SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

- 0218

- 18T3 GINA DORRITY, Plaintiff

- Appellant/ Cross

- Respondent,

v . WAKEFERN FOOD CORPORATION, Defendant

- Res pondent/ Cross

- Appellant,
and SUNRISE SUPERMARKETS, INC., t/a SUNRISE SHOPRITE OF PARSIPPANY LL , FRANK SBLENDORIO, SR., individually, and THOMAS F. HARTE, individually, Defendants.

___________________________________

Argued October 22, 2019

– Decided January 15, 2020 Before Judges Hoffman, Currier and Firko.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36

- 3.2 A

- 0218

- 18T3 On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L

- 3221

- 16. Christopher W illiam Hager argued the cause for appellant/cross

- respondent (Hager Law, LLC, attorneys; Christopher W illiam Hager, on the brief s ). Mark Diana argued the cause for respondent/cross

appellant (Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys; Mark Diana and Michael J. Riccobono, on the briefs).
PER CURIAM Between 1991 and 2016, plaintiff worked at a pair of ShopRite supermarket stores owned by defendant Sunrise Supermarkets, Inc. (Sunrise) , a member of defendant Wakefern Food Corporation (Wakefern) , a grocery cooperative. After Sunrise terminated her employment in February 2016, plaintiff filed suit against both Sunrise and Wakefern , alleging age discrimination. In 2017, plaintiff filed an amended complaint, asserting claims of fraudulent concealment and spoliation of evid ence against Wakefern. In June 2018, the Law Division granted the summary judgment dismissal of plaintiff's claims against Wakefern. After p laintiff settled her claims against Sunrise in September 2018 , she filed this appeal, challenging the orders dismis sing her claims against Wakefern. Plaintiff also appeals from an earlier order that denied her motion seeking a summary judgment determination that3 A

- 0218

- 18T3

Wakefern acted as her "employer" under the LAD. Wakefern filed a protective

cross - appeal addressing the sa me issue. For the reasons that follow, we affirm
the summary judgment dismissal of plaintiff's claims against Wakefern

. We dismiss Wakefern's cross - appeal as moot.
I Wakefern's Relationship with Sunrise Wakefern describes itself as "a member

- owned cooperative" consist ing of

" approximately [ fifty ] M ember companies" that "independently own and operate supermarkets doing business under the ShopRite trade name." The M embers operate approximate ly 325 stores. Wakefern requires M embers to purchase eighty

- five percent of their retail sales, and all of their beef, from Wakefern. Further, M embers must "maintain their stores at a level that is acceptable by the Wakefern quality assurance division that does store in spections, product inspections, etc." and must also "participate in a common advertising theme or circular." Wakefern provides numerous services for M ember stores, such as procuring goods for resale by the stores, managing intellectual property such as
t rademarks, accounting services, marketing and merchandising services, advertising, training, and loss prevention services

. Through its c omputer4 A

- 0218

- 18T3

i nformation s ystems division, Wakefern also provides Members various helpdesks (including a customer service ho tline, a logistics line, and an IT helpdesk), insurance services , inventory management, and IT support

. Wakefern owns the licenses for the computer software M embers use, including PeopleSoft (used to manage payroll processing), Kronos (a time management s oftware), and Magic (a helpdesk software). Wakefern hosts and maintains the software, as well as the networks and equipment which run the software ; in addition, Wakefern serves as the email administrator for M embers

. Wakefern negotiates collective bargain ing agreements with the ShopRite employees' union

. The union agreement addresses a wide range of topics , including seniority, wages, overtime, holidays, lunch periods, f uneral leave, health and welfare benefits, and arbitration and grievance procedures

. In addition, Wakefern control s the point

- of

- sale technology used by each
M ember store

. Wakefern contro ls digital coupons loaded onto a customer's "ShopRite Price Plus card" and redeemed at stores

. Wakefern directs customer service employees on how to an swer questions related to the coupons. Regarding loss prevention matters, Wakefern monitor s weekly "Lane Hawk" reports that monitor the bottom of shopping carts for items not scanned for purchase. Wakefern also hire s a third

