Login | June 19, 2018

11th District: Attorneys must be deposed in tortious interference case

Legal News Reporter

Published: March 13, 2017

A Trumbull County trial court abused its discretion by relying on two attorneys’ affidavits in awarding summary judgment in their favor in a tortious interference case, the 11th District Court of Appeals recently ruled.

The attorneys, David Kane Smith and David Hirt, along with two Warren City School District members, were sued in October 2013 by appellant Kristen Elliott-Thomas.

According to case summary, Elliott-Thomas’ complaint alleges that each defendant intentionally concealed, altered, hid and/or destroyed evidence relating to her pending wrongful termination and sexual discrimination lawsuit against the district.

In the “TIDE” – tortious interference with or destruction of evidence – case, the defendants’ attorneys and board members sought summary judgment. The trial court dismissed all of the appellant’s TIDE claims with prejudice. The trial judge held that her claims lacked merit because she was unable to prove any of the defendants physically destroyed evidence.

The 11th District previously granted a partial motion to dismiss Elliott-Thomas’ appeal against the board members, so only the issues concerning attorneys Smith and Hurt remained.

In her latest appeal, Elliott-Thomas claimed the trial court prevented her from taking the attorneys’ depositions, instead relying on their affidavits. She sought to depose them about the delays in producing their discovery in the underlying case and to ask them whether they personally hid or destroyed evidence.

In 2014, Smith and Hurt asked the trial court in the TIDE case for a protective order to stop the appellant from taking their discovery deposition until after the wrongful termination suit was over. They argued the depositions would harm the attorney-client privilege and work product doctrine.

Writing for the appellate court, 11th District Judge Thomas R. Wright said the matter must be remanded to allow Elliott-Thomas the chance to depose Hirt and Smith.

“The blanket protective order was overly broad,” Judge Wright stated. “… The attorney deponents will have an opportunity to assert the attorney-client and work-product protections if and when they are asked questions regarding information that they believe is protected. At the time of deposition, attorneys Smith and Hirt can object and the matter will be left for the trial court to rule on.”

The appellant is claiming the attorneys instructed the school’s human resource director to ignore a properly served subpoena, not appear for deposition and to flee the court’s jurisdiction.

She also argues that Smith and Hirt withheld or destroyed weekly executive cabinet meeting minutes, calendars of events, meeting agendas and job descriptions.

Judge Wright’s opinion noted that the attorneys did not provide evidence disputing these claims, making summary judgment improper.

“Attorneys Smith and Hirt submitted their personal affidavits in which they confirm that they handed over certain discovery documents … Conspicuously absent from each affidavit is a statement that attorneys Smith and Hirt did not intentionally withhold, conceal or destroy documents or evidence during Kristen’s discrimination case,” Judge Wright stated. “Additionally, neither attorney … denies in his affidavit that he advised the WSD human resources director … to flee the jurisdiction and/or to not attend her subpoenaed deposition.”

Appellate judges Colleen Mary O’Toole and Diane V. Grendell concurred.

The case is cited Elliott-Thomas v. Smith, 2017-Ohio-702.