Ohio Supreme Court Considers Whether Spoliation Claim Requires Physical Destruction of Evidence

On January 25, 2018, the Ohio Supreme Court will hear oral arguments in Kristen Elliott-Thomas v. David Kane Smith, et al., a case involving intentional interference with or concealment of evidence. Specifically, the Court is being asked to determine whether the tort commonly referred to as “spoliation” is limited to claims which allege that evidence has been physically altered. In Thomas, the plaintiff argued the defendants intentionally concealed, altered or destroyed evidence in connection with her wrongful termination and sexual discrimination suit against the Warren City School District by instructing a witness to ignore a subpoena and to not appear for deposition and withholding or hiding documents relevant to her claims. The trial court dismissed all of the plaintiff’s claims because she was unable to establish that the defendants physically destroyed evidence, concluding instead that the allegations amounted to discovery disputes in the underlying case. The Eleventh District Court of Appeals reversed and held that spoliation is not limited to destruction of physical evidence, but also includes interference with evidence if that conduct renders the evidence useless in the plaintiff’s case. According to the court, “[l]imiting spoliation claims to situations where evidence is burned, shredded, or otherwise physically destroyed obfuscates the issue. The gravaman is the unavailability of the evidence to the person entitled to it. The manner in which a party interferes with production is inconsequential to this element.” 2017-Ohio-702, ¶ 34. The Ohio Supreme Court accepted the case, acknowledging the decision was in conflict with cases decided in the Eighth, Fifth and Fourth Appellate Districts.