Spoliation of evidence is the willful destruction of key evidence, in the face of current or potential litigation. In Ohio, a party damaged by spoliation has two avenues for relief: 1) seek sanctions in the pending lawsuit, or 2) file a separate lawsuit. While it is more common for litigants to seek sanctions from the trial court for spoliation when it is learned of during the discovery phase of the case, Ohio also recognizes a separate cause of action in tort.

Sanctions and punishment for engaging in the spoliation of evidence.

A party engaging in the spoliation of relevant evidence is subject to severe sanctions. Although Ohio does not recognize the tort of negligent spoliation, discovery sanctions for spoliation can be predicated on negligent acts. Spoliation sanctions can be awarded upon a showing that: the evidence was relevant; a party or its expert has had an opportunity to examine the unaltered evidence; and the evidence was intentionally or negligently destroyed or altered without providing an opportunity for inspection by the opposing party.

If these elements are established, the aggrieved party is entitled to a rebuttable presumption that it was prejudiced by the destruction of the evidence. Moreover, depending on the seriousness of the violation, a trial judge has a wide range of sanctions available including exclusion of expert testimony, adverse jury instructions, imposing financial sanctions, and in rare cases, the outright dismissal of the action.

The burden of proof belongs to the plaintiff.

To establish a claim for spoliation as a separate tort in Ohio, the plaintiff must demonstrate: pending or probable litigation involving the plaintiff; knowledge on the part of the defendant that litigation exists or is probable; willful destruction of evidence by the defendant designed to disrupt the plaintiff’s case; disruption of the plaintiff’s case; and damages proximately caused by the defendant’s acts.

A finding of willful destruction requires that the actor be aware of a substantial likelihood that the evidence is relevant to existing or potential litigation, and yet consciously disregard this knowledge in destroying the evidence. Typically, a showing of willful conduct requires proof approaching on intentional conduct rather than mere carelessness in destroying the evidence.

What can you do to guard against inadvertently engaging in the spoliation of evidence?

A litigant has a duty to preserve evidence that it knows, or reasonably should know, is relevant to an existing or potential lawsuit. Events that give rise to a credible threat of litigation take many forms and may occur several years before the actual litigation. Common situations that trigger an obligation to preserve evidence include a formal complaint, a subpoena for records, or the receipt of a demand letter. However, be aware that in many circumstances, the “triggering event” could be much more subtle (i.e. a group of employees talking about a harassment incident). The most important thing to do is keep an eye out for triggering events that put you on notice of actual or potential litigation.

Once on notice, the next step is to issue a litigation hold to relevant employees. A litigation hold is a written directive advising custodians of certain documents and electronically-stored information to preserve potentially relevant evidence in anticipation of future litigation. Failure to issue a written litigation hold after notice of potential litigation may be considered negligence, which could subject the party to the sanctions referenced above. A good litigation hold should clearly identify the reason for the hold and identify what sort of information is considered relevant.

Finally, plan ahead. Work with your attorney now to develop a litigation readiness plan so that, if necessary in the future, a litigation hold can be quickly and effectively implemented. If you have any questions, or have reason to believe that you may be a party to a lawsuit, and would like to discuss matters further, please do not hesitate to contact one of our civil litigation attorneys at 216.523.1500.