SONOMEDICA, INC., Plaintiff, v. Sailor MOHLER, et al., Defendants No. 1:08–cv–230 (GBL) United States District Court, E.D. Virginia, Alexandria Division July 28, 2009 Counsel Bernard Joseph Dimuro, John Minh Tran, Michael S. Lieberman, Dimuro Ginsberg & Mook PC, Alexandria, VA, for Plaintiff. Ashley Lionel Taylor, Jr., William Henry Hurd, Stephen Charles Piepgrass, Troutman Sanders LLP, Richmond, VA, Tameka Meshaun Collier, Troutman Sanders LLP, Washington, DC, for Defendants. Lee, Gerald B., United States District Judge Memorandum Order *1 THIS MATTER is before the Court on the May 6, 2009, Report and Recommendation of Magistrate Judge Thomas Rawles Jones, Jr. regarding Plaintiff SonoMedica's Motion to Impose Sanctions against Third Party Witnesses Kerry Poindexter, Valerie Poindexter, and Overflow Properties, LLC. This case concerns Magistrate Judge Jones' recommendation that the Court enter an order imposing sanctions, in the form of attorney's fees and costs, on Kerry Poindexter and Valerie Poindexter and that the matter be referred to the United States Attorney for criminal contempt proceedings. The Poindexters were found in civil contempt, for a second time, for failing to comply with the Magistrate Judge's Order to Compel Discovery on September 12, 2008. The Poindexters and Overflow Properties, LLC, filed an Objection to this Report and Recommendation. The Court held a hearing on the matter on June 29, 2009 to consider the objections that the Poindexter's raised. There are three issues before the Court. First, whether Magistrate Judge Jones erred in finding the Poindexters in contempt of court for failing to comply with three different provisions of the September 12, 2008 Order to compel compliance with a subpoena. The three Order provisions were: (1) compliance with the subpoena duces tecum; (2) being forthright and honest during the September 24, 2008 depositions; and (3) turning over their computer to SonoMedica's counsel Mr. Michael Lieberman without touching it, except to turn it off for a forensic examination. Second, whether to follow Magistrate Judge Jones' recommendation this matter be referred to the United States Attorney to investigate into the possibility of criminal contempt proceedings. Third, whether Magistrate Judge Jones erred in awarding sanctions in the amount of $108,212.15 against Mr. Kerry Poindexter and Mrs. Valerie Poindexter because many of SonoMedica's attorney's fees and costs would have been performed by SonoMedica's counsel regardless of the Poindexter's behavior. The Court adopts Magistrate Judge Jones' Report and Recommendation and holds that Kerry and Valerie Poindexter are in contempt of court for failure to comply with Magistrate Judge Jones' September 12, 2008 Order by failing to supply the necessary documents in accordance with the subpoena at the September 24, 2008 deposition, for Mr. Poindexter failing to tell the truth during his second deposition, and for using their computer causing spoliation of certain electronic files in defiance of Judge Jones' order. The Court further holds that this case will be referred to the United States Attorney to investigate criminal contempt proceedings because the Court finds that the Poindexters willfully violated a court order by failing to produce documents in accordance with the court order, Mr. Poindexter failed to tell the truth during the September 24, 2008 deposition and for spoliation of certain files on their computer which were subject to production under the September 12, 2008 Order to Compel. The Court adopts Magistrate Judge Jones' recommendation with respect to the sanctions amount because the Poindexters did not produce any evidence that the fees were not reasonably necessary. I. BACKGROUND *2 This matter involves Plaintiff SonoMedica, a start-up company that owns a technology used to perform a non-invasive detection of cardiovascular disease. (Mem. in Resp. to Obj. 6.) Co-defendants Sailor H. and Sailor C. Mohler are accused of conveying this technology to third parties in violation of several statutes, contract obligations, and common law duties. (Id.) The Poindexters were third party witnesses asked to testify as to their involvement in facilitating the sale to these potential third party buyers.