Plaintiff Permitted to Amend Complaint to Add State Law Claim for Intentional Spoliation of Evidence Instead of Seeking Spoliation Sanctions Through a Discovery Motion
- ILS Team
In WILLIAMS v. BARTON MALOW CO., ET AL., Case No. 3:20-CV-02594-JGC (N.D. Ohio, W. Div. Jan. 21, 2022), before the Court was Plaintiff’s Motion for Leave to File an Amended Complaint which, in addition to naming additional defendants, also sought to add a tort claim for intentional spoliation under Ohio law against one of the original defendants.
Plaintiff, a member of Iron Workers Local Union No.17, alleged that male ironworkers sexually harassed her at work sites to which the employer, Barton Malow Co. (Barton Malow), assigned her. She also contended that after she complained of the harassment, Defendants retaliated against her by not assigning her work and untimely terminating her.
Plaintiff filed her original complaint on Nov. 18, 2020. The parties engaged in limited discovery in preparation for a settlement conference on July 7, 2021. Plaintiff claimed that Defendants’ discovery responses revealed additional information about the individuals who participated in the harassment. She claimed that the responses gave rise to a claim for spoliation of evidence.
Plaintiff alleged that Defendant Tom Garza willfully destroyed a text message and voicemail related to the harassment Plaintiff experienced at Barton Marlow.
Defendants argued that “Plaintiff did not offer any supporting documentation that Garza knew that litigation was probable.” Further, Defendants argued that Plaintiff should have met and conferred on the new claim before adding it, and that imposing discovery sanctions was a more appropriate method of addressing spoliation.
An intentional spoliation of evidence claim 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.” Elliott-Thomas v. Smith,154 Ohio St. 3d 11, 13, 110 N.E.3d 1231, 1233 (2018).
As the Court found, Plaintiff successfully pleaded each of these elements in her proposed complaint. First, she alleged that the complaints of sexual harassment made litigation probable. Second, she alleged that in light of these complaints, Defendant Garza knew litigation was probable. Third, she alleged that Defendant Garza willfully destroyed a text message and voicemail regarding the harassment and did so to disrupt Plaintiff’s case. Plaintiff described each message and identified the date she sent them. Fourth, she alleged that the destruction of the messages disrupted her case because she could not present the messages to the jury. Finally, she requested damages for Defendants’ violations of state and federal law.
The Court further noted that Defendants’ contention that Plaintiff should have submitted supporting documentation for her spoliation was unfounded. The Court cited Federal Rule 12(b)(6), which reads “motions must typically be limited to consideration of the pleadings or converted to a motion for summary judgment under Federal Rule of Civil Procedure 12(d).”
Plaintiff did not need to attach evidence to her claims to the complaint. The Court noted that doing so would be improper because the court’s function at the motion to dismiss stage “[was] not to weigh the evidence or assess the credibility of witnesses.” The issue was whether Plaintiff had included enough factual information in the complaint to make her claim plausible. The Court found that it was.
Defendants’ factual argument that Garza was not aware of probable litigation could only be determined at the summary judgment stage after the close of discovery. The Court noted it was premature here when the parties had yet to conclude the discovery process.
Further, the Court noted that Defendants did not point to authority that would indicate that Plaintiff must provide evidence in addition to the allegations in the complaint to plead a claim of intentional spoliation under Ohio law.
Finally, Defendants’ argument that the alleged spoliation should have been resolved during a meet and confer or with discovery sanctions was incorrect. The Court found that if the Plaintiff’s spoliation claim was sufficiently pled, the Plaintiff was able to pursue it. The Court also rejected Defendants’ argument that the Court should not allow the claim simply because Defendants wanted Plaintiff to bring the spoliation claim another way.
The Court therefore allowed Plaintiff to add her claim for intentional spoliation of evidence under Ohio law.