- party to conduct a "mystery shopper"5 A

- 0218

- 18T3

program, whereby individual s pose as customer s to evaluate store s for safety, cleanliness, and customer service ; h owever, th is service is optional. Wakefern also maintain s a website for employee training; however , Members may choose to forego th e training, or modify the training programs as they s ee fit. Notwithstanding Wakefern's involvement in many areas of store operations of its M embers , the record contains no evidence of Wakefern 's involvement in training, developing policies, or i nvestigating claims related to discrimination, retaliation, or harassment. Further, the record lacks any evidence of Wakefern 's involvement in the staffing of a ny store s , hours of operation , or the hiring or firing of M ember employees. Plaintiff's Emplo yment by Sunrise
B orn in 1957 , plaintiff began working as a part

- time cashier at the West Caldwell Shoprite

– owned by Sunrise

– in 1991. When plaintiff applied for her position, she complet e d a form with the following heading:

APPLICATION FOR EMPLOYMENT
WAKEFERN FOOD CORPORATION
SHOP

- RITE SUPERMARKETS. After submitti ng her application, plaintiff interviewed for the cashier position with a Sunrise store manager, who offered her the position on the spot.6 A

- 0218

- 18T3

Plaintiff never interviewed with a Wakefern employee, nor does the record indicate that Wakefern participated in the hiring decision. In fact, the record lacks any evidence of Wakefern 's involve ment in any Sunrise person n el decisions. Plaintiff received cashier training at the Sunrise store from Sunrise employees. Eight years later, Sunrise moved plaintiff to the pos ition of courtesy counter clerk. Sunrise employees trained plaintiff for that position and informed her of her duties. In 2001, plaintiff received a promotion to head bookkeeper and head courtesy clerk. In 2011, Sunrise transferred plaintiff to its Pars ippany
store , where she maintained the same position and duties. Sunrise alone made
t hes e decision s , with no involvement of Wakefern. In addition to her duties as head bookkeeper and head courtesy clerk, plaintiff handled several human resource (HR) mat ters . Sunrise assigned these additional tasks without input from Wakefern. Some of the training for plaintiff's HR duties came from Sunrise employees, but some also came from Wakefern, such as how to use the Kronos system to manage scheduling and to

reco rd " absence [ s ] and late 's." Plaintiff presented no evidence of any Wakefern involvement in Sunrise 's decision to assign t hese duties to plaintiff.7 A

- 0218

- 18T3

A s part of her HR duties, plaintiff complete d disciplin ary notices for employees who failed to arrive on time or missed work . Plaintiff also handled disciplinary notices for employees with time clock violations or cash shortages

. Plaintiff sent th e se notices to Sunrise's HR department or department managers, bu t not to Wakefern. Plaintiff did not inform Wakefern if she planned to take a vacation, or if she called out sick

– Sunrise handled all such matters. Sunrise alone assigned plaintiff her work schedule, as it did for all of its employees. Plaintiff r eceived awards for her work, including perfect attendance, employee of the month, and employee of the year

. These awards came directly from Sunrise, not Wakefern. Until February 2016, plaintiff received positive employee evaluations. Wakefern did not is sue any performance reviews to plaintiff nor did it participate in any e valuations plaintiff received from Sunrise. Plaintiff's paychecks list ed the payor as "Sunrise SR of Parsippany LLC , " with no mention of Wakefern

. Plaintiff could not recall ever receiving a W

- 2 tax form indicating Wakefern as her employer. Plaintiff was not covered by Wakefern's employee benefit plans , nor was she eligible for such coverage

. The Sunrise ShopRite Associate Handbook given to Sunrise employees
state s the information contained there in "is proprietary Wakefern information8 A

- 0218

- 18T3

(use pursuant to Company instructions)." The handbook calls for a "progressive counseling" process for certain employee infractions

. The process calls for four steps of warnings and reprimands before termination occurs ; h owever, the handbook state s certain conduct could result in immediate discharge, including: "discourtesy to customers," "poor job performance," "violating time and attendance procedures, " and "theft of any kind."
W akefern provide s the handbook to its M embers for use, but they remain free to reject or modify it as they s ee fit. Sunrise insert ed some of its own policies, including policies addressing progressive discipline, attendance, vacation s , sick time , personal time, and tuition reimbursement. Wakefern provide s and manage s most of the Sunrise 's store computer software. In fact, all the software plaintiff utilize d to complete her job originated with Wakefern. P laintiff sent financial information to Wakefern's ShopRite Financial Services (SFS) 1 via an Oracle

