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The Claim of Spoliation of Evidence and Its Limitations


Early this year, the Ohio Supreme Court will have the opportunity to rule on a very important issue in civil litigation – spoliation. In the case of Elliott-Thomas v. Smith, the court will examine the limits of the tort of spoliation of evidence. This article will explain this particular tort and discuss the legal issues the Ohio Supreme Court will ultimately be addressing in its opinion.

What does spoliation of evidence mean and what are the consequences?

Spoliation of evidence refers to the negligent, intentional, or reckless, hiding, withholding, altering, fabricating, or destroying any evidence that is relevant to the lawsuit. The act of spoliation of evidence is prohibited by the Rules of Professional Conduct with which all attorneys are required to abide. It is also prohibited by the Federal Rules of Civil Procedure. There are many different sanctions possible and tort actions are also possible.

Lawyers who destroy or assist someone else in destroying evidence relating to a case can receive significant fines or be imprisoned for up to 20 years. In addition, under the rules of civil procedure, the wrongdoer’s claims can be dismissed, or judgment will be entered against them, expert testimony could be excluded, or the “adverse inference rule” could be imposed.

The adverse inference rule

One important concept for plaintiffs in a lawsuit when spoliation has been proven is that application of the adverse inference rule. This rule says that, if the plaintiff was attempting to present evidence on a legal issue or fact that is essential to their case, but is unable to do so because a piece of evidence has been destroyed by the defendant, then the jury is allowed to infer that the destroyed evidence would have been adverse to the defendant. The jury can then accept the plaintiff’s reasonable interpretation of what the destroyed evidence would have shown.

The case of Elliott-Thomas v. Smith

In this case, the Ohio court was called upon to decide whether the tort of spoliation of evidence would include a claim of interference with, or concealment of evidence, or whether the tort was limited to claims that evidence was physically altered or destroyed. The trial court initially decided that such claims were limited to claims of physical alteration or destruction. The court of appeals reversed that decision, holding that civil spoliation claims can include claims of alteration, interference with, or concealment of evidence.

Specifically, the court of appeals determined that the concept of “willful destruction” should not be limited to destruction of physical evidence, but also includes altering evidence, interfering with the production of evidence or actively concealing evidence. The key is that the actions render that evidence useless or ineffective in supporting the plaintiff’s claims. Ultimately, the manner in which the evidence is made unavailable to the plaintiff does not really matter.

The Certified Question for the Ohio Supreme court to decide

The question that has been certified to the Ohio Supreme Court, that is the question that will be answered, is as follows:

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?

It will be interesting to see how the court comes down on this question.

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