In Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364, 707 A.2d 180 (App.Div.1998), the Court agreed with the Hirsch court's analysis that a duty to preserve evidence is a question of law to be determined by the court, and that such a duty, independent from a court order to preserve evidence, arises when there is: (1) pending or probable litigation involving the defendants; (2) knowledge by the plaintiff of the existence or likelihood of litigation; (3) foreseeability of harm to the defendants, or in other words, discarding the evidence would be prejudicial to defendants; (4) evidence relevant to the litigation. Aetna, supra, 309 N.J. Super. at 366-67, 707 A.2d 180. "'The spoliator's level of intent, whether negligent or intentional, does not affect the spoliator's liability. Rather, it is a factor to be considered when determining the appropriate remedy for the spoliation.'" Id. at 368, 707 A.2d 180.