Addressing Spoliation by Rule — The Tennessee Example

The Federal Rules of Civil Procedure do not specifically address spoliation. The Rules Enabling Act is a factor, as it dictates that “rules shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b), and it is challenging to draft a proscription against spoliation while being unable to craft the preservation duty the violation of which triggers the spoliation remedy. As a result, the sanctions for spoliation in federal court are often imposed under 28 U.S.C. § 1927 or the inherent power of the court because the misbehavior often does not fall within the purview of Rule 37 or any other civil rule (in the absence of a court order).

States are not necessarily so constrained in their rulemaking. Tennessee takes a direct approach by prohibiting spoliation in Tenn. R. Civ. P. 34A, as follows:

34A.01 Testing of Tangible Things.

Before a party or an agent of a party, including experts hired by a party or counsel, conducts a test materially altering the condition of tangible things that relate to a claim or defense in a civil action, the party shall move the court for an order so permitting and specifying the conditions. Rule 37 sanctions may be imposed on an offending party.

34A.02 Other Spoliation.

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

Rule 34A.01 is essentially procedural and could serve as a model for federal rulemaking. Rule 34A.02 is drafted so as to sound substantive and would be more problematic, but (i) it could be tailored to be procedural, patterned after 34A.01, or (ii) it could be drafted to make it clear that it is dependent on other law for the substance of the duty to preserve, as by adding words at the end such as “in violation of law.” Another drafting issue is that 34A.02 appears to be too limited. It would not seem to pick up negligence or inaction resulting in the loss of evidence (at least not without a very expansive reading).

Tennessee has served as a model for rulemaking in the past (see the Committee Note to the 2000 amendment to Federal Rule of Evidence 701). It may be time again.

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