While this is not a family-law opinion, it discusses an issue often faced by family-law attorneys, i.e., what remedies are available when a party intentionally destroys electronically stored information like text messages.

Facts: Plaintiff worked for Defendant and sued Defendant for employment discrimination, harassment, and retaliation.

During discovery, Plaintiff produced a text message in which she claimed that one of her supervisor’s reactions that formed part of the basis for the lawsuit was part of Plaintiff’s “plan to make him lose his shit.”

At her deposition, Defendant’s counsel asked Plaintiff if she thought the text messages were grounds for termination. Plaintiff said she “wouldn’t have turned [the messages] in” if she did, and she asserted that she “could have deleted [the messages] a long time ago before [she] even knew about a lawsuit.” But Plaintiff expressly denied deleting any text messages after filing her complaint.

Defendant submitted discovery requests that asked Plaintiff to identify all “potentially relevant” text messages that she “destroyed, deleted, or otherwise disposed of, either before or after retaining counsel.”

Contradicting her deposition testimony—in which she denied deleting text messages after suing —Plaintiff admitted that she had “deleted several text message conversations from her phone” after her complaint was filed. But Plaintiff could not recall “with whom these messages were exchanged, their specific content, or the exact date on which they were deleted.” Plaintiff admitted to deleting six to eight text messages.

A subsequent inspection of Plaintiff’s cell phone revealed that she had deleted over 200 messages. Of those, all but 50 were recovered.

Defendant moved to dismiss the case under the doctrine of unclean hands and Tennessee Rule of Civil Procedure 34A.02.

Plaintiff opposed the motion, arguing that Defendant was not prejudiced by the spoliation because most messages were recovered. Moreover, Plaintiff’s counsel argued that the remaining 50 messages were irrelevant because they were photos that Plaintiff sent to herself for a genealogy project; however, Plaintiff presented no evidence to prove the contents of the missing messages.

The trial court dismissed the case per the doctrine of unclean hands and as a sanction for spoliation of evidence per Rule 34A.02. The trial court found that Plaintiff intentionally violated her duty to preserve relevant evidence and lied about it at least twice. The trial court found Plaintiff’s destruction of this critical evidence and repeated dishonesty about it was an effort to manipulate the litigation unfairly in her favor. Plaintiff was also ordered to pay $100,000 for Defendant’s attorney’s fees.

Plaintiff appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Unclean hands. The doctrine of unclean hands states that “he who comes into a court of equity, asking its interposition on his behalf, must come with clean hands.” It provides Tennessee courts with a basis to decline relief to those who have willfully engaged in unconscionable, inequitable, immoral, or illegal acts regarding the subject matter of their claims.

The doctrine applies only to a party’s misconduct “in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of or depends upon or is inseparably connected with his own prior fraud.”

The Court found the doctrine of unclean hands inapplicable here:

We find Plaintiff’s deletion of text messages and misrepresentations about her preservation efforts “relate to the litigation as a whole” and are not material to whether Defendant discriminated, harassed, and retaliated against Plaintiff. In other words, Plaintiff’s claims did not “grow out of” or “depend upon” her deletion of text messages and lack of candor during discovery. For these reasons, we disagree with the trial court’s decision to dismiss Plaintiff’s action under the doctrine of unclean hands.

The Court reversed the trial court’s judgment on the applicability of the unclean hands doctrine.

Spoliation of evidence. Rule 34A.02 provides, “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.” The sanctions include dismissing the case.

In determining what sanctions are appropriate, Tennessee courts must consider

• the culpability of the spoliating party in destroying the evidence, including evidence of intentional misconduct or fraudulent intent;
• the degree of prejudice suffered by the non-spoliating party because of the absence of the evidence;
• whether, when the evidence was destroyed, the spoliating party knew or should have known that the evidence related to pending or reasonably foreseeable litigation; and
• the least severe sanction available to remedy any prejudice caused to the non-spoliating party.

The intentional destruction of evidence relevant to a case raises a rebuttable presumption that the evidence would have been unfavorable to the cause of the spoliator. This presumption that the loss of evidence prejudiced Defendant shifts the burden of proof to Plaintiff.

Finding that Plaintiff did not rebut the presumption by being unable to recover the missing messages and presenting no evidence that the missing messages were unrelated to the case, the Court affirmed the trial court’s dismissal of Plaintiff’s case as a sanction for intentionally destroying evidence.

Source: Graham v. UT Regional One Physicians, Inc. (Tennessee Court of Appeals, Western Section, March 14, 2023).

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