[Cite as Stratacache, Inc. v. Wenzel, 2019-Ohio-3523.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 STRATACACHE, INC.                                       :
                                                         :
         Plaintiff-Appellee                              :   Appellate Case No. 28060
                                                         :
 v.                                                      :   Trial Court Case No. 2015-CV-5966
                                                         :
 ALBERT A. WENZEL                                        :   (Civil Appeal from
                                                         :   Common Pleas Court)
         Defendant-Appellant                             :
                                                         :

                                               ...........

                                               OPINION

                            Rendered on the 30th day of August, 2019.

                                               ...........

JONATHAN R. SECREST, Atty. Reg. No. 0075445, and SARA H. JODKA, Atty. Reg. No.
0076289, 150 East Gay Street, 24th Floor, Columbus, Ohio 43215
     Attorneys for Plaintiff-Appellee

THOMAS M. GREEN, Atty. Reg. No. 0016361, and JONATHAN F. HUNG, Atty. Reg. No.
0082434, 800 Performance Place, 109 North Main Street, Dayton, Ohio 45402
     Attorneys for Defendant-Appellant

                                             .............
                                                                                      -2-


FROELICH, J.

      {¶ 1} Albert A. Wenzel appeals from the trial court’s final judgment entry granting

judgment by default in favor of Stratacache, Inc. and against Wenzel on counts two and

three 1 of Stratacache’s complaint; dismissing with prejudice Wenzel’s counterclaims

against Stratacache and third-party complaint against Christopher Riegel; and awarding

Stratacache damages totaling $200,000. The judgment of the trial court will be affirmed.

                         Factual and Procedural Background

      {¶ 2} Stratacache, Inc. is a digital media company headquartered in Dayton, Ohio.

For nearly 10 years, Wenzel worked as a salesman for Stratacache, where he was paid

a salary plus commissions and reported to Riegel, Stratacache’s chief executive officer.

When Wenzel left Stratacache’s employ2 in September 2015, he held the position of

Senior Vice President.

      {¶ 3} On November 12, 2015, Stratacache filed a five-count complaint against

Wenzel in the Montgomery County Court of Common Pleas, setting forth claims for: 1)

breach of contract, 2) disgorgement of wages, 3) misappropriation of trade secrets, 4)

tortious interference with contracts and business relationships, and 5) preliminary and

permanent injunctive relief. According to Stratacache, while working for the company,

Wenzel sought reimbursement for travel expenses that were not reasonably related to his



1
  Although the final judgment entry was unclear as to the exact disposition of count four
of Stratacache’s complaint (see Doc. #158, p. 1), any doubt regarding the finality of the
judgment as to that particular count has been resolved by the parties’ joint response to
this court’s show cause order regarding the issue of appellate jurisdiction. (See 7/16/19
Order to Show Cause and 7/30/19 Joint Response to the Order to Show Cause).
2
  Although Stratacache maintains and the trial court found that Wenzel was fired (see
Doc. #157, p. 1), Wenzel suggests that he “resigned.” (See Appellant’s Brief, p. 3).
                                                                                        -3-


employment. After Wenzel’s employment there ended, however, Stratacache learned that

Wenzel, while still employed by Stratacache, had co-founded and performed services for

a competing business called “Strata Insights, Inc.” Stratacache’s complaint alleged that

Wenzel impermissibly competed against his former employer by soliciting Stratacache’s

customers and using and disclosing Stratacache’s trade secrets and confidential

information, and violated his duty of loyalty by engaging in outside employment while still

employed by Stratacache.

       {¶ 4} Wenzel responded with counterclaims against Stratacache and a third-party

complaint against Riegel. Wenzel asserted claims for breach of contract and violation of

R.C. 4113.153 against Stratacache, and claims for unjust enrichment, fraud, promissory

estoppel, and punitive damages against both Stratacache and Riegel. Wenzel later

amended his pleadings to add a claim of conversion against both other parties. Wenzel

alleged that Stratacache and Riegel failed to pay Wenzel commissions and reimburse

business expenses due from his time at Stratacache. With leave of court, Wenzel later

filed second amended counterclaims as well as an amended third-party complaint, adding

no new claims, but clarifying certain factual allegations.

       {¶ 5} After the exchange of some discovery, the trial court granted partial summary

judgment in Wenzel’s favor as to Stratacache’s breach of contract claim (Count One),

based on Stratacache’s failure to produce evidence that Wenzel had signed a non-

compete agreement. (Doc. #61). All parties later submitted motions for summary

judgment as to the remaining claims. (Docs. # 68, 69, 75).



