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IN THE SUPREME COURT OF OHIO

KRISTEN ELLIOTT-THOMAS, : Case No. 2017-0693 :

: Plaintiff-Appellee, : On Appeal from the Trumbull County

: Court of Appeals, Eleventh Appellate vs. : District

: DAVID KANE SMITH, et al., : :

: Defendants-Appellants. :

BRIEF OF AMICUS CURIAE

OHIO EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF APPELLEE KRISTEN ELLIOTT-THOMAS

Frank Consolo (0042455)

CONSOLO LAW FIRM, LTD.

212 Hoyt Block

700 W. St. Clair Avenue

Cleveland, OH 44113

Phone: (216) 696-5400

Fax: (216) 696-2610

fconsolo@consololaw.com

Counsel for Appellee

Kristen Elliott-Thomas

Christina M. Royer (0073695)

ELFVIN, KLINGSHIRN, ROYER & TORCH, LLC

4700 Rockside Road, Suite 530

Independence, OH 44131

Phone: (216) 382-2500

Fax: (216) 381-0250

chris@ekrtlaw.com

Counsel for Amicus Curiae

Ohio Employment Lawyers Association

Martin T. Galvin (0063624)

Jonathan H. Krol (0088102)

REMINGER CO., LPA

101 W. Prospect Ave., Suite 1400

Cleveland, Ohio 44115

Phone: (216) 687-1311

Fax: (216) 687-1841

mgalvin@reminger.com

jkrol@reminger.com

Counsel for Appellants

David Kane Smith, et al.

Supreme Court of Ohio Clerk of Court - Filed November 16, 2017 - Case No. 2017-0693

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Jason E. Starling (0082619)

WILLIS + WILLIS ATTORNEYS, CO., LPA

4635 Trueman Boulevard, Suite 200

Hilliard, Ohio 43026

Telephone: (614) 586-7915

Facsimile: (614) 586-7901

jstarling@willisattorneys.com

Counsel for Amicus Curiae

The Ohio Association for Justice

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................................................. i

TABLE OF AUTHORITIES ....................................................................................................... ii

I. STATEMENT OF INTEREST ............................................................................................ 1

II. SUMMARY OF ARGUMENT ......................................................................................... 2

III. STATEMENT OF FACTS AND THE CASE ................................................................. 5

IV. LAW AND ARGUMENT.................................................................................................. 5

Proposition of Law: The tort of intentional interference with, or destruction of, evidence

includes claims alleging interference with, or concealment of, evidence that disrupts a

plaintiff’s underlying case. ....................................................................................................... 5

A. The Plain Language of This Court’s Prior Decisions Involving Spoliation of Evidence

and the Dictionary Definition of the Word “Interfere” Demonstrate that Spoliation Claims

Based on “Interference with,” and Concealment of, Evidence Must Be Permitted to Go

Forward. ................................................................................................................................... 5

B. Ohio Appellate Courts Restricting Spoliation Claims to Cases Involving Only the

Destruction or Alteration of Physical Evidence Have Misapplied the Smith Holding and Have

Misconstrued This Court’s Precedent after Smith; To Adopt These Courts’ Flawed Reasoning

Would Require This Court to Overrule Smith and Would Create Confusion as to Moskovitz

and Davis. .............................................................................................................................. 10

C. Discovery Sanctions and Adverse Inferences Cannot Always Remedy the Damages

Caused by Concealing or Interfering with Evidence that Actually Disrupt a Party’s Case;

Limiting the Scope of the Spoliation Tort Will Do Nothing More Than Incentivize Parties –

and Particularly Non-Parties – To Conceal or Interfere with Evidence. ............................... 14

D. This Case Presents This Court with an Opportunity to Uphold and Further Clarify Smith

by Providing Lower Courts with Guidance on How to Address and Remedy All Kinds of

Evidentiary Misconduct; Following the Lead of a 2008 New Jersey Supreme Court Case

Would Ensure Fairness to All Parties and Would Uphold Vital Policy Goals Aimed at

Discouraging Spoliation of All Kinds. .................................................................................. 18

V. CONCLUSION ................................................................................................................ 23

CERTIFICATE OF SERVICE ................................................................................................. 24

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TABLE OF AUTHORITIES

Cases

Allstate v. Qed Consultants, Inc., 5th District App. No. 09CA14, 2009-Ohio-4896.............. 11, 12

Bugg v. Am. Std., Inc., 8th Dist. App. No. 84829, 2005-Ohio-2613............................................. 10

Davis v. Wal-Mart Stores, Inc., 93 Ohio St. 3d 488, 2001-Ohio-1593.................................. passim

Hills v. UPS, 2010 UT 39, 232 P.3d 1049 (2010). ................................................................. 16, 17

McGuire v. Draper, Hollenbaugh & Briscoe, LPA, 4th Dist. App. No. 01CA21,

2002-Ohio-6170. ................................................................................................................. 12

Moskovitz v. Mt. Sinai Medical Center, 69 Ohio St. 3d 638, 1994-Ohio-324. ...................... passim

O’Brien v. City of Olmsted Falls, 8th Dist. App. Nos. 89966, 90336, 2008-Ohio-2658.............. 10

Pratt v. Payne, 153 Ohio App. 3d 450, 2003-Ohio-3777. ...................................................... 12, 13

Rosenblit v. Zimmerman, 166 N.J. 391 (2001). ............................................................................ 18

Schwaller v. Maguire, 1st Dist. App. No. C-20555, 2003-Ohio-6917. ........................................ 15

Sivinski v. Kelley, 8th Dist. App. No. 94296, 2011-Ohio-2145. ................................................... 10

Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 1993-Ohio-229....................................... passim

Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 961 A.2d 1167 (2008). ......................... passim

Tate v. Adena Reg. Med. Ctr., 155 Ohio App. 3d 524, 2003-Ohio-7402. .................................... 12

Vidovic v. Hoynes, 11th Dist App. No. 2014-L-054, 2015-Ohio-712. ......................................... 15

Viviano v. CBS, Inc., 251 N.J. Super. 113, 597 A.2d 543 (App. Div. 1991). ................. 5, 6, 11, 18

