’s
`
`finding that Holden’s murder of Ms. Thomaswasforeseeable to Charter.
`
`It is likewise settled that a statute’s plain language dictates judicial application of
`
`the statute to a given fact pattern. Fatal to the jury’s exemplary-damagesfindingsinthis
`
`case, Chapter 41 of the Texas Civil Practice and Remedies Code simply does not provide a
`
`-5-
`
`

`

`basis on which this Court can award exemplary damagesagainst Charter as a matter of
`
`law.
`
`First, the Texas Legislature has made clear that Charter may be liable for
`
`exemplary damagesarising from Holden’s intentional criminalact “only if” (1) Charteris
`
`criminally responsible for the death of Ms. Thomas,(2) Charter authorized or approved
`
`of Holden’s murder of Ms. Thomas,or (3) Charter employed Holden with the specific
`
`intent of injuring Ms. Thomas.Thereis no evidencethat any of these requirements are
`
`satisfied; to the contrary, the lead detective for the Irving PDtestified unequivocally that
`
`Holden acted alone andthat the detective had no complaints about Charter’s assistance
`
`with the investigation—voluntary cooperation by Charter that,
`
`it bears repeating,
`
`facilitated the arrest of Holden within 24 hours of the murder. And Charter immediately
`
`terminated Holden’s employment upon learning that he committed the crime. No
`
`reasonable juror could conclude from the evidence that Charter tolerated, approved, or
`
`ratified Holden’s murder of Ms. Thomas. The evidenceis therefore legally insufficient to
`
`support the jury’s award of exemplary damages against Charter.
`
`Second, even assuming exemplary damages are awardable underthefacts of this
`
`case, the evidence is legally insufficient to support the jury’s finding that Texas Civil
`
`Practice & Remedies Code § 41.008’s2 limitation on exemplary damages does not apply
`
`due to alleged forgery. The language of the statute is clear—§ 41.008(b)’s exceptions only
`
`apply to a “cause of action”—here,Plaintiffs’ ordinary negligence claims—thatare “based
`
`on” the commissionof specified felonies under the Texas Penal Code. Charter’s purported
`
`failures in hiring, training, and supervising Holden are not criminal, much less do they
`
`rise to the level of one of the statute’s enumerated felonies. No reasonable juror could
`
`All statutory citations are to the Texas Civil Practice & Remedies Code unless
`2
`otherwise indicated.
`
`-6-
`
`

`

`conclude otherwise. The jury’s finding of a forgery unrelated to Plaintiffs’ cause of action
`
`or damages is immaterial and mustbe disregarded since that unrelated conduct cannot
`
`excuse Chapter 41’s statutory cap on exemplary damages.
`
`Given the erroneous spoliation instruction, Texas law clearly providing that
`
`Charter did not and could not have foreseen the murder of Ms. Thomas, and the express
`
`limitations on exemplary damages (amongothererrors), the Court should grant Charter’s
`
`motion for judgment notwithstanding the verdict.
`
`-7-
`
`

