"'Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J.Super. 358, 364 (App.Div.1998) (quoting Hirsch v. General Motors Corp., 266 N.J.Super. 222, 234 (Law Div.1993)).
A duty to preserve evidence is a question of law to be determined by the court, and said duty, independent from an Order to preserve evidence, arises when there is: (1) pending or probable litigation; (2) knowledge by the party of the existence or likelihood of litigation; (3) foreseeability of harm to the other party, or in other words, discarding the evidence would be prejudicial; and (4) the evidence is relevant to the litigation. Aetna, supra, 309 N.J. Super. at 366-67.
" 'The spoliator's level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it is a factor to be considered when determining the appropriate remedy for the spoliation.' "
Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 368 (App. Div. 1998) (quoting Hirsch, supra, 266 N.J. Super. at 256).
The New Jersey Supreme Court held that if spoliation of evidence is discovered during the course of litigation, the offended party can receive an adverse inference jury charge in its case in chief and still assert a separate cause of action for fraudulent concealment of evidence. Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J. 81 (2008); also see Rosenblit v. Zimmerman, 166 N.J. 391, 400-06 (2001).
Adverse inference instruction(s) and relief may include a designation from the Court that certain facts be taken as established, preclude defendant from supporting its defense or opposing Plaintiff’s claims (e.g., liability), prohibiting the introduction of designated matters into evidence, or entry of judgment by default. Swick v. The New York Times Co., 357 N.J. Super. 371 (App. Div. 2003), certif. denied, 176 N.J. 428 (2003).
