On May 8 2018, the Supreme Court of Ohio handed down a merit decision in Elliott-Thomas v. Smith, 2018-Ohio-1783. The court accepted the case on the following certified conflict 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?”

In a unanimous opinion written by Justice Kennedy, the court answered the first question with a “no,” holding that “allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of spoliation of evidence.” Because of this answer, the court had no need to address the second question. Justice Fischer wrote a separate concurrence, joined by Justice O’Donnell.  Chief Justice O’Connor concurred in judgment only.  Judge Russell Mock of the First District Court of Appeals sat for Justice O’Neill, and joined Justice Kennedy’s opinion. The case was argued January 25, 2018.

Case Background

Appellee Kristen Elliott-Thomas sued the Warren City School District, its board of education, and five school board members for wrongful termination and sex discrimination.  While that case was pending, Elliott-Thomas also sued two school board members and Appellants David Kane Smith and David Hirt, the lawyers who represented the school defendants in the wrongful termination case, for tortious interference with evidence in the wrongful termination case.

The trial court granted summary judgment in favor of all defendants in the spoliation case. 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 against the two school board members was settled and is not further involved in this appeal.

The Eleventh District Court of Appeals reversed, holding that to establish a viable claim for spoliation of evidence, a plaintiff need not present evidence of “actual destruction or alteration of physical evidence.” Rather the intentional concealment, interference with or misrepresentation of evidence was good enough.

The Supreme Court accepted the case on conflict certification.

Certified Conflict Cases

 O’Brien v. Olmsted Falls, 2008-Ohio-2658 (8^th Dist.)

Bugg v. American Standard, Inc., 2005-Ohio-2613 (8^th Dist.)

Allstate Ins. Co. v. QED Consultants, 2009-Ohio-4896 (5^th Dist.)

McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002-Ohio-6170 (4^th Dist.)

Read the oral argument preview here and an analysis of the argument here.

Key Precedent

Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993) (The tort of spoliation has five elements: (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., 251 N.J.Super. 113, 597 A.2d 543 (1991) (Smith cited Viviano for the elements of an action for destruction of evidence.)

Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 756 N.E.2d 657 (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.)

Allstate Ins. Co. v. Dooley, 243 P.3d 197 (Alaska 2010) (Supreme Court of Alaska held that intentional spoliation is not the appropriate cause of action when evidence is concealed, but not destroyed.)

Smith v. Los Angeles Cty. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984) and Cedars-Sinai Med. Ctr. v. Los Angeles Cty. Superior Court, 18 Cal.4th 1, 8-17 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998) (California, the state in which the intentional spoliation-of-evidence action found its beginnings, reversed positions and no longer recognizes that tort, relying instead on traditional remedies. Further, Cedars-Sinai demonstrates that the nature of the harm arising from interference with or concealment of evidence is highly speculative, as is the nature of any alleged resulting damages. Finally, Cedars-Sinai demonstrates the additional burden that would be placed upon courts if the court were to recognize a cause of action for interfering with or concealing evidence; extending the scope of the tort would result in more supplemental proceedings requiring presentation of evidence from underlying litigation in order for juries to determine the harm suffered by plaintiffs, which runs counter to judicial efficiency.)

Civ.R. 37; Toney v. Berkemer, 6 Ohio St.3d 455, 453 N.E.2d 700 (1983) (Civil Rule 37 provides trial courts with broad discretion to impose sanctions upon a party who violates the rules governing the discovery process. So, there are other adequate remedies to deter and punish interference with and concealment of evidence by parties and counsel.)

Trevino v. Ortega, 41 Tex.Sup.Ct.J. 907, 969 S.W.2d 950 (1998) (court declines to adopt a cause of action for intentional spoliation of evidence, finds a jury would find assessing damages problematic “because evidence spoliation tips the balance in a lawsuit; it does not create damages amenable to monetary compensation.”)

Merit Decision

Executive Summary

“Allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of spoliation of evidence.”

Analysis

The Supreme Court of Ohio set out the five elements of the tort of spoliation in Smith v. Howard Johnson Co. Inc. (see precedent section above). But the court did not, as Elliot-Thomas urges, intend for the tort to include intentional concealment and interference with evidence.  And of the Ohio appellate courts that have addressed the issue, several (like the conflict cases here) have concluded that the claim does not include concealment of or interference with evidence.

Most states don’t even recognize the independent tort of spoliation of evidence. Of those that have, none buy Elliot-Thomas’ interpretation. California, the place where it all began, no longer recognizes the spoliation tort at all. And there’s no way Ohio is going to expand this tort. That would just add collateral burdens to the underlying litigation. There are plenty of other remedies to deter and punish wrongful interference with and concealment of evidence, including Civ. R. 37, and various rules of professional conduct.

Justice Fischer’s Separate Concurrence

Justice Fischer wrote separately “to address any concerns that this court’s holding may deprive certain litigants of an adequate remedy when an individual conceals or interferes with evidence.” There should be no such concerns. Courts have broad discretion to deal with this problem under the Civil Rules, the Rules of Professional Conduct, and the Rules for the Government of the Bar, and should use these tools to deter “errant behavior by lawyers and litigants.”

Fischer posits that the tort and the rules may not cover a situation where a non-lawyer’s concealment of or interference with evidence isn’t discovered until the underlying case is over. But that isn’t the situation here, so the answer to that will have to await another day.

Justice O’Donnell joined this separate concurrence.

Case Syllabus

None

Concluding Observations

This was pretty much of a no-brainer. This tort is pretty unpopular in some circles, and there was just no way the court was going to expand it over what is essentially a discovery dispute. Both student contributor Kristen Elia and I predicted a win for the defense.  I wrote this after the argument:

“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 also wrote I did not see the court as expanding the tort.

More ominous was Justice Kennedy’s remark, “As the viability of the tort is not an issue currently before us, we do not go that far today,” right after mentioning that California has gotten rid of it. A forewarning?