`

`ARGUMENT AND AUTHORITIES
`
`I.
`
`Standards Governing Motions For Judgment Notwithstanding The
`Verdict.
`
`Judgment should be granted notwithstanding the verdict when there is legally
`
`insufficient evidence to supportthe verdict and “the law does not allow reasonable jurors
`
`to decide otherwiseor a legal principle precludes recovery.” City ofKeller v. Wilson, 168
`
`S.W.3d 802, 823 (Tex. 2005); McCullough v. Scarbrough, Medlin & Assocs., Inc., 4435
`
`S.W.3d 871 (Tex. 2014); Dowling v. NADWMktg., Inc., 631 S.W.2d 726, 728 (Tex. 1982),
`
`TRCP 301. A motion for judgment notwithstandingthe verdict should be granted whenit
`
`is “determinedthat thereis no evidence upon which the jury could have madethefindings
`
`relied upon.” Dowling, 631 S.W.2d at 728. A judgment notwithstandingtheverdictis also
`
`properwhen,as here, the movantis entitled to judgmentas a matter of law. Plano Lincoln
`
`Mercury, Inc. v. Roberts, 167 S.W.3d 616, 621 (Tex. App.—Dallas 2005, no pet.). The
`
`legal sufficiency of evidence is more closely scrutinized on review when there is a
`
`heightened burden of proof beyond preponderanceof the evidencesuchas the “clear and
`
`convincing” or “beyond a reasonable doubt” governing review of key jury findings in the
`
`case. See Sw. Bell Tele. Co. v. Garza, 164 S.W.3d 607, 621-622 (Tex. 2004).
`
`II.
`
`Giving The Jury A Spoliation Instruction Was In Error Because
`Plaintiffs Presented No Evidence That Charter Had The Specific Intent
`To Conceal Or Destroy Discoverable Evidence.?
`
`A.
`
`Like Brookshire, Charter’s inadvertent failure to preserve more
`video does not demonstratea specific intent to conceal or destroy
`discoverable
`evidence necessary to justify a
` spoliation
`instruction.
`
`On December 13, 2019, the day after Holden murdered Ms. Thomas, while
`
`assisting the Irving Police Department’s (IPD) search for Holden, Charter preserved some
`
`Citations to statutes are to the Texas Civil Practice and Remedies Code unless
`3
`otherwise indicated.
`
`-8-
`
`

`

`eight minutes of video showing Holden returning to the employees’ van lot on December
`
`12 after the murder. Holden pled guilty to murder, was convicted, and is serving life
`
`without parole in a Texas penitentiary; and no additional video of the van lot that day was
`
`important or relevant. The remainder of the security video of the parking lot from
`
`December12, 2019 was automatically and without human intervention recorded over 30
`
`days later pursuant to the company’s documentretention protocol. Plaintiffs, however,
`
`assert the van-lot video of the remainder of that day was spoliated. That assertion,
`
`unsupported by any evidenceof intentional destruction of relevant evidence, led to an
`
`overbroad and inflammatory instruction that waserror to give and, as a matterof law,
`
`severely harmed Charter.
`
`In Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 14 (Tex. 2014), the Texas
`
`Supreme Court established the legal standard for the imposition of the spoliation jury-
`
`instruction remedy. Brookshire compels that the spoliation instruction in this case be
`
`rejected.4
`
`A spoliation instruction in the jury charge instructs that the jury may “presume
`
`that the missing evidence would have been unfavorable to the spoliator.” Id. at 22. That
`
`presumption “is among the harshest sanctions a trial court may utilize” and
`
`“tantamountto a death-penalty sanction” becauseit can irrevocably “tilt a trial in favor
`
`of a nonspoliating party.” Id. at 23 (emphasis added). Thus, this “harsh” remedyis only
`
`justified if the spoliator meets the high standard of having acted with the specific intents
`
`Charter adopts here, and adoptedat the start of the Phase I jury charge conference,
`4
`its briefing and argumentduring the spoliation hearing before the jury was impaneled.
`6/22/2022 Tr., 31:10-16.
`
`While Brookshire recognized one narrow exceptionthat could support a spoliation
`5
`instruction based on negligence, Plaintiffs expressly disclaimed negligent destruction as
`a basis for a spoliation instruction. Plaintiffs’ Motion for Spoliation Jury Instruction and
`Sanctions (Motion)at 21, filed May 19, 2022.
`
`-9.
`
`

