On January 25, 2018, the Supreme Court of Ohio will hear oral argument in Kristen Elliott-Thomas v. David Kane Smith, et. al. 2017-0693. The issue in this case is whether the tort of spoliation of evidence includes claims of interference with or concealment of evidence, or whether it is instead limited solely to claims that allege evidence has been physically altered or destroyed. The case was accepted on conflict certification. Judge Russell J. Mock of the First District Court of Appeals will sit for Justice O’Neill, who has recused himself from hearing any new cases until he leaves the Court January 26, 2018.
Kristen Elliott-Thomas (“Elliot-Thomas”) sued two attorneys, David Kane Smith and David Hirt, (“Board Counsel”) and two Warren City School District Board of Education members, Regina Patterson and Rhonda Baldwin-Amorganos (“Board Members”) for tortious interference with evidence. She alleged each defendant intentionally concealed, hid, altered, or destroyed evidence in connection with her previously filed employment discrimination case against the Warren City School District. Smith and Hirt represented the school district and related defendants in the underlying employment discrimination case.
Trumball County Court of Common Pleas Judge Ronald Rice granted summary judgment in favor of all defendants in the spoliation case, and issued a protective order prohibiting Elliott-Thomas from taking certain discovery depositions. Judge Rice held that all of Elliott-Thomas’ claims lacked merit because she could not prove that any of the defendants physically destroyed evidence, and that her allegations were simply discovery disputes arising from the wrongful termination claim.
Elliot-Thomas appealed. The claim involving the board members was settled, and that part of the appeal was dismissed.
Court of Appeals Decision
On appeal, the Eleventh District Court of Appeals, in an opinion authored by Judge Thomas Wright, which Judge Colleen O’Toole joined in full and Judge Diane Grendell concurred in judgment only, reversed the trial court’s decision in part as to Board Counsel, holding spoliation claims can include allegations of alteration, interference with, or concealment of evidence.
The Court of Appeals held the “willful destruction” element is not limited to destruction of physical evidence, but also includes the alteration, interference with, or concealment of evidence if those actions render the evidence ineffective or useless in the plaintiff’s underlying case. The court found the gravamen of the action to be the unavailability of the evidence to the person entitled to it; the manner in which this is done does not matter.
“Does the tort of intentional interference with or destruction of evidence* include claims alleging interference with or concealment of evidence that disrupt a plaintiff’s underlying case? Or, is the tort of intentional interference with or destruction of evidence limited to claims that allege evidence is physically altered or destroyed?”
*Note—for simplicity, this tort is mostly referred to as spoliation in this post.
Certified Conflict Cases
O’Brien v. Olmsted Falls, 2008-Ohio-2658 (8th Dist.)
Bugg v. American Standard, Inc., 2005-Ohio-2613 (8th Dist.)
Allstate Ins. Co. v. QED Consultants, 2009-Ohio-4896 (5th Dist.)
McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002-Ohio-6170 (4th Dist.)
Votes to Accept the Case
Yes: Chief Justice O’Connor, and Justices French, O’Neill, Fischer, and DeWine
No: Justices O’Donnell and Kennedy
Smith v. Howard Johnson Co. 67 Ohio St. 3d 28 (1993) (this case established the spoliation tort in Ohio, defining its elements as: (1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of defendant that litigation exists or is probable; (3) willful destruction of evidence by defendant designed to disrupt the plaintiff’s case; (4) disruption of the plaintiff’s case; and (5) damages proximately caused by the defendant’s acts.)
Viviano v. CBS Inc., 101 N.J. 538 (1986) (the sole case cited in Smith. In it, plaintiff was awarded damages, by a jury, on her claim that her employer, who she initially sued in a personal injury suit, intentionally concealed material discovery and interfered with the economic damages she could have won in the personal injury suit.)
Drawl v. Cornicelli, 124 Ohio App.3d 562 (1997) (a cause of action for spoliation is not limited to destruction of evidence, but includes claims of interference with and concealment of evidence.)
Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488 (2001) (Spoliation claim not barred by res judicata in cases in which evidence of spoliation is not discovered until after the conclusion of the primary action. Only grounds for spoliation claim in this case was concealing, misrepresenting, and interfering with evidence, not its destruction.)
Hicks v. Bryan Med. Group, Inc., 287 F.Supp. 2d 795 (N.D.Ohio 2003) (“The court finds that a reasonable jury could conclude that the alteration to Hick’s privilege application was a disruption in the [malpractice] case and that Hicks was damaged because of the alteration. Had the application not been altered, Hicks may have settled for less than he did or may not have agreed to settle at all.”)
Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 961 A.2d 1167 (2008) (spoliation claim may be addressed both by an adverse-inference instruction given to the jury, and by a separate claim in a bifurcated proceeding.)
