Rule 34A.Spoliation of Evidence

Rule 34A.01 targets a specific risk: destructive testing. Before a party or an agent of a party — including an expert the party or its lawyer has hired — runs a test that will materially change the condition of a tangible thing connected to a claim or defense, the party must move the court for permission and let the court set the conditions under which the test happens. That duty attaches once the lawsuit is filed, without waiting for a discovery request, though it is naturally bounded by what the pleadings put at issue. A party who skips the motion risks Rule 37 sanctions.

Rule 34A.02, added years later, reaches beyond formal testing. It makes Rule 37 sanctions available against a party — or an agent of a party — who discards, destroys, mutilates, alters, or conceals evidence, whether or not any testing was involved. The rule does not spell out which Rule 37 sanction fits which act of spoliation, so courts weigh how culpable the party was, how much the loss prejudiced the other side, how foreseeable the litigation was when the evidence disappeared, and whether a lighter sanction would still repair the damage before reaching for the harshest options, such as barring a claim or defense outright or entering default judgment.

A common remedy is an order barring the party who lost or altered the evidence from using related test results or exhibits at trial, sometimes paired with an instruction letting the jury draw an unfavorable inference from the loss. Rule 34A.02’s reach to an “agent of a party” raises a separate wrinkle: sanctioning someone who is not a party in their own right is not something the rule text works out in detail, and courts have had to reason through it case by case. Losing or destroying evidence can also expose a party to liability outside the rule altogether, since Tennessee recognizes spoliation as a basis for a separate claim in some circumstances.