`

`of concealing discoverable evidence. Id. at 14. Charter preserved some eight minutes of
`
`video of Holden returning his work van to the Charter parking lot on December12, 2019,
`
`the date Holden murdered Ms. Thomas. Plaintiffs failed to provide evidence of the
`
`required specific intent on the part of Charter, instead offering mere surmise and
`
`conjecture in support oftheir trial-tilting discovery sanction.
`
`The Brookshire opinionrejected thetrial court’s imposition of such an instruction
`
`and is remarkably similar to this case. The Brookshire plaintiffs slip andfall in a grocery
`
`store was captured on a surveillance camera, and the manager retained approximately
`
`eight minutes of footage. 438 S.W.3d at 15. Whentheplaintiff later requested additional
`
`footage, it had already been overwritten by the 30-day loop recording system. Id. The
`
`plaintiff argued the store’s failure to preserve additional video footage amounted to
`
`spoliation and that the missing evidence wasrelevantto the key issue of whetherthespill
`
`was on the floor long enough to give the store a reasonable opportunity to discoverit. Id.
`
`at 15-16.
`
`At trial, the store managertestified he instructed that the portion of the video be
`
`saved showingthefall and thefive or six minutes before to identify the plaintiff entering
`
`the store. He understood that the key issue in a slip-and-fall case is frequently whether
`
`store employees knew or should have knownthere wasa slippery substance onthefloor,
`
`but he did not believe the rest of the video would berelevant. Id. Thetrial court included
`
`a spoliation instruction in the jury charge andthe appeals court affirmed. Id.
`
`The Texas Supreme Court assumed, without deciding, that the store had breached
`
`its duty to reasonably preserve evidence by allowing the additional footage to be
`
`overwritten. Id. at 27. Nevertheless, the Court held that the trial court abused its
`
`discretion in submitting a spoliation instruction because there was noevidencethat the
`
`store destroyed evidence:
`
`-1Q-
`
`

`

`with the requisite intent to conceal or destroy relevant evidence or that [the
`plaintiff] was irreparably deprived of any meaningful ability to present his
`claim.
`
`Id. “Intentional” spoliation means “bad faith” or “willful” destruction of evidence. Even
`
`the assertion of so-called “willful blindness” in allowing subsequent overwriting of
`
`evidence requires, as a “necessary predicate,” proof of intentional and badfaith spoliation
`
`not present here. Id. at 23-24. Moreover, there is no evidence that Charter knew that any
`
`of the unavailable video recording was “relevant”to the Plaintiffs’ claims, as required for
`
`“willful blindness.” See id. 24.
`
`Neither is Plaintiffs’ allegation of willful blindness a legitimate basis for the
`
`instruction here. The Court explained that:
`
`Theissue of willful blindnessis especially acute in the context of automatic
`electronic deletion systems.. . .“[I]n a world wherethe very act of deletion
`is integral to normal operations, it is unfair to treat the inadvertent or
`negligent loss of[ESI] as indicative ofan intent to destroy evidence andto
`thereby infer spoliation.”
`
`Id. at 24 n. 17 (quoting Wright, Note, Federal Rule of Civil Procedure 37(e): Spoiling the
`
`Spoliation Doctrine, 38 HOFSTRA L. REV. 793, 806 (2009) (emphasis added)). Instructive
`
`in this case, the Court concluded in Brookshire that there was no evidence that the
`
`company “saved the amountoffootage thatit did in a purposeful effort to conceal relevant
`
`evidence;” rather, it preserved footage of the fall that it viewed as mostrelevant.Id. at 28.
`
`Just as in Brookshire, there is no evidence that Charter destroyed the video “with
`
`the requisite intent to conceal or destroy relevant evidence.” See 438 S.W.3d at 27. Charter
`
`security employee Chris Worden, who assisted the IPD detectives in the immediate
`
`aftermath of Ms. Thomas’s murder, responded fully to all verbal requests by police
`
`-l|]-
`
`

