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Rule 37 Sanctions - Missing Evidence

Rule 37 Sanctions: Sufficient if Evidence is Concealed, but not Destroyed

Rule 37 Sanctions is the Appropriate Remedy for Interference with or Concealment of Evidence, not Spoliation Claim

By Jo A Tatarko

The Ohio Supreme Court recently ruled that Civil Procedure Rule 37 provides the remedy against attorneys that interfere with or conceal evidence in discovery, rather than a spoliation claim.

Kristen Elliott-Thomas sued the Warren City School District (“School District”), its Board of Education and five Board members alleging wrongful termination and sex discrimination. 

While that case was pending, she filed a separate case against two attorneys representing the School District for spoliation of evidence. Elliott-Thomas alleged the two attorneys “intentionally withheld, hid, altered, and/or destroyed evidence relevant to her wrongful termination case.” 

The trial court granted the attorneys’ motion for summary judgment because Elliott-Thomas was unable to establish that either of them had “physically destroyed evidence.”

However, the Court of Appeals reversed and found that a plaintiff did not need to present evidence of “actual destruction or alteration of physical evidence” in order to prevail on a spoliation claim. 

Rather, it found “the intentional concealment, interference with or misrepresentation of evidence was sufficient for that claim.”

Turns out, the trial court had it right.

The Supreme Court recognized a conflict between the appellate districts on the issue and accepted the case. 

What Constitutes Spoilation of Evidence

The Court found that Ohio is one of the few jurisdictions that recognize an independent tort of intentional spoliation of evidence, and its elements are:

(1) pending or probable litigation involving the plaintiff, 

(2) knowledge on the part of the defendant that litigation exists or is probable, 

(3) willful destruction of evidence by the 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.

Intentional Concealment and Interference is not Spoilation

Although Elliott-Thomas argued that the Court had originally intended a broader interpretation of the term willful destruction of evidence that would include “intentional concealment and interference” when it recognized the spoliation claim in Smith v. Howard and Johnson Co, Inc., the Court disagreed. 

It held that the Plaintiff must show evidence was physically altered or destroyed in order to prevail on a spoliation claim.  

In so holding, the Court relied on other states, which had found that intentional spoliation is not the appropriate cause of action when evidence is concealed, but not destroyed. 

Civil Rule 37 Sanctions is Sufficient When Evidence is Concealed, but not Destroyed.

It relied on the remedies available under Civil Rule 37, which allow a court broad discretion to impose sanctions upon a party that violates the rule governing the discovery process, as well as the ethical rules, which require an attorney not to abuse the discovery process. 

The Court also found that the damages relating to an expansion of the spoliation tort would be speculative because it would be nearly impossible to determine the actual damages caused by the withholding of that evidence.

The Court also found that if it were to recognize a cause of action for interfering with or concealing evidence, it would not be in the interests of the judicial economy because the dispute would have to be brought twice, which is what Elliott-Thomas did.  

Thus, the Court held that allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of intentional spoliation of evidence. 

Rather, those issues should be addressed with the trial court as part of the underlying case under the remedies afforded in Civil Rule 37 and any ethical violations.

Spoilation Claims in the Future

Given the Court’s reservations about spoliation of evidence claims, I would not be surprised if it rejected spoliation claims altogether when given the opportunity to do so.

Speak to an Expert Attorney

If you have questions about your legal claims or defenses, you should speak to an expert attorney directly.

Call the law firm of Dworken & Bernstein today.  In Lake County, call 440.946.7656 In Cuyahoga County, call 216.861.4211

The information presented in this post is not legal advice and does not form a lawyer/client relationship. Laws and circumstances can differ and change.
Please contact us for a personal review of your situation

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