Ohio Spoliation of Evidence Law
In many cases and incidents, evidence gets lost, some innocently, some not. For example, the recording of a black box can be recorded over, as can security camera video that records an incident. The first example is more likely to be intentional, the second could be but may not as well. The security camera recording of a fall on the property’s premises may be intentionally neglected. However, the security camera recording an event of the owner’s property may be recorded over innocently, if the tape is not timely recovered.
This article will identify the standard of proof for the various types of lost evidence and the rights attainable under the same.
In Ohio, there are two applicable concepts that are tied with spoliation of evidence. First, there is the intentional spoliation of evidence.
Ohio is one of few jurisdictions that allows for an independent tort claim for intentional spoliation of evidence. Elliott-Thomas v. Smith, 110 N.E.3d 1231, 1233 (Ohio 2018). Ohio law permits claims for intentional spoliation but precludes claims for negligent spoliation. Smith v. Howard Johnson Co., 615 N.E.2d 1037, 1038 (1993). In order to bring an intentional spoliation claim, a party must establish “(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 plaintiff’s case, and (5) damages proximately caused by the defendant’s acts.” Smith, 615 N.E.2d at 1038. Furthermore, “a plaintiff is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.” C4 Polymers, Inc. v. Huntington Natl. Bank, 41 N.E.3d 788, 803 (Ohio 2015). A defendant claiming evidence was spoiled by plaintiff must establish: “(1) that the evidence is relevant, (2) that the plaintiff’s expert had an opportunity to examine the unaltered evidence; and (3) that, even though the plaintiff was contemplating litigation against the defendant, the evidence was intentionally or negligently destroyed or altered without providing an opportunity for inspection by the defense.” C4 Polymers, Inc., 41 N.E.3d at 803.
In order to prove the client engaged in spoliation of evidence, the defendant would have to establish the three elements outlined in C4 Polymers, Inc. Based on the facts and circumstances surrounding the incident, it would be difficult for the defendant to establish elements two and three.
Additionally, Ohio also follows the missing evidence doctrine. “Under Ohio law, ‘the concept of negative, or adverse, inference arises where a party who has control of the evidence in question fails, without satisfactory explanation, to provide the evidence.’ (citation omitted). ‘Ohio courts normally would require a strong showing of malfeasance -- or at least gross neglect -- before approving such a charge.’” O’Brien v. Ed Donnelly Enterprises, Inc., No. 2:04-CV-85, 2006 WL 2583327, at *4 (S.D. Ohio Sept. 5, 2006), objections overruled,No. 2:04 CV 85, 2007 WL 81843 (S.D. Ohio Jan. 8, 2007) (Quoting, Brokamp v. Mercy Hosp. Anderson, 726 N.E.2d 594, 608-09 (1999) (citing Veranardakis v. Thriftway Inc., 1997 Ohio App. LEXIS 1818 (May 7, 1997)).
Under this theory, Ohio courts will allow an adverse inference to arise when a party in control of evidence fails to provide the particular evidence without a sufficient explanation as to why the evidence is missing. Again, the defendant will have a difficult time proving the client’s actions arose to a level of malfeasance. Given the injuries sustained, it is reasonable that the client did not immediately go to the hospital and attempted to alleviate the pain through a different outlet. Although defendants may argue the client was negligent in not immediately going to the hospital, it will be difficult to establish the client was malfeasant or grossly negligent.
In sum, Ohio law provides an independent tort claim for intentional spoliation of evidence as well as a missing evidence doctrine that control the absence of evidence.