Creation of a False Document, as Opposed to Destruction or Alteration of and Existing Document, Does Not State a Tort Claim of Spoliation in Ohio

From Williams v. Continental Express Co., 2008 Ohio 5312, 2008 Ohio App. LEXIS 4464 (Ohio App. Oct. 14, 2008):

[T]he Williams argue that the trial court erred by determining that a spoliation claim requires an allegation of destruction or alteration of an already existing document. The Williams argue that the creation of a false document is legally indistinguishable from the alteration of an existing truthful document.... Continental, on the other hand, argues that the trial court's grant of summary judgment on the spoliation claim was in accordance with Ohio Appellate authority. We agree with Continental.

***A claim of spoliation has the following 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.

Sheets v. Norfolk S. Corp. (1996), 109 Ohio App.3d 278, 288, 671 N.E.2d 1364 (emphasis added), citing Smith v. Howard Johnson Co. (1993), 67 Ohio St.3d 28, 29, 615 N.E.2d 1037. The Williams' complaint, however, asserted that:

The company president, Defendant Russell Gottemoeller, acting both individually and in the course and in the scope of his employment with Defendant Continental Express Company, created a false document, which purported on its face to have been written just 11 days before the death of David Williams. This false document, which purported to terminate David's employment with Continental Express Company was created for the purpose of precluding the Plaintiff's from any recovery on "Ponzer" underinsured motorists claims against Continental National Indemnity Company and Cincinnati Insurance Company.

***On its face, the complaint does not claim any destruction of evidence as required for a cognizable spoliation claim; rather, it asserts that defendants created a false document. Ohio courts have declined to extend spoliation claims beyond the destruction of physical evidence. Pratt v. Payne, 153 Ohio App.3d 450, 2003 Ohio 3777, 794 N.E.2d 723, P21; Wachtman v. Meijer, Inc., 10th Dist. No. 03AP948, 2004 Ohio 6440, PP28-31. See also, Keen v. Hardin Memorial Hosp., 3d Dist. No. 6-03-08, 2003 Ohio 6707, P16 ("Non-existent evidence, by its very nature, cannot be spoiled.") (citing Payne, 2003 Ohio 3777, at P21); Bugg v. Am. Std., Inc. , 8th Dist. No. 84829, 2005 Ohio 2613, P23; O'Brien v. Olmstead Falls, 8th Dist Nos. 89966, 90336, 2008 Ohio 2658, PP19-20; Davis v. Wal-Mart Stores, Inc. (2001), 93 Ohio St.3d 488, 493, 756 N.E.2d 657 (Cook, J., dissenting).

The Williams argue that this case is distinguishable from Payne, supra, because Payne involved a perjury-based spoliation claim whereas this case involves physical, documentary evidence. Although we agree that Payne involved perjured testimony, Payne's proposition — that "no court in Ohio * * * has extended spoliation to anything other than the destruction of physical evidence"— -is still relevant because the Williams seek to extend spoliation to the creation of a false document, which the Court in Payne declined to do. 2003 Ohio 3777 at P21. Thus, the Williams' alleged distinguishing factor is one without legal significance.

The Williams further argue that this case is similar to Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331. We disagree. To begin with, the defendant in Moskovitz altered an existing document and did not create a false document, which makes that case distinguishable from the case at bar. 69 Ohio St.3d at 643-44; Wachtman, 2004 Ohio 6440, at P27. Furthermore, Moskovitz's purported rule of law cited by the Williams — that "[a] cause of action exists in tort for interference with or destruction of evidence" — was mere dicta. Id. at 650-51. Finally, the Moskovitz case does not state that a cognizable spoliation claim exists where the alleged illegal conduct is the creation of false or fraudulent evidence. Watchman, 2004 Ohio 6440, at PP28-29. The Williams' reliance upon Moskovitz is, thus, misplaced as well.

If you create a false document starting with an existing document, you are subject to lawsuit. If you start with a blank document, you’re not. Or perhaps it is simply a different lawsuit. But true to the name. "Spoliation" derives from the Latin phrase “omnia praesumuntur contra spolatorem,” meaning “all things presumed against the destroyer.” See Davison v. Cole Sewell Corp., 2007 U.S. App. LEXIS 16558, at *17 (6th Cir. June 29,2007) (unpublished); accord Perez v. La Dove, Inc., 964 So. 2d 777 (Fla. App. 2007) (citation omitted). Creation is not destruction.

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