encompasses the scenario in which a party does not directly destroy evidence known to be relevant and discoverable, but nonetheless “allows for its destruction.” Hebl, Spoliation of Electronically Stored Information, Good Faith, and Rule 37(e), 29 N. III. U.L.Rev. at 97-98. Accordingly, we hold that a trial court’s finding of intentional spoliation pursuant to the analysis set forth above is a necessary predicate to the proper submission of a spoliation instruction to the jury. In the event the trial court makes such a finding and concludes, as with any sanction, that a lesser remedy would be insufficient to ameliorate the prejudice caused by the spoliating party’s conduct, the trial court is within its discretion in submitting an instruction. See Trans-American, 811 S.W.2d at 917 (<HOLDING>); Cire, 134 S.W.3d at 842 (holding that the
holding that to constitute persecution harm must be more than harassment holding that the court had no power to sanction conduct that occurred in an arbitration holding that because a discovery sanction should be no more severe than necessary to satisfy its legitimate purposes the trial court must determine that lesser sanctions constitute an insufficient remedy holding that to grant a new trial the error must be more than harmless holding that discovery sanctions so severe they prevent a trial on the merits are warranted only where the record reflects a partys flagrant bad faith or counsels callous disregard for the discovery rules