[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.


                         SLIP OPINION NO. 2018-OHIO-1783
          ELLIOTT-THOMAS, APPELLEE, v. SMITH ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as Elliott-Thomas v. Smith, Slip Opinion No. 2018-Ohio-1783.]
Torts—Intentional spoliation of evidence—Allegations of intentional interference
        with or concealment of evidence are not actionable under the independent
        tort of intentional spoliation of evidence.
     (No. 2017-0693—Submitted January 25, 2018—Decided May 8, 2018.)
             CERTIFIED by the Court of Appeals for Trumbull County,
                          No. 2015-T-0007, 2017-Ohio-702.
                             _______________________
        KENNEDY, J.
        {¶ 1} The Eleventh District Court of Appeals determined that its judgment
in this case conflicts with judgments of the Fourth, Fifth, and Eighth District Courts
of Appeals, and it certified the issue in conflict as follows:


                “Does the tort of intentional interference with or destruction
        of evidence include claims alleging interference with or
                             SUPREME COURT OF OHIO



       concealment of evidence that disrupt a plaintiff’s underlying case?
       Or, is the tort of intentional interference with or destruction of
       evidence limited to claims that allege evidence is physically altered
       or destroyed?”


150 Ohio St.3d 1406, 2017-Ohio-6964, 78 N.E.3d 907, quoting 11th Dist. Trumbull
No. 2015-T-0007 (May 4, 2017). We agreed that a conflict exists and accepted this
matter for review. Id.
       {¶ 2} As the questions are framed by the appellate court, resolution of one
resolves the other. We answer the first question in the negative, and therefore, we
need not address the second question. We reverse the judgment of the Eleventh
District Court of Appeals and reinstate the judgment of the trial court.
                      Facts and Procedural History
       {¶ 3} In August 2012, appellee, Kristen Elliott-Thomas, filed an action
against the Warren City School District, its board of education, and five board
members (collectively, “school defendants”) alleging wrongful termination and sex
discrimination (“wrongful-termination case”). Appellants, David Kane Smith and
David Hirt, are attorneys who represented the school defendants in the wrongful-
termination case.
       {¶ 4} While the wrongful-termination case was pending, Elliott-Thomas
filed the instant action against Smith, Hirt, and two members of the school board,
alleging intentional spoliation of evidence. Specifically, she contends that Smith
and Hirt intentionally withheld, hid, altered, and/or destroyed evidence relevant to
her wrongful-termination case.
       {¶ 5} The parties filed cross-motions for summary judgment. The trial
court granted judgment in favor of Smith and Hirt, finding that Elliott-Thomas’s
claim for intentional spoliation of evidence failed because she was unable to
establish that either Smith or Hirt had physically destroyed evidence. Instead, the




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trial court determined that the allegations amounted to discovery disputes arising
from the wrongful-termination case.
       {¶ 6} Elliott-Thomas appealed. The appellate court reversed, concluding
that to establish a viable spoliation claim, a plaintiff need not present evidence of
“actual destruction or alteration of physical evidence * * *. Instead, the intentional
concealment, interference with, or misrepresentation of evidence is sufficient
* * *.” 2017-Ohio-702, 79 N.E.3d 606, ¶ 35.
       {¶ 7} Smith and Hirt then filed a motion to certify a conflict with the Fifth
District’s judgment in Allstate Ins. Co. v. Qed Consultants, Inc., 5th Dist. Knox No.
09CA14, 2009-Ohio-4896, the Eighth District’s judgments in O’Brien v. Olmsted
Falls, 8th Dist. Cuyahoga Nos. 89966 and 90336, 2008-Ohio-2658, and Bugg v.
Am. Std., Inc., 8th Dist. Cuyahoga No. 84829, 2005-Ohio-2613, and the Fourth
District’s judgment in McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 4th
Dist. Highland No. 01CA21, 2002-Ohio-6170. The appellate court granted the
motion.
       {¶ 8} We recognized the conflict. 150 Ohio St.3d 1406, 2017-Ohio-6964,
78 N.E.3d 907.
                                      Analysis
       {¶ 9} Smith and Hirt argue that the appellate court erred in reversing the
trial court’s grant of summary judgment in their favor. The trial court’s judgment
was based on its holding that the independent tort of spoliation of evidence does
not include claims alleging intentional concealment of or interference with
evidence. We review de novo cases involving a grant of summary judgment.
Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 12.
       {¶ 10} Ohio is among only a handful of jurisdictions that recognize the
independent tort of intentional spoliation of evidence. See Smith v. Howard
Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615 N.E.2d 1037 (1993); see also Hannah
v. Heeter, 213 W.Va. 704, 707-708, 584 S.E.2d 560 (2003); Oliver v. Stimson




