Evidence Destroyed or Hidden After Your Crash? What Ohio's Spoliation Tort Does and Doesn't Cover (Elliott-Thomas v. Smith)

Published June 5, 2018 · Ohio Supreme Court

The surveillance video from the store where you fell is "no longer available." The trucking company says the driver's logs for the week of the crash cannot be located. The dash-camera footage you know exists is suddenly missing from the file, or turns up only after months of requests.

Ohio is one of a small number of states that allows a separate lawsuit when someone deliberately destroys evidence to sabotage your case. On May 8, 2018, the Ohio Supreme Court drew a firm line around that remedy. In Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783, the Court held that hiding or interfering with evidence, as opposed to destroying it, does not support the independent spoliation claim. Here is what that means for people hurt in crashes and falls.

The spoliation tort, briefly

"Spoliation" means the destruction or alteration of evidence. In Smith v. Howard Johnson Co., 67 Ohio St.3d 28 (1993), the Supreme Court recognized a tort claim for it, with five elements: (1) pending or probable litigation involving the plaintiff, (2) the defendant's knowledge that litigation exists or is probable, (3) "willful destruction of evidence by defendant designed to disrupt the plaintiff's case," (4) disruption of the plaintiff's case, and (5) damages caused by the defendant's acts.

Smith also held that this claim can be brought against the other side in the main case or against an outside party, and it can be filed at the same time as the main case. That remains the law.

What happened in Elliott-Thomas

The case did not involve an injury. A former employee sued a school district for wrongful termination and then filed a separate suit claiming the district's lawyers had withheld, hidden, altered, or destroyed evidence relevant to her case. The trial court ruled against her because she could not show any evidence had been physically destroyed. The Eleventh District Court of Appeals reversed, holding that intentional concealment or interference was enough. Because other appeals courts disagreed, the Supreme Court took the case.

What the Supreme Court decided

The Court sided with the trial court. Its holding was direct: allegations of intentional interference with or concealment of evidence are not actionable under the independent tort of intentional spoliation. The tort covers destruction.

The Court gave three reasons. First, other remedies exist: Civil Rule 37 gives trial judges broad power to sanction parties who violate the discovery rules, and lawyers who hide evidence face professional discipline. Second, the harm from concealed evidence is speculative, because concealed evidence can still come to light and be used. Third, expanding the tort would create duplicate lawsuits that relitigate the original case.

A concurring opinion urged trial judges to use their sanction power diligently and without delay. It also flagged an unanswered question: what happens when someone who is not a lawyer conceals evidence and the concealment is not discovered until after the original case is over. The Court left that question for another day.

Who this hurts, and why

For injured people, this is not a welcome decision. The most common evidence problems in injury cases are not dramatic acts of destruction. They are delays, "lost" files, video that is never produced, and records that surface only after a deadline. After Elliott-Thomas, those problems must be handled through discovery motions and sanctions within your injury case rather than through a separate damages claim.

The good news is that the tort itself survives for the conduct that does the most damage. A company that knows a claim is coming and willfully deletes surveillance video, overwrites a truck's electronic data, scraps a defective part, or shreds maintenance records can still face an independent spoliation claim, in addition to sanctions. I wrote in 2014 about how evidence preservation can make or break a product-defect death case, and that lesson applies with even more force now.

The real protection: preserve evidence before it disappears

The best remedy for destroyed evidence is making sure it is never destroyed. That is why the first days after a serious injury matter so much. In our cases, that means:

• Preservation letters, sent immediately. A written demand to the trucking company, store, property owner, or insurer identifying the evidence that must be kept: video, electronic logging and engine data, driver qualification files, maintenance and inspection records, incident reports, and the vehicle or product itself. A preservation letter also establishes that the company knew litigation was probable, which is the second element of the spoliation tort.
• Filing suit when necessary. Once a lawsuit is filed, the defendant is subject to court-ordered discovery and Civ.R. 37 sanctions. In a case where we fear evidence will disappear, waiting can be costly.
• Securing our own copies. Photographs, witness statements, your own dash-camera footage, and independent inspections of vehicles and scenes. My post on dash cameras and how they win cases explains why your own recording can be the most reliable evidence of all.

Truck crashes

Commercial carriers keep enormous amounts of data, from electronic logs to GPS and engine-control records, and some of it is overwritten automatically on a schedule. I explained why truck cases are different and why preservation letters must go out within days. Our truck accident practice treats preservation as step one.

Falls and premises injuries

Stores and businesses routinely record over surveillance video within days or weeks. If you were hurt on someone else's property, the video of your fall, and of the hazard before you fell, may be the single most important piece of evidence. See our page on premises liability.

What this means for you

Elliott-Thomas narrows a tool injured people can use when the other side plays games with evidence. Willful destruction is still actionable; concealment and interference are left to the trial judge's sanction power. The practical lesson is simple: the sooner a lawyer is involved, the sooner evidence can be locked down, and the less you will ever need to argue about what happened to it.