The preservation of evidence is an important part of any Ohio premises liability case. The duty to preserve evidence is a requirement imposed by a law and a duty that can give rise to an adverse inference or sanctions if breached. A plaintiff who commences a slip-and-fall lawsuit, for example, is obligated to keep text messages pertinent to the case, whether favorable or not. A defendant business owner, on the other hand, who defends against such a case, is obligated to preserve camera surveillance of the slip and fall, maintenance records, and personnel communications having any tendency to prove or disprove any element of the case.
When evidence is lost or destroyed it is called “spoliation.” To be spoliation, there must have been a duty to preserve the evidence in light of pending or reasonably foreseeable litigation. To obtain an adverse inference as to missing evidence, it must be shown that it was relevant and is missing only because of the other party’s bad faith.
Intentional spoliation is of such serious nature that the Ohio Supreme Court has established it as a separate tort. According to the American Bar Association, certain factors must be present to make a claim for spoliation: damages due to the spoliation, willful destruction of evidence during pending litigation, intent to disrupt the plaintiff’s case, and actual disruption of a plaintiff’s case.
Due to the pervasiveness of social media, and electronic communication, social media data can be subject to spoliation laws. According to the Ohio State Bar Association, when anticipating a lawsuit, a person may be tempted to delete certain information on social media. Destruction of this information or the intentional deletion of an account may amount to spoliation. The duty to preserve evidence falls upon each party who reasonably anticipates litigation.