Tennessee Spoliation of Evidence – Intentionality and Prejudice
The doctrine of spoliation of evidence can cause major problems for both plaintiffs and defendants in civil litigation. Often times, months or years pass before the defendant is notified of a claim. As a result, defendants may have no notice that there is a duty to preserve evidence relevant to future litigation until after the evidence is discarded, lost or destroyed during the normal course of business. It is paramount, therefore, that businesses understand the rules associated with spoliation of evidence and adopt sound policies and procedures to (a) identify a potential claim; and (b) take reasonable steps to preserve evidence material to the claim.
As a general matter, spoliation of evidence permits a court to draw a negative inference against a party that has intentionally, and for improper purpose, destroyed, mutilated, lost, altered or concealed evidence. Bronson v. Umphries, 138 S.W.3d 844, 854 (Tenn. Ct. App. 2003); Leatherwood v. Wadley, 121 S.W.3d 682, 703 (Tenn. Ct. App. 2003); Foley v. St. Thomas Hospital, 906 S.W.2d 448, 453-54 (Tenn. Ct. App. 1995)). Federal courts in the Sixth Circuit also require some showing of intentional destruction of evidence before a spoliation sanction is appropriate. Atkins v. Wolever, 554 F.3d 65 (6th Cir. 2012); Beaven v. U.S. Dept. of J., 622 F.3d 540 (6th Cir. 2010).
However, amendments to the Tennessee Rules of Procedure, as well as several unreported Tennessee cases, began calling into question the type of proof required before a court may impose a spoliation sanction. Rule 37A.02 of the Tennessee Rules of Civil Procedure states that a sanction “… may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.” Tenn. R. Civ. Pro. 34A.02. There is no culpable mind state included in this rule. In Cincinnati Ins. Co. v. Mid-S. Drillers Supply, Inc., 2008 WL 220287 (Tenn. Ct. App., Jan. 25, 2008), the Tennessee Court of Appeals pointed out that “nowhere in Rule 34A does it state that a finding of intentional destruction of evidence is permitted before a trial can order sanctions under Rule 37.” Id. at *4. The court held “. . . the trial court has discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional.” Id. at *1.
But, following the Cincinnati case, the Court of Appeals has repeatedly held that the doctrine of spoliation only permits a court to draw a negative inference against a party who has intentionally, and for improper purpose, destroyed, mutilated, lost, altered, or concealed evidence. Fuller v. City of Memphis, 2012 WL 3201937, at *5 (Tenn. Ct. App., August 8, 2012); Hensley v. Duke, 2010 WL 845385, at *9 (Tenn. Ct. App., March 10, 2010); Kincade v. Jiffy Lube, 2008 WL 1970348, at *4 (Tenn. Ct. App., May 8, 2008). In Fuller v. City of Memphis, the court reiterated that the negative inference only arises “… when the spoliation occurs in circumstances indicating fraud and a desire to suppress the truth. It does not arise when the destruction was a matter of routine with no fraudulent intent.” Id. at *5.
Accordingly, although the current status quo appears to require a showing of intent, it is clear that trial courts have wide discretion in determining the appropriate sanction to be imposed for discovery violations and that such discretion will only be set aside on appeal when the court has misconstrued or misapplied the controlling legal principal. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 133 (Tenn. 2004). Hopefully, the Tennessee Supreme Court will clarify what standard applies in determining whether or not a spoliation sanction is appropriate. In the meantime, it is incredibly important for businesses to use due diligence to protect and preserve any evidence that may relate to civil litigation, including standardization of incident reports for all incidents involving injury on premises. It is equally important that any incident reports be communicated to the appropriate risk managers for evaluation and appropriate action.
If your business needs advise concerning risk management or evidence preservation, please do not hesitate to contact me.