3
 That statute regulates when employers doing business in Ohio shall pay their
employees’ wages.
                                                                                         -4-


         {¶ 6} With the summary judgment motions pending, however, discovery disputes

persisted as to certain aspects of the parties’ claims. One particular point of contention

was Stratacache’s assertion that it sent Wenzel an email on May 11, 2012 that set his

commission rate at one percent (1%), and Wenzel’s denial that he ever received that

email. Additionally, Stratacache sought information as to any communications between

Wenzel and Stratacache customers about Wenzel’s competing business while Wenzel

remained in Stratacache’s employ. For those reasons, on January 9, 2017, Stratacache

served on Wenzel a second set of interrogatories and first request for production of

documents, including a request that Wenzel produce an IBM ThinkPad computer in his

possession. Earlier that day, Wenzel had submitted supplemental responses to

Stratacache’s first set of discovery requests, identifying an IBM ThinkPad laptop as the

computer “he used during his employment at Stratacache.”

         {¶ 7} Wenzel failed to produce that computer or other requested discovery by the

February 6, 2017 deadline specified in Stratacache’s requests. As a result, on May 16,

2017, Stratacache moved to compel Wenzel to respond to its outstanding discovery

requests. (Doc. #65). On June 8, 2017, the trial court granted in part that motion to

compel, directing Wenzel “to submit * * * for a forensic search” the IBM ThinkPad

computer believed to possibly contain emails relevant to the parties’ claims. (Doc. # 79,

p. 5).

         {¶ 8} Pursuant to Civ.R. 56(F), Stratacache thereafter sought to delay its response

to Wenzel’s summary judgment motion until Wenzel produced additional discovery,

including the computer; Wenzel opposed that motion. Following a telephone conference

with the parties on July 12, 2017, the court issued an order clarifying the protocol for the
                                                                                            -5-


forensic examination and the subsequent handling of “any documents extracted” from

Wenzel’s computer. (Doc. #94). Thereafter, Wenzel submitted the computer for

examination by Stratacache’s designated expert.

       {¶ 9} On August 14, 2017, Stratacache and Riegel jointly moved for dismissal of

Wenzel’s claims as well as default judgment on Stratacache’s claims against Wenzel, “as

sanctions for Wenzel’s intentional destruction of evidence.” (Doc. #104, p. 1). Specifically,

Stratacache and Riegel contended that on February 13, 2017 – “after Stratacache

requested [that Wenzel] produce the computer” – Wenzel “wiped [the] computer and

deleted all information contained on it.” (Emphasis sic.) (Id., pp. 1-2). According to a report

prepared by Stratacache’s computer expert, his forensic examination of the IBM

ThinkPad revealed that Wenzel reformatted the computer’s hard drive and installed a

Windows 10 Professional operating system on February 13, 2017, leaving no emails from

the relevant time frame remaining on that computer. (Id., Exh. C). The movants noted that

Wenzel withheld that fact throughout Stratacache’s efforts to obtain the computer.

Maintaining that Wenzel’s actions “destroyed relevant electronic evidence crucial to

Stratacache’s case against Wenzel and to Stratacache’s defense of Wenzel’s claims” (id.,

p. 2), Stratacache and Riegel urged that judgment in their favor as to all claims between

the parties was warranted.

       {¶ 10} In opposing the motion for discovery sanctions against him, 4 Wenzel

asserted for the first time that he had created a backup of his laptop’s hard drive, which


4
  In the same filing, Wenzel included motions requesting that discovery sanctions be
imposed against Stratacache and that all evidence about the disputed May 11, 2012 email
regarding commissions be excluded. As the trial court’s denial of those motions has not
been appealed, we will not discuss those motions specifically.
                                                                                          -6-


he claimed “means that Stratacache still has the ability to review emails contained on the

laptop” from the relevant time period. (Doc. #111, p. 13). Wenzel also denied that the

laptop ever had contained any “relevant emails,” offered a benign explanation for changes

made to the laptop,5 and asserted that any discovery delays were due to Stratacache’s

“unreasonable demand for unfettered access” to the computer’s contents. (Id., pp. 5-7).

Additionally, Wenzel took issue with certain conclusions of Stratacache’s expert about

changes made to the ThinkPad’s hard drive.

         {¶ 11} On September 26, 2017, the trial court held a hearing on the parties’

motions for sanctions and motion in limine,6 during which Wenzel and computer experts

for both parties testified. On October 3, 2017, the court issued its decision. (Doc. #121).

The trial court concluded that Wenzel had violated the discovery rules by failing to

disclose the existence of the backup drives in his discovery responses or in response to

the court’s orders that he produce the IBM ThinkPad computer. Further, the court found

that “Wenzel intentionally destroyed the evidence contained on the computer [o]n

February 13, 2017.” (Id., p. 12). As to that finding, the trial court elaborated:

                The Court does not find * * * credible [Wenzel’s claim] that he was

         just one of the unlucky users whose data was lost upgrading the system to

         Windows 10. * * * The reformatting of the hard drive prior to the installation

         of the new operating system opened all previous information to the risk of



5 According to Wenzel, in February 2017, he “approved an upgrade to Windows 10 [on
the IBM ThinkPad], because the computer was running so slowly and inefficiently. Also,
the laptop was getting non-stop notifications from Microsoft telling me I needed to upgrade
to Windows 10.” (Doc. #110, Exh. F, Affidavit of Albert A. Wenzel, ¶ 10).

