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Court News Ohio

‘Spoliation of Evidence” Claims Require Proof that Evidence Destroyed

Ohio is among a small number of states that recognize civil causes of action for intentional spoliation of evidence, but the actions are limited to evidence that was physically destroyed, the Ohio Supreme Court ruled today.

The Supreme Court unanimously rejected former Warren City School District employee Kristen Elliott-Thomas’ claim that the tort of spoliation of evidence applied to her case against two attorneys representing the district. She alleged the two intentionally withheld and hid evidence she needed to pursue a wrongful termination and sex discrimination suit against the district.

Writing for the Court majority, Justice Sharon L. Kennedy stated the Court had several reasons not to expand the scope of “spoliation of evidence” to included interfering with or concealing evidence, including the concern that juries would have difficulty assessing the harm of those acts. She also wrote there are other means to “deter and punish interference with and concealment of evidence by parties and counsel.”

Justices Terrence O’Donnell, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined Justice Kennedy’s opinion, as did First District Court of Appeals Judge Russell Mock, sitting for former Justice William M. O’Neill.

Justice Fischer also wrote a concurring opinion where he addressed potential concerns that the decision could deprive some parties of an adequate legal remedy when concealment or interference is discovered after a case has concluded. He noted that was not at issue in Elliott-Thomas’ lawsuit, in which Elliott-Thomas learned of the alleged spoliation during the pendency of her wrongful termination case.

Chief Justice Maureen O’Connor concurred in judgment only.

School Employee Fights Firing
Elliott-Thomas sued the Warren City schools, its board of education and five school board members, in 2012. Attorneys David K. Smith and David Hirt represented the district and the board members in the wrongful termination case.

While the case was pending, Elliott-Thomas filed a separate lawsuit against Smith, Hirt, and two board members, alleging the intentional spoliation of evidence. The lawyers asked the trial court for summary judgment in their favor, arguing that Elliott-Thomas failed to prove that Smith or Hirt physically destroyed evidence. The trial court agreed, and dismissed the case, noting that Elliott-Thomas’ allegations amounted to an evidence discovery dispute in her wrongful termination case and the parties should address the dispute in that case.

Elliott-Thomas appealed to the Eleventh District Court of Appeals, which reversed the trial court. The Eleventh District concluded that a viable spoliation claim does not require proof that the evidence was physically destroyed, and could go forward if Elliott-Thomas could prove there was “intentional concealment, interference with, or misrepresentation of evidence.” The district’s attorneys noted the decision conflicted with rulings of other appeals courts, including the Fifth District. The Eleventh District submitted the case to the Supreme Court to resolve the differences.

Destruction Requirement Disputed
The Ohio Supreme Court addressed the issue of intentional spoliation of evidence in its 1993 Smith v. Howard Johnson Co. Inc. case. Justice Kennedy explained in that case, the Court established that the tort has five elements:

  • There is pending or probable pending litigation involving the plaintiff
  • The defendant knows the litigation is pending or probable
  • The defendant willfully destroyed evidence designed to disrupt the plaintiff’s case
  • The plaintiff’s case was disrupted
  • The defendant’s action resulted in damages to the plaintiff.

Elliott-Thomas argued to the Court that while the Smith decision required willful destruction, the Court did not limit the requirement to only physical destruction. She pointed to other cases where claims of intentional concealment and interference were sufficient for the case to proceed.

The opinion stated the Court was not convinced the cases Elliott-Thomas cited supported her theory and noted that several Ohio appellate courts have concluded the intentional concealment or interference with evidence are not included in an intentional spoliation claim. The Court majority also found that none of the other state supreme courts that recognize an intentional spoliation claim have defined the claim to include concealment or interference.

The opinion noted that most states have declined to adopt a cause of action for intentional spoliation. The Court majority found guidance in the reasons and principles discussed by these courts in rejecting an expansion of the cause of action to encompass intentional concealment or interference. 

Other Remedies Available
The opinion stated one reason to find that the cause is limited only to physical destruction is that other remedies exist when a party conceals or interferes with the production of evidence. It noted that in the Ohio Rules for Civil Procedure — rule Civ.R. 37 — trial courts are empowered with broad discretion to impose sanctions on parties who violate the discovery rules by concealing or interfering with evidence. And the Ohio Rules of Professional Conduct, including Prof. Cond. R. 3.3 and 3.4, subjects lawyers to disciplinary actions for violating discovery rules.

The Court reversed the Eleventh District’s decision and reinstated the trial court’s judgment in favor of the district and board members.

2017-0693. Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783.

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