Day on Torts - New Post: Discovery Sanction Affirmed For Failure to Produce Photograph

Where plaintiff failed to produce a photograph of an accident scene in response to requests for production, despite a consent order compelling a response to the discovery requests, the Court of Appeals affirmed the exclusion of a portion of defendant’s deposition testimony that plaintiff wanted to use at trial as a sanction.

In Cuddeford v. Jackson, No. W2019-00539-COA-R3-CV (Tenn. Ct. App. April 16, 2020), plaintiff filed a negligence suit against defendant after a motorcycle accident. Defendant was backing out of his driveway, and plaintiff alleged that defendant backed into plaintiff’s path, causing plaintiff to lose control of his motorcycle and crash.

In February 2016, defendant sent interrogatories and requests for production of documents to plaintiff, which including a request for “copies of any photographs…relating to the accident scene.” Plaintiff did not respond to the discovery requests, which eventually resulted in defendant filing a motion to compel. The trial court entered a “consent order for Plaintiff to respond to the interrogatories and request for production of documents by July 6, 2016.” The only document produced by plaintiff in response was a medical authorization.

Months later, plaintiff’s counsel produced a photograph that allegedly depicted the scene of the accident during defendant’s deposition. After defendant testified in his deposition about the location of his truck in the driveway at the time of the accident, plaintiff’ counsel showed defendant the photograph which depicted defendant’s truck “partially in the roadway.” Based on the deposition testimony and photograph, plaintiff moved to amend his complaint to add a claim for “punitive damages based on his allegation that Defendant lied in his deposition testimony about the distance his truck was from the road at the time Plaintiff crashed his motorcycle.”

Defendant moved the court to dismiss this new allegation and to not allow the photograph to be used at trial. Plaintiff argued that “his failure to timely produce the photograph was an inadvertent oversight and also argued excusable neglect.” The trial court ruled that the new claim against defendant should be dismissed, and that “any deposition testimony of the Defendant regarding the position of his truck at the time of the incident complained of [was] excluded from use for any purpose due to the failure of Plaintiff to timely produce the photograph of the truck taken by Plaintiff immediately after the incident,” but that the photograph itself was not excluded from trial.

After a jury trial, the jury found defendant not at fault for the accident. Plaintiff appealed on the basis that the exclusion of defendant’s deposition testimony was error, but the Court of Appeals affirmed.

“Trial courts have broad authority in discovery matters, including…the imposition of sanctions for abuse of discovery.” (internal citation omitted). In this case, the Court of Appeals found no abuse of discretion in the trial court’s decision to exclude portions of defendant’s deposition that plaintiff sought to use at trial. The Court reasoned:

Plaintiff’s counsel demonstrated no efforts to participate in discovery, even after Defendant’s counsel twice renewed his request for interrogatories and production of documents, and agreed to extend the response deadline. Despite the trial court’s order to…produce documents, including photographs, by July 6, 2016, Plaintiff failed to provide the photograph until many months later during depositions.

The Court also pointed out that the sanction here was not overly drastic, as plaintiff “was still permitted to use the photograph during his cross-examination of Defendant at trial.” Accordingly, the trial court’s ruling was affirmed.

This case shows the danger of withholding (even inadvertently) documents or photographs during discovery then later trying to use them. Here, plaintiff’s attempt to use a photograph he did not produce in discovery did not end well.

NOTE: this opinion was released four and a half months after being assigned on briefs.