Id. Since Plaintiffs have not identified any other allegedly deceitful, dishonest, or fraudulent actions, they have not plausibly pled bad faith conduct on the part of APA. Plaintiffs cite Bensel v. Allied Pilots Association, 675 F.Supp.2d 493 (D.N.J. 2009), for the proposition that a union acts in bad faith when it favors prospective members over current members in an effort to increase its membership. But Plaintiff must first identify misleading conduct, which they have not, before the union's intent is relevant in evaluating a claim of bad faith.
When imposing spoliation sanctions under Rule 37, the Courts considers, "(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." Lexpath Techs Holdings, Inc. v. Welch, No. 13-5379 (PGS), 2016 U.S. Dist. LEXIS 116597, *16 (quoting Bensel v. Allied Pilots Ass'n, 263 F.R.D. 150, 152 (D.N.J. 2009) (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F. 3d 76, 79 (3d Cir. 1994)). An adverse inference requires a showing of "bad faith."
In the absence of a showing that specific evidence was "destroyed in order to prevent it from being used by the adverse party, a spoliation instruction is improper." U.S. v. Nelson, 481 Fed. Appx. 40, 42 (3d Cir. 2012); see also Bensel v. Allied Pilots Ass'n, 263 F.R.D. 150, 153 (D.N.J. 2009) ("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."). This includes a showing of bad faith.
Spoliation is defined as the destruction or significant alteration of evidence, either during or prior to reasonably foreseeable litigation. Bensel v. Allied Pilots Ass'n, 263 F.R.D. 150, 152 (D.N.J. 2009) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). To determine whether spoliation has occurred, a court must find four essential factors: (1) the evidence was in the party's control; (2) the evidence is relevant to claims or defenses in the instant case; (3) there has been actual suppression or withholding of evidence; and (4) the party in control of the evidence could have reasonably foreseen the evidence to be discoverable.
In so doing, American Airlines forced the TWA unions and the TWA employees that they represented to waive their contractual merger and acquisition protections. When the two airlines were integrated, most former TWA employees were "stapled" to the bottom of the combined seniority lists for their represented crafts, thereby resulting in the layoff of significant numbers of former TWA employees who had greater seniority than their counterparts at American Airlines. Examining Certain Issues Relative to TWA/American Airline Workforce Integration: Hearing Before the Comm. on Health, Educ., Labor and Pensions, 108th Cong. 5 (2003) (statement of Sen. Talent); Bensel v. Allied Pilots Ass'n, 675 F. Supp. 2d 493, 495 (D.N.J. 2009); Missouri Senators Jim Talent and Christopher "Kit" Bond sought to intervene in the American Airlines-TWA transaction when they sponsored the Airline Workers Fairness Act of 2001. This legislation was never enacted, but it formed the blueprint for 2007's McCaskill — Bond Amendment. McCaskill-Bond provides as follows: