In Integrated Direct Marketing, LLC v. Drew May, et. al., Case No. 14-1183 (E.D. Va., June 28, 2016), Plaintiff sued Defendant May, a former employee, for misappropriation of confidential and proprietary information that he allegedly shared with his new employer, Defendant Merkle. Defendant May worked for Plaintiff from January 2012 until March 2014, at which time he was fired. Plaintiff began working for Merkle in May 2014.
Plaintiff’s lawsuit alleged that Defendant May wrongfully took its information by copying hundreds of electronic files to his personal hard drive. Shortly after filing the complaint, Plaintiff moved for a TRO barring Defendant May from disclosing its information; Defendant responded with an affidavit stating that he did not retain any of Plaintiff’s information after his termination. The court denied the motion.
Throughout the case, multiple discovery disputes occurred, including accusations by Plaintiff that Defendants had withheld documents and made false statements. Plaintiff filed a Motion for Sanctions, alleging that Defendant’s affidavit contained four false statements, including the statement that he did not retain any of Plaintiff’s files. At a hearing on the Motion, Defendant testified, and Plaintiff submitted evidence from its computer forensics expert demonstrating that Defendant had in fact retained and later deleted Plaintiff’s files.
The court found that Defendant had lied regarding not retaining Plaintiff’s files, but it reserved ruling on the Motion For Sanctions, and the parties moved for summary judgment. The court denied in part and granted in part both motions filed by Plaintiff and Defendant May. The court granted the Motion for Sanctions with respect to the false statement, as well as “inflammatory text messages regarding stealing [Plaintiff’s] clients and employees.” The court directed Plaintiff to file a Motion for Attorneys’ Fees and Expert Costs, which Plaintiff did, seeking over $63K in attorneys’ fees and over $24K for the forensic computer expert, whose work including analyzing and imaging the media, drafting a declaration, and sitting for a deposition. Defendant May opposed the amounts in the Motion, arguing they were excessive. The court disagreed, finding that the court and the parties needed the expert’s analysis to determine the veracity of Defendant’s statements regarding the ESI. The court awarded the entire $24K in expert fees.