Wilkey v. Hull, 366 Fed Appx. 634 (6th Cir.2010) (employee sued former employer hospital and hospital’s counsel for tortious interference with evidence during his suspension proceedings. Court of appeals affirmed defense’s granted motion to dismiss, holding the Court’s language in Davis v. Wal-Mart Stores, Inc., suggesting that the misrepresenting or even withholding of evidence might be an actionable wrong, was dicta.)
Wheatley v. Marietta College, 2016-Ohio-949 (4th Dist.) (affirming summary judgment disposing of a spoliation claim because there was no evidence of willfulness and collecting cases that reached the same result.)
Board Counsel’s Argument
Board Counsel argue that the 11th District’s decision improperly expands the tort of spoliation to simple discovery disputes over delays in production. They argue the tort is, and should be, limited to active conduct designed at physically changing or destroying evidence, and not on passive failure to produce evidence. They argue that there are a wide range of sanctions to deal with discovery disputes and evidentiary misconduct without filing separate tort claims against attorneys.
Board Counsel further argue there will be numerous undesirable effects to expansion of the spoliation tort, in that it will subject attorneys to suit for discovery disputes for delayed document production, litigants will abuse spoliation to gain leverage, will subject attorneys (who are currently serving in the underlying suit) to invasive depositions, and will impose further burdens on the already high cost of litigation on overcrowded courts. They argue the 11th district’s expansion of the tort is unworkable and relies on non-binding dicta from Davis.
Finally, as to Elliott-Thomas’ allegations in the case at hand, Board Counsel argue that all information was produced in discovery, and that Elliot-Thomas is trying to broaden spoliation to include “inconvenient timing” of production.
Elliott-Thomas argues that the Smith decision does not limit the spoliation tort to the physical destruction of evidence, and Drawl is correct in holding that Smith is not so limited. Further, a recognition that spoliation claims cover concealment and interference with evidence would not open the flood gates to numerous suits against attorneys. A holding limiting the tort to destruction of physical evidence would miss the point of the tort, as the unavailability of the evidence to the party entitled to it is what the tort is meant to protect.
Elliott-Thomas further argues that this case is not merely a discovery dispute, as Board Counsel have characterized it, but is an egregious abuse of discovery, as Board Counsel withheld thousands of documents, delayed and prevented witnesses from testifying and being deposed, delayed the trial on numerous occasions and forced Elliot-Thomas to travel across the country for depositions.
Board Counsel’s Proposed Proposition of Law
The independent tort of spoliation under Ohio law extends only to physical destruction or manipulation of evidence, and not the delayed production of evidence in discovery.
Elliott-Thomas’ Proposed Counter Proposition of Law
The tort of intentional interference with or destruction of evidence includes claims alleging interference with or concealment of evidence that disrupt an opposing party’s underlying case.
Amicus Briefs in Support of Elliott-Thomas
Ohio Employment Lawyers Association
The Ohio Employment Lawyers Association (“OELA”) is a state-wide organization of lawyers who represent employees in labor, employment, and civil rights disputes.
OELA argues that the plain language of the Smith decision, and the dictionary definition of the word “interfere” demonstrate that claims based on interference with and concealment of evidence are part of the spoliation tort. OELA argues courts which take the opposite view have misapplied Smith and misunderstood its progeny.
Further, discovery sanctions and adverse inferences are inadequate to remedy the damage that can be caused by a party interfering with evidence, and do not cover misconduct by third parties. Additionally, OELA argues the Supreme Court of Ohio should use this case to clarify Smith and provide guidance to lower courts by adopting a flexible procedure similar to that used in New Jersey, which gives lower courts discretion to use a range of tools to address misconduct in a manner based on the identity of the spoliator and the time the spoliation is discovered. The certified question before the Court must be answered “yes.”
Ohio Association for Justice
The Ohio Association for Justice (“OAJ”) is an association of trial lawyers representing the interests of plaintiffs in employment law, workers’ compensation law, personal injury law, professional negligence law, products liability law, family law, consumer law, insurance law, civil rights law, and environmental law.
OAJ argues the tort recognized in Smith has not generally been limited to physical destruction, as evidenced by other states that recognize the tort, and the New Jersey case cited in Smith. In deciding Smith, the Supreme Court of Ohio recognized the spoliation tort despite the fact that the trial judge may impose sanctions on defendants who abuse discovery. The Court should now clarify that the spoliation tort in Ohio is also about “interference” with evidence—not just physical destruction or alteration.
Further, Board Counsel’s arguments that allowing spoliation cases to be based on concealment or interference with evidence could lead to abuse is unmeritorious, as there is ample empirical evidence that the lower courts are properly disposing of unmeritorious claims. Further, the fact that this tort requires willfulness is an appropriate limitation on it.
The Supreme Court of Ohio should follow the lead of other state courts and take a practical approach to spoliation claims, allowing lower courts to use a range of options to deal with such claims.
Student Contributor: Kristen Elia