Other Authorities

Andrew S. Pollis, Trying the Trial, 84 THE GEO. WASH. L. REV. 55, 103 (Jan. 2016) .................. 2

Black’s Law Dictionary 818 (7th Ed. 1999). .................................................................................. 7

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Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous

Judicial Action, 13 CARDOZO L. REV. 793, 795 (1991) ............................................................ 17

www.Thesaurus.com. (accessed November 13, 2017). .................................................................. 7

Rules

Ohio R. Civ. P. (B)(a)-(g). ............................................................................................................ 15

OHIO R. CIV. P. 37(A). ............................................................................................................ 15, 17

OHIO R. CIV. P. 42(B). .................................................................................................................. 21

OHIO R. PROF. COND. 3.4. ....................................................................................................... 15, 17

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I. STATEMENT OF INTEREST

The Ohio Employment Lawyers Association (OELA) is the state-wide professional

membership organization in Ohio comprised of lawyers who represent employees in labor,

employment, and civil rights disputes. OELA is the only state-wide affiliate of the National

Employment Lawyers Association (NELA) in Ohio. NELA and its 68 state and local affiliates

have a membership of over 3,000 attorneys who are committed to working on behalf of those who

have been treated illegally in the workplace. NELA and OELA strive to protect the rights of their

members’ clients, and regularly support precedent-setting litigation affecting the rights of

individuals in the workplace. OELA advocates for employee rights and workplace fairness while

promoting the highest standards of professionalism, ethics, and judicial integrity.

As an organization focused on protecting the interests of employees, OELA has an abiding

interest in ensuring that employees who seek to enforce their right to be free from discrimination

in the workplace have access to the evidence they need to prosecute their cases, free from abusive

discovery tactics by parties, their counsel, or even third parties, which rise to the level of tortious

interference with, or concealment of, relevant and critical evidence and testimony. OELA files

this amicus brief in support of the protections afforded by this Court’s, and other courts’, precedent

permitting parties whose cases are actually disrupted and damaged by the spoliation of evidence

to seek appropriate redress for such extreme discovery misconduct.

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II. SUMMARY OF ARGUMENT

Spoliation threatens to undermine the integrity of the civil trial process. It is a form of

cheating [that] blatantly compromises the ideal of the trial as a search for truth.1

The certified question in this case asks:

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 case? Or, is

the tort of intentional interference with or destruction of evidence limited to claims that

allege evidence is physically altered or destroyed?

Culled down to its barest of bones, the question, whether the tort of “intentional interference with

. . . evidence” includes claims alleging “interference with . . . evidence . . . ,” answers itself.2 Of

course, the answer to this question must be “yes.” By its own terms, the tort of “interference with

evidence” must include claims alleging just that: interference with evidence. The dictionary

definition of “interference” encompasses evidentiary misconduct that goes beyond destruction and

alteration, such as concealing evidence and tampering with lawfully subpoenaed third-party

witnesses.

Likewise, when framed against the backdrop of this Court’s prior precedent, the answer to

this question must be “yes.” Lower courts that restrict spoliation claims to the destruction or

alteration of physical evidence have misinterpreted this Court’s prior decisions in Smith v. Howard

Johnson Co., 67 Ohio St. 3d 28, 1993-Ohio-229, Moskovitz v. Mt. Sinai Medical Center, 69 Ohio

St. 3d 638, 1994-Ohio-324, and Davis v. Wal-Mart Stores, Inc., 93 Ohio St. 3d 488, 2001-Ohio-

1593. The appellate courts’ holdings should not prevail in this case, not only because they

misconstrue clear precedent from this Court, but also because they rely on faulty logic. Moreover,

1 Andrew S. Pollis, Trying the Trial, 84 THE GEO. WASH. L. REV. 55, 103 (Jan. 2016) (internal

citation omitted). 2 For ease of reference and brevity, the tort of “intentional interference with or destruction of

evidence” will be referred to at times simply as “spoliation” or “spoliation of evidence.”

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holding that spoliation claims are limited to the destruction or alteration of physical evidence

would require this Court to overrule Smith v. Howard Johnson Co., which would create further

confusion as to the applicability of Moskovitz and Davis.

Policy considerations also militate in favor of this Court now re-affirming its original

holding in Smith by concluding that “tortious interference with or destruction of evidence”

encompasses interference with, and concealment of, evidence. Although the Civil Rules

contemplate sanctions against parties that fail to comply with court orders compelling the

production of evidence, and even though trial courts may give juries an “adverse-inference”

instruction, these mechanisms do not always adequately address spoliation that is so egregious that

it disrupts a party’s case and causes actual damage. Moreover, where third parties to litigation

engage in spoliation, they are beyond the reach of sanctions and adverse inferences. Thus, without

a separate cause of action to remedy actual harm done, any party, or their counsel, could interfere

with, or conceal, evidence with impunity, and without any recourse or deterrence.

In addition to upholding the Smith decision, this Court now has a chance to provide lower

courts with guidance on how to address and remedy spoliation of evidence, which takes on myriad

forms. In a 2008 case, the New Jersey Supreme Court framed the remedies for spoliation not in

terms of the nature of the conduct necessary to give rise to the claim, but in terms of the identity

of the alleged spoliator and the time when the alleged spoliation was discovered. See generally

Tartaglia v. UBS Paine Webber, Inc., 197 N.J. 81, 961 A.2d 1167 (2008). This analysis avoids an

arbitrary “line in the sand,” and ensures that parties – and courts – can police and remedy all kinds

of malicious and nefarious acts of evidentiary gamesmanship.

The New Jersey approach also provides courts with necessary flexibility to deal with

spoliation in a way that fully redresses the harm caused, and ensures fairness to all involved,

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including the alleged spoliator. Most importantly, the New Jersey Supreme Court’s framework for

addressing spoliation serves significant policy objectives vis-à-vis deterring parties, their counsel,

and especially third parties from engaging in evidentiary misconduct that not only damages a party

to a civil case, but also undermines the entire civil justice system.

