“Speculation Is Not Enough”: The Texas Supreme Court Re‑Affirms Strict Limits on Death‑Penalty Discovery Sanctions in In re Newkirk Logistics, Inc.

I. Introduction

The Supreme Court of Texas’s per curiam decision in In re Newkirk Logistics, Inc., No. 24-0255, revisits one of the court’s most sensitive topics: when, if ever, a trial court may deploy “death‑penalty” discovery sanctions that effectively decide the lawsuit by striking a party’s pleadings.

The case arises out of a serious motor vehicle collision involving plaintiffs Rayah Lemons and Nicholas Begaye and a tractor‑trailer driven by Mario Cottman, an employee of Newkirk Logistics, Inc. Plaintiffs asserted negligence and gross‑negligence claims against the driver and a suite of direct‑liability and gross‑negligence claims against Newkirk. They later added DHL eCommerce and Hogan Truck Leasing, Inc., as additional defendants.

A discovery dispute developed over whether Newkirk had in its possession contracts or other documents governing its long‑standing business relationship with DHL eCommerce. After Newkirk repeatedly maintained that no written contracts existed, DHL—responding to its own discovery obligations—produced two signed, formal documents: a 2014 “Cartage Agreement” and 2015 “Transportation Requirements.” The trial court, persuaded that Newkirk must have had and concealed these contracts and other records, ultimately struck Newkirk’s pleadings—thereby effectively granting plaintiffs a default judgment on all claims, including gross negligence.

Newkirk sought mandamus relief from the court of appeals and then from the Supreme Court of Texas. The core issues before the Supreme Court were:

What evidentiary showing must a party make to justify death‑penalty discovery sanctions?
What constitutes “possession, custody, or control” of documents, particularly where a third party later produces them?
When must trial courts consider and test lesser sanctions before striking pleadings?
To what extent are appellate courts bound by trial‑court findings of fact and conclusions of law drafted by a party in sanction disputes?

The Court conditionally granted mandamus relief, holding that the trial court abused its discretion by imposing death‑penalty sanctions in the absence of evidence of flagrant bad faith, in the absence of a demonstrated direct relationship between the alleged discovery abuse and the sanctions imposed, and without consideration of lesser sanctions.

II. Summary of the Opinion

The Supreme Court of Texas held that the trial court’s order striking Newkirk’s pleadings constituted an abuse of discretion and warranted mandamus relief. The Court’s key holdings can be summarized as follows:

No evidence of flagrant or extreme bad faith. The plaintiffs, as movants for sanctions, bore the burden of showing that Newkirk failed to produce documents in its possession, custody, or control, and did so in flagrant bad faith. The Court concluded the record contained no such evidence. At most, the record reflected potential negligence or misunderstanding, which is insufficient to support death‑penalty sanctions.
Speculation and skepticism are not proof. The mere fact that DHL later produced contracts signed by Newkirk did not, without more, establish that Newkirk intentionally concealed or failed to produce those documents when asked. Plaintiffs’ “skepticism” and “bare allegations” could not substitute for evidence.
No actual or constructive possession for many categories of documents. For several categories of documents (maintenance records, leases, pay history, drug test results, GPS data, additional shipping documents), plaintiffs failed to show that Newkirk had either actual possession or the legal right to obtain them from others (constructive possession).
Misidentification of DHL entity was corrected and non‑prejudicial. Newkirk’s initial misidentification of the proper DHL entity was corrected in time to avoid any limitations problem and caused no demonstrated prejudice; the sanction order’s reliance on that misstep as part of the justification for striking pleadings was arbitrary.
TransAmerican’s two‑part test not satisfied. There was no direct relationship between the alleged discovery abuse and the sanction imposed, and the sanctions were plainly excessive. Plaintiffs failed to show that their ability to prepare for trial was impeded in a way that warranted striking Newkirk’s pleadings.
Failure to consider lesser sanctions. The trial court did not adequately consider or test lesser sanctions before imposing death‑penalty sanctions. A boilerplate assertion that lesser sanctions would be ineffective is insufficient absent a record demonstrating why no lesser measure would promote compliance.
Mandamus relief appropriate. Because striking the pleadings effectively adjudicated the case and vitiated Newkirk’s ability to present its defenses, ordinary appeal was an inadequate remedy. The Court conditionally granted mandamus and directed the trial court to vacate its sanctions order.

