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, Tennessee615-244-1440
www.cclawtn.com
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