In Bensel, et. al. v. Allied Pilots Assoc., et. al., 2009 WL 4884052 (D.N.J.), Senior Magistrate Judge Joseph E. Irenas denied plaintiffs' motion for spoliation sanctions for, among other things, defendants' failure to place timely legal holds on the routine destruction of certain documents and electronic data, including back-up tapes.

This 8-year litigation relates to plaintiffs' (former TWA pilots) allegations that the Air Line Pilots Association ("ALPA") breached its duty of fair representation to plaintiffs.  Plaintiffs also contend the reason for a lack of "smoking gun" evidence is the ALPA's failure to preserve and spoliation of evidence, including electronic data and email backup tapes.

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.  In the Third Circuit, the test for whether sanctions are appropriate for spoliation of evidence is: "(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.  Here, the court ruled that sanctions were not appropriate because the court did not find any evidence of bad faith.