Day on Torts
New Jersey has a well-developed body of case law on the issue of spoliation of evidence. Tartaglia v. UBS PaineWebber, Inc., 961 A.2d 1167 (N.J. 2008) sets forth the history of the development of the law in the state.
On August 3, 2010 the Supreme Court of New Jersey issued yet another opinion in the area, this time in the context of construction litigation. In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 2010 WL 3022121 (N.J. Aug. 3, 2010), the court wrestled with the issue of what factors to consider when determining what sanction should be imposed for spoliation of evidence in construction litigation. After surveying the law from across the country, the court adopted this test:
[C]ourts confronted with spoliation in the context of commercial construction litigation should recognize that a variety of factors bear on the appropriate remedy. In particular, courts should consider all of the following: the identity of the spoliator; the manner in which the spoliation occurred, including the reason for and timing of its occurrence; the prejudice to the non-spoliating party, including whether the non-spoliating party bears any responsibility for the loss of the spoliated evidence; and the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel, from contemporaneous documentation or recordings made by or on behalf of the spoliator, and from others as a result of the usual and customary business practices in the construction industry. Courts should then balance all of those considerations in crafting the appropriate remedy with an appreciation for the ways in which the construction industry itself provides them with unique tools with which to “level the playing field” and achieve an appropriate remedy for spoliation.
The court went on to explain that
In the construction litigation context, it will often be the case that a sanction for spoliation other than dismissal will achieve our traditional goals, which are “to make [the non-spoliating party] whole, as nearly as possible, … to punish the wrongdoer; and to deter others from such conduct.” Identifying the appropriate sanction, however, entails utilizing all of the means at the court’s disposal to effect a just result. Those means include, of course, all of the remedies that we have traditionally recognized, but they are not limited to adverse inferences, bifurcated proceedings, preclusion of evidence, and dismissal. Instead, they might also include, as here, limitation of claims to only those that can be tried fairly, with dismissal of others, or an award of costs caused by the spoliation, if the costs can be quantified and assessed against the offending party. (Citation omitted.)
Of course, the court made it clear that this opinion applied only to commercial construction litigation. However, every tort lawyer researching the issue of spoliation in a tort case would learn a lot about the issue by reading this opinion.