III. Detailed Analysis

A. Precedents Cited and Their Influence

The Court’s opinion is heavily grounded in a line of established Texas authority regulating sanctions, especially death‑penalty sanctions. Understanding these precedents is crucial to grasping the significance of In re Newkirk Logistics.

1. TransAmerican Natural Gas Corp. v. Powell

At the foundation is TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991). TransAmerican established the two‑part test that defines the “bounds” of trial‑court discretion in imposing discovery sanctions:

Direct relationship: There must be a direct relationship between the offensive conduct and the sanction imposed. The sanction must be aimed at remedying the prejudice caused by the discovery abuse.
Non‑excessiveness: The sanction must not be excessive; it should be no more severe than necessary to achieve its legitimate purposes.

TransAmerican famously distilled this into the basic principle that “the punishment should fit the crime.” It also emphasized that sanctions that effectively adjudicate the merits (such as striking pleadings) require an especially strong justification: there must be evidence that the offending party’s conduct justifies the presumption that its claims or defenses lack merit.

In Newkirk, the Court relies on TransAmerican throughout to:

Frame the analysis of whether the trial court’s sanction was “just,”
Assess whether the sanction was tailored to the harm alleged, and
Evaluate whether the sanction was excessively severe relative to the conduct proven.

2. Chrysler Corp. v. Blackmon

In Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. 1992), the Court elaborated on TransAmerican and reaffirmed that trial‑court discretion in sanctions is bounded by the two key factors cited in Newkirk. That case underscores that sanctions must be tied closely to the abuse and must be the least severe measure adequate to accomplish discovery’s purposes.

Newkirk invokes Chrysler primarily to re‑state the controlling test and reinforce that these criteria are not aspirational—they define the legal limits of trial‑court authority.

3. Cire v. Cummings

Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004), is the Court’s key modern exemplar of a case where death‑penalty sanctions were affirmed. In Cire:

The sanctioned party had deliberately destroyed evidence after being ordered to produce it.
The record demonstrated clear bad faith and deliberate obstruction.
The Court emphasized that death‑penalty sanctions are proper only as a “last resort” and in “exceptional cases.”

In Newkirk, the Court explicitly contrasts the facts before it with Cire. There, deliberate post‑order destruction justified the most severe sanction. Here, by contrast, there was no evidence of intentional destruction or concealment—only plaintiffs’ suspicions and subsequent production by another party. By invoking Cire, the Court signals that:

Death‑penalty sanctions require demonstrably egregious misconduct, not mere inconsistencies or gaps in discovery, and
This case falls well short of the Cire threshold.

4. American Flood Research, Inc. v. Jones

In American Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006), the Court held that on mandamus review of sanctions, the appellate court independently reviews the entire record to determine whether the sanctions are supported—not merely the trial court’s articulation of reasons.

This principle is central in Newkirk. Plaintiffs argued that the appellate courts were bound by the trial court’s extensive findings of fact and conclusions of law (largely drafted by plaintiffs’ counsel). The Supreme Court rejected this, citing American Flood Research to reaffirm that:

Appellate courts are not bound to accept a trial court’s fact‑findings at face value in sanctions disputes, particularly where they are inconsistent with the hearing record.
The proper focus is on the entire record, including the live hearings, not only on post hoc written findings.

5. GTE Communications Systems Corp. v. Tanner

GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725 (Tex. 1993), supplies two critical rules applied in Newkirk:

Burden of proof on the movant. When the movant seeks sanctions for failure to produce a document, the movant bears the burden of proving that the responding party had possession, custody, or control of the document.
Limits on constructive possession. Business relationships alone do not automatically establish constructive possession of documents held by a separate corporate entity. There must be some legal right to obtain the documents, such as a parent‑subsidiary relationship, joint venture, or contractual right to compel production.

