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Fee award upheld over deleted texts

A defendant who violated the non-competition and non-solicitation obligations in his employment contract could be ordered to pay his former employer more than $100,000 in counsel fees as a sanction for failing to preserve relevant text messages, a federal appeals court has decided.

U.S. District Court Judge Denise J. Casper determined that plaintiff NuVasive Inc. was entitled to fees covering a roughly two-year period that began with the company’s discovery in August 2019 that evidence had been spoliated. The plaintiff was awarded $127,214.50 in fees and $2,103.85 in costs related to the spoliation, including recompense for the company’s efforts to recover the lost messages from other sources.

On appeal, defendant Timothy Day argued that Casper improperly awarded counsel fees for work “unrelated and unnecessary to NuVasive’s motion for sanctions.” Day objected particularly to the judge’s inclusion of fees for work that pre-dated the plaintiff’s filing of its motions for sanctions, which he characterized as “general discovery expenses.”

A three-judge panel from the 1st U.S. Circuit Court of Appeals upheld the fee award.

The panel said it rejected “out-of-hand” Day’s assertion that the court should have awarded only fees directly related to NuVasive’s motion for spoliation of evidence.

“The court’s chosen scope for the fee award, covering NuVasive’s costs in attempting to find the spoliated text messages or locate other evidence to compensate for their loss, was eminently reasonable and certainly not an abuse of discretion. Those efforts by NuVasive were a predictable result of the spoliation,” Judge Kermit V. Lipez wrote for the panel.

“Although he asserts that NuVasive included more than $53,000 in fees by its lead counsel ‘for general discovery that is entirely unrelated to NuVasive’s Motions for Sanctions,’ he does not identify the entries in NuVasive’s listed hours that he claims would be improper even if we accepted — as we have — the district court’s determination that the relevant period began in August 2019 and includes discovery made necessary by Day’s spoliation of evidence,” Lipez stated.

The decision is NuVasive, Inc. v. Day.