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Concealment or interference with evidence does not amount to destruction, Ohio Supreme Court rules

By John Breslin | May 15, 2018

COLUMBUS, Ohio (Legal Newsline) – Intentional interference or concealment of evidence does not rise to the level of destruction, the Ohio Supreme Court has ruled, dealing with an issue that has divided appeals courts in the state.

The case, Elliott-Thomas v. Smith, turned on whether concealment amounts to the "intentional spoliation" of evidence as laid down under Ohio law.

Plaintiff Kristen Elliott-Thomas initially filed an action against the Warren City School District, its board of education and individual members in 2012. She alleged wrongful termination and sex discrimination.

While that underlying case was still pending, Elliott-Thomas filed an action against David Kane Smith and David Hirt, the attorneys representing the district and other defendants.

Elliott-Thomas claimed the attorneys "intentionally withheld, hid, altered, and/or destroyed evidence relevant to her wrongful termination case," according to May 8 court opinion. She alleged "intentional spoliation of evidence."

The trial court granted judgment in favor of Smith and Hirt, finding that the intentional spoliation claim "failed because she was unable to establish that either Smith or Hirt had physically destroyed evidence." It found that the allegations amounted to discovery disputes.

An appellate court, the 11th District, reversed, concluding that to establish a viable spoliation claim, a plaintiff need not present evidence of “actual destruction or alteration of physical evidence."

The defendants, the two attorneys, asked the Supreme Court for a review, claiming other appellate courts had come to entirely different conclusions, essentially that "intentional spoliation" must mean evidence is actually destroyed.

In her written opinion, Justice Sharon Kennedy wrote, "We hold that allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of intentional spoliation of evidence."

The Supreme Court's order reinstated the trial court's decision.

Justice Patrick Fischer concurred, but added a rider in relation to the failure to hand over evidence: "Trial judges are encouraged to sanction without delay errant behavior by lawyers and litigants in order to deter such conduct in the future."

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