Delaware Decision Shows How Substantial E-Discovery Monetary Sanctions Can Be Imposed In Failure to Preserve Evidence Case.
Because California just recently passed e-discovery statutes, we continue to monitor cases of interest in fee and expense awards in computer spoliation cases. Here is one out of Delaware.
In Beard Research, Inc. v. Kates (Kates II), 2009 Del. Ch. LEXIS 170 (Del. Ch. Oct. 1, 2009), an ex-employee and his new employers were held jointly responsible for spoliation of possible evidence on the employee’s laptop. Both were ordered to pay $76,906.80 to plaintiffs after they partially won a successful motion for sanctions, broken down as $56,546 in attorney’s fees and $20,360.80 in forensic expert expenses. This was based on a “failure to preserve” theory, after plaintiffs had repeatedly asked for production and the ex-employee reformatted and then replaced his laptop hard drive.
Plaintiffs had asked for a total of $104,340.80, but the court made reductions based on finding that (1) only 2 of 4 lawyers needed to be involved in the battle, and (2) plaintiffs received a narrower sanction (an adverse inference sanction) than the original broader request (necessitating a 30% reduction off the original request).
Spoliation. Etymology: Middle English, from Anglo-French spoliacion, Latin spoliation-, spoliatio, from spoliare to plunder — more at spoil.