Dan Berexa's Tennessee Law Blog

TBA Talk Presentation - Depositions: The Very Basics for New Tennessee Lawyers

YouTube Video Click Here Depositions: The Very Basics for New Tennessee Lawyers 

                                                                         Here is a 17 minute Video of a recent "TBA Talk" for newly admitted lawyers on the basics of depositions including a discussion of logistics, objections and information that isn't necessarily in the rules. The presentation was part of the Tennessee Bar Association's November 10, 2015 Law Practice Conference for New Lawyers: I Passed The Bar – Now What?

I hope the information is helpful to any lawyer preparing to take or defend their first several depositions. The accompanying PowerPoint Download TBA Talk Depositions includes citations to the applicable Tennessee and Federal Rules of Civil Procedure.

Dan Berexa
Cornelius & Collins, LLP
Nashville, Tennessee

615-244-1440
www.cclawtn.com

Tennessee Supreme Court holds that Intentional Conduct is not a Prerequisite for Imposing Sanctions for Spoliation of Evidence

Spoliation of evidence is the destruction or alteration of evidence. In Tatham v. Bridgestone Americas Holding, Inc.,(click cite for opinion) the Tennessee Supreme Court addressed the question of whether a party can be sanctioned for the spoliation of evidence, absent intentional conduct, and set out factors that should be considered by a trial court when determining whether sanctions should be imposed.    

In Tatham, the defendants moved to dismiss a product liability suit as a remedy for the plaintiff's failure to preserve the tire that was the subject of her claim. Shortly after her accident the plaintiff transferred the title to her vehicle to a third party which disposed of the car. The plaintiff claimed she did not realize the importance of keeping the tire and was acting on the advice of her insurance company when she disposed of the vehicle. The trial court denied the defendants' motion, finding that the plaintiff did not intentionally participate in the destruction of the evidence. 

Tatham contains a thorough review of prior appellate decisions regarding the imposition of sanctions for the destruction of evidence, whether under the common law "doctrine of spoliation," the court's inherent authority, or Rule 34A.02 Tenn. R. Civ. P., which provides: “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.” Potential sanctions for spoliation include: drawing a negative inference against the party who destroyed evidence; excluding certain proof related to that evidence; the entry of an order designating that certain facts be taken as established; a finding of contempt; the dismissal of part or all of a the party's claims; or, the entry of a default judgment against the party guilty of spoliation. Justice Bivins, writing for the court, noted while many prior decisions focus on whether the conduct was intentional, the analysis varied. Tatham recognized the need for a uniform standard in connection with the analysis for the possible imposition of sanctions for spoliation based on the totality of the circumstances and utilizing the discretion of the trial court. The court went on to hold that intentional conduct is not a prerequisite for imposing sanctions against a party for spoliation of evidence and that a determination of whether any sanction is appropriate should be based on a case-by-case analysis: 

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 part.

While the Tathum court affirmed the trial court's refusal to sanction the plaintiff, the decision makes it clear that a party can be sanctioned for spoliation in the absence of intentional conduct and underscores the importance of taking immediate steps to preserve crucial evidence relevant to pending or reasonably foreseeable litigation.

Dan Berexa
Cornelius & Collins, LLP
Nashville, Tennessee

615-244-1440
www.cclawtn.com

Tennessee Motions for Summary Judgment - Supreme Court Overrules Hannan in Rye v. Women's Care Center

In Rye v. Women's Care Center of Memphis the Tennessee Supreme Court overruled its widely criticized decision, Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), which greatly restricted the availability of summary judgment, a procedure by which the court can determine the legal merits of a case prior to trial. Hannan caused a legislative reaction in the form of the 2011 enactment of Tenn. Code Ann.§ 20-16-101, which was intended to bring Tennessee law back in line with the federal standard applicable to motions for summary judgment. Prior to Hannan, Tennessee courts applied the federal standard, although some argue that the departure from the federal standard began with language in the court's 1993 decision in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

The well written majority opinion in Rye, penned by Justice Clark, contains a lengthy review of the history of summary judgment in Tennessee and an acknowledgment that the Hannan standard was unworkable. 

The AOC press release discussing the Rye decision states:  

In its ruling today, the court has overruled [Hannan] and returned to a summary judgment standard consistent with cases that have interpreted Rule 56 of the Federal Rules of Civil Procedure. The Court acknowledged that the “standard articulated in Hannan was unworkable and inconsistent with the history and text of Tennessee Rule 56.”

The ruling means that when a party that does not have the burden of proof at trial, and moves for summary judgment, that party can satisfy its burden by either negating an essential element of the other party’s claim or by demonstrating that the other party’s evidence at the summary judgment stage is insufficient to establish that party’s claim or defense. In other words, the moving party can prove that the claim is unfounded, or can show that there is not enough evidence for a jury to consider a genuine issue of material fact at trial.

Rye is a "must read" as it is now the definitive standard for any motion for summary judgment or response. The Rye decision makes it clear that Hannan no longer applies to any case, regardless of whether it was filed prior to July 1, 2011, the effective date of Tenn. Code Ann.§ 20-16-101. 

Dan Berexa
Cornelius & Collins, LLP
Nashville, Tennessee

615-244-1440
www.cclawtn.com