- based program each day. SFS reviewed plaintiff's bookkeeping work and would contact her through the Oracle program's "notes" function about any issues in sales reports. SFS personnel

1 SFS provides optional accounting and other financial analysis services to Members for a fee.9 A

- 0218

- 18T3

provide assistance, b ut d o not supervise, evaluate, review, discipline , or control the bookkeepers at Member stores. Plaintiff exchange d emails with Wakefern employee s about HR issues or technology issues. Wakefern tracked these help desk communications , first using a computer program called "Magic" before later switching to a program named "Front Range." Wakefern's cash and sales system manages and monitors the sales and cash operations of all Member stores. Plaintiff use d this system to complete h er work. Wakefern trained plaintiff on point

- of

- sale software and assisted her over the phone regarding her bookkeeping responsibilities. In 2014, Sunrise hired Andrew Leaman for a newly created position

– customer service manager

– at its Parsippany sto re . Leaman never previously worked for a ShopRite store and lacked any relevant experience before start ing the job

. Sunrise never offered t he position to plaintiff, nor did it consider her for it , despite her title as head courtesy clerk. Less than a ye ar later, w hen
Leaman took another position, Sunrise replaced him with a woman , who was twenty

- six years old at the time.
In 2015 , Wakefern hired Strategic Resources Group (SRG) to examine ShopRite stores and compare the ir employee hiring and retention p ractices with10 A

- 0218

- 18T3

other retailers, such as Wegmans, Trader Joe's, Target, and Home Depot. Along with other strategies, the study recommended that Mem bers focus on hiring high school level students for summer part

- time work , before hiring qualified student workers for full time positions. Sunrise m anagement later sought to hire a computer

- generated ordering (CGO) supervisor. An email sent by a Sunrise manager described plaintiff as "not interested" in the position. Sunris e selected a part

- time cashier , who was about to graduate from school with an IT degree. He was approximate ly twenty

three years old and described as a "bright young man." Joanne Zambrello, Vice President of Human Resources with Sunrise, admitted the hir ing was consistent with the hiring objectives of the SRG report, which recommended hiring "younger workers," including part

- time students to long

- term positions

. In April 2015, Leaman transitioned to the role of IT supervisor after the previous supervis or retired. Plaintiff had requested the position as she had worked with Wakefern's systems for several years. However, the record fails to
demonstrate that plaintiff possessed the necessary qualifications for the job. She could not remember having exper ience in setting up IT equipment; she could not remember having applied for any other IT positions; she did not know the meaning of several of the job's requirements such as "providing technological11 A

- 0218

- 18T3

guidance to Sunrise Liquor Stores" or "network security p rotocols", and she could not remember taking computer courses since graduating college , and had no computer programming training. The record lacks any evidence that Wakefern had any input into the hiring decision for the IT supervisor position, or that p laintiff reached out to a ny Wakefern employee s about her interest in the position. When Leaman, who was then plaintiff's supervisor, told plaintiff he had received the position, plaintiff complained , recalling that she told him "it was discriminatory," an d that she did not get the position because she " was older ." According to Leaman , plaintiff said, "I was supposed to have this job, and they gave it to you." Leaman reported plaintiff's c ommen t to Zambrello, who did not investigate it. In May 2015, Sunrise removed plaintiff's access to override the time clock
and access the payroll system, and her responsibility to track late and absent employees ; in addition, Sunrise changed plaintiff's job title from "head bookkeeper" to simply "bookkeeper." Wakefern had no input in these decisions. Because he had been her supervisor when he worked as customer service manager, Leaman conducted plaintiff's employee "Core Competency Assessment" in June 2015. He graded her a 2.70 out of a possible five. This score ranked as "good," and indicated plaintiff "consistently meets job12 A

- 0218

- 18T3

requirements." The record contains no evidence that Wakefern approved, reviewed, or participated in plaintiff's evaluation in any way . In August 2015, plaintiff was assigned to work shifts beginning at 3 a.m

. Sunrise made this decision without input from Wakefern. Sunrise further assigned plaintiff to work thirty

- five straight days from January to February 2016 to cover for a coworker who had taken a vacation. Plaintiff never complained about these work sc hedule assignments to a Sunrise superior nor to anyone at Wakefern. In February 2016, while on her lunch break, plaintiff spoke with a
customer , who had pictures of the Pope he wanted to show her. When her break ended, plaintiff punched back in, but th en continued to speak with the customer. After the conversation, plaintiff failed to complete her work before the end of
her shift ; as a result, she required a supervisor to override the time clock for her
"to punch out