6
    See n.4, above.
                                                                                   -7-


being overwritten. The installation of the new operating system overwrote

all of the information, removing any chance of recovering the information.

The timing of the installation of the new operating system is the most

concerning part for this Court. The computer was required to be turned over

only seven days prior to the installation of the operating system[,] despite

[Windows 10 having] be[en] available for about a year and a half.

       Further, the entire incident is suspect. This is not a matter of a person

with little technological knowledge believing the prompt to upgrade [to]

Windows 10[,] which stated that data would not be los[t]. Wenzel is tech

savvy and has a better understanding of computers and their workings than

the average user. This is further not the case where information was lost

innocently and then immediately disclosed to attorneys and the Court. No,

this is a case where Wenzel was aware that information was no longer

contained on the computer yet continued to fight its production in discovery.

The Court and counsel spent hours of their time negotiating the production

of the computer, not including the time spent dealing with the many motions

to compel on the matter. The Court assumes such tactics to delay turning

over the computer were utilized in hopes that this Court would rule in

Wenzel’s favor on the [then-]pending motions for summary judgment.

       Finally, even if this information was not destroyed intentionally (which

is not what the court believes), Wenzel undertook a major risk by choosing

to install the new operating system. As the experts at the hearing testified,

every time someone decides to upgrade the operating system[,] they run
                                                                                          -8-


       the risk of destroying information. So, at the very least, Wenzel affirmatively

       made a decision to risk losing all of the information contained on the

       computer. Information he was aware that he need to preserve[,] * * * as the

       litigation had been pending for more than a year. Wenzel did not seek

       advice of counsel or a technology expert before deciding to initiate an

       updated operating system.

(Emphasis added.) (Doc. #121, pp. 12-13).

       {¶ 12} The trial court further found “a reasonable probability that access to

[Wenzel’s] emails prior to the reformatting of the hard drive and installation of the new

operating system would have produced evidence favorable to Stratacache that is not

otherwise obtainable.” (Id., p.14). Based on its determination that Wenzel’s intentional

actions would cause Stratacache “a large amount of prejudice” due to its inability to

recover emails that might be relevant to the parties’ competing claims (id.), the trial court

imposed the “harsh sanction” of dismissing Wenzel’s claims against Stratacache and

Riegel 7 and granting default judgment in Stratacache’s favor on its claims against

Wenzel. (Id., p. 17).

       {¶ 13} The trial court denied in most respects Wenzel’s subsequent motions to

reconsider that sanctions decision (see Docs. #127, 129, 135, 136), but did agree to afford

Wenzel a jury trial regarding the amount of damages due Stratacache on its default

judgment against Wenzel. (Doc. #136). Ultimately, however, the parties reached an


7 Although the October 3, 2017 decision referred specifically to dismissing only “Wenzel’s
Counterclaims against movants,” a subsequent corrective order reflects the trial court’s
intent to dismiss Wenzel’s “Third Party Complaint [against Riegel] as well as his
counterclaims.” (Emphasis sic.) (Doc. #134, p. 1).
                                                                                          -9-


agreement as to damages, pursuant to which the trial court issued a final judgment entry

granting judgment by default in favor of Stratacache, Inc. and against Wenzel on counts

two and three of Stratacache’s complaint;          8   dismissing with prejudice Wenzel’s

counterclaims against Stratacache and third-party complaint against Christopher Riegel;

and awarding Stratacache damages totaling $200,000. (Doc. #158).

         {¶ 14} Wenzel appeals from that judgment, setting forth this sole assignment of

error:

         The trial court erred by abusing its discretion and imposing sanctions of

         default9 against * * * Wenzel for installing a Windows 10 update to his laptop

         resulting in data loss, and [for] late disclosure that he had Carbonite

         Premium and Lexar USB backups of his laptop’s hard drive and PST files.

                                     Standard of Review

         {¶ 15} “Courts have broad discretion over discovery matters, including motions for

sanctions.” State ex rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898

N.E.2d 952, ¶ 27, citing State ex rel. Citizens for Open, Responsive & Accountable Govt.

v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. “It is exclusively

within the discretion of the trial court to determine an appropriate sanction for a discovery

infraction.” McKowen v. United Church Homes, Inc., 2d Dist. Greene No. 2005 CA 144,

2006-Ohio-6607, ¶ 10, citing Russo v. Goodyear Tire & Rubber Co., 36 Ohio App.3d 175,



8
    See n.1, above.
9
 Wenzel characterizes as “default” the trial court’s actions as to both Stratacache’s claims
against Wenzel (as to which the court did enter default judgment) and Wenzel’s claims
against Stratacache and Riegel (which the trial court dismissed). We have extended this
argument by implication to the trial court’s dismissal of Wenzel’s own claims.
                                                                                          -10-


178, 521 N.E.2d 1116 (9th Dist.1987). Nevertheless, “[d]ue process requires that both

parties have an opportunity to present arguments addressed to the trial court’s exercise

of this discretion before it makes a decision.” Bank One, NA v. Wesley, 2d Dist.

