                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0218-18T3

GINA DORRITY,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

WAKEFERN FOOD
CORPORATION,

          Defendant-Respondent/
          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.
            On appeal from the Superior Court of New Jersey, Law
            Division, Essex County, Docket No. L-3221-16.

            Christopher William Hager argued the cause for
            appellant/cross-respondent    (Hager    Law,     LLC,
            attorneys; Christopher William Hager, on the briefs).

            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 evidence against Wakefern.

      In June 2018, the Law Division granted the summary judgment dismissal

of plaintiff's claims against Wakefern. After plaintiff settled her claims against

Sunrise in September 2018, she filed this appeal, challenging the orders

dismissing her claims against Wakefern. Plaintiff also appeals from an earlier

order that denied her motion seeking a summary judgment determination that


                                                                          A-0218-18T3
                                        2
Wakefern acted as her "employer" under the LAD. Wakefern filed a protective

cross-appeal addressing the same 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" consisting of

"approximately [fifty] Member companies" that "independently own and operate

supermarkets doing business under the ShopRite trade name." The Members

operate approximately 325 stores.

      Wakefern requires Members to purchase eighty-five percent of their retail

sales, and all of their beef, from Wakefern. Further, Members must "maintain

their stores at a level that is acceptable by the Wakefern quality assurance

division that does store inspections, product inspections, etc." and must also

"participate in a common advertising theme or circular."

      Wakefern provides numerous services for Member stores, such as

procuring goods for resale by the stores, managing intellectual property such as

trademarks, accounting services, marketing and merchandising services,

advertising, training, and loss prevention services.       Through its computer


                                                                        A-0218-18T3
                                       3
information systems division, Wakefern also provides Members various

helpdesks (including a customer service hotline, a logistics line, and an IT

helpdesk), insurance services, inventory management, and IT support.

      Wakefern owns the licenses for the computer software Members use,

including PeopleSoft (used to manage payroll processing), Kronos (a time

management software), 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 Members.

      Wakefern negotiates collective bargaining agreements with the ShopRite

employees' union. The union agreement addresses a wide range of topics,

including seniority, wages, overtime, holidays, lunch periods, funeral leave,

health and welfare benefits, and arbitration and grievance procedures.

      In addition, Wakefern controls the point-of-sale technology used by each

Member store. Wakefern controls digital coupons loaded onto a customer's

"ShopRite Price Plus card" and redeemed at stores. Wakefern directs customer

service employees on how to answer questions related to the coupons.

      Regarding loss prevention matters, Wakefern monitors weekly "Lane

Hawk" reports that monitor the bottom of shopping carts for items not scanned

for purchase. Wakefern also hires a third-party to conduct a "mystery shopper"


                                                                         A-0218-18T3
                                       4
program, whereby individuals pose as customers to evaluate stores for safety,

cleanliness, and customer service; however, this service is optional.

      Wakefern also maintains a website for employee training; however,

Members may choose to forego the training, or modify the training programs as

they see fit. Notwithstanding Wakefern's involvement in many areas of store

operations of its Members, the record contains no evidence of Wakefern's

involvement in training, developing policies, or investigating claims related to

discrimination, retaliation, or harassment.     Further, the record lacks any

evidence of Wakefern's involvement in the staffing of any stores, hours of

operation, or the hiring or firing of Member employees.

                          Plaintiff's Employment by Sunrise

      Born 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 completed a form with the following heading:

                       APPLICATION FOR EMPLOYMENT

                       WAKEFERN FOOD CORPORATION

                          SHOP-RITE SUPERMARKETS.

      After submitting her application, plaintiff interviewed for the cashier

position with a Sunrise store manager, who offered her the position on the spot.


                                                                        A-0218-18T3
                                       5
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 involvement in any Sunrise personnel

decisions.

