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The Hammer Comes Down on Losing Plaintiff for Spoliation of Data – eDiscovery Case Law

Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data.  You can also be ordered to pay the winning party over $200,000 in fees and costs for the case.

In Taylor v. Mitre Corp., No. 1:11-cv-1247, 2013 (E.D. Va. Feb. 13, 2013), Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence. The court refused to grant the costs of image processing because the defendant did not adequately explain the services involved; it granted the costs of forensic analysis of the plaintiff’s laptop and made a partial award of attorneys’ fees given the difficulty in litigating this issue.

In November 2012 (as discussed on this blog here), Judge O’Grady dismissed the plaintiff’s employment-related claims against his former employer, Mitre. Taylor had used a sledgehammer to destroy a computer and data wiping programs to eliminate data from his laptop, prompting case-ending spoliation remedies. When the court ruled in favor of Mitre, it also ruled that Taylor should pay for Mitre’s fees and costs associated with its motion for sanctions.

Mitre claimed fees in the amount of $378,480 and costs in the amount of $49,245. The fees included the costs of forensic analysis of Taylor’s computer and image processing. Noting the “scant case law on the issue of image processing,” Judge O’Grady declined to award costs for this service and also referenced Mitre’s failure to explain “what these image processing services entailed (for example, what does it mean to ‘blow back TIFF images,’ why does it cost $686.00, and why did it need to be performed twice?), but Mitre [made] no claim that the resulting images were ever admitted into evidence.” Although rejecting more than $5,000 of Mitre’s claim, the court permitted Mitre to submit an additional motion to explain these fees.

Mitre also claimed costs of more than $32,000 to analyze Taylor’s laptop. Finding that “Taylor’s intentional destruction of evidence no doubt made forensic analysis of his computer more time consuming and expensive,” Judge O’Grady awarded the fee. However, he partially rejected the request for costs because “the Taxation Guidelines do not entitle Mitre to expert witness fees beyond the $40 per day, plus travel and incidentals, afforded to lay witnesses.” Accordingly the court awarded Mitre the costs of the forensic analysis, minus the costs of $3,200 charged for “‘testimony preparation’ and ‘expert testimony.’”

In addition, Mitre’s attorneys sought compensation for the work they did “as a result of Mr. Taylor’s spoliation. The bill is for 649.2 hours of attorney time and 245.4 hours of paralegal time, for a grand total of $378,480.00 in fees.” The court reduced the hours of the attorneys to 487 hours, finding that some of the time would have been spent regardless of the spoliation, with the rest acceptable because the “spoliation issue was, however, contentious and much ink was spilled.” The court rejected the request for paralegal time, finding the tasks they performed either administrative or attorney work. Ultimately, the court awarded fees of $163,882.18.  Including the awarded costs, the total came to $202,399.66 in fees and costs awarded – a hefty price for using a sledgehammer and data wiping software on two discoverable computers.

So, what do you think?  Were the awarded costs appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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