The Court invokes GTE when explaining:

Why plaintiffs failed to show that Newkirk constructively possessed Hogan’s maintenance and lease records, and
Why Newkirk’s mere dealings with Hogan and DHL did not establish legal control over those entities’ internal records.

6. In re Weekley Homes, L.P.

In re Weekley Homes, L.P., 295 S.W.3d 309 (Tex. 2009), is cited for a critical evidentiary principle: a party’s “mere skepticism or bare allegations” that an opponent has not complied with discovery obligations cannot support intrusive or severe discovery relief.

In Newkirk, the Court uses this principle to reject plaintiffs’ argument that DHL’s later production of contracts, together with general suspicion, sufficed to show that Newkirk intentionally concealed them. The Court underscores that:

Inference and suspicion are not the same as evidence, and
Severe sanctions cannot rest on conjecture about what must have happened.

7. Altesse Healthcare Solutions, Inc. v. Wilson

In Altesse Healthcare Sols., Inc. v. Wilson, 540 S.W.3d 570 (Tex. 2018), the Court clarified that “bad faith” alone is not enough for the most severe sanctions; the conduct must be “flagrant” or “extreme.”

Newkirk explicitly adopts that threshold, reinforcing that:

Death‑penalty sanctions are reserved for conduct that is not merely careless or even reckless, but egregious in its defiance of discovery obligations.
Negligence, misunderstanding, or poor recordkeeping—even if regrettable—do not justify terminating sanctions.

8. Petroleum Solutions, Inc. v. Head

Petroleum Sols., Inc. v. Head, 454 S.W.3d 482 (Tex. 2014), held that negligent failure to preserve evidence, without proof of intentional concealment, cannot support death‑penalty sanctions. The case sharply distinguishes between negligence in handling evidence and intentional, bad‑faith obstruction.

In Newkirk, the Court relies on Petroleum Solutions to:

Emphasize that even if Newkirk was negligent in retaining or searching for documents, that would not justify striking its pleadings, and
Confirm that intentional concealment or destruction must be proven, not assumed.

9. Paradigm Oil, Inc. v. Retamco Operating, Inc.

In Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177 (Tex. 2012), the Court stressed that sanctions cannot be used as a short‑cut to adjudicate the merits of a case unless the sanctioned party’s conduct justifies the presumption that its claims or defenses lack merit.

In Newkirk, the Court invokes Paradigm Oil to condemn using discovery sanctions as an indirect way to award a de facto default judgment where the requisite presumption of meritlessness is unsupported by the record.

10. Spohn Hospital v. Mayer

Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. 2003), held that trial courts must consider lesser sanctions and explain why they are inadequate before imposing death‑penalty sanctions. A ritualistic or conclusory recitation that lesser sanctions “will not work” is insufficient.

Newkirk applies Spohn to hold that the trial court’s generic statement that lesser sanctions would be ineffective did not satisfy this duty, especially because:

The trial court had not meaningfully attempted lesser sanctions (beyond contemplating but never entering a monetary sanction), and
The record did not show why more modest measures would fail to foster compliance.

11. Walker v. Packer and Mandamus

Finally, Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), supplies the test for when mandamus is appropriate: appeal is inadequate when the trial court’s error “vitiates or severely compromises” a party’s ability to present a viable claim or defense.

In Newkirk, the Court cites Walker and TransAmerican to conclude that striking a party’s pleadings is precisely the sort of error that leaves no adequate appellate remedy, thereby justifying mandamus relief.

B. The Court’s Legal Reasoning

1. Standard of Review: Abuse of Discretion

Sanctions orders are reviewed for abuse of discretion. A trial court abuses its discretion when it acts “without reference to any guiding rules and principles,” making its ruling “arbitrary or unreasonable.”

The Court’s analysis proceeds in two main steps:

Assess whether there was evidence to support the factual predicates for sanctions (e.g., possession, concealment, bad faith); and
Apply the TransAmerican framework to determine whether, even assuming some misconduct, the chosen sanction was “just.”

