In Zungoli v. United Parcel Service, Inc., et. al., 2009 WL 1085440 (D.N.J. Apr. 22, 2009), U.S. District Court Judge Wigenton denied in part and granted in part defendants' motion for summary judgment and further denied defendants' request for spoliation sanctions for plaintiff's failure to retain cover letters sent to subsequent potential employers.

In this action, plaintiff alleged several employment-related claims including age discrimination and retaliation.  The court granted defendants' summary judgment motion regarding plaintiff's age discrimination claim, but denied the motion with respect to plaintiff's various retaliation claims.  The court also refused to dismiss plaintiff's claims for economic damages based on plaintiff's alleged spoliation of related evidence.  The court, citing Sarmiento v. Montclair State Univ., 513 F.Supp.2d 72, 94 (D.N.J. 2007) aff'd Fed. Appx. 095 (3d.Cir. 2008), defined 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 found no evidence that plaintiff engaged in any intentional conduct to destroy evidence.  "Simply because the companies Plaintiff allegedly applied to have not produced documentation to show that he applied for employment does not infer that he intentionally suppressed or withheld evidence of the same."   The court noted that defendants would have an opportunity at trial to cross-examine plaintiff regarding his efforts to mitigate his damages.