Montgomery No. 20259, 2004-Ohio-6051, ¶ 21.

      {¶ 16} An appellate court reviews discovery rulings only for an abuse of discretion.

Duncan at ¶ 27, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 662 N.E.2d 1

(1996), syllabus. “An abuse of discretion occurs when a decision is unreasonable,

arbitrary, or unconscionable.” Id., quoting State ex rel. Dreamer v. Mason, 115 Ohio St.3d

190, 2007-Ohio-4789, 874 N.E.2d 510, ¶ 18. In order to constitute an abuse of discretion,

the discovery sanction imposed “must be so palpably and grossly violative of fact or logic

that it evidences not the exercise of will but the perversity of will, not the exercise of

judgment but the defiance of judgment, not the exercise of reason but instead passion or

bias.” Vaught v. Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d

631, ¶ 13, quoting Nakoff at 256.

                         Law Regarding Discovery Sanctions

      {¶ 17} Pursuant to Civ.R. 37(A), a party to a civil action may move for an order

compelling discovery from another party who has failed to respond in full to formal

discovery requests. Rule 37(B) further provides as follows:

      If a party * * * fails to obey an order to provide or permit discovery, including

      an order made under * * * Civ.R. 37(A), the court may issue further just

      orders. They may include the following:

             ***

             (b) Prohibiting the disobedient party from supporting or
                                                                                         -11-


              opposing designated claims or defenses, or from introducing

              designated matters in evidence;

              ***

              (e) Dismissing the action or proceeding in whole or in part;

              (f) Rendering a default judgment against the disobedient

              party; * * *.

Civ.R. 37(B)(1).

       {¶ 18} “In determining whether the sanction of dismissal is warranted, the trial court

should consider ‘the history of the case; all the facts and circumstances surrounding the

noncompliance, including the number of opportunities and the length of time within which

the faulting party had to comply with the discovery or the order to comply; what efforts, if

any, were made to comply; the ability or inability of the faulting party to comply; and such

other factors as may be appropriate.’ ” Foley v. Nussbaum, 2d Dist. Montgomery No.

24572, 2011-Ohio-6701, ¶ 31, quoting Russo, 36 Ohio App.3d at 178, 521 N.E.2d 1116.

Because dismissal is a harsh sanction, it “should be reserved for cases when a party’s

conduct falls substantially below what is reasonable under the circumstances, evidences

a complete disregard for the judicial system or the rights of the opposing party, or when

the failure to comply with discovery orders is due to willfulness or bad faith.” Farmer v.

PNC Bank, N.A., 2017-Ohio-4203, 92 N.E.3d 218, ¶ 28 (2d Dist.), quoting Foley at ¶ 20.

See also Allison v. Evenflo Co., 2d Dist. Montgomery No. 22613, 2009-Ohio-528, ¶ 9-10,

quoting Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 632, 605

N.E.2d 936 (1992) (party’s “negligent, irresponsible, contumacious or dilatory” conduct

may justify dismissal with prejudice for failure to comply with discovery requests).
                                                                                            -12-


         {¶ 19} We too have stated that default judgment is “a harsh sanction” that should

be imposed only when a party’s misconduct as to discovery “is due to willfulness or bad

faith.” Winkle v. Co, 2d Dist. Montgomery No. 27066, 2016-Ohio-6957, ¶ 77, quoting

Huntington Natl. Bank v. Zeune, 10th Dist. Franklin No. 08AP-1020, 2009-Ohio-3482,

¶ 17.

                              Wenzel’s Assignment of Error

         a. Lack of Notice

         {¶ 20} In the first of three arguments encompassed within his single assignment of

error, Wenzel contends that the trial court erred by entering discovery sanctions against

him without first notifying him of its intent to do so. As to the sanctions of default10 and

dismissal in particular, Wenzel posits that the trial court itself was required to issue a

direct warning of the prospect of dispositive sanctions. That argument is not well taken.