Critically, the Court reiterates that it must independently review the entire record, not merely accept the trial court’s written findings (particularly those drafted by a party) at face value.

2. Burden of Proof on the Plaintiffs

Under GTE, the plaintiffs—as the moving party seeking sanctions—had the burden to prove:

That Newkirk actually or constructively possessed the documents at issue, and
That any failure to produce them was the result of intentional, bad‑faith obstruction if they sought death‑penalty sanctions.

The Court repeatedly emphasizes that plaintiffs did not meet this burden. Their theory often proceeded from what they believed “must” be true rather than from what the evidence actually showed.

3. Analysis of the DHL Contracts

The core of plaintiffs’ argument, and the trial court’s original basis for striking Newkirk’s pleadings, was the failure to produce two DHL‑Newkirk contracts that DHL itself later produced:

2014 “Cartage Agreement”
2015 “DHL eCommerce Transportation Requirements”

The Court’s reasoning on this point unfolds in several steps:

Evidence of past, but not present, possession. Newkirk’s signatures on the contracts are “some evidence” that Newkirk possessed the documents at some point in time. But that does not establish that Newkirk had them in its files, or could readily obtain them, when discovery requests were pending years later.
Affidavits and testimony of Newkirk personnel. Newkirk’s president and an employee submitted affidavits stating that, at the time of their depositions, they believed no written agreements with DHL existed and were unaware of the contracts. The record suggested “best efforts” to locate responsive contracts in compliance with the discovery order.
No evidence of intentional concealment. Plaintiffs offered no direct evidence that Newkirk had the contracts in its possession and deliberately withheld them. Their argument rested primarily on:
- The existence of signed contracts, and
- DHL’s later production of those contracts.
Under Weekley Homes, such skepticism and inference are insufficient to prove intentional concealment.
Lack of proof of constructive possession. The opinion also reflects that the record did not show that Newkirk had a legal right to compel DHL to furnish copies of the contracts once DHL had them. An ongoing business relationship and participation in an online bidding system did not, by themselves, create constructive possession.

Because plaintiffs failed to show that Newkirk intentionally concealed the DHL contracts or willfully refused to produce them when ordered, the existence of those contracts, standing alone, could not justify striking Newkirk’s pleadings.

4. Analysis of the Other Categories of Documents

The sanctions order, as later drafted by plaintiffs and signed by the court, expanded the justifications to include several other categories of alleged non‑production. The Supreme Court dissects each category and concludes that none support the severe sanctions imposed.

a. Bills of lading and shipping documents

Plaintiffs alleged, and the sanctions order found, that Newkirk failed to produce or retain complete bills of lading and shipping documents.

The Supreme Court notes:

Actual possession: The record showed that Newkirk did produce responsive documents it had, including an electronic record of Cottman’s pick‑ups and drop‑offs on the accident date.
Constructive possession: Plaintiffs provided no evidence that Newkirk had a legal right to compel any third party to produce additional shipping documents.
No evidence of concealment: The Court rejects any inference of “intentional concealment or deliberate destruction” based on plaintiffs’ speculation.

In short, there was no proof that Newkirk had and withheld additional shipping documents; thus, no basis for sanctions on this ground.

b. Tractor‑trailer maintenance records and leases

Here, the record was clearer: Hogan Truck Leasing owned the tractor and leased the trailer involved in the crash.

The Court observes:

Ownership and control: Hogan—not Newkirk—owned the equipment and maintained its records.
Evidence of custody: Hogan’s later production of maintenance records indicates that Hogan, not Newkirk, maintained those documents.
No constructive possession: Plaintiffs failed to show any special relationship (e.g., parent‑subsidiary, joint business enterprise, contractual control) that would give Newkirk a legal right to obtain Hogan’s internal maintenance records.

