we recognized in Wal-Mart Stores, the courts of appeals have generally limited the use of a spoliation instruction to two circumstances (generally referred to as the “two rules”): (1) a party’s deliberate destruction of relevant evidence, and (2) a party’s failure to produce relevant evidence or explain its nonproduction. 106 S.W.3d at 721. Under the first rule, a presumption arises that a party who deliberately destroys evidence does so because it is unfavorable to the party’s case. Id. Under the second, the same presumption arises because the party who controls the missing evidence is unable to explain its failure to produce the evidence. Id. at 722. Though we have never expressly adopted these two rules, both derive from our nineteenth-century precedent. See Cheatham, 8 Tex. at 167 (<HOLDING>); Underwood, 59 Tex. at 170 (observing that a
recognizing that all things are presumed against a wrongdoer recognizing that jurors are presumed to follow instructions holding that a person is presumed to own all property that is titled in her name recognizing that an agencys decision to terminate an employee is presumed correct holding that absent evidence to the contrary court proceedings are presumed to be procedurally proper