Article by Holly Olarczuk-Smith, Esq.
Although attorneys sometimes conflate aspects of the doctrine of missing evidence with claims of spoliation, it is important to understand the difference between intentional spoliation of evidence and the doctrine of missing evidence because these issues can arise with little or no warning. Having a firm understanding of these distinct concepts is critical because it could give rise to a sanction during litigation or to a separate cause of action.
Spoliations claims are significant because they may give rise to punitive damages. “Most states have declined to adopt a cause of action for intentional spoliation of evidence.” Elliott-Thomas v. Smith, 154 Ohio St.3d 11, 2018-Ohio-1783, ¶15. Ohio, however, “is among only a handful of jurisdictions that recognize the independent tort of intentional spoliation of evidence.” Elliott-Thomas at ¶10. More specifically, Ohio law allows claims for intentional spoliation, but it does not recognize negligent spoliation as a separate tort. Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29 1993-Ohio- 229. To bring a tort claim for intentional spoliation, 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 at 29. See also Elliott-Thomas at ¶10. The tort of intentional spoliation of evidence does not encompass “allegations of intentional concealment of or interference with evidence.” Elliott-Thomas at ¶15. Ohio does not recognize a cause of action for interfering with or concealing evidence because adequate remedies already exist “to deter and punish interference with and concealment of evidence by parties and counsel.” Id. at ¶16. For instance, under Ohio Civ.R. 37, trial courts are provided with “broad discretion to impose sanctions upon a party who violates the rules governing the discovery process.” Id. “Abuse of the discovery process is also deterred by the ethical obligations placed upon legal counsel” and “attorney-disciplinary sanctions[.]” Id.
By comparison, the missing evidence doctrine governs how and when a party can request the jury to make a negative or adverse inference about the evidence that is no longer available. It is important because it may permit attorneys to argue to the jury that the missing evidence was detrimental to the party who had control of a piece of evidence and discarded it without a reasonable explanation.
An adverse inference instruction “has its origin in the theory that the failure to produce evidence which a fearless claimant would naturally produce permits the inference that the tenor of the evidence would be unfavorable to such claimant.” Silveous v. Rensch, 20 Ohio St.2d 82, 84 (1969). “[A]n adverse inference that the missing evidence would be unfavorable to the party who failed to produce it arises where there is relevant evidence under the control of a party who fails to produce it without satisfactory explanation.” Branch v. Cleveland Clinic Found., 134 Ohio St.3d 114, 2012-Ohio-5345, ¶21 (internal quotation marks omitted). “In that situation, the jury may draw an inference that would be unfavorable to that party. For example, this concept applies where the party willfully suppresses evidence that, if produced, would explain that party’s conduct.” Roetenberger v. Christ Hosp., 2005-Ohio-5205, ¶21 (1st Dist.) (quotation marks omitted); see also Ravenscraft v. Durrani, 2025-Ohio-2900, ¶132-137 (1st Dist.). Ohio courts generally require a showing of malfeasance—or at least gross neglect—before providing such a jury charge. Roetenberger at ¶21; see also Silveous v. Rensch, 20 Ohio St.2d 82, 84 (1969) (an adverse inference instruction is proper where a party fails, “without satisfactory explanation,” to produce the missing evidence); Cherovsky v. St. Luke’s Hosp. of Cleveland, 1995 WL 739608, *5 (8th Dist.) (trial court properly exercised its broad discretion in refusal to give adverse inference instruction because “plausible explanations” were offered for the missing evidence and an adverse inference instruction is permissible, it “only applies when there is no explanation for the failure to produce the missing evidence”).
In sum, Ohio law provides an independent tort claim for intentional spoliation of evidence, as well as a missing-evidence doctrine that governs the absence of evidence. Attorneys should appreciate the importance of, and the distinctions between, spoliation claims and the missing evidence doctrine. Preventive measures are the best way to reduce the risk of damaging inferences or sanctions arising from missing, otherwise innocuous evidence.