Under GTE, mere business dealings between corporations do not equate to constructive possession. The Court therefore concludes:

Newkirk had no duty to produce records it did not possess and could not legally compel, and
The very fact that plaintiffs obtained the records directly from Hogan undermines any theory that Newkirk was hiding them.

c. Cottman’s pay history, post‑accident drug test, and GPS data

Plaintiffs also challenged Newkirk’s alleged failure to produce pay records, drug test results, and GPS data.

The Court holds:

No evidence of additional information: The record did not establish that, at the time of plaintiffs’ requests, Newkirk had additional responsive information in these categories that it failed to produce.
No violation of a court order: The June 16, 2023 discovery order—the order that plaintiffs alleged Newkirk violated—did not even compel production of pay history, drug test, or GPS data. Thus, failure to produce these items could not support sanctions for violation of a court order.

The absence of a court order covering these items significantly undercuts any justification for harsh sanctions based on supposed non‑compliance.

5. Misidentification of DHL eCommerce

The third pillar of the sanctions order was Newkirk’s initial misidentification of the appropriate DHL corporate entity.

The Court’s analysis is straightforward:

Newkirk’s error was corrected, and the proper DHL entity—DHL eCommerce—was joined as a party well before limitations posed any risk.
The trial court itself had earlier stated, on the record, that plaintiffs had not shown intentional deception concerning DHL’s identity and that sanctions were not warranted so long as the correct entity had been added.
The sanctions order’s later reliance on this same issue to justify striking pleadings is directly at odds with the trial court’s earlier position and is therefore “arbitrary.”

This portion of the opinion serves as a warning: clerical or corporate‑structure mistakes, when promptly corrected and non‑prejudicial, cannot be retroactively reframed as sanctionable deception absent compelling evidence of bad faith.

6. Application of the TransAmerican Test

Having found no evidence of intentional concealment or flagrant bad faith, the Court turns to whether the sanctions were “just” under TransAmerican.

a. Lack of direct relationship between conduct and sanction

For a sanction to have the requisite direct relationship to the abuse:

It must target the specific misconduct, and
It must be aimed at curing the prejudice to the innocent party.

Here, the Court finds:

Plaintiffs did not show that Newkirk’s alleged discovery failures prevented them from preparing for trial.
Key documents (e.g., the DHL contracts; Hogan’s maintenance records) were ultimately obtained from other sources.
There was no evidence that Newkirk’s conduct rendered trial unfair or unworkable.

Given this, there was no basis to impose the most extreme sanction—a sanction that went far beyond curing any alleged prejudice and instead effectively decided the entire case against Newkirk.

b. Excessiveness of the sanction

TransAmerican and Paradigm Oil make clear that sanctions cannot serve as a surrogate for adjudicating the merits unless the sanctioned party’s conduct demonstrates that its claims or defenses lack merit.

The Court concludes:

Nothing in the record supports a presumption that Newkirk’s defenses were meritless.
At most, the evidence might suggest some confusion or negligence concerning document retention and corporate formalities.
Such conduct is far removed from the deliberate destruction and defiance seen in cases like Cire.

Accordingly, striking Newkirk’s pleadings on all claims—including gross negligence—was grossly disproportionate to the conduct proven.

7. Failure to Consider or Test Lesser Sanctions

Under Spohn and Cire, trial courts must:

Consider lesser sanctions, and
Make it apparent on the record why lesser measures would not suffice, especially before imposing death‑penalty sanctions.

While the sanctions order recites that lesser sanctions would be ineffective, the Supreme Court characterizes that as a “conclusory statement” unsupported by the record. The Court notes:

The trial court contemplated, but never entered, a modest monetary sanction earlier in the case.
There is no indication that the court attempted or seriously considered intermediate steps such as fines, additional depositions, cost‑shifting, or issue‑specific evidentiary sanctions.
Nothing in the record makes it “fully apparent that no lesser sanctions would promote compliance with the rules.”

Quoting GTE, the Court emphasizes that it cannot “see why any number of lesser sanctions, from fines to contempt, would not have promoted compliance with discovery, if there had been abuse here.” That statement is particularly telling: the Court doubly questions both the existence of real abuse and the proportionality of the remedy.

