[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 
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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 wrongfultermination 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 
January Term, 2018 

3

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 
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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 
January Term, 2018 

5

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. 
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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 intentionalspoliation-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 
January Term, 2018 

7

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.” CedarsSinai 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 
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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 
January Term, 2018 

9

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. 

_________________