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De Simone v. VSL Pharmaceuticals, Inc.

United States District Court, D. Maryland

March 16, 2018

CLAUDIO DE SIMONE, et al., Plaintiffs/Counterclaim Defendants,
VSL PHARMACEUTICALS, INC., et al., Defendants/Counterclaim Plaintiffs.


          Timothy J. Sullivan United States Magistrate Judge

         Pending before the Court is the Motion for Sanctions (“Motion”) filed by Defendant VSL Pharmaceuticals, Inc. (“VSL”) (ECF No. 458-1). Having considered the submissions of the parties (ECF Nos. 458, 473, 478, 484, 506 & 508), I find that a hearing is unnecessary.[1] See Loc. R. 105.6. For the reasons set forth below, VSL's Motion will be granted in part and denied in part.[2]

         The factual background and procedural history of this case has previously been summarized by the Court. See De Simone v. VSL Pharm., Inc., 133 F.Supp.3d 776 (D. Md. 2015), De Simone v. VSL Pharm., Inc., No. TDC-15-1356, 2017 WL 66323 (D. Md. Jan. 5, 2017), and De Simone v. VSL Pharm., Inc., No. TDC-15-1356, 2016 WL 3466033 (D. Md. June 20, 2016). Some additional background regarding the progress of discovery in this case is relevant to this opinion. This case was referred to me for discovery and related scheduling matters on March 6, 2017. (ECF No. 285.) During the course of discovery, the Court held a number of telephone conferences to hear argument regarding discovery disputes. (See ECF Nos. 312, 326, 356, 392, 415, 441, 470 & 499.) Following the telephone conferences held on August 9 and September 1, 2017, the Court ordered Plaintiff Claudio De Simone (“De Simone”) and others to “produce the documents requested and respond substantively to the interrogatories propounded” by the opposing parties that sought trade secret information. (ECF No. 417.) Following the telephone conference held on October 5, 2017, the Court granted VSL leave to “file a motion for sanctions regarding De Simone's alleged non-compliance with the Court's orders and his discovery obligations.” (ECF No. 443.)

         VSL moves for sanctions against De Simone on three grounds: (1) that De Simone's destruction of certain documents amounts to spoliation; (2) that De Simone's production of a document written in a shorthand version of Italian braille violated Rule 33(d) and the Court's September 1, 2017 order; and (3) that De Simone failed to produce certain documents to VSL, even after certifying that his discovery production was complete.

         I. Spoliation

         VSL argues that De Simone should be sanctioned because his destruction of certain documents amounts to spoliation. (ECF No. 458-2 at 10-19.) Spoliation is the “destruction or material alteration of evidence . . . or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (internal citations omitted). In order to prove that spoliation warrants a sanction, a party must show that:

(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

Charter Oak Fire Ins. Co. v. Marlow Liquors, LLC, 908 F.Supp.2d 673, 678 (D. Md. 2012) (internal citations, quotation marks, and brackets omitted); see also Sampson v. City of Cambridge, Md, 251 F.R.D. 172, 179 (D. Md. 2008) (“This standard applies when a party is seeking any form of sanctions for spoliation, not just an adverse inference jury instruction”).

         VSL's allegation of spoliation stems from De Simone's admitted destruction of certain documents that he received from the law firm Hyman, Phelps & McNamara, P.C. (“Hyman Phelps”). (ECF No. 458-2 at 5.) In September 2014, while he was still the Chief Executive Officer of VSL, De Simone requested that attorney Diane McColl of Hyman Phelps remove from its files documents containing sensitive information about the VSL#3 product formulation and send the documents to De Simone.[3] (Id.)

         According to a declaration signed by Diane McColl (ECF No. 458-11), Hyman Phelps “spent more than fifty hours reviewing its files to identify sensitive information about the VSL#3 product formulation in its possession.” (Id. at 2.) Hyman Phelps identified “numerous documents” that matched De Simone's request and sent them to him. (Id.) The documents “included non-public communications with VSL employees, expert panel members, [and] scientific consultants that describe the composition of VSL#3 products.” (Id.) At De Simone's instruction, Hyman Phelps destroyed its copies of the documents that it sent to De Simone. (Id.)

         Approximately one week after De Simone received the documents from Hyman Phelps, he filed a motion to intervene in related litigation in Delaware state court. (ECF No. 458-14.) In that motion, De Simone stated that “VSL possesses certain of Prof. De Simone's proprietary and confidential information” related to VSL#3. (Id. at 10.) De Simone sought to intervene to prevent that confidential information from “find[ing] its way into the hands of VSL's and/or Prof. De Simone's potential competitors.” (Id.)

