Tennessee Supreme Court gives trial courts more latitude in determining proper sanctions for spoliation of evidence.

By Daniel Horwitz:

On March 3rd, 2008, Lee Ann Tatham purchased two new Bridgestone tires in Murfreesboro, Tennessee.  Unfortunately, however, less than three months later, one of the two tires failed while she was driving on the interstate, causing her to spin out.  Thereafter, Ms. Tatham’s car careened across the highway, struck a guardrail, flipped, and landed in a ditch.  Ms. Tatham survived the accident, but she suffered a broken back as a result of it.

Because her car was completely totaled in the accident, Ms. Tatham’s insurance company advised her to transfer the title of her vehicle to the wrecker service that had towed it away.  The wrecker service subsequently destroyed her vehicle – including the defective tire – as part of its routine practice.  Ms. Tatham did not seek to have the tire destroyed by the wrecker service, and she did not know that it would be.  Additionally, because she had not yet hired an attorney, Ms. Tatham was not aware that she was supposed to have the defective tire preserved as evidence.

Eventually, Ms. Tatham brought a products liability lawsuit against Bridgestone seeking compensation for her injuries.  Thereafter, Bridgestone filed a motion to dismiss Ms. Tatham’s lawsuit on the basis that the tire at issue had improperly been destroyed.  The trial court denied Bridgestone’s motion, and it permitted Ms. Tatham’s case to go forward.  This appeal followed.

Spoliation of Evidence

As a general matter, people are not allowed to destroy evidence that will be relevant to a future legal proceeding.  Failing to preserve evidence – or, in legal parlance, “spoliation of evidence” – exposes a litigant to being sanctioned once the legal proceeding begins.[1]  In Tennessee, the range of potential remedies that a trial court can use to punish a party for destroying evidence is extensive.  Possible sanctions include “dismissal of the action, rendering a judgment by default, limiting the introduction of certain claims or evidence, entering an order designating that certain facts shall be taken as established, and striking out pleadings or parts of pleadings.”[2]

Broadly speaking, trial sanctions for spoliation of evidence are intended to serve two purposes.  First, they “attempt[] to place the non-spoliator in a position similar to where it would have been prior to the destruction of evidence.”[3]  Second, they “impose[] a punitive effect on the spoliating party.”[4]  Historically, under Tennessee common law, a party would only be punished for destroying evidence if the party committed intentional misconduct or destroyed the evidence with fraudulent intent.[5]  Relatedly, however, trial judges have always enjoyed wide discretion to decide what sanction, if any, is appropriate to administer justice in a given case.[6]

In 2006, Tennessee Rule of Civil Procedure 34A.02 was adopted to afford trial courts the explicit authority to sanction a party for spoliation of evidence.  Mirroring the common law standard, Rule 34A.02 provides that: “sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.”[7]  Thus, the primary question in this case was whether intentional misconduct would still be a prerequisite for sanctions imposed under Rule 34A.02 as well.

Stressing “the long-standing recognition . . . of a trial court’s inherent authority and wide discretion in imposing sanctions to ensure fundamental fairness and the proper administration of justice,” the Tennessee Supreme Court held that “intentional misconduct is not a prerequisite for a trial court to impose sanctions for the spoliation of evidence” under Rule 34A.02.[8]  Instead, the Court explained, the historical prerequisite of intentional misconduct should be abandoned in favor of a more flexible “totality of the circumstances” approach.[9]

Thus, going forward, whether a sanction is appropriate for spoliation of evidence will be determined by trial courts on a case-by-case basis.  Although the Tatham Court made clear that “the absence or presence of intentional misconduct [remains] an important factor” under its updated approach,[10] it also explained that a party’s intentional misconduct should only be one of several factors considered.  When determining what sanction, if any, should be imposed for spoliation of evidence in a given case, the Tatham Court explained that trial courts should consider the following factors as well:

(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.[11]

Further, the Tatham Court explained, a trial court’s conclusion that a particular sanction is appropriate (or not) in a given case will only be overturned on appeal if the trial court “misconstrued or misapplied the controlling legal principles or has acted inconsistently with the substantial weight of evidence.”[12]

Applying its updated standard on spoliation sanctions to the facts of Ms. Tatham’s lawsuit, the Tennessee Supreme Court determined that the trial court did not abuse its discretion when it decided not to dismiss her case.  Considering the first factor, the Court explained that “it is clear that the tire was destroyed as a part of the routine practice shortly following an accident. There is no evidence that it was destroyed as the result of any intentional misconduct, including any fraudulent intent to conceal evidence[.]”[13]  Further, the Court explained, under the second factor of its new test, both parties in Ms. Tatham’s case were prejudiced because “neither party had the opportunity to examine the tire.”[14]   Additionally, although the Court did not evaluate the third and fourth factors, the record made clear that Ms. Tatham had not yet hired an attorney at the time that the tire was destroyed,[15] and the Court also noted in a separate section that “[e]ven with the absence of the tire, [Bridgestone is] in a position, based on [its] own expertise, to refute [Ms. Tatham’s evidence] regarding the process of tire design and manufacturing and the potential flaws therewith.”[16]

Thus, the Tennessee Supreme Court held that “the trial court did not abuse its discretion when it declined to dismiss [Ms. Tatham’s] case as a sanction for the spoliation of evidence,”[17] and it permitted Ms. Tatham’s case to move forward.

Read the Tennessee Supreme Court’s opinion in Tatham v. Bridgestone Americas Holding, Inc. here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Several jurisdictions also recognize an independent tort for spoliation of evidence, meaning that destroying evidence can result in substantial civil liability, and a party who intentionally alters or destroys evidence may be subject to criminal liability as well.  See generally, Shannon D. Hutchings, Note, Tortious Liability for Spoliation of Evidence, 24 Am. J. Trial Advoc. 381 (2000).

[2] Tatham v. Bridgestone Americas Holding, Inc., No. W-2013-02604-SC-R-11-CV, 2015 WL 6688035, at *3 (Tenn. Oct. 30, 2015) (citing Tenn. R. Civ. P. 37.02(A)-(D)).

[3] Flottman v. Hickman Cnty., No. 3:09–0770, 2010 WL 4537911, at *1 (M.D.Tenn. Nov. 3, 2010) (citation omitted).

[4] Id.

[5] See Tatham, 2015 WL 6688035, at *5 (collecting cases).

[6] Id. at *6 (citing Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn.2004) (“[T]rial judges have the authority to take such action as is necessary to prevent discovery abuse.”); Lyle v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn.1988) (“[T]he inherent power of trial judges permits the trial judge to take appropriate corrective action against a party for discovery abuse.”); Alexander v. Jackson Radiology Assocs., P.A., 156 S.W.3d 11, 13–16 (Tenn. Ct. App. 2004) (“[T]rial courts possess the inherent authority to take actions to prevent abuse of the discovery process.”) (citing Mercer, 134 S.W.3d at 133); Clark Const. Grp., 229 F.R.D. at 140 (“[T]he Tennessee Supreme Court stresses that the trial court should have wide discretion to impose the appropriate sanction [to prevent discovery abuse].”)).

[7] Tenn. R. Civ. P. 34A.02.

[8] Tatham, 2015 WL 6688035, at *8 (emphasis added).

[9] Id. at *9.   

[10] Id. at *10.

[11] Id.  at *9.

[12] Id. (quoting Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 133 (Tenn. 2004)).

[13] Id.

[14] Id.

[15] Id. at *2.

[16] Id. at *9.

[17] Id. at *10.