Elliott-Thomas v. Smith, No. 2017-0693, Slip Op. No. 2018-Ohio-1783 (Ohio May 8, 2018).
Ohio, one of the few states recognizing an independent tort for intentional spoliation, has drawn a bright line limiting the claim to destruction or alteration of evidence.
This case began when the plaintiff, Kristen Elliott-Thomas, filed a wrongful termination and discrimination action against her former employer. During that case, she filed a separate intentional spoliation action against the defendants and their attorneys.
Elliott-Thomas contended that the defendant’s attorneys “intentionally withheld, hid, altered, and/or destroyed evidence” that was relevant to her case. The trial court granted summary judgment to the defendant’s attorneys, concluding that Elliott-Thomas had not “establish[ed] that either [attorney] had physically destroyed evidence.”
On appeal, the intermediate appellate court reversed. It concluded that proof of actual destruction of evidence was not necessary. Rather, it said, concealment, interference, or even misrepresentation of evidence would suffice.
The Supreme Court of Ohio granted review to determine whether “the tort of intentional interference with or destruction of evidence include[s] claims alleging interference with or concealment of evidence.” The appeal also framed the question in the alternate, asking whether the tort was limited to physical alteration or deletion of evidence.
Ohio is one of “only a handful of jurisdictions” recognizing intentional spoliation as a separate tort action. Its claim applies only to the “willful destruction of evidence by [the] defendant designed to disrupt the plaintiff’s case.” (Plaintiffs might destroy evidence, of course, but if they do, they will not have committed intentional spoliation under Ohio’s law.)
Elliott-Thomas argued that the “willful destruction” element should not be limited to the “physical destruction” of evidence. Rather, she claimed, it should encompass concealing or withholding evidence from a plaintiff.
The court noted that few states recognize the tort of spoliation at all. While admitting that “the viability of the tort is not an issue currently before us,” the court declined to expand its reach for three reasons.
First, the court recognized that there are “other adequate remedies” for concealment of and interference with evidence. Courts have “broad discretion to impose sanctions,” and attorneys are bound by ethical rules.
Second, the court cited “the speculative nature” of both the harm and the damages from interference with or concealment of evidence.
Finally, the court cited judicial economy concerns due to the potential for increased “supplemental proceedings” and “duplicative litigation.” In doing so, it noted that concealment and interference were “better handled within the context” of the original case.
The court reversed, reinstating the judgment of the trial court and dismissing Elliott-Thomas’s claim of spoliation. Because the court resolved the case on the first question, it did not consider the alternative: whether its tort was limited to claims of physical alteration or deletion.
Justice Fischer authored a concurring opinion to address whether the court’s ruling might deprive litigants of a sufficient remedy. In it, he encouraged trial courts to “sanction without delay errant behavior” to deter litigants from such practices.
Justice Fischer also raised the possibility that a party might discover concealment or interference only after the conclusion of the underlying action. While ethics rules may deter attorney misconduct, non-attorney concealment or interference could elude any remedy.
Takeaways on Determining When Digital Evidence Is Spoliated
Here, the court focused on whether evidence had been permanently destroyed or altered, not just hidden from a litigant. But it evaded the question of whether the tort was limited to physical alteration or destruction. With an increasing proportion of discovery involving electronically stored information (ESI), physical destruction can be a nebulous concept. For that matter, so can permanence: forensic experts can often restore “deleted” or altered files. This is why Federal Rule of Civil Procedure 37(e) adds the results-oriented caveat that spoliated ESI “cannot be restored or replaced” through additional discovery.