`

`officers to aid their investigation.® Like Brookshire, Worden preserved the key eight
`
`minutes he reasonably believed was most relevant at the time to help the police
`
`apprehend Holden. There is no evidence that the IPD felt the eight minutes Charter
`
`ultimately provided wasinsufficient, or that IPD detectives contacted Charter to request
`
`additional footage.
`
`Charter cooperated with the investigation by responding to three search warrants
`
`and providing the requested information for Holden’s van andhis audiofiles.7 Detective
`
`Curtis, the lead IPD investigator on the Holden murdercase,testified that Charter helped
`
`provide information that assisted with Holden’s arrest.8 Charter employee Chris Worden
`
`assisted by telling Detective Curtis about the videos and the GPSinformation. Despite
`
`not having the full parking lot videos for the entire 24-hour period, Charter’s GPS
`
`information allowed the IPD to know everywhere Holden’s van went on December12th. 1°
`
`This cooperation, which IPD acknowledged as helpful to its locating and arresting
`
`Holden,is the direct opposite of intentionally concealing information. Not having thefull
`
`videos from that day did not slow down or impede the IPD’s investigation or arrest of
`
`Holden." Nor did it harm Plaintiffs’ case.
`
`Like in Brookshire, the remaining footage of December 13 was recorded over by
`
`the automated 30-day loop recording system in the ordinary course of business and
`
`See Exhibit A to Charter’s Amended Response to Motion for Spoliation Instruction
`6
`(“Spoliation Response”), First Deposition of Christopher Worden, Feb. 18, 2021, at
`58:12-15; 59:18-22.
`
`7
`
`8
`
`9
`
`10
`
`1
`
`6/10/2022 TY., 54:13-24; 56:11-57:19.
`
`6/10/2022 Tr., 53:19-54:5.
`
`6/10/2022 Tr., 58:1-21.
`
`6/10/2022 Tr., 60:8-15.
`
`6/10/2022 Tr., 61:10-62:9.
`
`-12-
`
`

`

`without humanintervention.12 Wordendid not preserve footage beyondthe eight minutes
`
`showing Holden returning the van to the parking lot because he thought it was not
`
`relevant to the police search for the then at-large Holden, and the other videos did not
`
`show Holden because he parked off camera Plaintiffs offered nothing to rebut this
`
`evidence. Instead, they engaged in hyperbole, asserting Charter “has gone to truly
`
`incredible lengths to obstruct the police’s and Plaintiffs’ investigation and hide or destroy
`
`highly relevant evidence” (Motion at 22) and engaged in “intentional and willful”
`
`spoliation (Motion at 19). Hyperbole is not evidence. And hyperbole does not support
`
`giving a spoliation instruction, but Plaintiffs have no legally sufficient evidence of such
`
`intent or willfulness and instead propose conjecture and speculation.
`
`Instructing the jury with Plaintiffs spoliation instruction was an abuse of
`
`discretion; accordingly, the verdict should be overturned.13
`
`B.
`
`Plaintiffs failed to provide legally sufficient evidence that Charter
`destroyed the remaining video with the specific intent to spoliate
`evidence.
`
`Plaintiffs’ purported evidence of Charter’s specific intent to destroy video evidence
`
`is legally insufficient to support a spoliation instruction. Most of Plaintiffs’ Motion and
`
`oral argumentat the Spoliation Hearing relates to Charter’s duty to preserve evidence and
`
`speculation" as to the contents of the lost footage. But none of it supported the key
`
`requirement that Charter acted with the specific intent to destroy evidence—andthereis
`
`Exhibit B to Spoliation Response, Second Deposition of Christopher Worden, Mar.
`12
`7, 2022, at 23:16—20.
`
`Because a spoliation instruction should not have been given, “the likelihood of
`13
`harm from the erroneous instruction is substantial, particularly when thecaseis closely
`contested.” Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003). Such a
`likelihood of harm and actual harm existed in this hotly contested case.
`
`See, e.g., Karaa v. Aramoonie, No. 05-17-00571-CV, 2018 WL 1373958,at *3 (Tex.
`14
`App.—Dallas Mar.19, 2018, no pet.) (mem.op.) (“Conclusory statements and speculation
`are legally no evidence.”).
`
`-13-
`
`