      Plaintiff received cashier training at the Sunrise store from Sunrise

employees. Eight years later, Sunrise moved plaintiff to the position 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 Parsippany

store, where she maintained the same position and duties. Sunrise alone made

these decisions, with no involvement of Wakefern.

      In addition to her duties as head bookkeeper and head courtesy clerk,

plaintiff handled several human resource (HR) matters. 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

record "absence[s] and late's." Plaintiff presented no evidence of any Wakefern

involvement in Sunrise's decision to assign these duties to plaintiff.




                                                                         A-0218-18T3
                                        6
      As part of her HR duties, plaintiff completed disciplinary 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 these notices to Sunrise's HR department or department managers,

but 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 received 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 issue any performance reviews to

plaintiff nor did it participate in any evaluations plaintiff received from Sunrise.

      Plaintiff's paychecks listed 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

states the information contained therein "is proprietary Wakefern information


                                                                            A-0218-18T3
                                         7
(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; however, the

handbook states certain conduct could result in immediate discharge, including:

"discourtesy to customers," "poor job performance," "violating time and

attendance procedures," and "theft of any kind."

      Wakefern provides the handbook to its Members for use, but they remain

free to reject or modify it as they see fit. Sunrise inserted some of its own

policies, including policies addressing progressive discipline, attendance,

vacations, sick time, personal time, and tuition reimbursement.

      Wakefern provides and manages most of the Sunrise's store computer

software. In fact, all the software plaintiff utilized to complete her job originated

with Wakefern. Plaintiff 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.
                                                                             A-0218-18T3
                                         8
provide assistance, but do not supervise, evaluate, review, discipline, or control

the bookkeepers at Member stores.

      Plaintiff exchanged emails with Wakefern employees 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 used this system to complete her

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 store. Leaman never previously

worked for a ShopRite store and lacked any relevant experience before starting

the job. Sunrise never offered the position to plaintiff, nor did it consider her

for it, despite her title as head courtesy clerk. Less than a year later, when

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 their employee hiring and retention practices with


                                                                          A-0218-18T3
                                        9
other retailers, such as Wegmans, Trader Joe's, Target, and Home Depot. Along

with other strategies, the study recommended that Members focus on hiring high

school level students for summer part-time work, before hiring qualified student

workers for full time positions.

      Sunrise management 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. Sunrise selected a part-time cashier, who was

about to graduate from school with an IT degree. He was approximately twenty-

three years old and described as a "bright young man." Joanne Zambrello, Vice

President of Human Resources with Sunrise, admitted the hiring 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 supervisor 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 experience 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 technological


                                                                          A-0218-18T3
                                       10
guidance to Sunrise Liquor Stores" or "network security protocols", 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 plaintiff reached out to any

Wakefern employees 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," and 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 comment 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 job


                                                                           A-0218-18T3
                                       11
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 schedule 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 then 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 plaintiff at home and told her she

was suspended pending termination for, in plaintiff's words, "Stealing time."

      On February 25, 2016, plaintiff attended a meeting between her union and

Sunrise store managers. At the meeting, plaintiff expressed her belief 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, a


                                                                            A-0218-18T3
                                        12
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 termination.

      At the end of the meeting, plaintiff received termination paperwork.

Sunrise replaced plaintiff with an employee at least twenty years younger. The

record contains no evidence that Wakefern participated in the firing of plaintiff

or in the hiring of her replacement. On May 6, 2016, plaintiff 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 litigation." 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. The 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 "business, financial, legal,


                                                                         A-0218-18T3
                                      13
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 . . . ." No specific retention schedule addresses emails, 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 server; however, Wakefern recycles and reuses

the backup tapes every three weeks. Wakefern disabled plaintiff's email account

on April 14, 2016. The cleanup process followed within two to three weeks.