         {¶ 21} Separate from Civ.R. 37(B)(1)(e)’s provision for dismissal as a discovery

sanction, Civ.R. 41(B)(1) authorizes trial courts, “after notice to the plaintiff’s counsel,” to

dismiss actions for failure to comply with any court order or procedural rule. The Supreme

Court of Ohio has held that “the notice requirement of Civ.R. 41(B)(1) applies to all

dismissals with prejudice, including those entered * * * for failure to comply with discovery

orders.” (Emphasis sic.) Ohio Furniture Co. v. Mindala, 22 Ohio St.3d 99, 101, 488 N.E.2d

881 (1986). “A dismissal on the merits is a harsh remedy that calls for the due process

guarantee of prior notice.” Id. Determining that Civ. 37(B) and Civ.R. 41(B)(1) must be

read conjunctively with respect to dismissals with prejudice, the Supreme Court reasoned:

         Notice of intention to dismiss with prejudice gives the non-complying party


10
     See n.9, above.
                                                                                          -13-


       one last chance to obey the court order in full. The moving party should not

       be allowed to circumvent this protection by simply framing his motion in

       terms of a Civ.R. 37 sanction. Nor should a trial court on its own motion

       dismiss on the merits without prior notice.

Id.

       {¶ 22} The Supreme Court subsequently clarified the form of notice required

before dismissal for a discovery violation. See Quonset Hut, Inc. v. Ford Motor Co., 80

Ohio St.3d 46, 684 N.E.2d 319 (1997). “For purposes of Civ.R. 41(B)(1), counsel has

notice of an impending dismissal with prejudice for failure to comply with a discovery order

when counsel has been informed that dismissal is a possibility and has had a reasonable

opportunity to defend against dismissal.” Id. at syllabus. The Supreme Court noted that

counsel for the non-compliant plaintiff in Quonset Hut “was aware that [the defendant]

had filed a motion requesting the court to dismiss [the plaintiff’s] claim with prejudice” and

also “filed a responsive motion urging that dismissal not be granted.” Id. at 48. On that

basis, the Supreme Court deemed it “apparent” that the plaintiff’s attorney “was on notice

of the possibility of dismissal with prejudice.” Id.; see also Sazima v. Chalko, 86 Ohio

St.3d 151, 155, 712 N.E.2d 729 (1999) (in Quonset Hut, “the fact that the defendant had

filed a motion requesting the court to dismiss plaintiff’s claim with prejudice constituted

sufficient implied notice for purposes of Civ.R. 41(B)(1),” and “represents a rejection of

the proposition that Civ.R. 41(B)(1) requires the trial court to expressly and

unambiguously give actual notice of its intention to dismiss with prejudice”).

       {¶ 23} The notice Wenzel received before the trial court entered discovery

sanctions against him fully conformed to the notice the Supreme Court found to be
                                                                                         -14-

adequate in Quonset Hut. The first sentence of the motion for discovery sanctions filed

by Stratacache and Riegel detailed explicitly their request that the court “grant default

judgment to Stratacache on its claims against Wenzel” and also “dismiss * * * Wenzel’s

claims against Stratacache.” (Doc. #104, p. 1). Although that opening sentence did not

specifically reference Wenzel’s claims against Riegel (see id.), the motion elsewhere

asked for dismissal of “Wenzel’s claims” generally, without distinguishing between

counterclaims and third-party claims. (Id., pp. 15, 16). The parties’ joint reply likewise

requested that all of “Wenzel’s claims” be dismissed, not limited to his claims against

Stratacache. (Doc. #112, p. 18). Further, simply by appearing as a named movant, Riegel

conveyed his joinder in the requests for dismissal repeated throughout the joint motion,

and the arguments advanced therein were equally applicable to Wenzel’s claims against

Riegel. (See Doc. #104, pp. 11-15). Wenzel was aware that dismissal of his claims was

a possibility.

       {¶ 24} Wenzel also was afforded “a reasonable opportunity to defend against” the

opposing parties’ request for dismissal. See Quonset Hut at syllabus. Wenzel filed a 21-

page opposing memorandum that the trial court cited in its sanctions decision. More than

10 days before the oral hearing on the parties’ motions for discovery sanctions, Wenzel

also received notice of the trial court’s intent to hold such a hearing, and he appeared and

testified at that hearing. The process followed in this case sufficed to satisfy Civ.R.

41(B)(1)’s notice requirement prior to dismissal with prejudice, in accordance with

Quonset Hut.

       {¶ 25} Furthermore, this court has determined that Civ.R. 41(B)(1)’s notice

requirement does not apply to discovery sanctions granting default judgment, as opposed
                                                                                          -15-

to entries of dismissal. See Baker v. Edmonds, 2d Dist. Clark No. 2002-CA-17, 2003-

Ohio-1030, ¶ 21. Accord Sutton v. Douglas, 9th Dist. Summit No. 26953, 2014-Ohio-

1337, ¶ 13 (as to entries of default judgment, “there is no due process requirement that a

court provide an additional round of notice to the defendants after a discovery violation

occurs”). Although we acknowledged that Civ.R. 55(A) “arguably requires some sort of

notice” before judgment by default is entered as a discovery sanction, Baker at ¶ 22, we

were not required to resolve that question in Baker, given our conclusion that the trial

court's order did provide adequate notice of the court’s intent to enter default judgment

under Civ.R. 37(B)(1). Id. at ¶ 23. We also have stated that “[i]mplied notice of the

possibility of a default judgment is all that is needed to satisfy the due process guarantees”

when granting default judgment under Civ.R. 37(B). Associated Business Inv. Corp. v.