`

`no such evidencein the record. The sum totalof Plaintiffs’
`
`oe
`
`“evidence” of Charter’s specific
`
`intent to spoliate evidence boils down to a few unsubstantiated assertions: (1) an email
`
`exchange between Jane Rhodes and Chris Worden, (2) personal outrage that other
`
`parking lot cameras were not operational on a specific day more than twoyearsafter the
`
`murder, (3) an assertion that it would have been easier to preserve 24-hoursof footage
`
`than an eight-minuteclip, (4) the alleged inadequacies of Charter’s discovery responses,
`
`and (5) an assertion that the eight-minute video clip preserved by Charter was not
`
`essential to apprehending Holden. Noneof these can remotely be construed aslegally
`
`sufficient evidence of Charter’s specific intent to destroy evidence it knew to be relevant
`
`as required to warranta spoliation instruction.
`
`First, the email to Worden from his supervisor, Charter security chief Jane Rhodes,
`
`asking him to pull and preserve footage from the surveillance cameras demonstrates
`
`Charter’s specific intent to preserve relevant evidence, not concealit. Motion at 3, 21, Ex.
`
`I. In his responseto this email, Wordenstates that “I will pull the video, see what we have
`
`and will preserve anythingof value.” Id.45 Far from the smoking gunPlaintiffs assert it to
`
`be, this email explains plainly whythe entire day was not pulled—Worden preserved what
`
`he thought was “of value,” just as the store manager did in Brookshire, which does not
`
`indicate intentional destruction. Worden pulled and preserved the key eight-minuteclip
`
`showing Holden returning from the murderto the Charter/Spectrum parking lot. While
`
`this may not havestrictly complied with the police search warrant, Worden’s actions were
`
`in good faith and reasonable in that they preserved the key evidence he believed was of
`
`value and relevant to IPD’s investigation at the time.
`
`15
`
`6/6/2022 Tr., Spoliation Hearing (“Spoliation Hearing”) at 13:5—7.
`-14-
`
`

`

`Furthermore, any missing video that might have shown Holden coming and going
`
`from Charter’s lot on December12, 2019 wasnot relevant to or probative of any issues in
`
`the case. Nor wasPlaintiffs’ case harmed becausethe ring-doorbell video (introduced at
`
`trial) proved the exact time that Holden arrived at and departed from herresidence.
`
`Second, Plaintiffs
`
`also
`
`argued that
`
`the
`
`fact
`
`some
`
`cameras
`
`at
`
`the
`
`Charter/Spectrum’s company van parking lot happenedto beoffline in 2022, years after
`
`the relevant time in this case,1° is “not just intentional [but] extreme and outrageous.”
`
`Motion at 23. What
`
`is outrageous is Plaintiffs’ unsupported contention that
`
`the
`
`operational status of any camerasin the van lot during a deposition in May 2022 has any
`
`relevance to video recordingsor the status of the van lot cameras on December12, 2019.
`
`This argumentis specious and provides no support whatsoeverfor Plaintiffs’ arguments
`
`for a spoliation instruction. Yet Plaintiffs were allowed to present this evidence and argue
`
`its significance, which misled the jury and prejudiced Charter.
`
`Third, Plaintiffs argue that Charter’s “corporate rep has said it is actually more
`
`difficult to grab and export onesingle clip from the system than it would be to export an
`
`entire day. This meansit requires an intentional manual work... .”!7 This argumentis an
`
`obvious non-sequitur masquerading as logic. Plaintiffs’ illogical implication is that
`
`because more effort was required to preserve a clip, Charter must have expended the
`
`additional effort to destroy evidence. But exporting an entire 24-hour period is also
`
`“intentional manual work”in the sense that it requires an act of a human being. Such
`
`speculations are very far removed from providing evidenceof intentional spoliation with
`
`the conscious purpose of destroying evidence. It is far more plausible, and the only
`
`See Exhibit D to Spoliation Response, Deposition of Chris Fender, May17, 2022,
`16
`at 49:18-—50:4.
`
`17
`
`Spoliation Hearing at 17:12—15.
`
`-15-
`
`