                                          3
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Lumber Co., 297 Mont. 336, 1999 MT 328, 993 P.2d 11, ¶ 33-40; Coleman v. Eddy
Potash, Inc., 120 N.M. 645, 649, 905 P.2d 185 (1995), overruled on other grounds,
Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 2001-NMSC-034, 34 P.3d
1148; Hazen v. Anchorage, 718 P.2d 456, 463 (Alaska 1986). In Smith, we
established that the tort has five elements: “(1) pending or probable litigation
involving the plaintiff, (2) knowledge on the part of defendant 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
proximately caused by the defendant’s acts.” Id. at 29.
       {¶ 11} Elliott-Thomas acknowledges that in Smith, this court described the
tort as requiring the “willful destruction of evidence,” but she argues that a close
examination of Smith reveals that the court did not limit the cause of action to the
physical destruction of evidence. Instead, she contends, the court intended the tort
to encompass intentional concealment and interference.           In support of this
argument, Elliott-Thomas points to Smith’s citation of Viviano v. CBS, Inc., 251
N.J.Super. 113, 597 A.2d 543 (1991); she also points to this court’s opinion in
Davis v. Wal-Mart Stores, Inc., 93 Ohio St.3d 488, 756 N.E.2d 657 (2001).
However, neither case supports Elliott-Thomas’s position.
       {¶ 12} In Viviano, the New Jersey Superior Court, Appellate Division,
found compensable the plaintiff’s claim that the defendants had fraudulently
concealed evidence that was material to an action that the plaintiff was pursing
against third parties for work-related injuries. Id. at 126-127. The Viviano court
first set out the elements of a claim for destruction of evidence, then recognized
that the claim before it for concealment of evidence was “analogous to” an action
for destruction of evidence. Id. at 125-126 (“If ‘concealment of evidence’ is
substituted for ‘destruction of evidence,’ all of those elements * * * are amply
supported by the evidence”). However, we are not convinced that Smith cited




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                                January Term, 2018



Viviano for anything more than the elements of an action for destruction of
evidence. See Smith at 29, citing Viviano at 126.
       {¶ 13} In Davis, the plaintiff alleged that the defendant “had withheld
certain evidence and documents and that several [of the defendant’s] employees
* * * had provided false or misleading testimony during their depositions” in an
underlying case. Id. at 489. But the Davis court was considering only the narrow
issue of whether the plaintiff’s intentional-spoliation-of-evidence action was barred
by res judicata. Id. In concluding that it was not, the court did not explicitly hold
that the tort applied to interference with or concealment of evidence. Id. at 489-
491.
       {¶ 14} As demonstrated by the appellate court’s certification of conflict,
several Ohio appellate districts have concluded that the tort of intentional spoliation
does not include claims alleging intentional concealment of or interference with
evidence. Additionally, none of our sister state supreme courts that recognize the
independent tort have so defined the action. The Supreme Court of Alaska stated,


       Intentional spoliation is not the appropriate cause of action when
       evidence is concealed, but not destroyed, because late-produced
       evidence—even evidence produced after the entry of judgment—
       can still be presented to the fact finder for a ruling on the merits.
       And trials on the merits are most consistent with the truth-seeking
       function of the court.


Allstate Ins. Co. v. Dooley, 243 P.3d 197, 203 (Alaska 2010).
       {¶ 15} Most states have declined to adopt a cause of action for intentional
spoliation of evidence. See Goff v. Harold Ives Trucking Co., 342 Ark. 143, 150,
27 S.W.3d 387 (2000); Trevino v. Ortega, 41 Tex.Sup.Ct.J. 907, 969 S.W.2d 950,
951-953 (1998); Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky.1997); Brown v.




                                          5
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Hamid, 856 S.W.2d 51, 56 (Mo.1993); Koplin v. Rosel Well Perforators, Inc., 241
Kan. 206, 215, 734 P.2d 1177 (1987); La Raia v. Maricopa Cty. Superior Court,
150 Ariz. 118, 121, 722 P.2d 286 (1986); Murphy v. Target Prods., 580 N.E.2d
687, 690 (Ind.App.1991); Miller v. Montgomery Cty., 64 Md.App. 202, 214, 494
A.2d 761 (1985). It is notable that California, the state in which the intentional-
spoliation-of-evidence action found its beginnings, see Smith v. Los Angeles Cty.
Superior Court, 151 Cal.App.3d 491, 495-503, 198 Cal.Rptr. 829 (1984), changed
course and no longer recognizes that tort, deciding to rely instead on traditional
remedies, see Cedars-Sinai Med. Ctr. v. Los Angeles Cty. Superior Court, 18
Cal.4th 1, 8-17 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998). As the viability of the
tort is not an issue currently before us, we do not go that far today. Nevertheless,
the reasons and principles discussed by these courts guide our decision to reject an
expansion of the tort of intentional spoliation of evidence to encompass allegations
of intentional concealment of or interference with evidence.
       {¶ 16} One consideration that supports our decision is the existence of other
adequate remedies to deter and punish interference with and concealment of
evidence by parties and counsel. Civ.R. 37 provides trial courts with broad
discretion to impose sanctions upon a party who violates the rules governing the
discovery process. See Toney v. Berkemer, 6 Ohio St.3d 455, 458, 453 N.E.2d 700
(1983). Abuse of the discovery process is also deterred by the ethical obligations
placed upon legal counsel, see Prof.Cond.R. 3.3 and 3.4, and attorney disciplinary
sanctions, see Gov.Bar R. V. Accord Dooley at 203; Trevino at 953; Cedars-Sinai
at 8-13.
       {¶ 17} Another consideration contributing to our decision to reject an
expansion of the spoliation tort is the speculative nature of the harm arising from
interference with or concealment of evidence and the speculative nature of any
alleged resulting damages. See Cedars-Sinai at 13-14 (harm); Koplin at 215
(damages); Trevino at 952 (damages). A jury would have difficulty meaningfully




