...Plaintiffs are correct that ALPA could have moved faster in taking steps to preserve relevant evidence... ...However, Plaintiffs do not point to any evidence of bad faith. In contrast to the evidence presented in Zubulake v. USB Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (hereinafter Zubulake V), which included concrete proof of purposeful deletion of emails, id. at 427, Plaintiffs rely on speculation with regards to email deletion. For example, 269 boxes of documents from ALPA’s TWA field office were destroyed by Iron Mountain, a document management and storage company used by ALPA. Plaintiffs claim these boxes, which were all allegedly relevant, were intentionally destroyed. However, as stated in a letter from Iron Mountain, the boxes were inadvertently destroyed. Def. Br. Opposing Sanctions, 15. In Brewer, the Third Circuit made it clear that ”[n]o unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise accounted for.” 72 F.3d at 334. The destruction of the boxes appears to have been accidental, and Plaintiffs have provided only speculation to prove the contrary. Furthermore, Plaintiffs use vague statements, such as: “ALPA’s spoliation was so widespread and covered such a long period of time it can only be concluded that substantial evidence was destroyed which would have been favorable to Plaintiffs.” Pl. Reply Motion for Sanctions, 17. Such a catch-all statement, along with vague speculation as to whether evidence has been destroyed or even whether evidence was relevant does not rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation. While Defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data, the Court does not see any evidence of bad faith. Accordingly, the Court declines to issue a spoliation inference or to impose any other sanction at this time. For the above-stated reasons, Plaintiffs’ Motion for Sanctions will be denied. An appropriate order will be issued.

Case Summary: Bensel; Tests for Spoliation and Imposition of Sanctions
Bensel v. Allied Pilots Assoc., 2009 U.S. Dist. LEXIS 118342 (D.N.J. Dec. 17, 2009)
Background: Plaintiffs, former members of the Allied Pilots Association (ALPA), sued the association, alleging breach of duty of representation of its members.

Procedural History: Plaintiffs accuse Defendant Association of intentionally or recklessly destroyed documents, emails and other communication well into the discovery period for this lawsuit.

Discussion: The court begins by defining spoliation as: “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” The court noted that when relevant documents are lost or destroyed “the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him.” The court qualified that statement by adding that there must be a finding that the spoliation was intentional and that there was fraud and a desire to suppress the truth before the Court will make a finding of spoliation. The court then articulated the following test for a finding of spoliation.

Generally, to determine spoliation of evidence, four factors must be found:

(1) the evidence in question must be within the party’s control;

(2) it must appear that there has been actual suppression or withholding of the evidence;

(3) the evidence destroyed or withheld was relevant to claims or defenses; and

(4) it was reasonably foreseeable that the evidence would later be discoverable.

The court added that the duty to preserve relevant documents could attach even prior to litigation, although a party is certainly not required to retain every document in its possession. The court then stated the Third Circuit’s test for the imposition of sanctions for spoliation:

(1) the degree of fault of the party who altered or destroyed the evidence;

(2) the degree of prejudice suffered by the opposing party; and

(3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

The court then opined that in the first standard, that for finding spoliation, the second the element appeared to require bad faith. It then decided that the first prong of the test for sanction required bad faith as well.

The court noted that Defendant had only grudgingly complied with its discovery obligations, and recited examples suggesting that there was strong evidence that Defendants had failed to preserve evidence. However, the court also stated that Plaintiffs had not pointed to any evidence of bad faith, and relied only on speculation to explain the deletion of email by Defendants.

The court also wrote that Plaintiffs made vague statements, such as: “ALPA’s spoliation was so widespread and covered such a long period of time it can only be concluded that substantial evidence was destroyed which would have been favorable to Plaintiffs.” Such a catch-all statement, along with vague speculation as to whether evidence has been destroyed or even whether evidence was relevant does not rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation. While Defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data, the Court saw no evidence of bad faith. The court, therefore, denied the motion for sanctions at this time.