8. Mandamus as the Proper Remedy

Finally, the Court addresses whether mandamus relief is appropriate. Under TransAmerican and Walker:

Sanctions that “have the effect of adjudicating a dispute,” such as striking pleadings, vitiate the sanctioned party’s ability to present a viable case.
In such circumstances, appeal is not an adequate remedy because the harm—being deprived of a trial on the merits—cannot be fully cured later.

On this basis, the Court:

Conditionally grants the writ of mandamus,
Directs the trial court to vacate its order striking Newkirk’s pleadings, and
States that the writ will issue only if the trial court does not comply.

IV. Impact and Practical Consequences

A. Reinforcing the High Bar for Death‑Penalty Sanctions

In re Newkirk Logistics does not announce a brand‑new doctrine; rather, it powerfully reinforces and applies the existing, demanding standard for death‑penalty sanctions. Its message to trial courts and litigants is clear:

Case‑terminating sanctions are reserved for extraordinary circumstances.
Courts must insist on actual proof of flagrant, bad‑faith discovery abuse—not conjecture or suspicion.
Even in contentious litigation, sanctions must be calibrated to the misconduct proven and the prejudice actually suffered.

Because discovery fights are especially common in high‑stakes tort and commercial cases, this opinion will likely be frequently cited by defense counsel resisting overreaching sanctions motions and by appellate courts reviewing aggressive sanctions orders.

B. Clarifying Possession, Custody, and Control

The opinion is particularly important on “possession, custody, or control”:

Signature on a contract is not conclusive proof that the signer still has a copy years later.
The later production of documents by a third party does not automatically prove that another party once had or currently has those documents.
Business relationships, standing alone, do not establish constructive possession.

This is of special significance in cases involving multiple corporate defendants—like carriers, shippers, and equipment lessors in trucking cases—where parties frequently attempt to attribute another entity’s documents to a defendant under a broad theory of “control.” Newkirk underscores that:

The movant must show a legal right to obtain the documents (e.g., a contractual obligation to share records) to establish constructive possession.
Absent such proof, a party cannot be sanctioned for failing to produce documents held by independent companies, even if those companies are co‑defendants.

C. Limits on Reliance on Party‑Drafted Findings and “Expanded” Sanction Orders

The procedural posture in Newkirk—a sparse hearing followed months later by a lengthy sanctions order drafted by plaintiffs’ counsel—highlights an increasingly common practice: the wholesale adoption of expansive findings and conclusions prepared by one side.

While the Court does not explicitly condemn that practice, it significantly cabins its force in the sanctions context:

Appellate courts must independently review the full record, not merely accept party‑drafted findings.
Findings that go well beyond what the trial court actually discussed or considered at the hearing are subject to particular skepticism.
Post hoc rationalizations and narrative embellishments cannot substitute for live evidence and on‑the‑record reasoning.

Practitioners should expect that sanctions orders—especially draconian ones—will be scrutinized at the appellate level for consistency with the actual hearing record, not just their written form.

D. Corporate Misidentification and Sanctions

Corporate families can be complex, and misidentifying the correct corporate entity is a familiar hazard. Newkirk offers important guidance:

An initial misidentification, followed by timely correction, is not, without more, sanctionable.
Sanctions based on such an error require proof of intentional deception or prejudice (such as a limitations bar or lost evidence).
Where plaintiffs successfully join the proper entity in time, and the trial court itself initially views the mistake as non‑sanctionable, later weaponizing that mistake to justify striking pleadings is “arbitrary.”

This will be particularly relevant in practice where plaintiffs seek severe sanctions based on perceived tactical confusion over corporate structure.

E. Mandamus as a Check on Sanctions Overreach

The Court’s willingness to grant mandamus reinforces that:

Sanctions that essentially decide the case will receive close appellate scrutiny.
Trial courts are not free to use discovery sanctions as a merits‑short‑cut without a robust evidentiary basis.
Parties facing striking of pleadings or similar case‑terminating orders should consider mandamus, not just wait for final judgment.