[1] On September 12, 2008, Magistrate Judge Jones found the Poindexters in contempt for failure to comply with the subpoenas duces tecum and for failing to testify truthfully during their depositions. (Tr. Hr'g on Mot. Sept. 12, 2008 7. SonoMedica Inc. v. Mohler, 1:08cv230). The parties were ordered to submit to re-deposition and to deliver their personal computer to counsel for SonoMedica—Mr. Lieberman. (Id. at 8) Magistrate Judge Jones indicated that the Poindexters could purge themselves of the contempt by testifying truthfully at the upcoming deposition and by delivering all of the documents required by the subpoenas. (Id. at 12.) After the Poindexters turned over their computer on September 15, 2008, a forensic examination of the computer revealed that 22,603 files/folders had been affected and that 556 were deleted manually. (R & R 4.) The Poindexters were re-deposed on September 24, 2008, and again they failed to bring documents with them to the deposition pursuant to the subpoena duces tecum. (Id.) On January 2, 2009, SonoMedica filed its Motion for Sanctions Against Third Party Witnesses Kerry Poindexter, Valerie Poindexter, and Overflow Properties. At the February 6, 2009 motion hearing, Magistrate Judge Jones found the Poindexters in contempt for a second time. (Id. at 5.) Based on Magistrate Judge Jones' finding of willful defiance, he recommended that the Poindexters be required to pay monetary sanctions and suggested that the United States Attorney investigate into the possibility of criminal sanctions. (Id. 5–6.) The Poindexters objected to the Report and Recommendation on May 26, 2009, and a hearing was held on the matter by Judge Lee on June 29, 2009. II. DISCUSSION A. Standard of Review Federal Rule of Civil Procedure 72(b) provides that a magistrate judge may hear a dispositive motion, without the consent of the parties, and recommend the disposition of the matter to a district judge. Fed.R.Civ.P. 72(b). A party must serve any objections to the magistrate judge's recommendation within ten days of being served with a copy of the order. Id. The district judge to whom a case is assigned shall make a de novo determination of those portions of the magistrate judge's recommendation to which objection is made. 28 U.S.C. § 636 (2000). The Court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. The Court may also request and receive further evidence on the matter. Id. B. Analysis i. Contempt *3 The Court adopts Magistrate Judge Jones' finding that the Poindexters are in contempt of court for not complying with the September 12, 2008 court order because the Poindexters failed to comply with the subpoena deuces tecum, Mr. Poindexter failed to tell the truth during his September 24, 2009 deposition, and the Poindexters altered the contents of their computer. “The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.” FED. R. CIV. P 45(e). “To hold a party in civil contempt, the following four elements must be established by clear and convincing evidence: (1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge; (2) that the decree was in the movant's ‘favor’; (3) that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violation; and (4) that [the] movant suffered harm as a result.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir.2000) (citing Colonial Williamsburg Found. v. The Kittinger Co., 792 F.Supp. 1397, 1405–06 (E.D.Va.1992), aff'd, 38 F.3d 133, 136 (4th Cir.1994)). On September 12, 2008 Magistrate Judge Jones issued an order requiring the Poindexters to comply with the initial subpoena duces tecum issued on June 3, 2008. Pursuant to the subpoena, the Poindexters were required to produce to SonoMedica all documents related to any contact they had with Sailor H. Mohler and Sailor C. Mohler or companies listed in the subpoena. (June 3, 2008 Subpoena.) Additionally, compliance with the September 12, 2008 Order, required Mr. Poindexter to submit to a re-deposition where he was required to testify truthfully, and relinquish their home computer to SonoMedica for forensic inspection, “without it being touched except to turn it off.” (Tr. Hr'g on Mot. Sept. 12, 2008 8. SonoMedica Inc. v. Mohler, 1:08cv230). Judge Jones stated this in unequivocal terms in the presence of the Poindexters.