Plaintiffs in a tire defect case routinely seek through discovery the defective tire's component information, blueprints and related design specifications. What happens, however, when the tire manufacturer claims that it destroyed key documents prior to the commencement of the defect litigation as part of the company's document retention policies? Florida's Third District Court of Appeal addressed this issue in a 2001 decision in Michelin Tire Corp. v. Milbrook, 799 So.2d 248 (3d DCA 2001).

In Milbrook, the trial court entered a final judgment against Michelin for $4.8 million, following a jury verdict finding the company liable for manufacturing a defective tire. During the trial, Michelin argued that the defective tire had been driven 52,000 miles, which was 12,000 miles more than the "contemplated useful life" of the tire. Id. at 249. According to Michelin, the plaintiff's claims were based entirely on speculation.

Following a two week trial, the jury in Milbrook deadlocked, requiring the court to conduct a second trial. During the second trial, Michelin stipulated on the record that the specifications for the defective tire did not exist and therefore the specifications were not reviewed by either parties' expert as part of their analysis. Id. at 250. During the second trial, plaintiff's counsel alluded to the fact that Michelin had not kept important documents as part of its retention policy. Id. at 251. Equally important, Michelin's counsel argued during the second trial that plaintiff's expert lacked documentary evidence to support his opinion. In return, plaintiff's counsel argued that plaintiff's expert lacked documentary evidence due to Michelin's document retention policy (Michelin destroyed tire specifications and test results on a rolling, five year basis).

During the second trial, a discovery dispute arose between the parties that suggested Michelin's sister company, MARC, possessed the records Michelin previously claimed were destroyed as part of its retention policy. The court instructed plaintiff's counsel not to inform the jury of the discovery dispute regarding the possible existence of the design documents. As part of its appeal of the $4.8 million judgment, Michelin argued that plaintiff's counsel ignored the court's instruction regarding the discovery dispute and made Michelin's document retention policy a key feature of the trial. Milbrook at 250.

On appeal, the Third District agreed with the trial court. Plaintiff's counsel never mentioned Michelin's sister company, MARC, or any pretrial non-disclosure of information by Michelin. Id. at 251. The court further agreed with the trial court that it was "fair game" for plaintiff's counsel to argue that plaintiff's expert lacked documentary evidence to support her arguments due to Michelin's document retention policy. Id. After receiving an adverse judgment at trial, Michelin asked the trial court to grant it a new trial. The trial court denied Michelin's motion for a new trial and the appellate court agreed, finding that the plaintiff "submitted substantial competent evidence supporting her claim of a defect caused by the manufacturing process the tire maker employed." Id. at 251.

The Milbrook decision is helpful in that it shows how a manufacturer of a defective tire, or any defendant in tort litigation, cannot have it both ways. The trial court would not allow Michelin to argue that plaintiff's expert lacked documentary evidence to support his conclusions, yet at the same time bar plaintiff's counsel from explaining to the jury that Michelin's document retention policy limited the documents which plaintiff's expert could review. The appellate court agreed, noting that Michelin's failure to preserve key documents was "fair game."