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Hosch v. Bae Systems Information Solutions, Inc.

United States District Court, E.D. Virginia, Alexandria Division

April 24, 2014

CORNELIUS
v.
HOSCH, Plaintiff,
v.
BAE SYSTEMS INFORMATION SOLUTIONS, INC., Defendant.

ORDER

ANTHONY J. TRENGA, District Judge.

This matter is before the Court on the Magistrate Judge's Report and Recommendation [Doc. No. 83] and plaintiffs Objections to Magistrate Judge's Report and Recommendation [Doc. No. 85].

On January 3, 2014, defendant filed its Motion for Sanctions [Doc. No. 65], alleging that plaintiff engaged in numerous discovery-related violations, including spoliation of evidence. On January 17, 2014, the Magistrate Judge heard argument on the Motion for Sanctions. On January 22, 2014, the Magistrate Judge issued her Report and Recommendation [Doc. No. 83]. In her Report and Recommendations, the Magistrate Judge made extensive findings of fact regarding plaintiffs actions throughout the course of this litigation and based on those findings, recommended that plaintiffs claims be dismissed with prejudice and that defendant be awarded its costs, including attorney's fees, incurred in filing the Motion for Sanctions and three Motions to Compel [Doc. Nos. 39, 42, and 72] and in undertaking its forensic inspection of plaintiffs electronic devices, computers, and email accounts pursuant to Federal Rule of Civil Procedure 37(d)(3).

On February 10, 2014, plaintiff filed his Objections to Magistrate Judge's Report and Recommendation [Doc. No. 85]. On February 27, 2014, defendant filed its Response to Plaintiffs Objections [Doc. No. 87], and on March 4, 2014, plaintiff filed his Reply in Support of his Objections [Doc. No. 88]. On March 7, 2014, the Court held a hearing on these issues, taking the matter under advisement at that time. In light of the case-dispositive sanction recommended by the Magistrate Judge, the Court must review the Magistrate Judge's findings of fact and conclusions of law de novo. See Fed. Rule Civ. P. 72(b)(3).

The Court has reviewed in detail the record before it, and after its de novo review of the record, the Court adopts the Magistrate Judge's findings of fact set forth in her Report and Recommendation, which are fully supported by the record. More particularly, the Court finds (a) that beginning in April, 2012, afterhe formed the intention of suing defendant, and continuing through at least January 8, 2014, plaintiff engaged in the willful and intentional spoliation of evidence; (b) that as a result of that spoliation, the defendant has been prejudiced in its ability to defend against plaintiffs allegations; and (c) that the only remedy that can adequately address that prejudice is dismissal with prejudice. As the Magistrate Judge correctly observed:

Information obtained from the forensic inspection of the few electronic devices that plaintiff actually produced indicates that this extensive spoliation continued unabated throughout discovery in this case. For example, plaintiff completely wiped the contents of his iPhone on January 8, 2014, just two days before plaintiffturned the device over to counsel and on the same day that the Court warned plaintiff that failure to comply with the Court's Order may result in sanctions. On that device alone, plaintiff permanently deleted all text messages, call logs, email data, voice mails, internet history and bookmarks, pictures, network activity history, contacts, calendars, notes, applications, social media, and video stored on the device. Plaintiff similarly deleted two years' worth of information from his Blackberry device before producing it to defendant. Much if not all of this information can never be restored or recovered, leaving defendant merely guessing as to what that information might have revealed. Report and Recommendation [Doc. No. 83] at 7 (record citations omitted).[1]

Moreover, most of plaintiffs spoliation took place after and despite defendant's litigation hold and document preservation notices to the plaintiff and his affiliated entity on September 23 and October 4, 2012, defendant's repeated requests for production, plaintiffs repeated refusals and failures to produce, and the Court's orders and admonitions, including those issued on December 6, 2013 and January 8, 2014.

The Court has also reviewed de novo the applicable law and its application to the Court's findings of fact. Based on that de novo review, the Court concludes for the reasons set forth in the Report and Recommendation and this Order that defendant's Motion for Sanctions [Doc. No. 65] should be granted and that this case should be dismissed with prejudice, together with an award of attorney's fees and costs as recommended by the Magistrate Judge, to be determined and awarded by separate order. In reaching this conclusion, the Court has reviewed and applied those factors and considerations set forth in United States v. Shaffer Equipment Co., 11 F.3d 450, 461-63 (4th Cir. 1993).

Wherefore, for the above reasons, it is hereby

ORDERED that Defendant's Motion for Sanctions [Doc. No. 65] be, and the same, hereby is, GRANTED, and this action shall be dismissed with prejudice, together with an award of attorney's fees and costs incurred in connection with defendant's Motion for Sanctions, its three Motions to Compel [Doc. Nos. 39, 42, and 72], and its forensic inspection of plaintiffs electronic devices, computers, and email accounts pursuant to Federal Rule of Civil Procedure 37(d)(3); and it is further

ORDERED that defendant shall file its itemization of attorney's fees and costs, as awarded herein, on or before May 19, 2014, as to which the plaintiff shall file any objections on or before June 16, 2014, with any reply thereto filed on or before June 23, 2014, following which the Court shall determine the specific amount of fees and expenses awarded herein.

The Clerk is directed to forward copies of this Order to all counsel of record.


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