[2] Magistrate Judge Jones issued a valid decree on September 12, 2008 that the Poindexters had actual knowledge of, as evidenced by their presence in the court room when the terms of the order were dictated. The decree was in the movant, SonoMedica's, favor, because it compelled the non-movants, the Poindexters, to comply with a court order to turn over evidence and to resubmit to depositions. The contemnors violated the terms of the decree by failing to: (1) comply with the subpoena duces tecum by not producing any documents at the September 24, 2008 deposition; (2) failing to testify truthfully at their depositions; and (3) failing to turn over the computer without altering its contents. Mrs. Poindexter admitted in her September 24, 2008 deposition that she “didn't do anything” to comply with the subpoena's terms and relied on her husband. (Pl.Ex. 5: V.Poindexter tr. 15.) Mr. Poindexter failed to bring the documents to his deposition as well. (R & R 7.) Mr. Poindexter admitted in his September 24, 2008 deposition that he did not go through the files on his computer to look for documents because “he has a lot of documents related to other matters.” (Pl.Ex. 4: K.Poindexter Tr. At 8–9.) During the June 29, 2009 hearing before Judge Lee, Mr. William Krebs, attorney for the Poindexters, stated that at the September 24, 2008 deposition, the Poindexters produced no further documents. (Tr. Hr'g on Mot. Jun. 29, 2009 21. SonoMedica Inc. v. Mohler, 1:08cv230). As such, Magistrate Judge Jones concluded that the Poindexters failed to comply with the subpoena duces tecum and this Court agrees. *4 Magistrate Judge Jones reports that the Poindexters failed to tell the truth during their September 24, 2008 depositions. The record is sufficient to demonstrate that Mr. Poindexter failed to tell the truth during his September 24, 2008 depositions. Magistrate Judge Jones' finding of being less than truthful during the September 24, 2008 depositions hinged on the inconsistency of Mr. and Mrs. Poindexter's testimony about merely touching the computer and the evidence that files had been deleted from the computer. (R & R 4–5.) Mrs. Poindexter alleges that after Magistrate Judge Jones' order, she used a USB thumb drive to copy the “my documents” folder on the home computer. Ms. Karen A. Schuler,[3] of Intelligent Discovery Solutions, indicates that using a USB thumb drive to copy files under certain circumstances deletes and alters electronic files. (Aff. of Karen Schuler 5 at ¶ 3.) Forensic expert, Jesse M. Lindmar of Sensei Enterprises, Inc., agrees that he cannot conclusively confirm that the electronic files were manually deleted from the computer. (Aff. of Jesse Lindmar SI 3.) Mrs. Poindexter's failure to disclose that the she allegedly copied files during her deposition reflects on her credibility. Mr. Poindexter alleges that he did not know Mrs. Poindexter allegedly copied files. (Tr. of Obj. to Report & Recommendation at 47, SonoMedica Inc. v. Mohler, 1:08cv230.) Therefore, because Mrs. Poindexter was not asked if she “touched” the computer the court holds that Mrs. Valerie Poindexter did not fail to tell the truth during her deposition. However, Mr. Poindexter's testimony that he did not play a major role in facilitating the Mohler SonoMedica transactions is demonstrably false because the record contains evidence including Mr. Poindexter's presence at the meetings between the negotiating parties and an e-mail between Mr. Poindexter and Mr. Litman requesting a 10% finders fee for setting up the deal to sell the technology in question to Passive Diagnostics. (Pl.Ex.23.) This is direct evidence of Mr. Poindexter playing a major role in the facilitation of the deal to sell the technology in question. Mr. Poindexter was not forthright and honest about his involvement of his role in the negotiations when asked during his deposition. (Pl.Ex. 4: K.Poindexter Tr. at 52–73.) Therefore, this Court finds that Mr. Poindexter was not truthful during his September 24, 2008 deposition and failed to comply with Magistrate Judge Jones' order. Magistrate Judge Jones reports