Newkirk thus contributes to the broader jurisprudential trend of using mandamus to rein in extreme discovery and sanctions abuses in Texas trial courts.

V. Complex Concepts Simplified

For readers less familiar with civil‑procedure doctrine, a few key concepts in the opinion warrant clearer explanation.

1. “Death‑Penalty” Sanctions

“Death‑penalty sanctions” is a shorthand for sanctions so severe that they effectively end the sanctioned party’s ability to litigate the case. Examples include:

Striking a party’s pleadings (so it has no live claim or defense),
Dismissing the case with prejudice, or
Rendering a default judgment as a discovery sanction.

These are called “death‑penalty” because they kill the case for the sanctioned party. Because they are so drastic, Texas law subjects them to very stringent limits.

2. Mandamus

Mandamus is an extraordinary writ issued by a higher court ordering a lower court (or public official) to take a specified action. In civil litigation:

Mandamus is available only when the trial court has clearly abused its discretion and the complaining party has no adequate remedy by ordinary appeal.
It is not a substitute for appeal, but a safety valve for particularly serious errors—like case‑ending sanctions orders entered mid‑case.

In Newkirk, mandamus is appropriate because striking the defendant’s pleadings effectively ended its case, and that type of injury cannot be fully remedied after final judgment.

3. Possession, Custody, or Control

Discovery rules often require a party to produce documents within its “possession, custody, or control.” These terms mean:

Possession: You physically have the document or data.
Custody: You have the document under your care or management, even if you don’t own it.
Control: You have the legal right to get the document from someone else upon request (for example, under a contract or corporate relationship).

A crucial point: simply having a business relationship with another company does not automatically mean you have “control” over that company’s internal documents. There must be some legal mechanism giving you the right to compel those documents.

4. Flagrant or Extreme Bad Faith

“Bad faith” means more than an honest mistake. It refers to deliberate or reckless disregard of legal duties. “Flagrant or extreme” bad faith, the standard invoked for death‑penalty sanctions, refers to:

Intentional destruction or concealment of evidence,
Repeated, willful refusal to comply with clear court orders, or
Systematic obstruction of the discovery process.

Mere carelessness, disorganization, or misunderstanding usually does not rise to this level.

5. Direct Relationship and Non‑Excessiveness

Under TransAmerican, sanctions must:

Directly relate to the harm: The sanction should be aimed at fixing or compensating for the specific discovery problem. For example, excluding a document that was produced late, or awarding fees incurred because of a failed deposition.
Not be excessive: The sanction should be the least severe measure that accomplishes the goal. Courts must escalate sanctions only when lesser measures fail or would clearly be inadequate.

Striking an entire pleading—especially on multiple substantive claims—based on thin or speculative evidence of discovery misconduct is the antithesis of this principle.

VI. Conclusion

In re Newkirk Logistics, Inc. stands as a robust reaffirmation of the Texas Supreme Court’s long‑standing admonition: discovery sanctions, especially death‑penalty sanctions, must be grounded in evidence, tailored to the misconduct, and used only as a last resort.

The opinion clarifies that:

Parties seeking sanctions must prove—not merely suspect—that an opponent had and withheld documents in its possession, custody, or control.
Constructive possession requires a demonstrable legal right to obtain documents from others; commercial relationships by themselves are not enough.
Negligence or misunderstanding in recordkeeping does not equate to the flagrant bad faith necessary for case‑terminating sanctions.
Trial courts must consider and, where feasible, test lesser sanctions before striking pleadings, and must explain on the record why lesser measures will not suffice.
Appellate courts reviewing sanctions will look beyond party‑drafted findings to the entire record to ensure that sanctions, particularly severe ones, are not arbitrary.

For Texas practitioners, Newkirk provides a powerful tool both to resist overreaching sanctions and to guide trial‑level strategy in discovery disputes. For the broader legal system, it underscores a core commitment: resolving cases on their merits whenever reasonably possible, and reserving the judicial “death penalty” for those rare situations where a litigant’s extreme, proven misconduct has made a fair merits adjudication impossible.