. " Later that day , Sunrise called p laintiff at home and told her she

was suspended pending termination for , in plaintiff's words, "S tealing time. " On February 25, 2016, p laintiff attended a meeting between her union and Sunrise store managers . At the meeting, plaintiff expressed her bel ief that she was treated unfairly and that she was simply providing good customer service. Plaintiff's brief states that she complained of age discrimination; however, a13 A

- 0218

- 18T3

written statement plaintiff prepared for the meeting contains no mention of age discrimination or Wakefern. Plaintiff's statement does discuss how other employees committed worse violations and avoided terminat ion

. At the end of the meeting, plaintiff received termination paperwork. Sunrise replaced p laintif f with an employee at least twenty years younger. The
record contains no evidence that Wakefern participated in the firing of plaintiff or in the hir ing of her replacement

. On May 6, 2016 , p laintiff filed suit against Sunrise and Wakefern. Wakefern received the complaint one week later

. Plaintiff's Spoliation Claim Wakefern maintains a "Records Retention Policy" (RRP) to "use, maintain and destroy" records consistently. The policy calls for litigation holds upon written communication "as a result of current or anticipated li tigation." The hold suspends the "normal disposition, processing or destruction of Records." The RRP does not allow for employee discretion on the destruction or retention of "records," which Wakefern retains or destroys in accordance with the policy. T he policy defines "records" as materials "directly related to the Company's operations and management." Wakefern maintains "records" in accordance with a Records Retention Schedule (RRS), while "general
information"

– defined as materials without "busine ss, financial, legal,14 A

- 0218

- 18T3

regulatory, or policy reasons" to be maintained

– "should be kept only for as long as it enables an Associate to do his or her job . . . but in no event, for more than two years . . . ." N o specific retention schedule addresses email s, as they
may constitute records or general information, depending on their contents. To delete an email account, after an employee's termination, a member of the "security admin" team deletes the account, making it nonfunctional. A "cleanup" process then begins, usually within weeks, which removes the actual files. The cleanup is a manual task; accordingly , Wakefern maintains no audit trail indicating the time of each account's deletion. A backup system keeps a copy of all email accounts on the serv er; however, Wakefern recycles and reuses the backup tapes every three weeks. Wakefern disabled plaintiff's email account on April 14, 2016. The cleanup process follow ed within two to three weeks.
Plaintiff's initial complaint made no reference to any email communications she sent or received. T he complaint made no reference to any communication s she ever had with a ny Wakefern employee s . Plaintiff's complaint made no reference to the Magic or Front Range system, nor any communication s between her and Wakefern's Helpdesk. She did not mention any such communications until July 12, 2016 , when she filed a certification in opposition to a Wakefern motion to dismiss

. P laintiff first made reference to15 A

- 0218

- 18T3

emails with Wakefern in March 2017

– ne arly ten months after she filed her

c omplaint, and nearly ten months after the email back

- up tapes were recycled. Because the server had been discarded, Wakefern did not produce any of the Magic communications during discovery; however, it did produce fiv e years of communications through the Front Range system. Plaintiff indicat e d she could testify about the Magic communications and their contents. After Wakefern could not produce plaintiff's emails, Oracle notes, or Magic communications during discover y, plaintiff filed an amended complaint in December 2017, asserti ng her fraudulent concealment and spoliation of evidence claims

. II We apply the same standard as the trial court in reviewing the granting of a motion for summary judgment. Townsend v. Pi erre , 221 N.J. 36, 59 (2015). If there is no factual dispute, and only a legal issue to resolve, the standard of review is de novo and the trial court rulings "are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm. , 14 0 N.J. 366, 378 (1995). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and16 A

- 0218

- 18T3

th at the moving party is entitled to a judgment or order as a matter of law." R. 4:46

- 2(c). The court considers whether "the competent evidential materials presented, when viewed in the light most favorable to the non

- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non

- moving party." Brill v. Guardian Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995).

