No Spoliation Civil Action Without Destruction Of Evidence

The Ohio Supreme Court reversed a decision that had allowed a civil suit for spoliation of evidence against opposing counsel in litigation.

From the court’s summary 

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.”

…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. 

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.

 View oral argument video of this case.

(Mike Frisch)