Do you Have a Duty to Preserve Evidence?

I can’t help but abuse legalese in my everyday life. Last night was no exception, when I accused my Wife of “spoliating” my good mood by watching “Glee.” Although I may have convinced my Wife to the contrary, the term “spoliation,” has nothing to do with whiny 30 year-old “high school students” incomprehensibly breaking into song. In fact, spoliation occurs when evidence that is pertinent to a lawsuit is destroyed, which interferes with the Court’s proper administration and disposition of the action. 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)).
In general, a party has a duty to preserve evidence 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 party who destroys such evidence, commonly referred to as the “spoliator,” can be held liable regardless of whether he or she intentionally or merely negligently destroyed the evidence. Various civil remedies are available to rectify the spoliation. One such remedy is that the Court infers that the evidence the spoliator destroyed would have been unfavorable to him or her, as if it were a fact established at trial. A second remedy is a discovery sanction in which the Court designates that certain facts be taken as established, or refuses to permit the spoliator to support or oppose designated claims or defenses. Finally, Courts may prohibit the introduction of designated matters into evidence, dismiss an action, enter judgment by default, or may order the delinquent party to pay reasonable expenses resulting from his or her conduct, including attorney’s fees.
In addition to the above remedies, 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 completely separate cause of action for fraudulent concealment of evidence. Tartaglia v. UBS PaineWebber, Inc., et al., 197 N.J. 81 (2008)
Even if the prospect of litigation is questionable, best practices therefore require parties, and especially those regularly conducting business, to preserve all evidence such as letters, emails, pictures, video recordings and audio recordings that might be relevant to a dispute. But go ahead and delete that Glee episode from your DVR.