What’s On Their Minds: Further Defining the Tort of Spoliation of Evidence. Kristin Elliott-Thomas v. David Kane Smith, et al.

“…so why didn’t you file a motion to compel or some sort of activity to bring it to the court’s attention that they were not cooperating with discovery the way they should…?”

Chief Justice O’Connor, to plaintiff’s counsel.

On January 25, 2018, the Supreme Court of Ohio heard 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 sat for then-Justice O’Neill.

Case Background

Kristen Elliott-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.

The trial court 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. The court 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.

Read the oral argument preview of the case here.

Certified Question

“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.)

Key Precedent

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 (11th Dist. 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.)

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. Federal appeals court affirmed defense motion to dismiss, holding the Ohio Supreme 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.)

At Oral Argument

Arguing Counsel

Martin T. Galvin, Reminger Co., L.P.A., Cleveland, for Appellants David Kane Smith and David Hirt (Board Counsel)

Frank Consolo, Consolo Law Firm Co., L.P.A., Cleveland, for Appellee Kristen Elliot-Thomas

Board Counsel’s Argument

The issue presented in this certified conflict case is whether the destruction of evidence prong of the spoliation tort, as defined in Smith v. Howard Johnson, extends to the production of documents in discovery absent destruction or alteration of physical evidence.  For the past twenty-five years, there has always been a requirement almost universally consistently applied, that there needs to be a destruction of physical evidence.

This case is nothing more than a routine discovery dispute. And Board Counsel deny the allegations of discovery noncompliance. The plaintiff has taken a simple discovery dispute and transformed it into a cause of action that is not viable. That is what the trial court correctly found, and so should this court. There are ample procedural means in place in the civil rules to resolve this type of discovery dispute without filing additional and unnecessary lawsuits. Pleadings can be stricken, actions dismissed, default judgments entered, contempt of court found, attorney fees awarded. And if the problem isn’t discovered until after the underlying lawsuit has been resolved, the civil rules provide remedies for that as well, in Civ. R. 60(B).

This is a bad solution in search of a nonexistent problem. Any public policy benefits there may be to this tort are outweighed by the negative consequences. California, the state which created this tort in 1984, has now done away with it. While Board Counsel certainly favor that approach, that is not the certified question before the court.  The expansion of this tort beyond physical evidence to attorney conduct and communication is unprecedented.  This case is really an outlier. Of the courts that continue to recognize the tort of spoliation, many use the terminology physical destruction or significant alteration of the evidence.

The appellate decision in this case is also inconsistent with the longstanding doctrine in Ohio that attorneys are immune from liability to third parties, absent malice. If the court of appeals decision is allowed to stand, it would create a situation where attorney immunity and spoliation bodies of law conflict, and this will be back in front of this court in some other context in the relatively near future.

Elliot-Thomas’ Argument

This is not a case about a discovery dispute. It’s not a case about attorney misconduct. The appeals court went to great pains to make sure it was clear this was not a discovery dispute. Instead, the appeals court held that if a party to a suit willfully fails to disclose or intentionally hides or conceals otherwise responsive and discoverable evidence that has been requested in discovery without identifying the document or appropriately objecting to the request, then a cause of action for spoliation arises. The appeals court did not want to open Pandora’s box. Instead, it issued a narrow, well-tailored decision. It’s unfortunate that in this context, the only remaining parties to the spoliation case were the attorneys.

Elliott-Thomas still must return to the trial court to develop her spoliation case, which won’t be easy. She still must show that Board Counsel did intentionally withhold and conceal evidence. That is s a high burden, and one not likely to open a floodgate of cases. This court’s decision in Smith was not based on physical destruction of evidence—it was based on concealment and withholding. The same is true here.

What Was On Their Minds

Discovery Disputes and Remedies

Aren’t there sanctions against an attorney for orchestrating a witness, ignoring a subpoena, or facilitating obstruction, asked Chief Justice O’Connor?

How often are the sanctions set forth in the civil rules imposed by trial courts in discovery disputes, asked Justice O’Donnell? (When defense counsel stated he couldn’t say how often, but they were threatened all the time, the Chief rejoined that maybe that was because the threats worked and attorneys complied for the most part.)