CTI Communications Inc., 2d Dist. Montgomery No. 19211, 2002-Ohio-6385, ¶ 23.

Having determined above that Wenzel received notice adequate to satisfy Civ.R.

41(B)(1)’s notice requirement for dismissal, we likewise conclude that he received proper

notice of the possibility that default judgment would be entered against him on

Stratacache’s claims.

       {¶ 26} We do not agree with Wenzel’s suggestion that the trial court erred by failing

to issue its own prior warning regarding the possibility that it might dismiss Wenzel’s

claims or enter default judgment against him. In the first instance, the trial court’s initial

order compelling Wenzel to produce the IBM ThinkPad did mention the possibility of

“sanctions for failure to comply with discovery,” albeit briefly. (See Doc. #79, p. 2).

Furthermore, the decisions Wenzel advances as support for the proposition that

notification directly from the court was required do not compel the conclusion for which
                                                                                          -16-

he advocates. As noted above, the Supreme Court in Quonset Hut held that a party’s

attorney “was on notice that the action could be dismissed” by virtue of the opposing

party’s motion for dismissal with prejudice and the non-compliant party’s opportunity to

respond to that motion. Quonset Hut, 80 Ohio St.3d at 48-49, 684 N.E.2d 319.

       {¶ 27} Neither is Wenzel’s position bolstered by his citation to this court’s decision

in Farmer, 2017-Ohio-4203, 92 N.E.3d 218. The facts in Farmer differ from those in

Quonset Hut, in that the trial court in Farmer did caution the non-compliant party through

a prior discovery order that such party faced the prospect of discovery sanctions,

including “judgment by default,” for failure to timely comply. See Farmer at ¶ 19. In

upholding that form of notice, however, we did not hold that only notice directly from the

court could suffice. Nothing in Farmer contravenes Quonset Hut’s allowance for broader

forms of notice. Whether in certain situations it would be better to include in discovery

orders an explicit warning about possible sanctions for failure to comply, the law is clear

that Quonset Hut “represents a rejection of the proposition that Civ.R. 41(B)(1) requires

the trial court to expressly and unambiguously give actual notice of its intention to dismiss

with prejudice.” Sazima, 86 Ohio St.3d at 155, 712 N.E.2d 729.

       {¶ 28} The portion of Wenzel’s assignment of error based on an alleged lack of

notice of the prospect of discovery sanctions is overruled.

       b. Discovery Violations Irrelevant as to Wenzel’s Claims

       {¶ 29} The second argument offered in support of Wenzel’s assignment of error

asserts that any emails removed from the IBM ThinkPad had no bearing on Wenzel’s

counterclaims and third-party claims, and that the loss of such evidence therefore did not

justify the dismissal of those claims. We find no error in the trial court’s determination to
                                                                                         -17-


the contrary.

         {¶ 30} Stratacache’s initial motion seeking to compel production of the IBM

ThinkPad highlighted the importance of the May 2012 email Wenzel denied having

received about commission rates, terming that email “an item of significance to both

[Stratacache’s] and [Wenzel’s] claims.” (Doc. #65, p. 8). Wenzel himself deemed the May

2012 email so pivotal to his claims for unpaid commissions that he sought through a

motion in limine to prevent Stratacache from presenting any evidence regarding that

email. (See Doc. #111, pp. 21-26, 27-28). While Stratacache also sought to compel

production of the computer in order to search for emails between Wenzel and Stratacache

customers that would have been pertinent to Stratacache’s claims alone, discovery of the

disputed May 2012 email on Wenzel’s computer would have been crucial to Stratacache’s

ability to defend against Wenzel’s claims – i.e., had Stratacache been able to prove that

Wenzel in fact received that email, Wenzel presumably would be left unable to support

his claim for unpaid commissions in excess of the one percent rate.

         {¶ 31} Although Wenzel contends that the May 2012 email never existed on his

laptop, the trial court did not abuse its discretion by declining to accept Wenzel’s self-

serving representation to that effect. The trial court found that the changes Wenzel made

to the computer, after knowing that he was required to produce it for examination by

Stratacache’s expert, left Stratacache unable to disprove Wenzel’s claimed lack of receipt

of that email. The court’s conclusions were based on the testimony of Stratacache’s

expert, Greg Kelley, whom the trial court found more persuasive than Wenzel’s expert,

Chris Ljunggren.11 The trial court accepted Kelley’s opinion that “[t]he installation of the


11
     Specifically, the trial court stated that “the comparison of the qualifications between
                                                                                          -18-


new [Windows 10] operating system overwrote all the information, removing any chance

of recovering the information.” (Doc. #121, p. 13). Despite Ljunggren’s claim to have fully

restored the computer using Wenzel’s backups, the court further concluded, based on

Kelley’s testimony, that it “will never know * * * whether Wenzel deleted any information.”

