Ohio is one of the few jurisdictions that still recognizes the tort of intentional interference with or destruction of evidence, more commonly known as “spoliation.” Until the Ohio Supreme Court’s recent decision in Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783, the scope of the tort was uncertain. In Elliott-Thomas, the plaintiff argued that the defendants concealed evidence relating to her wrongful termination and sexual discrimination claims against the Warren City School District by instructing a witness to ignore a subpoena and withholding relevant documents. The trial court dismissed plaintiff’s independent claim for spoliation because there was no evidence that the defendants physically altered or destroyed the evidence. The Eleventh District Court of Appeals reversed and held—in conflict with the Fourth, Fifth, and Eighth Appellate Districts—that the tort of spoliation is not limited to destruction or alteration of physical evidence.
The Ohio Supreme Court resolved the resulting conflict among the appellate districts by reversing the Eleventh District’s decision and confirming that allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of spoliation absent proof of destruction or physical alteration of evidence. The Court noted that Rule 37 of the Ohio Rules of Civil Procedure “provides an adequate remedy to deter and punish interference with and concealment of evidence by parties and counsel … [by providing] trial courts with broad discretion to impose sanctions upon a party who violates the rules governing the discovery process.” In his concurring opinion, Justice Patrick F. Fischer encourages trial judges “to sanction without delay errant behavior by lawyers and litigants in order to deter such conduct in the future.”