OELA urges this Court to hold that a claim of “tortious interference with, or destruction

of, evidence” includes interference with, and concealment of, evidence, and to follow New Jersey’s

lead by providing lower courts with the discretion to use a range of tools to address this

misconduct, including discovery sanctions, adverse-inference instructions, and bifurcated

proceedings, as appropriate and necessary. Addressing spoliation in a manner that is based on the

identity of the spoliator and the time the spoliation is uncovered affords lower courts the freedom

and discretion to regulate the civil litigants appearing before them, and to ensure that all acts of

evidentiary misconduct are punished and deterred commensurately with their gravity.

Conversely, limiting the scope of spoliation to include only acts of destruction or alteration

of physical evidence depends on an arbitrary definition of “spoliation” that would shield from

liability spoliators who hide, conceal, suppress, withhold, or otherwise prevent the discovery of

relevant evidence. Such misconduct harms the civil justice system just as much as destruction or

alteration of physical evidence harms the system. Arbitrarily excluding all misconduct but

destruction and alteration would contravene Ohio public policy interests in ensuring that the civil

justice system remains fair to all, and would tip the scales of justice in favor of would-be spoliators,

who would remain outside the reach of remedies designed to punish and deter evidentiary

misconduct that actually disrupts and damages another party’s case.

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III. STATEMENT OF FACTS AND THE CASE

OELA adopts the Statements of Facts and Statement of the Case set forth in the brief of

Plaintiff-Appellee, Kristen Elliott-Thomas.

IV. LAW AND ARGUMENT

Proposition of Law: The tort of intentional interference with, or destruction of,

evidence includes claims alleging interference with, or concealment of, evidence that

disrupts a plaintiff’s underlying case.

A. The Plain Language of This Court’s Prior Decisions Involving Spoliation of Evidence

and the Dictionary Definition of the Word “Interfere” Demonstrate that Spoliation

Claims Based on “Interference with,” and Concealment of, Evidence Must Be

Permitted to Go Forward.

This Court first considered the tort of spoliation of evidence in 1993 in Smith v. Howard

Johnson Co. See generally 67 Ohio St. 3d 28, 1993-Ohio-229. The Court responded to certified

questions from the United States District Court for the Southern District of Ohio, holding that “[a]

cause of action exists in tort for interference with OR destruction of evidence.” Id. at 29 (emphasis

and capitalization added). The Smith Court then enumerated the elements of the claim; stated that

it could be brought between the primary parties to the action, as well as against third parties; and

held that the claim could be brought at the same time as the primary action. Id.

The Smith Court based its responses to the federal court’s questions on a New Jersey

decision, Viviano v. CBS, Inc., 251 N.J. Super. 113, 126, 597 A.2d 543, 550 (App. Div. 1991). Id.

In Viviano, the plaintiff worked for CBS and suffered injury to her fingers arising from an accident

caused by a defect in a component of a press. 251 N.J. Super. at 117. Viviano sued CBS not for

destroying evidence, but for concealing a memo containing information relevant to her product-

liability claim against the manufacturer of the defective part. Id. at 119-20.

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The New Jersey appellate court recognized the claim for concealing evidence, and

analogized it to “spoliation,” where evidence is typically destroyed. Id. at 126. The New Jersey

court noted that “immunizing the willful … concealment of evidence would not further the policy

of encouraging testimonial candor.” Id. The Court further analogized to policy reasoning

underlying spoliation claims where actual destruction occurs: “destruction of evidence known to

be relevant to pending litigation violates the spirit of liberal discovery,” and “[i]ntentional

destruction of evidence manifests a shocking disregard for orderly judicial procedures and

offends traditional notes of fair play.” Id. at 127 (emphasis added).

Notably, even though the case involved concealment, not destruction, the Viviano Court

enumerated the elements of the claim using exactly the same verbiage that this Court used in Smith,

except for language relating to possible negligence in the third element: (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. Id. at 126 (emphasis added; omitting negligence language).

Because the Smith Court was answering certified questions and considering a matter of

first impression, it had every opportunity to define the scope of the tort of spoliation, and to limit

it in any manner necessary. And, by expressly omitting language regarding negligence from the

third element, the Smith Court did limit the scope of the spoliation tort to intentional conduct. 67

Ohio St. 3d at 29.3

3 Notably, there is no conflict among the appellate districts as to whether Ohio recognizes a claim

for negligent spoliation of evidence in Ohio. See, e.g., Fifth Third Bank v. General Bag Corp., 8th

Dist. App. No. 92793, 2010-Ohio-2086 at ¶42; White v. Ford Motor Co., 142 Ohio App. 3d 384,

388 (10th Dist. 2001) (stating that Ohio does not recognize negligent spoliation because the Smith

Court “found only a cause of action for intentional spoliation of evidence”).

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Moreover, because this Court used the phrase “interference with OR destruction of

evidence” to characterize a spoliation claim, the phrase “interference with” must be given effect.

The definition of the word “interference” encompasses a broad range of actions that go beyond

“destruction” and “alteration”: 1. “the act of meddling in another’s affairs”; and 2. “An obstruction

or hindrance.” Black’s Law Dictionary 818 (7th Ed. 1999). Synonyms for “interfere” include

“impede,” “obstruct,” “get in the way of,” “hinder,” “thwart,” and “tamper.” www.Thesaurus.com.

(accessed November 13, 2017).

Thus, a party “interferes with” evidence when it meddles in the discovery process or when

it obstructs or hinders discovery. In other words, a party intentionally “interferes with” evidence

when gets in the way of its production, hinders another party from receiving it, or tampers with it.

Had the Smith Court intended to limit the scope of the tort to only destruction, it would have done

so explicitly, just as the Court intentionally changed the wording of the Viviano elements to

eliminate the concept of “negligent” spoliation.

After the Smith case relied exclusively on Viviano to permit intentional spoliation claims

in Ohio, this Court considered cases involving spoliation of evidence just twice: once in 1994, in

Moskovitz v. Mt. Sinai Medical Center, and again in 2001, in Davis v. Wal-Mart Stores, Inc.

Neither of these cases involved the destruction of evidence, but involved a doctor whiting out

damaging information in a medical record in a medical-negligence case, and a superstore

withholding evidence and offering false testimony in a wrongful-death case. See generally 69 Ohio

St. 3d 638, 1994-Ohio-324; 93 Ohio St. 3d 488, 2001-Ohio-1593.

