Tennessee Supreme Court Modifies Spoliation of Evidence Doctrine By Removing Intentional Misconduct Requirement

Tennessee has long had a doctrine of spoliation of evidence which allows the trial court to draw negative inferences or even provide dismissal against a party who destroys evidence.  Historically, Tennessee courts have required the presence of actual intentional misconduct to invoke the doctrine of spoliation of evidence particularly when providing the remedy of a negative inference or dismissal.  The Tennessee Supreme Court in Lea Ann Tatham v. Bridgestone Americas Holding, Inc., No. W2013-02604-SC-R11-CV, 2015 WL 6688035 (Tenn. 2015) dealt with an apparent conflict between the case law and Rule 34A.02 of the Tennessee Rules of Civil Procedure that was adopted on July 1, 2006.  The full text of Rule 34A.02 provides as follows:

Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.

The question before the Tennessee Supreme Court in Lea Ann Tatham was whether Tennessee Courts should continue to require an intentional misconduct prerequisite for a trial court to impose sanctions for spoliation of evidence.  The Tennessee Supreme Court decided this issue and expressed the desire to provide a uniform standard on this issue.  The Court found 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.”  Id. at 8.  The Court adopted a specific analysis required by Tennessee trial courts to determine whether sanctions are appropriate in a spoliation of evidence situation.  The new test is a “totality of the circumstances” test, however, intentional misconduct is clearly no longer an absolute perquisite.  Intentional misconduct is simply one of the factors to be considered by the trial court. 

The Tennessee Supreme Court detailed certain factors that are relevant to a trial court’s consideration of whether sanctions are appropriate in the context of spoliation for evidence.  These include the following factors:

(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.

This is now the most important case for spoliation of evidence jurisprudence in Tennessee which is an issue that comes up in many litigated cases.  The Lea Ann Tatham Tennessee Supreme Court decision clears up the long disputed issue of whether intentional conduct is an absolute requirement for a finding of spoliation of evidence.  There is no doubt, intentional conduct is no longer an absolute requirement.  However, in my view, it must be the most important factor in the four part test provided by the Tennessee Supreme Court.  If the conduct is not intentional, how often would extreme remedies like dismissal be appropriate?  I would argue that it should be a very rare circumstance where dismissal (or other extreme remedies) would be appropriate for a non-intentional destruction of evidence.  Almost always, a less severe sanction would be appropriate as provided under prong 4 of the new test.