22 www.ohiobar.orgOhio Lawyer May/June 2013

Ohio’s missing evidence rule Re-visiting the importance of document retention in today’s electronic eraby Jonathan KrolIt goes without saying that cases are, byand large, won or lost on the facts. Notsurprisingly then, trial attorneys directeach phase of litigation at compiling evi-dence to establish facts most favorable tothe client’s case. But amidst the hustleand bustle of case handling focused pri-marily on gathering admissible evidence,it is not hard to lose sight of the impor-tance of those pieces of evidence that areunavailable. While it may come as a sur-prise to even seasoned practitioners, casescan be decided on evidence not presentat trial, due in large part to the commonlaw “missing evidence” doctrine. As technology evolves, methods of re-taining, vetting and producing evi-dence—particularly electronically storedinformation (ESI)—become more effi-cient. But, all the while, these improve-ments result in more extensive, expen-sive and burdensome discovery. Despitetechnological advances—and, perhaps,at times because of them—relevant datacan be lost, misplaced or prematurelydiscarded. Ohio courts have devisedmethods of managing these situations,premised largely on the use of permis-sive inferences and jury instructions. Itis important for any litigator to under-stand the missing evidence doctrine,how it works and how the doctrine dif-fers from spoliation.

Missing evidence versus spoliation of evidenceAlthough Ohio courts necessarily ana-lyze “missing evidence” in the context ofspoliation claims, judges and lawyers of-ten conflate the two and overlook fun-damental distinctions. This is not sur-prising, considering attorneys regularlyuse some aspect of the missing evidencerule in conjunction with claims of spoli-ation. Still, to fully grasp the concepts,one must review the missing evidencerule in isolation. The missing evidence doctrine is akin toan evidentiary rule, or more precisely, amethod of indirect proof (i.e., a type ofcircumstantial evidence). It is a principlethat governs how and when a party canrequest the jury to make an inferenceabout the evidence that is no longer

available. Simply stated, Ohio courtsgenerally require an aggrieved party todemonstrate malfeasance (or at leastgross neglect) before including a jury in-struction on a permissible adverse infer-ence relating to specific missing evi-dence.1 If there is no showing ofwrongdoing, courts generally do not in-struct the jury on negative inferences di-rectly but rather include a general in-struction on inferences.2

Spoliation of evidence, on the otherhand, is recognized as a tort in Ohio, anelement of which incorporates missingevidence. Ohio is one of a growing mi-nority of states that recognizes spoliationas an independent cause of action. Theprima facie case requires pending orprobable litigation involving the plaintiff;knowledge on the part of defendant thatlitigation exists or is probable; willful de-struction of evidence by defendant de-signed to disrupt the plaintiff ’s case; dis-ruption of the plaintiff ’s case; anddamages proximately caused by the de-fendant’s acts.3 If for no other reason,spoliation claims are significant becausethey may give rise to punitive damages.

Practical ramifications of missing evidenceThe missing evidence doctrine is impor-tant for two reasons: to determinewhether the trial judge will permitcounsel to argue to the jury that an ad-verse inference can be drawn from themissing evidence and whether the judgewill give specific instructions to the juryon adverse inferences related to missingevidence. Even without a showing of malfeasance,the court may permit an aggrieved partyto argue that the jury can, and should,make a negative inference based solelyon the fact that evidence formerly inpossession and control of the opposingparty is no longer available. The trialjudge should only do so if the otherparty cannot offer a reasonable explana-tion for failing to produce the missingevidence.4

In effect, once one party demonstratesthat evidence within the sole custody ofanother is “missing,” the burden thenshifts to the opposing party to offer areasonable explanation. Failure to meetthis burden will result in the judge per-mitting an aggrieved party to argue ad-verse inference to the jury—regardless ofwhether a specific jury instruction isgiven (when malfeasance or gross negli-gence is established). Like other evidentiary decisions, trial

courts are given much leeway in handlingthese situations, and appellate courts willonly reverse on finding an abuse of discre-tion. Naturally, what constitutes a “rea-sonable explanation” is subject to variedinterpretation. While the case law on thisissue is not well developed, an excuse thatevidence is “not ordinarily retained” maynot be sufficient to preclude an adverseparty from arguing that the missing evi-dence was detrimental to the party who“discarded” it.5

Be preparedAlthough navigating the intricacies ofthe missing evidence doctrine is certainlynot the most vital (or exciting) aspect ofeach trial, a firm grasp on the doctrineshould be an essential part of any practi-tioner’s toolbox. After all, issues relatingto missing evidence can and do arise attrial without warning. Perhaps more im-portant, attorneys should recognize andcounsel clients on the importance of so-phisticated document retention and pro-duction policies. Preventative measuresare the best way to reduce the chances ofdamaging inferences from missing butotherwise innocuous evidence. n

Author bioJonathan Krol practicesin the Cleveland officeof Reminger Co., LPA.He concentrates his le-gal practice in the areasof Professional Liability,Employment and Labor

Law, and General Liability. He is amember of the Ohio State Bar Associa-tion and the Cleveland MetropolitanBar Association.

Endnotes1 See, e.g., Schwaller v. Maguire, HamiltonApp. No. C-020555, 2003-Ohio-6917,¶24 (“Ohio courts normally would requirea strong showing of malfeasance—or atleast gross neglect—before approving sucha charge.” (Quotation omitted)).

2 See, e.g., Ohio Jury Ins. CV 207.07.3 See Smith v. Howard Johnson Co., Inc., 67Ohio St.3d 28, 29 (1993); Ohio Jury Ins.CV 437.01.

4 See Clifton v. Ohio Dep't of Rehab. & Corr.,Franklin App. No. 06AP-677, 2007-Ohio-3791, ¶35 (citing Cherovsky v. St. Luke’sHosp. of Cleveland, Cuyahoga App. No.68326 (Dec. 14, 1995)).

5 See, e.g., Branch v. Cleveland Clinic Found.,Cuyahoga Cty. No. 95475, 2011-Ohio-3975 (permitting counsel to argue adverseinference despite testimony presented to es-tablish that the missing evidence was notordinarily retained).