`

`reasonable conclusion drawn from the evidence is, that the eight-minute clip was
`
`preserved because Worden thoughtthe video clip of Holden returning the Spectrum van
`
`after the murder seemed moreuseful and relevant to the IPD’s search for Holden than
`
`producing an entire 24-hourperiod of footage. Once again, it was Plaintiffs’ burden to
`
`show intentional destruction, not intentional preservation. Pulling the key eight-minute
`
`clip is entirely consistent with Worden’s statement in his email that he would preserve
`
`evidence “of value” to the IPD’s investigation.
`
`Fourth, Plaintiffs argued in the Spoliation Hearing and in their Motion that this
`
`Court should impose a spoliation instruction in part as a punishment for an alleged
`
`“pattern of discovery abuse and withholding documents” (Spoliation Hearing at 21:7—13)
`
`and analleged refusal to produce video footage. (Motion at 7). But Charter did not refuse
`
`to produce the video. Charter agreed to produce the video “subject to Plaintiffs’ execution
`
`of Defendants’ Protective Order.”18 Contrary to Plaintiffs’ mischaracterizations in its
`
`Motion, Charter has made good faith efforts to fulfill its discovery obligations by, for
`
`example, producing in excess of 27,000 documents responsive to Plaintiffs’ discovery
`
`requests and searching through more thanabillion e-mails in the process. More
`
`importantly, however, any alleged defects in Charter’s discovery responses on other
`
`matters is not evidence of specific intent to spoliate this particular video—whichis the
`
`burden Plaintiffs must meet to warrant a spoliation instruction. Therest of the video from
`
`December 12, 2019 was taped over by January 11, 2020. The parties’ other discovery
`
`disputes over a year later have no bearing onthis analysis.
`
`Finally, Plaintiffs argue that
`
`the eight-minute clip was not essential
`
`to
`
`apprehending Holden. That has absolutely no bearing on whether Charter acted with the
`
`See Motion at Ex. P, Charter’s Answer to Request for Production No. 20, Ex. Q,
`18
`Charter’s Response to Request for Production No. 21.
`-16-
`
`

`

`specific intent to destroy the missing video footage. Charter fully cooperated with the IPD
`
`in their efforts to apprehend Holden,’9 which included checking the security video of the
`
`parking lot to verify for the police what vehicle Holden was thought to be driving, and
`
`retaining the eight-minute videoclip of Holden’s van returning to the parkinglot after the
`
`murder, as confirmed by Detective Curtis in his trial testimony:2°
`
`Q: Initially, Charter helped you get information to start
`identifying Mr. Holden;is that correct?
`A. Yes. They were giving Detective Bah information as we were
`getting the videos and compiling our information on our end
`too.
`
`Q. And I think youtestified yesterday that what Charter gave
`you andthestuff that you were getting from other pieces kind
`of came together at the same time to help you arrest Mr.
`Holden; is that correct?
`
`A. Yes.?1
`
`If anything, the IPD’s quick arrest of Holden the next day after the murderweighs in favor
`
`of the reasonableness of Charter’s actions regarding the surveillance footage, as it likely
`
`appeared to Wordenand others at Charterthat the necessity of scouring video footage for
`
`evidence of Holden’s activities was no longer urgent since he wasin custody.
`
`In sum,thereis no basis to find that Charter acted with the subjective purpose of
`
`concealing or destroying the video or engaged in “willful blindness” to allow for
`
`destruction of evidence Charter knew to be relevant. Charter employees engaged in good
`
`faith efforts to preserve what they reasonably thoughtat the time was the most important
`
`and only relevant evidenceto aid the police investigation andfor potential future lawsuits.
`
`A finding that Charter engaged in willful spoliation of the video is not supported by the
`
`19
`
`20
`
`21
`
`6/10/2022 Tr., 48:7-8.
`
`See Exhibit A to Spoliation Response, at 58:12—15; 59:18-22.
`
`6/10/2022 TY., 53:21-54:5.
`
`-17-
`
`

`

`record and did not warrant the harsh, death-penalty sanction of a spoliation instruction
`
`wrongfully conveying to the jury that Charter willfully concealed information, which
`
`impermissibly tilted the entire trial in Plaintiffs’ favor.
`
`Ill. The Evidence Is Legally Insufficient To Support The Jury’s