In Moskovitz, this Court considered whether a doctor’s alteration of medical records could

sustain an award of punitive damages in a negligence case, where punitive damages are not

typically recoverable. 69 Ohio St. 3d 638, 1994-Ohio-324. Ironically, the doctor argued that such

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conduct “constitutes a separate claim requiring proof of actual damages . . . .” Id. at 650. Rejecting

that argument, this Court once again characterized spoliation of evidence as encompassing

“interference with OR destruction of evidence,” and noted that bringing such a claim is not the

only means of remedying such misconduct. Id. at 650-51 (emphasis and capitalization added). This

Court further noted that, because no actual damage flowed from the doctor’s misconduct, a

separate claim for spoliation would neither punish, nor deter, litigants from altering records: “Thus,

if [the doctor’s] argument is taken to its logical conclusion, litigants and prospective litigants could

alter and destroy documents with impunity so long as no actual damage was caused thereby.” Id.

at 651 (emphasis added).

Clearly, in Moskovitz, this Court was not prepared to permit a litigant to get a “free pass”

for intentional and malicious conduct during discovery, and thus permitted the possibility of

punitive damages to punish and deter parties from engaging in such behaviors. If this Court in this

case declines to give proper effect to the plain language of Smith by carving the concept of

“interference with” out of the spoliation tort, then this Court would, in effect, flout the policy

considerations underpinning its decision Moskovitz. Just as the doctor in Moskovitz was subjected

to punitive damages for altering a medical record to conceal evidence,4 parties should be held

legally responsible when they “interfere with” evidence by, inter alia, concealing it until such a

late date in the case that it damages the other party, or by inducing a witness to evade a lawfully

issued subpoena. Damages proximately caused by such conduct could not be redressed if this Court

were to essentially overrule Smith and limit the scope of spoliation to destruction or alteration of

evidence.

4 There is no real distinction between altering evidence and interfering with it, or concealing it.

Altered evidence, like evidence that is concealed or otherwise interfered with, remains intact in

some form or another. Only destroyed evidence is permanently unavailable.

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In 2001, in Davis v. Wal-Mart Stores, Inc., this Court addressed the issue of spoliation

again, when it decided whether res judicata could bar a spoliation claim, where the plaintiff

discovered that Wal-Mart had withheld certain evidence and documents and provided false or

misleading testimony. 93 Ohio St. 3d 488, 2001-Ohio-1593. Davis filed a new action alleging

tortious interference with evidence, alleging that Wal-Mart’s discovery abuses led her to dismiss

her survivor claim, which was dependent on the primary wrongful-death claim. Id. at 489.

In assessing the issue of whether res judicata could bar the later filed spoliation claim, this

Court characterized the basis of Davis’s spoliation claim as “acts of concealing, destroying,

misrepresenting, and/or intentionally interfering with evidence.” Id. at 490 (emphasis added). The

Davis Court also ensured that parties harmed by this kind of misconduct would not lose the

opportunity to seek redress for that harm suffered by permitting spoliation claims to be brought

after the primary action has been concluded. Id. at 491. In fact, the Davis Court explicitly stated

its intention to “clarify Smith” by reiterating its stance on the timing of spoliation claims, where a

party later discovers that spoliation occurred. Id. Notably, the Davis Court did not see fit to clarify

the Smith decision in any other way, including the plain language used to describe the various

types of misconduct that can rise to the level of actionable spoliation. See id.

In this case, this Court should not depart from its three prior cases on spoliation by

excluding interference and concealment from the scope of the tort. To do so would not only

contravene the plain language of the Smith holding, but would also severely undermine the policy

considerations that informed all three of this Court’s prior decisions, which emphasize the

importance of holding parties accountable when they flout the rules of the civil justice system by

interfering with, or concealing, evidence.

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B. Ohio Appellate Courts Restricting Spoliation Claims to Cases Involving Only the

Destruction or Alteration of Physical Evidence Have Misapplied the Smith Holding

and Have Misconstrued This Court’s Precedent after Smith; To Adopt These Courts’

Flawed Reasoning Would Require This Court to Overrule Smith and Would Create

Confusion as to Moskovitz and Davis.

Since Smith, Moskovitz, and Davis were decided, several Ohio appellate districts have

rejected spoliation claims based on concealment of, or interference with, evidence by

misinterpreting these prior holdings, and by ignoring the plain language of Smith. For example,

the Eighth Appellate District does not permit spoliation claims to go forward, where the

misconduct alleged involves concealment, misrepresentation, or interference with evidence. See,

e.g., Sivinski v. Kelley, 8th Dist. App. No. 94296, 2011-Ohio-2145; O’Brien v. City of Olmsted

Falls, 8th Dist. App. Nos. 89966, 90336, 2008-Ohio-2658; Bugg v. Am. Std., Inc., 8th Dist. App.

No. 84829, 2005-Ohio-2613.

According to the Eighth District, the “…mere concealment or misrepresentation of

evidence, without any factual allegation of destruction or alteration of evidence, is insufficient to

state a claim for spoliation.” Sivinski, 2011-Ohio-2145 at ¶ 24 (emphasis added). Thus, the Eighth

District has rejected spoliation claims where an attorney concealed the existence of a contract;

where police officers impeded a party from obtaining police reports and an exculpatory video; and

where insurance companies withheld information and suborned perjury. Sivinski, 2011-Ohio-

2145; O’Brien, 2008-Ohio-2658; Bugg, 2005-Ohio-2613. Under the Eighth District’s logic, had

the claimants in these cases pled that evidence was somehow altered or destroyed, their claims

could have at least gone forward. See Sivinski, 2011-Ohio-2145 at ¶ 24; O’Brien, 2008-Ohio-2658

at ¶ 19; Bugg, 2005-Ohio-2613 at ¶¶ 22-23.

However, the Eighth District’s position is anything but logical, given that this Court said

nothing about “alteration” in Smith, and given that nothing in the New Jersey decision in Viviano

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– on which this Court based the Smith holding – says anything about the alteration of evidence.