(Id., p. 14). The possible deletions could have included the disputed May email as well

other information on the computer that might have proven useful to Stratacache.

       {¶ 32} We are bound by the trial court’s credibility determinations, which led to that

court’s ultimate conclusion that Wenzel may have destroyed evidence so critical to

Stratacache’s and Riegel’s ability to defend as to warrant dismissal of Wenzel’s

counterclaims and third-party complaint. It is true that Stratacache has not demonstrated

what, if anything, was deleted from the computer, or whether any deletions, if they

occurred, involved information that would have been favorable to Stratacache’s case.

However, Stratacache’s inability to offer such proof is a product of Wenzel’s actions.

Where “it is possible – and even likely – that [electronic devices] contained relevant

information,” an opposing party is entitled to discovery of that information. See, e.g., East

Coast Test Prep, LLC v. Allnurses.com, Inc., D.Minn. Civil No. 15-3705, 2019 WL

1487812, * 6 (Apr. 4, 2019). The trial court did not abuse its discretion by determining that

no sanction short of dismissal of Wenzel’s claims “can adequately level the playing field

or erase the prejudice suffered by” Stratacache and Riegel. (Doc. #121, p. 17).

       {¶ 33} The portion of Wenzel’s assignment of error alleging that the absence of

evidence did not assist his own claims and that the trial court erred by dismissing those

claims is overruled.


Ljunggren and Kelley weigh[s] in favor of Kelley.” (Doc. #121, p. 7).
                                                                                          -19-

       c.     Proportionality of Sanctions to Violation

       {¶ 34} Finally, Wenzel contends that any discovery sanction against him should

have been limited to ordering him to pay Stratacache’s costs related to its motion to

compel and the continuance of the trial date. Wenzel asserts that such a sanction “would

make Stratacache whole,” and that trial court abused its discretion by imposing the more

drastic sanctions it chose instead.

       {¶ 35} When considering what sanction to impose for a party’s failure to comply

with discovery, “ ‘the trial court must consider the posture of the case and what efforts, if

any, preceded the noncompliance and then balance the severity of the violation against

the degree of possible sanctions, selecting that sanction which is most appropriate.’ ”

Dayton Modulars, Inc. v. Dayton View Community Dev. Corp., 2d Dist. Montgomery No.

20894, 2005-Ohio-6257, ¶ 10, quoting Russo, 36 Ohio App.3d at 178, 521 N.E.2d 1116.

In reversing a trial court’s dismissal of an action with prejudice as a sanction for a party’s

failure to comply with discovery, we have considered whether “[a] more proportionate

sanction, in line with the appellees’ prejudice,” would have been appropriate. Levorchick

v. DeHart, 119 Ohio App.3d 339, 345, 695 N.E.2d 303 (2d Dist.1997). The Tenth District

Court of Appeals also has indicated that the sanctions imposed for discovery violations

should be “proportional to the extent or frequency of the violations.” Gebi v. Worku, 10th

Dist. Franklin No. 17AP-75, 2017-Ohio-8462, ¶ 16 (affirming serious sanction imposed

for litigant’s “repeated pattern of noncompliance” with discovery requests).12


12
  The federal courts also recognize that dismissal may be an appropriate sanction for
discovery violations “that exceed[ ] simple inadvertence or mistake.” See, e.g., Flextronics
Internatl., USA, Inc. v. Sparkling Drink Sys. Innovation Ctr. Ltd., 230 F.Supp.3d 896, 907
(N.D.Ill.2017), quoting Ramirez v. T & H Lemont, Inc., 845 F.3d 772, 776 (7th Cir.2016).
In Flextronics, the trial court dismissed a corporate party’s counterclaim as “proportionate
                                                                                          -20-


       {¶ 36} In cases involving the alleged “spoliation” of evidence, “the intent of the

spoliator in destroying or altering evidence can be inferred from the surrounding

circumstances.” Hetzer-Young v. Elano Corp., 2d Dist. Greene No. 2013-CA-32, 2014-

Ohio-1104, ¶ 29, quoting Cincinnati Ins. Co. v. General Motors Corp., 6th Dist. Ottawa

No. 94OT017, 1994 WL 590566, *3 (Oct. 28, 1994). In such cases, “[t]he test for prejudice

is whether there is a reasonable possibility, based on concrete evidence, that access to

the evidence which was destroyed or altered, and which was not otherwise obtainable,

would produce evidence favorable to” the proponent of the missing evidence. Id. at ¶ 30.