Dismissal of Plaintiff's LAD Claims Against Wakefern Plaintiff's argues that Wakefern is liable for failing to investigate her claims of discrimination and for failing to take adequate remedial measures.
C laims for failure to investigate and take remedial measures arise when an employer or supervisor ha s actual knowle dge of the discrimination and do not promptly and effectively act to stop it

. Lehmann v. Toys 'R' Us, Inc. , 132 N.J. 587, 622 (1993). H owever, p laintiff cannot demonstrate actual knowledge. She admitted she did not remember if she had ever complained of discrimination to anyone at Wakefern. Patrick Durning, Manager of Labor Relations for Wakefern , certified that he did not know of plaintiff's discrimination complaints prior to the filing of her lawsuit. Dewey C a nnella, Vice President of the Labor Relat ions Division for Wakefern, also certified that he did not know of plaintiff's discrimination complaints until she filed suit

.17 A

- 0218

- 18T3

Plaintiff did complain to Leaman after she did not receive the IT position, and Leaman reported her complaint to Zambrello; how ever, neither Zambrello

nor Leaman work ed for Wakefern

– they both worked for Sunrise. The fact that plaintiff alleged discrimination to Sunrise employees d id not impute knowledge to Wakefern. Further, p laintiff's own written statement that she read at the meeting between her union and Sunrise store managers did not mention discrimination. A general complaint of unfair treatment does not provide notice of a complaint of discrimination. See Dunkley v. S. Coraluzzo Petroleum Transporters , 437 N.J. Super. 366, 377 (App. Div. 2014) (citing Barber v. CSX Distrib. Servs. , 68 F.3d 694, 702 (3d Cir. l995))

. P laintiff failed to present any evidence of Wakefern involve ment in the discriminatory or retaliatory conduct she alleged

. Therefore, it is undisputed in the record that Wakefern had no knowledge of plaintiff's complaints of discrimination before she filed suit

. In light of the absence of any evidence that Wakefern in any way participated in the discriminatory conduct plaintiff allegedly experienced,
p laintiff rais es alternative arguments for imposing liability upon Wakefern. We briefly address each argument.18 A

- 0218

- 18T3

Plaintiff first argues the relationship between Wakefern and Sunrise warrants piercing "the corporate veil" to impose liability upon Wakefern. The piercing the corporate veil doctrine is used when a subsidiary constitutes " a mere instrumentality of the parent corporation, " and requires a finding that the " paren t so dominated the subsidiary that it had no separate existence but was merely a conduit for the parent. " Marzano v. Computer Science Corp. , 91 F.3d 497 , 513 (3d Cir. 1996). The doctrine does not apply here because Wakefern is not Sunrise ' s parent compan y ; to the contrary

– Sunrise , along with the other Members , owns Wakefern. A substantial and ongoing business , S unrise is not

a " shell " company , with no separate existence , formed to insulate Wakefern from liability. Plaintiff next argues that Wakefern jointly employed plaintiff, along with Sunrise. The record does not support this argument. Plaintiff worked at Sunrise stores, where Sunrise set her work schedule , assigned her job duties, and pa id her salar y and benefits

. Consistent with the member

- owned cooperative model, Wakefern provided no input in Sunrise ' s decision to suspend and then terminate plaintiff's employment

. While we apply the twelve

- factor Pukowsky 2 test " to determine who is an employer in cases lacking an actual or customary employer

2 Pukowsky v. Caruso , 312 N.J. Super. 171, 1 85 (App. Div. 1998).19 A

- 0218

- 18T3

employee relationship ," Thomas v. Cty. of Camden , 386 N.J. Super. 582, 595 (App. Div. 2006) , the overwhelming evidence demonstrating a customary employment relationship betwe en plaintiff and Sunrise precludes the application of Pukowsky here . Even if Pukowsky applied, analysis of the twelve factors overwhelmingly indicates that Wakefern was not plaintiff's joint employer. Since the record clearly shows that plaintiff was a Su nrise employee, and not a Wakefern employee, and that Wakefern had no involvement in the discriminatory conduct alleged by plaintiff, t he motion court properly granted the summary judgement dismissal of plaintiff's LAD claim.

