Facts: This isn’t a family-law case, but it offers important lessons for family-law attorneys and litigants.

Man was drinking at a bar during a bachelor party when he met Woman. Later, Man and Woman were confronted by a police officer. According to the officer, Man was extremely intoxicated, hostile, and belligerent. More officers were called to the scene. Man insulted the officers when they asked for his identification and became aggressive when they tried to place him in handcuffs. He was arrested and charged with public intoxication, resisting arrest, and assaulting a police officer.

Shortly after that, Man and Woman conversed about the event on Facebook Messenger. He asked her to describe what she recalled. She explained that he was shirtless when stopped by the officer. She said Man insisted on speaking Russian, insulted the officer, tried to fight the officer, and was “really extremely, extremely resistant” when placed in handcuffs. Man claimed he rarely acted that way, but he had “way too much booze” that night.

A few weeks later, Man sent another message to Woman asking for more specific details about the incident. Woman replied that Man took off his shirt, placed it on the ground, and was urinating on it when the police arrived.

Two weeks later, the charges against Man were dismissed and expunged. But Man, a military officer, still faced a military disciplinary investigation of his arrest.

Several months later, Man again contacted Woman via Facebook Messenger. He asked her to speak with his attorney and prepare a statement for the military, adding that he “was hoping [she] would say something along the lines of we were just standing there, minding our own business, … then the cops showed up and started demanding ID.” Woman said she did not want to be involved and would not make a statement until she spoke with a lawyer. She then blocked Man’s access to her Facebook account.

Two years after the incident, Man sued the police officers and their department for defaming him by fabricating the story about his conduct on the night of the arrest.

During discovery, the trial court ordered Man to produce all written communications with Woman and all communications with anyone related to the incident. Man claimed there were none. In his deposition, he again claimed there were no such communications. Man testified he did not remember communicating with Woman after the arrest.

The police officers obtained the messages from Woman.

The police officers also took the deposition of Man’s wife. She recalled sitting with Man when he and Woman first communicated via Facebook Messenger after the arrest. She also saw the messages on Man’s Facebook Messenger account the day before her deposition, but she did not read them.

The police officers demanded that Man supplement his previous discovery responses and give them copies of the messages. At first, Man only provided some messages. However, he later provided all the messages.

During Man’s second deposition, he claimed he did not remember communicating with Woman after the arrest because of “amnesia” he suffered from the police officers’ “beating.” He also speculated that perhaps someone with access to his Facebook Messenger account deleted the messages.

The police officers moved to dismiss Man’s claims as a sanction for failing to comply with the trial court’s order compelling him to produce this information. The trial court found Man’s claim that he forgot about the messages “disingenuous” and that Man intentionally concealed evidence. The trial court concluded that Man’s “blatant prevarication and misconduct warranted the most severe sanctions.” Man’s case was dismissed. Man was also ordered to pay $67,000 toward the police officers’ attorney’s fees and expenses.

Man appealed, arguing that dismissing the case was too harsh a sanction.

On Appeal: The Court of Appeals affirmed the trial court.

In Tennessee, failing to comply with an order compelling the production of discovery can result in any sanction that is “just,” including that facts be considered established, defenses or pleadings be stricken, contempt of court, and dismissal of all or part of the lawsuit.

Litigants also have an affirmative duty to amend an earlier discovery response when they learn it was wrong when made.

The Court found no abuse of discretion in the trial court’s handling of this situation:

In reviewing this evidence, we conclude that it does not preponderate against the court’s findings. The trial court determined that [Man] was “not a credible witness” based on his “conflicting testimony and sworn discovery responses as well as his demeanor in court.” [Man] had originally maintained that he was not aware of any communications between him and [Woman]. When confronted with some messages, he testified that he had forgotten about them. The trial court found that “no reasonable person would ‘forget’ about the existence of the communication between himself and [Woman] concerning the events of that night.” Among other things, [Man] “was arrested and handcuffed while partially clothed,” “faced the ire of his then girlfriend, now wife,” and “was required to face both a criminal hearing and a military tribunal.” And although [Man] claimed at that time that he had not deleted any messages from his Facebook messenger account, he later changed his story again when confronted with those messages. He then claimed he deleted them at [his wife’s] direction.

*     *     *     *     *

[Man] asserts that the defendants were not prejudiced by his failure to disclose the messages because their counsel knew about the messages and were able to acquire them [directly from Woman]. But a showing of prejudice is not required when a party repeatedly disobeys orders of the court and lies about the existence of evidence.

[Man] misrepresented whether communications with [Woman] existed. He maintained this position in the face of an order to compel production and during his first deposition. When confronted with the messages, [Man] reported that he forgot about their existence but was “pretty sure” he did not delete any of the messages. When that too was revealed to be false, he claimed that he deleted some of the messages at his wife’s direction. Court’s choice of dismissal was within the range of acceptable dispositions for such actions.

As for the trial court’s award of attorney’s fees and expenses to the police officers, the Court added:

In the operative complaint, [Man] claimed that he was not intoxicated, aggressive, or violent when he was arrested. But the messages showed the exact opposite. [Man’s] deceit forced the defendants to pursue other avenues to obtain the messages and engage in duplicative discovery after the messages were finally turned over by [Woman]. Then, after the trial court dismissed the case, [Man] attempted to reopen discovery. This forced the defendants and [Woman] to incur additional expenses. We discern no abuse of discretion.

The Court affirmed the trial court’s ruling in all respects. It also ordered Man to pay the police officers’ attorney’s fees on appeal.

K.O.’s Comment: Man kept doubling down on a bad hand. As Kenny Rogers once said:

You’ve got to know when to hold ‘em,
Know when to fold ‘em,
Know when to walk away,
And know when to run.

This is a cautionary tale for those who think about hiding or destroying evidence. It shows that things can get far worse than simply losing your case. You can also end up paying the other party’s attorney’s fees and expenses. And, in the process, you may wreck your military career.

Source: Plofchan v. Hughey (Tennessee Court of Appeals, Middle Section, January 5, 2024).

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