Your opponent has discarded, destroyed, mutilated, altered, or concealed evidence. Or your client has been accused of such conduct.
What is the law that the court will apply to determine whether the case can proceed?
The place to begin your research is Tatham v. Bridgestone Americas Holding, Inc., 473 S.W. 3d 734 (Tenn. 2015). This is the leading decision in Tennessee on the issue of spoliation of evidence.
Plaintiff alleged a tire defect caused a single-vehicle wreck which totaled plaintiff’s vehicle and injured plaintiff. Plaintiff, on the recommendation of her auto insurer, transferred title to the vehicle to the wrecker company and the vehicle, including the tires, was destroyed. Plaintiff was unrepresented by counsel at the time the decision to transfer title was made. No inspection of the car or tires occurred before it was destroyed. Defendant moved to dismiss the case because of the destruction of the evidence.,
The High Court did an extensive review of the history of spoliation of evidence law in Tennessee and concluded as follows:
In light of both [Tennessee Rule of Civil Procedure] Rule 34A.02 and the long-standing recognition discussed herein of a trial court’s inherent authority and wide discretion in imposing sanctions to ensure fundamental fairness and the proper administration of justice, we hold that intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence, including that of a negative inference. Indeed, while in the past under the common law doctrine of spoliation, there clearly was a prerequisite of intentional misconduct for a trial court to impose the specific sanction of a negative inference against the spoliating party, we see no reason to continue the requirement of intentional misconduct for the imposition of sanctions for the spoliation of evidence whether the sanction be imposed under the common law doctrine, under the inherent authority of the court, or under Rule 34A.02. We hold today that the analysis for the possible imposition of any sanction for the spoliation of evidence should be based upon a consideration of the totality of the circumstances. To adopt an inflexible, bright-line rule restricting a trial court’s power to fashion the appropriate remedy for spoliation of evidence would be contrary to the trial court’s inherent authority to sanction abuses of the discovery process and to remedy the potential prejudice caused thereby. Therefore, intentional misconduct should not be a prerequisite to the imposition of some sanction under any approach. Rather, such determinations should be made on a case-by-case basis considering all relevant circumstances. Whether the conduct involved intentional misconduct simply should be one of the factors considered by the trial court.
The decision to impose sanctions for the spoliation of evidence is within the wide discretion of the trial court. See Mercer, 134 S.W.3d at 133; Gross, 2007 WL 3171155, at *7 (citing Thurman–Bryant, 1991 WL 222256, at *5). The determination of whether a sanction should be imposed for the spoliation of evidence necessarily depends upon the unique circumstances of each case. Factors which are relevant to a trial court’s consideration of what, if any, sanction should be imposed for the spoliation of evidence include:
(1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct or fraudulent intent;
(2) the degree of prejudice suffered by the non-spoliating party as a result of the absence of the evidence;
(3) whether, at the time the evidence was destroyed, the spoliating party knew or should have known that the evidence was relevant to pending or reasonably foreseeable litigation; and
(4) the least severe sanction available to remedy any prejudice caused to the non-spoliating party.
A trial court’s discretionary decision to impose a particular sanction “will be set aside on appeal only when ‘the trial court has misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of evidence.’ ” Mercer, 134 S.W.3d at 133 (quoting White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn.Ct.App.1999)). With regard to the specific sanction of dismissal of an action, although we recognize that the dismissal of an action is a severe sanction, we hold that “such a sanction would be appropriate in circumstances where any less severe remedy would not be sufficient to redress the prejudice caused” to the non-spoliating party by the loss of the evidence. Cincinnati Ins. Co., 2008 WL 220287, at *4.
Id. at 746-47 (footnotes omitted).
The High Court applied these factors to the facts in the case and affirmed the trial court’s decision not to dismiss the case because of the loss of evidence. Likewise, the Court refused to say that, as a matter of law, the plaintiff could not prove the case without the missing tire.
In coming months we will discuss other cases on this important topic.