In Re Delta/AirTran Baggage Fee Antitrust Litigation
770 F. Supp. 2d 1299
N.D. Ga.2011Background
- This MDL covers alleged collusion between Delta and AirTran on a first-bag fee under Sherman Act §1.
- Plaintiffs rely on AirTran CEO Fornaro's October 23, 2008 statement that AirTran would 'prefer to be a follower' on the fee, followed by Delta’s November 5, 2008 $15 first-bag fee announcement and AirTran’s November 12, 2008 response.
- DOJ served a Civil Investigative Demand to Delta on February 2, 2009 seeking documents about baggage-fee changes and related monitoring.
- Delta identified 22 custodians, issued a preservation notice on February 3, 2009, and produced documents to the DOJ while coordinating with the DOJ.
- Delta’s email system auto-delete policy and backup-tape overwriting were discussed with the DOJ in May 2009; Delta later placed custodians on separate servers and instructed IBM to preserve backups, with some delay.
- The first MDL complaint in this action was filed May 22, 2009; Delta produced over 9,000 pages of documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a DOJ CID creates a duty to preserve for private plaintiffs | Plaintiffs contend Delta owed preservation duties to them upon CID receipt. | Delta argues no private-preservation duty arises from a DOJ CID absent litigation filed by plaintiffs. | Delta had no private-preservation duty arising from the CID; preservation to the DOJ did not bind plaintiffs. |
| Whether missing or overwritten evidence prejudices plaintiffs | Missing July–Nov 2008 documents were likely to show collusion and should justify sanctions. | Plaintiffs offered speculation; Delta produced substantial relevant materials and witnesses; prejudice not established. | Plaintiffs failed to show that missing documents were critical/prejudicial enough to warrant sanctions. |
| Whether bad faith is required to impose spoliation sanctions | Delays and failure to preserve indicate bad faith and justify sanctions. | No evidence of intentional destruction; delays were negligent at most. | Bad faith not shown; sanctions denied on spoliation grounds. |
| Whether spoliation sanctions are warranted in this context | Sanctions should preclude summary judgment or invite adverse jury instruction. | Sanctions are inappropriate absent proof of substantial prejudice or bad faith. | Court denied spoliation sanctions; declined to preclude summary judgment but allowed other procedural motions. |
Key Cases Cited
- Flury v. DaimlerChrysler Corp., 427 F.3d 939 (11th Cir. 2005) (weighs spoliation factors including prejudice and culpability)
- Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997) (bad faith prerequisite for sanctions; mere negligence insufficient)
- Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 (N.D. Ga. 2008) (sanctions for spoliation in bad-faith destruction of key email evidence)
- Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009) (illustrates bad faith spoliation; supporting need for preserved evidence)