On Friday, October 30th, the Tennessee Supreme Court changed the traditional standard regarding sanctions for spoliation of evidence. In Tatham v. Bridgestone Americas Holding, Inc. et. al., No. W2013-02604-SC-R11, which you can read here, a product liability case involving a blown tire, the Court reconsidered the traditional requirement that evidence be intentionally destroyed for spoliation to occur. In Tatham, Lee Ann Tatham was injured in an accident when the tire of her vehicle allegedly blew out. Her vehicle was totaled, and she signed title over to her insurance company, who promptly had the car destroyed. She later brought a product suit alleging the tire was defective. Bridgestone, one of the defendants, filed a spoliation motion, arguing her suit should be dismissed due to failure to preserve the tire. For her defense, Ms. Tatham argued the destruction of the tire was not intentional, and therefore could not be sanctioned.
The Court reviewed the history of the spoliation doctrine in Tennessee, and ultimately held that spoliation can now be sanctioned without a finding of intentional misconduct. Instead, the Court ruled in considering sanctions for spoliation courts must flexibly consider the following: (1) the culpability of the spoliating party in causing the destruction of the evidence, including evidence of intentional misconduct; (2) the degree of prejudice suffered by the non-spoliating party as a result of the absence of 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. Ultimately, the Court held Bridgestone was not entitled to dismissal of the lawsuit in this circumstance.
This holding on spoliation ups the ante a bit. In the past, one of the best defenses to spoliation motions was that the evidence was not intentionally destroyed to conceal anything, but instead destroyed as part of a routine process. Under the standard laid out above, lack of intentional misconduct will no longer get one totally out of the woods. It is now more important than ever to identify relevant documents and physical evidence as soon as a claim can be reasonably anticipated and take efforts to preserve them. This “flexible” test is a potential minefield when facing plaintiff-friendly trial judges who are now empowered to sanction even unintentional spoliation.