After a “long, and oftentimes tortuous journey” by a plaintiff in the case E.I. DuPond De Nemours and Company v. Kolon Industries, Inc., Civil Action NO 3:09cv058 (E.D.Va 2013), the court awarded plaintiff a reasonable amount of attorney fees and costs that totaled $4,497,047.50.
The court awarded the fees and costs as a sanction for the egregious electronic discovery spoliation committed by the defendant in the case. (The plaintiff also was granted an adverse inference instruction and prevailed at trial.) In the court’s opinion regarding whether the amount of attorney fees and costs to investigate and prove spoliation was reasonable, the court used the “lodestar method.” This method clarifies that an “estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate,” citing the Supreme Court case Perdue v. Kenny A., 130 S. Ct. 1662 (2010).
What kind of spoliation did the defendant engage in to justify $4.5 million in attorney fees and costs? The defendant company’s employees deleted files on their computers only a few days after litigation commenced. The plaintiff hired a computer forensics expert to search the files and recover what he could; the expert produced proof that “pointed to the probative value of the deleted electronic information…”
The costs amounted to half of the total sanctions award (the other half being attorney fees). The plaintiff recouped, among other expenses, the following:
- $877,085 for the computer forensics expert
- $973,698 for contract attorneys for document review
- $119,745 for foreign language translation of documents and data
This case demonstrates that unlike cost-shifting to the losing party in federal court, where the court is hesitant to order fees for services other than “making copies,” many costs and expenses are fair game for spoliation sanctions.