      Plaintiff's   initial   complaint   made   no   reference    to   any     email

communications she sent or received. The complaint made no reference to any

communications she ever had with any Wakefern employees.                  Plaintiff's

complaint made no reference to the Magic or Front Range system, nor any

communications 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. Plaintiff first made reference to


                                                                              A-0218-18T3
                                          14
emails with Wakefern in March 2017 – nearly ten months after she filed her

complaint, 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 five years

of communications through the Front Range system. Plaintiff indicated she

could testify about the Magic communications and their contents.

      After Wakefern could not produce plaintiff's emails, Oracle notes, or

Magic communications during discovery, plaintiff filed an amended complaint

in December 2017, asserting 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. Pierre, 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., 140 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 and


                                                                           A-0218-18T3
                                       15
that 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.

Claims for failure to investigate and take remedial measures arise when an

employer or supervisor has actual knowledge 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). However, plaintiff 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 Cannella, Vice President of the Labor

Relations Division for Wakefern, also certified that he did not know of plaintiff's

discrimination complaints until she filed suit.


                                                                           A-0218-18T3
                                       16
      Plaintiff did complain to Leaman after she did not receive the IT position,

and Leaman reported her complaint to Zambrello; however, neither Zambrello

nor Leaman worked for Wakefern – they both worked for Sunrise. The fact that

plaintiff alleged discrimination to Sunrise employees did not impute knowledge

to Wakefern.

      Further, plaintiff'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)).      Plaintiff failed to present any evidence of

Wakefern involvement 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,

plaintiff raises alternative arguments for imposing liability upon Wakefern. We

briefly address each argument.




                                                                         A-0218-18T3
                                       17
       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 "parent

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 company; to the contrary – Sunrise, along with the other

Members, owns Wakefern. A substantial and ongoing business, Sunrise 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 paid

her salary 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 Pukowsky2 test "to

determine who is an employer in cases lacking an actual or customary employer-


2
    Pukowsky v. Caruso, 312 N.J. Super. 171, 185 (App. Div. 1998).
                                                                           A-0218-18T3
                                       18
employee relationship," Thomas v. Cty. of Camden, 386 N.J. Super. 582, 595

(App. Div. 2006), the overwhelming evidence demonstrating a customary

employment relationship between 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 Sunrise employee, and

not a Wakefern employee, and that Wakefern had no involvement in the

discriminatory conduct alleged by plaintiff, the motion court properly granted

the summary judgement dismissal of plaintiff's LAD claim.

             Dismissal of Plaintiff's Spoliation Claims Against Wakefern

      Plaintiff's spoliation claim concerns three categories of electronically

stored information (ESI): emails she exchanged with Wakefern employees,

communications with Wakefern employees made through the Oracle software,

and communications with Wakefern employees through the Magic software.

      Spoliation involves "the hiding or destroying of litigation evidence,

generally by an adverse party." Rosenblit v. Zimmerman, 166 N.J. 391, 401

(2001). "Spoliation of evidence 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.


                                                                            A-0218-18T3
                                        19
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 Life, 309 N.J. Super. at 365 (citing Hirsch v. Gen.

Motors Corp., 266 N.J. Super. 222, 234 (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 entitled to deference.

Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974).




                                                                             A-0218-18T3
                                        20
      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 underlying
                  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 complaint

made no reference to any emails or other communications she ever exchanged

with any Wakefern employee during her employment at Sunrise.             Nor did

                                                                          A-0218-18T3
                                       21
plaintiff's complaint contain a demand to preserve evidence. Plaintiff also did

not refer to any emails she may have exchanged with Wakefern in a July 12,

2016 certification she submitted in opposition to a Wakefern dismissal motion.

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

2017 – nearly ten months after she filed her complaint, and nearly ten months

after the email back-up tapes were recycled.

      We reject plaintiff'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 evidence 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. Additionally, plaintiff failed to demonstrate the relevance

or importance 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 Wakefern deleting the emails to interfere with her case, plaintiff


                                                                          A-0218-18T3
                                       22
provided none. Instead, she simply stated, "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 admitted 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 granted 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.




                                                                         A-0218-18T3
                                      23