Smith, 67 Ohio St. 3d at 29; Viviano, 251 N.J. Super. at 126. The Eighth District is apparently

willing to engraft onto Smith language about “alteration” of evidence that does not exist in the

decision, but it is not willing to permit claims that fall within the purview of the plain language of

Smith relating to “interference with” evidence.5

The Fifth District is also apparently willing to misinterpret Smith by including “alteration”

of evidence within the scope of the claim, while precluding a claim where a party could be said to

have interfered with evidence. In Allstate v. Qed Consultants, Inc., Allstate claimed that a

consultant interfered with physical evidence involved in a fire investigation. See generally 5th

District App. No. 09CA14, 2009-Ohio-4896. Allstate claimed that its case was severely

compromised by the consultant’s delay in returning the evidence, and that the evidence was

intentionally withheld. See id.

In considering whether summary judgment was proper, the Allstate Court quoted directly

from Smith, stating that “[a] cause of action exists in tort for interference with or destruction of

evidence,” and then reciting the elements of the claim. Id. at ¶ 17 (emphasis added, citation

omitted). Despite including the phrase “interference with” in its quote from Smith, the Allstate

Court inexplicably stated that “[t]he Ohio Supreme Court has not extended its holding in Smith . .

. to cases where the spoliation claim asserted does not involve the willful destruction or alteration

of physical evidence.” Id. at ¶ 19 (emphasis added, citations omitted). Otherwise, the Court offered

no analysis of the claim, and did not consider whether intentionally withholding evidence for a

5 Even though the Eighth District adds language that did not originally appear in the Smith decision

by including the alteration of evidence within the scope of a spoliation claim, alteration of evidence

falls within the reach of “interference with” evidence. See Definition of “Interfere,” supra. The

purpose of this argument is not to exclude alteration from the purview of “spoliation of evidence,”

but to illustrate the inconsistency of the Eighth District’s reasoning.

12

long period of time amounted to “interference with” evidence. See id. at ¶ 20 (acknowledging that

the delay in returning the evidence did, in fact, disrupt Allstate’s case).

Like the Eighth and Fifth Districts, the Fourth Appellate District also takes a specious

approach to this issue, likewise based on a misreading of this Court’s precedent on spoliation. In

McGuire v. Draper, Hollenbaugh & Briscoe, LPA, McGuire alleged a spoliation claim against the

attorney and law firm that were defending McGuire’s former counsel, the Draper firm, from his

malpractice claim. McGuire claimed that the lawyer and firm withheld his client file and then

belatedly produced a version of it that appeared to have been altered. See generally 4th Dist. App.

No. 01CA21, 2002-Ohio-6170. The Court rejected McGuire’s argument that the trial court failed

to consider this Court’s decisions in Moskovitz and Davis when it dismissed his spoliation claim

against the malpractice attorneys. Id. at ¶ 80.

In rejecting McGuire’s claim, the Court ignored the plain language of Smith by stating that

“[n]either the majority opinion in Davis nor Justice Sweeney’s concurring and dissenting opinion

sets forth a new cause of action for interference with evidence.” Id. at ¶ 81 (emphasis added).

Apparently, the Fourth District either ignored, or forgot about, the language in Smith defining

intentional spoliation: “a cause of action exists in tort for interference with . . . evidence.” 67 Ohio

St. 3d at 29 (emphasis added). And this so despite the fact that the McGuire Court acknowledged

that the elements of spoliation are “stated in Smith . . . .” Id. at ¶ 81.

Similarly, in Tate v. Adena Regional Medical Center, the Fourth District considered

whether a spoliation claim was viable where a party was accused of concealing evidence and

interfering with discovery. See generally 155 Ohio App. 3d 524, 2003-Ohio-7402. The Fourth

District cited to McGuire to reject the claim, and relied on the Second District’s decision in Pratt

v. Payne, 153 Ohio App. 3d 450, 2003-Ohio-3777, which dealt with false testimony. Id. at 533.

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In Pratt v. Payne, Dr. Payne testified in a medical malpractice case that Pratt filed on behalf

of a decedent’s estate. See generally 153 Ohio App. 3d 450, 2003-Ohio-3777 (2d Dist.). Pratt later

discovered that Payne gave inconsistent testimony in an earlier case, and filed a separate claim

against him for spoliation of evidence, based on false testimony. Id. Pratt argued that this Court’s

decision in Davis permitted his claim, analogizing Payne’s testimony to Wal-Mart’s withholding

evidence and offering false testimony, the claim that this Court permitted to go forward in Davis.

Id. at 453.

The Second District first noted that Ohio courts do not generally permit civil claims for

perjury. Id. at 452. The Court then rejected Pratt’s spoliation argument, relying on Justice Cook’s

dissent in Davis, where she asserted that the “majority had improperly broadened the existing

elements of spoliation by implying that ‘evidence of concealment, interference, and/or

misrepresentation may satisfy the [third] element of the tort.’ ” Id. at 455 (citing Davis, 93 Ohio

St. 3d at 496 (Cook, J., dissenting)). In addition to relying on a dissenting opinion, the Second

District speculated that, “if [the Davis] Court intended to depart from lengthy historical precedent,

it would have explicitly said so.” Id. at 456.

It is not at all clear what “lengthy historical precedent” the Davis Court could have

impliedly, or explicitly, departed from in that case, as the Pratt Court asserts. When Davis was

decided, this Court had dealt with spoliation in only two cases: Smith and Moskovitz. The only one

of those two decisions that actually set forth the elements of the claim was Smith. Two cases hardly

constitute “lengthy historical precedent,” especially where only one of the two cases acknowledged

and delineated the scope of the cause of action. And, like the Eighth and Fourth Districts, the

Second District overlooked this Court’s plain language in Smith, which explicitly included claims

involving “interference with” evidence.

14

The appellate districts that have conflicted with the Eleventh District’s decision in this case

have misconstrued the plain language of this Court’s decision in Smith; have inexplicably added

to Smith language about “alteration” that is not there; and have misapplied the holdings of Davis

and/or Moskovitz. This Court should not follow these districts’ flawed reasoning and results. To

do so would require this Court to overrule Smith by holding that spoliation claims include only the

destruction or alteration of physical evidence. Overruling Smith would create further confusion

particularly as to the Moskovitz holding because it would not be clear what kind of evidentiary

misconduct could expose a litigant to punitive damages. Accordingly, in this case, this Court must

follow its own prior precedent without regard to flawed appellate-court reasoning that further

muddies the spoliation waters.