Specific Issues in This Case

Wasn’t the conduct in this case quite egregious, asked Judge Mock, commenting that there were some 40,000 emails that had not been produced, after most of the relevant witnesses had been deposed. Isn’t this the kind of case for which this tort exists? Was there a scheduling order set in the case? Did either party ask for one?

What measures did plaintiff take other than filing a new lawsuit, asked Justice French? Motions to compel, for example? Seek intervention from the trial court? Wouldn’t that be the next logical step? In a key question, she asked whether this could have been handled as a discovery dispute, at least in the beginning, and the trial court could have resolved it without the need for a new lawsuit.

If the plaintiff was having trouble getting a witness for a deposition, was the judge asked for an order on that, asked Chief Justice O’Connor? (answer: No-it was all just informal, in chambers). Why not file a motion to compel?

The Spoliation Tort

Is third-party destruction of evidence different from first-party destruction, asked Justice DeWine? Should the court just get rid of the spoliation tort altogether?

What if the concealment doesn’t reveal itself until after the underlying case is over, asked Justice Fischer? What is a party supposed to do if there is no spoliation tort? Even with relief from judgment, what about all the time and money put into the first case?

National Trends

As he so often does, Justice O’Donnell asked how other state supreme courts have dealt with this issue, and asked defense counsel for his strongest case with respect to the requirement for physical destruction in connection with a spoliation claim. Defense counsel cited one from the Arkansas Supreme Court, which itself cited a Texas case. Has the issue percolated around the country, asked O’Donnell? Has any court gone to the point of allowing withholding evidence by an attorney or delayed production to be actionable spoliation?  (answer: no).

How It Looks From The Bleachers

To Professor Emerita Bettman

I’m predicting a win for Board Counsel. I don’t think a majority of the justices even see this as a spoliation case, but rather as a simple discovery dispute, and one in which the plaintiff did not press for any of the panoply of remedies available under the civil rules. I don’t think Mr. Consolo effectively persuaded a majority otherwise. He spent the better part of his argument thrashing about in the weeds about the specifics of what was not produced and when, about the piecemeal disclosure of evidence, and the dispute over the deposition of the human resources director. Not the stuff appellate arguments are made of. The Chief and Justice French seemed the most unpersuaded.

But the certified question is not case-specific—it asks whether the spoliation tort includes claims alleging interference with or concealment of evidence that disrupt a plaintiff’s underlying case, or is limited to claims that allege evidence is physically altered or destroyed. I don’t know exactly what happens when the actual case before the court doesn’t mesh with the certified question.

Speaking solely in the abstract, as a retired torts professor with a notorious plaintiff’s heart, I always admired the court for adopting the spoliation tort in the first place.  But I really don’t see this crowd as expanding it, or at least not in this case.

To Student Contributor Kristen Elia

This looks like a win for Smith and Hirt. Despite Elliott-Thomas’s efforts to detach the case’s context from the larger question of law at issue, the court remained focused on the facts of the case and honed in on the fact that Elliott-Thomas never filed any motions to compel and never asked the trial court to intervene in the production of the missing evidence. Instead, Elliott-Thomas immediately filed a separate suit, which some of the justices seem to think was jumping the gun. Chief Justice O’Connor, Justice French, and Judge Mock questioned Elliott-Thomas at length on this; Chief Justice O’Connor appeared unconvinced by Elliott-Thomas’s claim that the trial court “did not want to get involved” in the dispute, noting “that’s their job.” She similarly seemed perturbed by the fact that Elliott-Thomas did not bring it to the trial court’s attention that Smith and Hirt refused to produce a witness that they had agreed to produce in a pretrial meeting with the judge.

The court ultimately seems to agree with Smith and Hirt that the case at hand is an overblown evidentiary dispute which could have been resolved at the trial court level with judicial intervention and evidentiary sanctions. Several justices questioned Smith and Hirt on the protections that currently exist, and their questions aimed at confirming the effectiveness of such measures. Chief Justice O’Connor seemed persuaded that trial courts have a number of tools at hand to address the destruction of and concealment of evidence—both during and after conclusion of the case, and suggested that even the threat of such sanctions likely produce compliance in the majority of cases. It seems unlikely the court will rule that the tort of spoliation includes the concealment of or interferences with evidence.




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