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Spoliation (of Evidence)
General Practice
Spoliation occurs when pertinent evidence in a prospective civil action or pending civil action has been destroyed, thereby interfering with the opposing party’s ability to prepare the case for trial. The plaintiff has a duty to preserve all evidence which forms the subject matter of the case and spoliation of evidence becomes an issue when evidence is not available for inspection by an adverse party. The Duty to Preserve Evidence Arises When There Is: 1. A pending or probable litigation involving the defendant; 2. Knowledge by the plaintiff of the existence of the likelihood of litigation; 3. Forseability of harm to the defendant (disregarding the evidence would be prejudicial to the defendant); and 4. Evidence which is relevant to the case. A plaintiff who destroys evidence interferes with the defendant’s ability to defend the lawsuit. If spoliation occurs, the Court may impose sanctions on the plaintiff and there have been cases in which all evidence relating to the destroyed evidence was excluded at trial and the defendant was awarded counsel fees. R. 4:23-4. For example, in Aetna Life and Casualty Co. v. Inet Mason Contractors, 309 N.J. Super. 358 (1998), the plaintiff failed to preserve the vehicle which was involved in the automobile accident and which formed the subject matter of the lawsuit. Then, at trial the plaintiff sought to enter their expert witness’ reports pertaining to the damaged vehicle into evidence. Id. The Court in Aetna Life and Casualty Co. ruled that the expert witness’ reports could not be entered into evidence because the reports would unfairly prejudice the defendant’s ability to defend the case. See Aetna Life and Casualty Co. at 369. Moreover, the Court held that, in instances where all other sanctions will not remedy the prejudice suffered by the defendant, as a remedy of last resort, the Court may dismiss the plaintiff’s case with prejudice. See Aetna Life and Casualty Co. at 369. The New Jersey Courts have long recognized the tort of intentional spoliation of evidence and more recent decisions have recognized negligent spoliation of evidence as an independent tort. To maintain a negligent spoliation of evidence claim, “ a plaintiff must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit.” Callahan v. Stanley Works, 306 N.J. Super. 488, 497 (1997). However, “the scope of duty to preserve evidence is not boundless; a potential spoliator need do only what is reasonable under the circumstances.” Hirsch v. General Motors Corporation, 266 N.J. Super. 222, 251 (1993).

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