Tartaglia v. UBS PaineWebber, Inc., et al., 2008 WL 5274869 (N.J. Supreme Court, December 16, 2008) – In this decision, the New Jersey Supreme Court also clarified the remedies available for spoliation (i.e., destruction) of evidence. The court held that if the 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. Obviously, if a party’s spoliation is discovered after the litigation, the only available remedy would be a separate claim for fraudulent concealment. In a footnote, the New Jersey Supreme Court made the important observation that, although previously courts had presumed only plaintiffs were entitled to bring a separate cause of action for spoliation, there is nothing to preclude a defendant from doing the same in an appropriate case.
Note: This article was published in the January 2009 issue of the New Jersey eAuthority.