C. Discovery Sanctions and Adverse Inferences Cannot Always Remedy the Damages

Caused by Concealing or Interfering with Evidence that Actually Disrupt a Party’s

Case; Limiting the Scope of the Spoliation Tort Will Do Nothing More Than

Incentivize Parties – and Particularly Non-Parties – To Conceal or Interfere with

Evidence.

As Justice Sweeney noted in his concurring and dissenting opinion in Davis v. Wal-Mart

Stores, Inc., Ohio’s civil justice system works as it should only when litigants can “investigate and

uncover evidence” during the discovery process. See 93 Ohio St. 3d 488, 492, 2001-Ohio-1593

(Sweeney, J. concurring in part, dissenting in part). Parties that abuse the discovery process by

withholding evidence, concealing evidence, destroying evidence, or otherwise interfering with it,

“violate the spirit of liberal discovery,” and demonstrate “a shocking disregard” not only for the

justice system, but also for “traditional notions of fair play.” See id.

Ohio has at least two significant mechanisms designed to address various issues that crop

up between the parties to a civil case during discovery. First, the Ohio Rules of Civil Procedure

permit a party to file a motion asking a court to compel the production of certain evidence, and to

15

seek a variety of sanctions for non-compliance with any such order. OHIO R. CIV. P. 37(A); (B)(a)-

(g). Second, trial court judges may instruct juries to draw an “adverse inference” against a party

that “has control of evidence,” but fails to provide it “without satisfactory explanation.” E.g.,

Vidovic v. Hoynes, 11th Dist App. No. 2014-L-054, 2015-Ohio-712 at ¶¶ 77-78; see also Schwaller

v. Maguire, 1st Dist. App. No. C-20555, 2003-Ohio-6917 at ¶ 24 (stating that such an instruction

may be given in cases where there is “malfeasance” or “gross neglect”).6

Despite how well-intentioned these mechanisms may be, they do not – and cannot – work

if a party does not know that the opposing party has withheld or concealed evidence after the

discovery period has closed, or even after the case has concluded. In such situations, Civ. R. 37

cannot suffice to redress the harm caused by the intentional concealing of evidence; a party cannot

seek to compel that which it does not (yet) know exists. Likewise, there is no mechanism under

Civ. R. 37 to address a situation where a party interferes with a properly subpoenaed third-party

witness. Moreover, nothing in Civ. R. 37(B) contemplates an award of actual damages caused by

discovery transgressions that rise to the level of disrupting a party’s case.

Similarly, if a case settles before trial, or is dismissed on summary judgment (perhaps

because a party concealed or interfered with evidence during discovery?), an adverse inference is

not going to assuage the harm caused by this kind of misconduct. There is likewise nothing

requiring a jury to draw an adverse inference, simply because it is given such an instruction. Thus,

if, for whatever reason, a jury declines to draw the adverse inference that is designed to counteract

the damage done by the concealing of certain evidence, there is no consequence to the withholding

party and no compensation to the victim of spoliation. Even if a jury does draw the inference

6 The Ohio Rules of Professional Conduct also prohibit lawyers from unlawfully obstructing

another party’s access to evidence; unlawfully altering, destroying, or concealing evidence; and

from counseling or assisting another person to do these things. OHIO R. PROF. COND. 3.4.

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against the spoliating party, it does not necessarily follow that the victim of spoliation is truly made

whole by this “remedy.”

Moreover, where third parties to civil litigation conceal or interfere with evidence, there is

virtually no remedy to compensate the victim of the intentional tortious conduct, or, more

importantly, to deter or punish these spoliators. In Hills v. UPS, the Utah Supreme Court eloquently

articulated why non-tort remedies are particularly insufficient to address “third-party” interference

with, or concealment of, evidence. See generally 2010 UT 39, 232 P.3d 1049 (2010).

In Hills, the decedent died after being electrocuted at work. The employer investigated the

accident and, in so doing, instructed an electrical contractor to disassemble an electrical box that

was believed to be the cause of the accident. During the investigatory process, a piece of the

electrical box disappeared. The decedent’s parents filed a wrongful-death suit against the

contractor, and a spoliation claim against both the contractor and their son’s employer.

The issue in the case was whether the Utah Supreme Court should adopt an independent

spoliation tort. See id. at ¶ 1. In the end, the Court declined to adopt the claim on the facts of this

case because the contractor admitted liability for the decedent’s death, thus rendering such a claim

“nothing more than rhetoric.” Id. at ¶ 33. Nonetheless, the Court’s discussion of the reasons for

adopting such a tort in third-party spoliation cases is instructive.

According to the Hills Court, the policy justifications for adopting a spoliation tort include

providing a remedy for “spoliation victims who would otherwise be unable to recover in their

underlying lawsuits,” and deterring “future spoliation of evidence.” Id. at ¶ 26. The Court noted

that “traditional non-tort remedies” such as “evidentiary inferences, discovery sanctions, and

attorney disciplinary measures are unavailable or largely ineffectual.” Id. at ¶ 29. (citations

17

omitted, emphasis added). This is because “when third parties are involved, the incentive to

spoliate evidence may simply be too great.” Id. at ¶ 32.

The Hills Court cited to Harvard Law Professor Charles Nesson, who looked at the “cost-

benefit” incentives to would-be spoliators. Id. (citing Charles R. Nesson, Incentives to Spoliate

Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 CARDOZO L. REV. 793,

795 (1991)). According to Professor Nesson, spoliators unmotivated by the “soft considerations”

of “ethics and morality” would “commit the tort or crime [of spoliation] if the expected gain

exceeds the expected loss.” Id.

The Utah Supreme Court agreed with Professor Nesson, expressing its “fear that without

tort liability, third parties . . . will conclude that the benefits of evidence spoliation outweigh the

unlikely imposition of court sanctions, administrative fines, and criminal penalties.” Id. (observing

that “evidence tends to disappear when the risk of seldom-enforced non-tort remedies are

weighed against the risk of payment on a wrongful death claim.”) (emphasis added).