         During De Simone's October 3, 2017 deposition, he testified about the documents that he received from Hyman Phelps. He stated that after he received the documents, he reviewed them, determined that they “were only articles” and “threw them away.” (ECF No. 458-13 at 4.) De Simone further testified that the documents that he “threw away” were publicly available articles that can be “downloaded] from the internet in a few seconds.” (Id. at 5.) VSL argues that De Simone's actions were part of “a premeditated plan to deprive VSL of its own highly relevant documents in the Delaware litigation and in the current action.” (ECF No. 458-2 at 7.)

         A. Breach of Obligation to Preserve Relevant Evidence

         The first consideration in determining whether spoliation has occurred is whether a party breached its duty to preserve potentially relevant evidence. Once a party reasonably anticipates litigation, it is obligated to implement a “litigation hold” to ensure that potentially relevant evidence under its control is identified, located, and preserved for use in the anticipated litigation. Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 511 (D. Md. 2009); see also Silvestri, 271 F.3d at 591 (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”) The duty of preservation applies to

any documents or tangible things . . . made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., from the “to” field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is “relevant to the subject matter involved in the action.” Thus, the duty to preserve extends to those employees likely to have relevant information-the “key players” in the case.

Goodman, 632 F.Supp.2d at 511-12.

         VSL argues that De Simone had a duty to preserve the documents that he received from VSL because he was aware of the ongoing litigation in Delaware (in which he sought to intervene) and because he anticipated litigation related to the ownership of the intellectual property rights underlying the VSL#3 product. (ECF No. 458-2 at 11.) VSL points to two statements in De Simone's Amended Complaint as evidence that he anticipated litigation at the time that he destroyed the Hyman Phelps documents. (Id. at 11-12.) In one place, De Simone stated that the positions taken by the opposing parties in the Delaware litigation are contrary to “numerous prior agreements entered among the relevant parties in which it was clearly acknowledged that Prof. De Simone, and only Prof. De Simone, is the sole rightful owner of all intellectual property rights relating to the probiotic formulation underlying VSL#3.” (ECF No. 316 ¶ 162.) In another place, De Simone alleged that the opposing parties in the Delaware litigation were “contesting and denying Prof. De Simone's rightful claims to ownership of the intellectual property rights underlying the VSL#3 product.” (Id. ¶ 195.)

         De Simone argues that the composition of VSL#3 was “simply not at issue at the time” that he admittedly discarded the Hyman Phelps documents. (ECF No. 473-1 at 22.) De Simone notes that information about the composition of VSL#3 was not material to the claims and defenses at issue in the Delaware “books and records” litigation. (Id.) Instead, the Delaware litigation concerned “a contract interpretation dispute that is not influenced any way by the facts of the composition.” (Id.)

         I find that De Simone had a duty to preserve the documents he received from Hyman Phelps at the time that he received and then disposed of them in October or November 2014. By that time, De Simone had expressed his concerns about safeguarding the confidentiality of his alleged trade secrets in the VSL#3 product. Although the Delaware litigation was not itself concerned with substantive issues regarding De Simone's know-how or the composition of VSL#3, De Simone should have reasonably anticipated litigation concerning these issues at that time.

         In the June 16, 2014, letter from Douglas Nabhan on behalf of certain minority shareholders of VSL, the shareholders requested access to 18 categories of documents, including “[documents describing and/or concerning any and all intellectual property rights that VSL Pharmaceuticals owns or has any title or right to.” (ECF No. 458-6 at 5.) Later, in July and August 2014, the minority shareholders notified counsel for VSL that they had “reason to believe Claudio De Simone . . . may be diverting resources or other property of [VSL] to other entities in which he has an interest . . . or destroying certain records of [VSL].” (ECF No. 458-8 at 49.) In addition, VSL has submitted evidence that in August or September 2014, De Simone briefly discussed licensing the VSL#3 formulation to Marc Tewey. (ECF No. 478-4 at 3-4.) At that time, De Simone expressed dissatisfaction with VSL's intention to change the formulation of VSL#3 to save money and indicated that he did not “know what's going to happen.” (Id.) Given the ongoing litigation in Delaware and the demands made by the minority shareholders in that litigation, and considering the evidence of De Simone's expression of uncertainty regarding what might happen between himself and VSL, I find that De Simone should have reasonably anticipated litigation in which the documents he obtained from Hyman Phelps might be relevant. See generally Hawkins v. Coll. of Charleston, No. DCN-12-0384, 2013 WL 6050324, at *3 (D.S.C. Nov. 15, 2013) (“When litigation is ‘reasonably foreseeable' is a flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.”)

         B. ...

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