Lost But Not Forgotten: Overcoming the Statute of Frauds in Tennessee With A Lost Contract
A prospective client comes to you for an initial consultation regarding a possible breach of contract. This individual describes a deal they made years ago with a large out-of-state company where the individual agreed to do X in exchange for the company’s payment of Y dollars over the next 10 years. X has indisputably been completed, but 6 years into the contract the other party stopped paying Y. You tell the prospective client that if all of these facts are true they likely have a good breach of contract case. You excitedly engage your new client, and as they leave you mention that you just need a copy of the contract to begin drafting the Complaint. Your excitement switches to panic when your now-client informs you that the contract has been lost for years. Even worse, when you ask for a copy from the opposing party, they now maintain that no writing ever existed.
At this point your once-bulletproof case appears destined for a quick motion to dismiss premised upon the Statute of Frauds. If you file your case in a federal court in Tennessee, however, you may be able to use the interplay between Tennessee substantive law and federal evidentiary law to overcome such a dispositive motion.
While the Statute of Frauds requires a writing signed by the party to be, the Tennessee Court of Appeals has held that “[e]nforcement of a contract is not prevented by the fact that the written document has been lost or destroyed; its contents may then be proved by oral testimony.” In other words, Tennessee courts recognize that the Statute of Frauds is not intended to act as an evidentiary rule, rather it requires only that a signed contract existed at some point. This rule of law can then be coupled with Federal Rule of Evidence 1004, which has been applied such that “[w]hen a proponent cannot produce original evidence of a fact because of loss or destruction of evidence, the court may permit proof by secondary evidence.”
Based on the two rules above, a party can still enforce a promise that is subject to the Statute of Frauds even if the contract evidencing that promise has been lost. First, the party will need to show that that they conducted a good faith, reasonably diligent search but were unable to uncover the document. Once this showing is made, FRE 1004 permits proof of the existence and terms of the lost document, and such proof can take any form, including oral testimony. Thus, following the path above may resuscitate the case you thought was lost with your client’s written contract.
 Petty v. Estate of Nichols, 569 S.W.2d 840, 847 (Tenn. Ct. App. 1977) (citing Corbin on Contracts, pp. 486-52) (emphasis added).
 Sicherman v. Diamoncut, Inc., 225 B.R. 896, 902 (6th Cir. 1998).
 See Doucet v. Drydock Coal Co., 397 B.R. 36, 48 (S.D. Ohio 2008).
 Id. (“secondary evidence, presented pursuant to FRE 1004, can be in any form”).