Thus, a tort remedy for spoliation is necessary to redress the harm caused by the

concealment of, or interference with, evidence in cases where such acts of spoliation are

particularly egregious, or where the party adversely impacted by them cannot avail herself of non-

tort remedies contemplated in Civ. R. 37 or of the court’s authority to instruct a jury on an adverse

inference. This is especially true when third parties to the litigation conceal or interfere with

evidence; these wrongdoers are outside the reach of Civ. R. 37, and are not at all affected by an

adverse-inference instruction.7

7 Similarly, even if a party’s counsel were disciplined under Prof. Cond. R. 3.4 for concealing or

interfering with evidence, the opposing party – whose case was disrupted and damaged by

counsel’s misconduct – would not necessary be made whole by the discipline administered.

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Without the specter of exposure to tort remedies in a particularly egregious case of

spoliation, there will be no incentive for parties, and non-parties alike, to refrain from concealing,

or otherwise interfering with, evidence. This Court should not incentivize parties or third parties –

including counsel representing a party to the litigation – to engage in nothing more than a “cost-

benefit” analysis of whether it makes better economic sense to hide or interfere with evidence than

to produce it.

Permitting parties and third parties to conceal or otherwise interfere with evidence –

stopping just short of alteration or destruction – would tip the scales of justice not only against the

party damaged by evidentiary misconduct, but also against the judicial system and its integrity.

Accordingly, this Court must hold that the tortious “interference with or destruction of” evidence

encompasses egregious conduct that includes concealing, or otherwise interfering with, evidence.

D. This Case Presents This Court with an Opportunity to Uphold and Further Clarify

Smith by Providing Lower Courts with Guidance on How to Address and Remedy All

Kinds of Evidentiary Misconduct; Following the Lead of a 2008 New Jersey Supreme

Court Case Would Ensure Fairness to All Parties and Would Uphold Vital Policy

Goals Aimed at Discouraging Spoliation of All Kinds.

In Tartaglia v. UBS Paine Webber, Inc., the New Jersey Supreme Court revisited the issue

of spoliation of evidence, including the Appellate Division’s earlier holding in Viviano v. CBS,

Inc., 251 N.J. Super. 113 (App. Div. 1991), and its own prior decision in Rosenblit v. Zimmerman,

166 N.J. 391 (2001). See generally 197 N.J. 81, 99-123, 961 A.2d 1167 (2008). Tartaglia involved

claims of employment discrimination and retaliation; the spoliation issue centered around

documents that Tartaglia believed were created contemporaneously with the events that gave rise

to her claims, and would have been retained under Paine Webber’s document-retention policies.

Id. at 113. Because Paine Webber did not produce any of the documents Tartaglia believed existed,

the trial court permitted her to amend her complaint to add claims for negligent destruction of

19

evidence and fraudulent concealment of evidence. Id. at 100. The spoliation claims were bifurcated

from the primary claims in the case. Id.

The trial court refused Tartaglia’s request for an adverse-inference charge to the jury based

on the missing documents because those documents were also the subject of the bifurcated

spoliation proceeding. Id. at 101. The jury returned a defense verdict on Tartaglia’s employment-

related claims; the parties settled the remaining issues shortly after counsel delivered closing

arguments on spoliation. Id. at 100 (noting that Tartaglia retained the right to present spoliation

issues on appeal). The appellate court found that the trial court erred in refusing to give the adverse-

inference charge. Id. at 115.

On further appeal, the Supreme Court addressed “the apparent confusion that has resulted

from [the] decision in Rosenblit about the relationship between the time when an act of spoliation

is discovered and the appropriate remedy.” Id. at 119. In analyzing how courts may properly

address spoliation issues, the Tartaglia Court looked at two factors: the identity of the alleged

spoliator and the time when the alleged spoliation is discovered. See id. at 119-20. Ultimately, the

Court concluded that spoliation may be addressed both by an adverse-inference instruction given

to the jury, and by a separate claim in a bifurcated proceeding. See id. at 121-22 (emphasis added).

Where spoliation is committed by a party to a case, and the misconduct is discovered prior

to trial, the issue may be addressed by an adverse inference, or by a separate proceeding, or both.

Id. at 119-20. If the harm is fully addressed by the jury’s verdict on the substantive claim – with

the benefit of the adverse-inference instruction – then there would be no need for a separate,

bifurcated proceeding. See id. at 120. However, where a third party spoliates evidence, an adverse

inference during the primary litigation would not address the issue; only a separate proceeding

against the spoliator would suffice to remedy the harm. Id. at 120.

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Likewise, if first-party spoliation is not fully recompensed by the verdict on the substantive

claim, then a bifurcated spoliation claim may still go forward. See id. (rejecting other courts’

assertions that a verdict for a plaintiff on the substantive claim will preclude a later spoliation

proceeding; citations omitted). The Court reasoned that the remedy in a subsequent proceeding

would not duplicate the remedy on the primary claim because “the bifurcated proceeding cannot

be an opportunity for the jury to consider anew whether its substantive verdict would have been

different had the missing evidence been considered.” Id. at 121. Rather, the bifurcated proceeding

permits the plaintiff to seek only the costs of having to replace or recreate the evidence at issue, as

well as punitive damages, if appropriate. See id. at 121-22.

The Tartaglia Court further reasoned that “[t]here is no inherent contradiction” between

permitting an adverse-inference instruction in the plaintiff’s primary case, and permitting the same

plaintiff to go forward in a bifurcated spoliation proceeding. Id. at 121. This is because the “evils

to be remedied are not the same,” and, “as long as the matter is carefully charged to the jury, the

awards of damages will not overlap.” Id. According to the Court, the remedies for the primary

claim and for the spoliation claim “serv[e] different purposes.” Id.

The purpose of a bifurcated spoliation proceeding is to permit the plaintiff to demonstrate

that the spoliator’s tampering with evidence “caused that plaintiff to incur costs or expenses that

would not otherwise have been incurred.” Id. (giving examples such as hiring additional experts

or developing alternate proofs). If there is no damage arising from the spoliation itself, then there

would be no recovery on the bifurcated claim. See id. at 122.

