On Aug. 3, a unanimous New Jersey Supreme Court issued an opinion that may have startling effects on parties that dispose of evidence of alleged construction defects without providing potentially affected parties with an opportunity to inspect. In Robertet Flavors, Inc. v. Tri-Form Construction, Inc. , the Court wrote a comprehensive and lengthy opinion that delves into many of the nuances found in commercial construction litigation. The Court’s thorough review of the spoliation of evidence doctrine provides us with a rare juridical view of the complexities of construction litigation.

In Robertet Flavors , the Court was faced with the situation where an owner of a construction project moved forward to remediate an alleged construction defect, but, in doing so, it failed to notify certain parties and provided insufficient notice to others. As a result, the owner eliminated the other parties’ ability to inspect the alleged defect and spoliated evidence of the defect. The Court dismissed the claims against the construction manager and its representative entirely because they were not given notice and an opportunity to inspect the alleged deficiencies before remediation. The claims against the contractor that originally performed the work remained, but the owner was limited to only presenting evidence that occurred before the removal and remediation of the alleged defects. In other words, due to the spoliation, the Court precluded the owner from presenting evidence relating to the removal of the defect, inspection by its expert consultant, and remediation of the defective work and surrounding areas.

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