The Tennessee Court of Appeals has vacated a trial judge’s ruling on sanctions for spoliation of evidence (failure to preserve a video in a premises liability case, finding that “the sanctions awarded were based on a clearly erroneous evaluation of the evidence, amounting to, in our view, a plain and palpable abuse of discretion on the part of the trial court.” On remand, the trial court is to give
[ ] consideration of what sanctions should follow from its spoliation of the video. In particular, given that the record does not support a finding of severe or “high” prejudice, the trial court should, of course, as part of the totality of the circumstances test outlined in Tatham, reconsider what is the least severe sanction available to remedy any prejudice caused to the Plaintiffs. See Tatham, 473 S.W.3d at 747.5 Although Del Frisco’s has suggested that reassignment of this case to a different judge would be appropriate, we decline to give any such relief within the framework of the present appeal. If Del Frisco’s believes sufficient cause exists to request the trial court judge’s recusal, it is obviously free to pursue such an issue on remand by way of the filing of a motion under Tennessee Supreme Court Rule 10B.
In footnote 5, the appellate court suggested that “the trial court could consider whether, among other things, it is appropriate to do anything more than give an adverse-inference jury instruction that would allow the jury to infer that the spoliated video footage would be unfavorable to Del Frisco’s on certain matters.”
The case is Cherry v. Del Frisco’s Grille of Tennessee, LLC, No. M2022-00969-COA-R10-CV (Tenn. Ct. App. July 28, 2023).
Another post on this issue: https://birddoglaw.com/tennessee-law-of-spoliation-of-evidence/