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De Simone v. VSL Pharmaceuticals, Inc.

United States District Court, D. Maryland

December 19, 2018

CLAUDIO DE SIMONE, et al., Plaintiffs/Counterclaim Defendants,
VSL PHARMACEUTICALS, INC., et al., Defendants/Counterclaim Plaintiffs. Name/Title/Experience Standard Rate Reduced Rate Time Spent Total Fees Name Lodestar Rate Lodestar Time Lodestar Amount



         Previously, the Court entered a Memorandum Opinion and Order (“sanctions order”) granting in part and denying in part the Motion for Sanctions (ECF No. 458-1) filed by Defendant VSL Pharmaceuticals, Inc. (“VSL”). (ECF Nos. 556 & 557.) In sum, I found that Plaintiff Claudio De Simone (“De Simone”) committed spoliation and that VSL was entitled to an award of its reasonable costs and attorney's fees associated with the spoliation.[1] Now pending before the Court is VSL's “Motion and Application for Attorneys' Fees” (ECF Nos. 600 & 601.) Having considered the submissions of the parties (ECF Nos. 600, 601, 629 & 631), I find that a hearing is unnecessary. See Loc. R. 105.6. For the following reasons, VSL's request for attorney's fees will be granted in part and denied in part. The Court awards VSL reasonable attorney's fees and costs in the amount of $39, 028.15.

         I. Introduction

         As explained in the sanctions order (ECF No. 556), in the fall of 2014, when De Simone was still the Chief Executive Officer of VSL, he retrieved documents from the law firm that represented VSL. The documents contained sensitive information about the VSL#3 product formulation. De Simone initially stated that he destroyed all the documents, but he was later able to locate copies of most of them. Because De Simone located copies of most of the documents that were thought to have been destroyed, I concluded that De Simone engaged in spoliation, but that VSL was not significantly prejudiced. Nonetheless, because of De Simone's disregard for his duty to preserve relevant evidence at a time when litigation was foreseeable, I concluded that sanctions were appropriate. Specifically, I found that “the imposition of reasonable costs and fees is an appropriate sanction for De Simone's spoliation.” (ECF No. 556 at 16.) I reached this conclusion for two reasons. First, De Simone's spoliation caused VSL to incur significant costs and attorney's fees. It would not have incurred these fees had De Simone kept the documents he obtained from the law firm in the first instance. Second, De Simone and similarly situated litigants must be deterred in the future from destroying documents that may be relevant in future litigation. (Id.) I directed that any award to VSL would

be limited to the costs that VSL incurred in investigating De Simone's spoliation (for example, the time it spent interviewing Diane McColl) and in preparing the parts of its Motion and related briefing concerning De Simone's spoliation.


         II. VSL's Application

         VSL requests that the Court award it a sum of $69, 177.90 for the attorney's fees it incurred in connection with De Simone's spoliation. (ECF No. 600.) In support of its request, VSL has submitted time sheets for billing related to the spoliation issue. (ECF No. 601-1.) The time sheets identify the date work was performed, the attorney who performed the work, the amount of time expended, the amount billed, and a description of the work. (Id.) In addition, VSL has provided a summary of the litigation experience of the attorneys who worked on the spoliation issue and their hourly rates. (ECF No. 601 at 6.) A copy of VSL's chart is reproduced below.

Standard Rate
Reduced Rate
Time Spent
Total Fees

Turner A. Broughton Chair, Litigation 20 years' experience




$8, 774.40

Lauren W. Waller Partner, E-Discovery 11 years' experience




$14, 716.80

Andrew O. Mathews Partner, Litigation 10 years' experience




$12, 851.60

Erica B. Zhang Associate, Litigation 3 years' experience




$32, 835.10

         De Simone objects to VSL's request for fees. (ECF No. 629.) He characterizes VSL's request as an “absurd overreach, ” and argues that its time sheets are “full of falsities, errors, inappropriate billing, and bad math.” (Id. at 1.) De Simone posits that VSL's “astronomical” $69, 177.90 request is too high for four reasons: “(1) VSL inappropriately attributing time to the spoliation issue; (2) duplicative, unnecessary staffing by VSL; (3) overbilling; and (4) charging inappropriately high rates.” (Id. at 3.)

         III. Analysis

         In calculating an award of attorney's fees, the Court must first determine the lodestar amount, defined as a “reasonable hourly rate multiplied by hours reasonably expended.” Grissom v. The Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008); see also Perdue v. Kenny A., 559 U.S. 542, 551 (2010) (noting that the lodestar figure is “the guiding light of our fee-shifting jurisprudence”); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”); Garcia v. Montgomery Cty., Maryland, No. TDC-12-3592, 2018 WL 1441189, at *5 (D. Md. Mar. 22, 2018). In determining whether hours were “reasonably expended, ” courts consider whether a case was overstaffed, and the degree to which the skill and experience of counsel may have effected the time spent on a task. Id. at 434. Counsel for a party seeking attorney's fees must engage in “billing judgment, ” which means that they must “make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.” Id.

         Regarding the determination of a reasonable hourly rate, the Court's Local Rules provide some guidance. Appendix B to the Local Rules (“Rules and Guidelines for Determining Attorneys' Fees in Certain Cases”) provides that lawyers admitted to the bar for twenty years or more may reasonably bill $300-475 per hour; that lawyers admitted the bar for nine to fourteen years may reasonably bill $225-350 per hour; and that lawyers admitted to the bar for less than five years may reasonably bill $150-225. These rates serve as guidelines in determining the reasonableness of hourly rates.

         To ascertain what is reasonable in terms of hours expended and the rate charged, the Fourth Circuit ...

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