Dismissal of Plaintiff's Spoliation Claims Against Wakefern
P laintiff 's spoliation claim concern s three categories of electronically stored information (ESI) : emails she exchanged with Wakefern employees, communications with Wakefern employees made through the Oracle s oftware, and communications with Wakefern employees through the Magic software. Spoliation involv es "the hiding or destroying of litigation evidence , generally by an adverse party." Rosenblit v. Zimmerman , 166 N.J. 391, 4 0 1 (2001). " Spoliation of evide nce in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition." Manorcare Health Servs., Inc. v.20 A

- 0218

- 18T3

Osmose Wood Preserving, Inc. , 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors , 309 N.J. Super. 358, 364 (App. Div. 1998)) ; see also Rosenblit , 166 N.J. at 400

- 401.
A duty to preserve evidence arises when there is: " (1) pending or probable litigation involving the [plaintiff]; (2) knowledge by the [defendant] of the existence or likelihood of litigation; (3) foreseeability of harm to the [plaintiff], or in other words, discarding the evidence would be prejudicial to [ plaintiff]; and (4) evidence relevant to the litigation." Manorcare , 336 N.J. Super. at 226 (quoting Aetna Life and Cas. Co. , 309 N.J. Super. at 366

- 67 ). Whether a party has an obligation to save evidence in a given context is a question of law. Aetna Li fe , 309 N.J. Super. at 365 (citing Hirsch v. Gen. Motors Corp. , 266 N.J. Super. 222, 2 34 (Law Div. 1993) )

. Thus, the trial court's conclusion that plaintiff had a duty to preserve the disputed evidence is subject to de novo review. See Manalapan Realty , 140 N.J. at 378 ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). However, the factual findings on which the trial court based its legal conclusions are en titled to deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am. , 65 N.J. 474 (1974).21 A

- 0218

- 18T3

We disagree with plaintiff that the motion record established a genuine issue as to any material fact. To establish a claim for fraudulent concealment of evidence, a plaintiff must prove:

1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation; 2) That the evidence was material to the litigation; 3) That plaintiff could not reasonably have obtained access to the evidence from another source; 4) That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; [and] 5) That plaintiff was damaged in the underly ing action by having to rely on an evidential record that did not contain the evidence defendant concealed. [ Tartaglia v. UBS PaineWebber, Inc. , 197 N.J. 81, 118 (2008).]
Although Wakefern learned of plaintiff's lawsuit in May 2016, there was nothing in the complaint alerting Wakefern that plaintiff's email account might contain evidence relevant to her joint employer allegations. Plaintiff' s c omplaint made no reference to any emails or other communications she ever exchanged with any Wakefern employee during her employment at Sunrise. Nor did22 A

- 0218

- 18T3

plaintiff' s c omplaint contain a demand to preserve evidence

. Plaintiff also did not refer to any emai ls she may have exchanged with Wakefern in a July 12,
2016 c ertification she submitted in opposition to a Wakefern d ismiss al motion

. Rather, plaintiff 's first reference to emails with Wakefern occurred in March
2017

– nearly ten months after she filed her c omplaint, and nearly ten months
after the email back

- up tapes were recycled. We reject p laintiff' s argument that the motion judge erred because " there is no New Jersey Court Rule or case law requiring a plaintiff to first make a written request for evid ence to be preserved, whether in the complaint or otherwise ." The judge did not hold that plaintiff needed to make a written request to preserve evidence in order to trigger Wakefern's duty to preserve ESI

. Rather, the judge correctly concluded , based on all of the undisputed facts, including the absence of a preservation demand, that Wakefern had no reason to know

– at the time of deletion

– that any of the ESI at issue was relevant to any of plaintiff's claims

. Additionall y, p laintiff failed to demonstrate the relevance or import ance of any emails that were subsequently deleted. Plaintiff conceded she lacked any evidence that defendant intentionally withheld or destroyed the ESI she requested. When asked if she had any evidence of Wak e fern dele t ing the emails to interfere with her case, plaintiff23 A

- 0218

- 18T3

provided none. Instead, s he simply stat ed , "They haven't produced anything. That's all I know . . . ." Lastly, plaintiff cannot prove that Wakefern's actions damaged her in her LAD case because she a dmitt ed she can testify to the contents of the communications. Cf. Rosenblit , 166 N.J. at 411 (holding that where the party seeking discovery ultimately receives it, a spoliation inference is not appropriate).
We are satisfied the motion judge properly gr anted the summary judgment dismissal of Wakefern 's spoliation claim since the record lacks sufficient evidence to establish a genuine dispute that Wakefern improperly destroyed any records relating to plaintiff's asserted claims or otherwise caused her any damage

. Affirmed. We dismiss Wakefern's cross

- appeal as moot.