“Review of a spoliation ruling ‘requires a determination of whether the trial court abused

its discretion in determining an appropriate sanction.’ ” Id. at ¶ 31, quoting Holiday v. Ford

Motor Co., 8th Dist. Cuyahoga No. 86069, 2006-Ohio-284, ¶ 26.

       {¶ 37} In this case, we cannot say that the trial court exceeded the scope of its

discretion by choosing a discovery sanction that resolved all remaining claims in favor of

Stratacache and Riegel and against Wenzel. In its initial sanctions decision, the trial court

acknowledged that the sanctions of default judgment and dismissal are “harsh.” (Doc.

#121, p. 17). Accordingly, the court first considered a lesser sanction – “that all inferences

be drawn adverse to Wenzel” – before concluding that such sanction would be impractical

for purposes of a jury trial as well as “inadequate * * * because of the substantial prejudice

that Stratacache ha[d] suffered” due to Wenzel’s actions. (Id., p. 15). “[S]imply telling a

trier of fact that the [missing] emails would have been helpful to [Stratacache and Riegel]



to the wrong” after that corporation’s CEO fabricated an email to strengthen his
company’s claim for damages. See id. at 913. Although Wenzel’s conduct involved
eliminating rather than creating an email that may have affected the damages available
on his counterclaim, the same reasoning applies.
                                                                                         -21-


would not remove the prejudice [those parties] have suffered by not having information to

present in the first place.” (Id.). The trial court further opined that “such an adverse

inference would effectively compel a verdict” in favor of Stratacache and Riegel, “[b]ut

* * * only * * * after Stratacache had consumed valuable judicial resources and incurred

substantial litigation expenses.” (Id.).

       {¶ 38} Based on its findings that “Wenzel willfully and purposefully destroyed

evidence” he knew to be relevant to pending litigation, and that “the amount of information

destroyed will never be known to anyone but Wenzel,” the trial court determined that

default judgment and dismissal were “the proper sanctions to punish Wenzel and deter

future discovery violations.” (Id., pp. 16-17). Consideration of the factors outlined in

Dayton Modulars confirms that the record contains evidence to support the trial court’s

conclusions. Dayton Modulars, 2d Dist. Montgomery No. 20894, 2005-Ohio-6257, at

¶ 10.It is undisputed that Wenzel intentionally implemented changes to the IBM ThinkPad

not only after opposing counsel requested its production, but after the date that the laptop

was supposed to have been produced. As to the posture of the case, the trial court noted

that Wenzel did not offer Stratacache and Riegel access to the backed-up data “until the

date the case was originally set for trial.” (Doc. #121, p. 5).

       {¶ 39} Further, Wenzel continued to resist production of the laptop for forensic

examination, advancing privacy concerns, despite knowing that the emails his opponents

sought already had been cleared. He did not disclose that fact to Stratacache or to the

trial court until his actions had been uncovered by Stratacache’s computer expert, and

only immediately prior to the sanctions hearing did Wenzel disclose that backups of at

least some deleted data existed. The trial court reasonably concluded that Wenzel had
                                                                                         -22-


engaged in a pattern of repeated discovery violations with serious consequences for the

opposing parties.

       {¶ 40} Although Wenzel faults the trial court for not ordering Stratacache’s expert

to re-examine the computer after Wenzel’s expert purportedly restored the missing data,

the trial court did not err in that regard. Ample opportunity existed for Wenzel to have

disclosed the missing data and the existence of backups prior to the date of the sanctions

hearing. In addition, Stratacache’s expert, whom the trial court found to be more credible,

testified that the backups Wenzel created would not have saved a forensic image of the

computer’s content prior to the changes Wenzel implemented, making it impossible to

later determine whether Wenzel had deleted some information not included in the

backups. Also, Wenzel’s own brief in opposition to sanctions admitted that the deletion

protocol set up on his laptop “makes data forensics and file recovery with this type of

laptop nearly impossible.” (Doc. #111, p. 12).

       {¶ 41} In light of such evidence, and given the nature and extent of Wenzel’s

discovery violations, the trial court was not required to force Stratacache’s expert to pore

through Wenzel’s “restored” emails in what that expert already had testified was likely to

be a futile exercise for purposes of determining whether Wenzel may have deleted

additional data not included in the backups. The trial court did not abuse its discretion by

ordering dismissal of Wenzel’s claims and default judgment in favor of Stratacache

without affording Wenzel yet another opportunity to comply with Stratacache’s overdue

discovery requests. Wenzel’s assignment of error on that basis is overruled.

                                       Conclusion

       {¶ 42} The judgment of the trial court will be affirmed.
                                                   -23-


                                   .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

Jonathan R. Secrest
Sara H. Jodka
Thomas M. Green
Jonathan F. Hung
Hon. Dennis J. Adkins