                                         6
                                January Term, 2018



assessing the harm done to the underlying action when evidence has been interfered
with or concealed. “The jury could only speculate as to what * * * effect [the
evidence] might have had on the outcome of the underlying litigation.” Cedars-
Sinai at 14. And a jury would find assessing damages problematic “because
evidence spoliation tips the balance in a lawsuit; it does not create damages
amenable to monetary compensation.” Trevino at 952-953.
       {¶ 18} We must also recognize the additional burden that would be placed
upon courts if we were to recognize a cause of action for interfering with or
concealing evidence. As this action demonstrates, extending the scope of the tort
would result in more supplemental proceedings requiring presentation of evidence
from underlying litigation in order for juries to determine the harm suffered by
plaintiffs. See Cedars-Sinai, 18 Cal.4th at 16, 74 Cal.Rptr.2d 248, 954 P.2d 511.
Such duplication of effort runs counter to the interests of judicial economy.


       While the law must adjust to meet society’s changing needs, we
       must balance that adjustment against boundless claims in an already
       crowded judicial system. We are especially averse to creating a tort
       that would only lead to duplicative litigation, encouraging
       inefficient relitigation of issues better handled within the context of
       the core cause of action.


Trevino, 41 Tex.Sup.Ct.J. 907, 969 S.W.2d at 951-952.
                                    Conclusion
       {¶ 19} We hold that allegations of intentional interference with or
concealment of evidence are not actionable under the independent tort of intentional
spoliation of evidence. We therefore answer the first certified question by the court
of appeals in the negative and do not address the second question. We reverse the




                                         7
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judgment of the Eleventh District Court of Appeals and reinstate the judgment of
the trial court.
                                                                  Judgment reversed.
        FRENCH, MOCK, and DEWINE, JJ., concur.
        FISCHER, J., concurs, with an opinion joined by O’DONNELL, J.
        O’CONNOR, C.J., concurs in judgment only.
        RUSSELL J. MOCK, J., of the First District Court of Appeals, sitting for
O’NEILL, J.
                                _________________
        FISCHER, J., concurring.
        {¶ 20} I concur fully in the majority opinion but write separately to address
any concerns that this court’s holding may deprive certain litigants of an adequate
remedy when an individual conceals or interferes with evidence. As explained in
the court’s decision, our Rules of Civil Procedure provide trial courts with broad
discretion to address concealment of or interference with evidence that occurs
during the course of discovery. See Civ.R. 37. Judges should be diligent in using
that discretion. The provisions of Civ.R. 37 are critical to the fair administration of
justice because they afford trial courts the discretion necessary to address in a
timely and appropriate manner any failure to abide by the discovery rules. To that
end, trial judges are encouraged to sanction without delay errant behavior by
lawyers and litigants in order to deter such conduct in the future. The Rules of
Professional Conduct and Rules for the Government of the Bar also contain
provisions that deter counsel from concealing or interfering with evidence and
provide for the punishment of attorneys who do so. See Prof.Cond.R. 3.3 and 3.4;
Gov.Bar R. V.
        {¶ 21} It is possible that our tort of intentional spoliation of evidence and
our rules may not cover a situation in which a nonattorney’s concealment of or
interference with evidence is not discovered until the underlying action has




                                          8
                               January Term, 2018



concluded. This situation is not before us in this case, however, because appellee,
Kristen Elliott-Thomas, asserts that she learned about the alleged wrongful actions
during the pendency of her wrongful-termination case. Thus, while we may
eventually have to decide whether there is a remedy for damages caused by
someone who conceals or interferes with evidence when that act is not discoverable
until after the underlying litigation has concluded, we need not and do not decide
that question today.
       O’DONNELL, J., concurs in the foregoing opinion.
                              _________________
       Consolo Law Firm, Co., L.P.A., and Frank Consolo, for appellee.
       Reminger Co., L.P.A., Martin T. Galvin, and Jonathan H. Krol, for
appellants.
       Willis & Willis Attorneys, Co., L.P.A., and Jason E. Starling, urging
affirmance for amicus curiae Ohio Association for Justice.
       Elfvin, Klingshirn, Royer & Torch, L.L.C., and Christina M. Royer, urging
affirmance for amicus curiae Ohio Employment Lawyers Association.
                              _________________




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