Although the Court acknowledged that there can be “some risk that a plaintiff who

succeeds on the main claim will seek a double recovery through the mechanism of a bifurcated

spoliation claim,” the Court considered that risk to be “a relatively minor one when compared to

21

the risk that a contrary ruling might encourage spoliators by providing little disincentive to

them.” Id. (emphasis added).

The New Jersey Supreme Court’s approach would serve Ohio well because it does not

draw an arbitrary “line in the sand” as to what does – and does not – constitute actionable

spoliation. In other words, the New Jersey Court’s approach ensures that all manner of malicious

acts designed to interfere with evidence and disrupt a party’s case can be properly addressed by a

range of flexible remedies. These remedies would depend not on the act alleged to have been

committed, but on the identity of the alleged spoliator and when the spoliation is discovered.

If a party to the primary action interferes with evidence, and that interference comes to

light during discovery, then the trial court may levy discovery sanctions, where applicable; may

give the jury an adverse-inference instruction; and may permit a separate claim to go forward in a

bifurcated proceeding.8 Where a third party spoliates evidence, there would be a separate

proceeding because non-tort remedies aimed at “first-party” spoliators are not available to redress

the harm caused by the misconduct.

A flexible system like New Jersey’s ensures that would-be spoliators are fully discouraged

from engaging in evidentiary gamesmanship of any variety, including discovery abuses that rise

to the level of tortious interference with evidence. First-party spoliators would know that the trial

court can levy a range of punishments, up to and including a bifurcated proceeding that can result

in an award of damages. Third-party spoliators who are not exposed to discovery sanctions or

adverse-inference instructions likewise need to be discouraged from interfering with, or hiding,

8 The Ohio Rules of Civil Procedure permit a trial court to “order a separate trial of one or more

separate issues [and] claims” for purposes of “convenience, to avoid prejudice, or to expedite or

economize.” OHIO R. CIV. P. 42(B).

22

evidence; knowing that they are subject to both actual and compensatory or punitive damages can

be a strong motivator, especially where ethics and morality otherwise fall short.

In addition, bifurcating a spoliation proceeding from the primary claim ensures no

duplication of remedy; if the jury awards damages to the plaintiff with the benefit of the adverse

inference, and those damages make the plaintiff whole, then there is no need to continue with the

spoliation phase of the trial. However, if the verdict on the primary claim does not fully redress

the harm caused by the other party’s interference with evidence – or if the primary claim is

dismissed on summary judgment – then the spoliation proceeding may go forward, and a jury may

consider the plaintiff’s spoliation claim, including whether the plaintiff has proven, by a

preponderance of the evidence, that her case was, in fact, disrupted, and that she suffered actual

damage proximately caused by the spoliation itself.

Affording a trial court flexibility in addressing claims of tortious interference with, or

destruction of, evidence also ensures that the so-called “floodgates” of ancillary spoliation

litigation do not open and expose parties and their counsel to frivolous spoliation claims. The

gravity of the alleged interference with evidence will dictate the court’s response, including

tamping down frivolous claims and addressing less serious misconduct with commensurate

penalties. Moreover, where the misconduct is so egregious as to require a separate and bifurcated

claim, the plaintiff alleging spoliation must still satisfy her burden of proof on every element of

the claim. If she does not, then she does not recover.

Because this Court has already recognized a claim for tortious interference with, or

destruction, of evidence, in Smith v. Howard Johnson Co., this case presents an opportunity to

further clarify the Smith holding by providing a roadmap for trial courts grappling with evidentiary

misconduct of all stripes. The approach outlined by the New Jersey Supreme Court not only

23

provides lower courts with necessary flexibility to regulate the civil litigants appearing before

them, but also upholds the underlying policy considerations necessary to keep the civil litigation

playing field as level as possible. Would-be spoliators must be sufficiently deterred from

interfering with, or concealing, evidence. If remedies are available only where physical evidence

is destroyed or altered, parties, their counsel, and even third parties would not be dissuaded from

giving in to the temptation to spoliate evidence. Thus, this Court must re-affirm its prior decisions

in Smith, Moskovitz, and Davis, and adopt an approach that serves both the parties to civil cases,

as well as the civil justice system itself.

V. CONCLUSION

For the reasons stated above, amicus curiae OELA urges this Court to affirm the decision

of the Court of Appeals and hold that the tort of “intentional interference with or destruction of

evidence” includes claims alleging interference with or concealment of evidence that disrupt a

plaintiff’s case.

Respectfully submitted,

/s/ Christina M. Royer____________

Christina M. Royer (0073695)

ELFVIN, KLINGSHIRN, ROYER & TORCH, LLC

4700 Rockside Road, Suite 530

Independence, Ohio 44131

Phone: (216) 382-2500

Fax: (216) 381-0250

chris@ekrtlaw.com

Attorney for Amicus Curiae OELA

24

CERTIFICATE OF SERVICE

I hereby certify that on this 16th day of November 2017, a copy of the Brief of Amicus

Curiae OELA in Support of Appellee Kristen Elliott-Thomas was served by electronic mail upon

the following:

Frank Consolo, Esq.

CONSOLO LAW FIRM, LTD.

212 Hoyt Block

700 W. St. Clair Avenue

Cleveland, OH 44113

fconsolo@consololaw.com

Counsel for Appellee Kristen

Elliott-Thomas

Martin T. Galvin, Esq.

Jonathan H. Krol, Esq.

REMINGER CO., LPA

101 W. Prospect Ave., Suite 1400

Cleveland, Ohio 44115

mgalvin@reminger.com

jkrol@reminger.com

Counsel for Appellants David Kane Smith, et

al.

Jason E. Starling, Esq.

WILLIS + WILLIS ATTORNEYS, CO., LPA

4635 Trueman Boulevard, Suite 200

Hilliard, Ohio 43026

jstarling@willisattorneys.com

Counsel for Amicus Curiae

The Ohio Association for Justice

/s/ Christina M. Royer________

Christina M. Royer (0073695)