that the Poindexters did not comply with the magistrate judge's order concerning the computer. Judge Jones stated in unequivocal terms, “[T]hey may not touch the computers except to turn them off between now and then. They may not do anything that would cause any file to be erased on the computer or changed in any way beyond what might happen through the ordinary, everyday act of turning off the computer.” Tr. Hr'g on Mot. Sept. 12, 2008 8. SonoMedica Inc. v. Mohler, 1:08cv230. The computer was not turned off until four o' clock a.m. the day the computer was to be turned over to SonoMedica's Mr. Lieberman. (Aff. of Jesse Lindmar ¶ 4.) During the time between the court order and the day the computer was turned over, 556 files were deleted. (Id.) The Poindexters each stated that neither of them deleted files from their computer. (Pl.Ex. 5: V.Poindexter tr. 10–15.) (Pl.Ex. 4: K.Poindexter Tr. At 19–24.) However, these statements are incongruent with the analysis of Sensei Enterprise's forensic computer examiner Mr. Lindmar, who examined the Poindexter's computer hard drive and concluded that approximately 22,603 files/folders were affected and 556 files were deleted manually by the computer's user between the time periods of September 12, 2008 through September 15, 2008. (Aff. of Jesse Lindmar 54.) Many of the deleted files Sensei recovered referenced SonoMedica. (Aff. of Michael Barnsback ¶ 4.) In the hearing on this matter before Judge Lee on June 29, 2009, the Poindexters argued that the files were not deleted manually and that when the Poindexters inserted a thumb drive into the computer to copy files from the computer, it created shadow files that were subsequently deleted once the thumb drive was removed. (Tr. of Obj. to Report & Recommendation at 9, SonoMedica Inc. v. Mohler, 1:08cv230). Mr. Lieberman concedes that this argument is consistent with their forensic examiner's analysis. Id. at 47. The evidence is equipoise and the court cannot make a determination on whether the Poindexters manually deleted files from the computer. However, even if the Court accepts the Poindexters' argument regarding shadow files, the fact remains that the Poindexters still altered the contents of the computer and used it in direct defiance to Magistrate Judge Jones' Court September 12, 2008 Order. *5 SonoMedica suffered harm as a result of the Poindexters' behavior by being required to engage in a wide reaching forensic examination of the Poindexter's computer hard drive expending time, resources, and money in an effort to uncover the truth. For the reasons stated above the Court adopts Magistrate Judge Jones' findings in the May 6, 2009 Report and Recommendation and finds the Poindexters' in contempt of court because the Poindexters' acted in defiance to Magistrate Judge Jones' September 12, 2008 Order by failing to comply with the subpoena deuces tecum, Mr. Poindexter failed to tell the truth during his second deposition, and the Poindexters altered the contents of their computer. ii. Criminal Contempt The Court adopts the recommendation of Magistrate Judge Jones and refers this case to the United States Attorney to investigate and determine whether to initiate criminal contempt charges against the Poindexters because the Poindexters willfully disobeyed a direct court order. Criminal contempt sanctions are intended “to vindicate the authority of the court by punishing the contemnor and deterring future litigants' misconduct.” Buffington v. Baltimore County, 913 F.2d 113, 133 (4th Cir.1990). The failure of a party to comply with a court order rises to the level of criminal contempt only where the order is “definite, clear, specific” and the party in question “willfully, contumaciously, and intentionally” violated the order. Ashcraft 218 at 299 (4th Cir.2000). Magistrate Judge Jones issued a definite, clear, and specific court order on September 12, 2008. The Poindexters violated the Court September 12, 2008 Order by failing to: (1) comply with the subpoena; (2) tell the truth at the subsequent deposition; and (3) failing to turn over the computer without altering files contained on the hard-drive. Magistrate Judge Jones determined that the Poindexter's conduct was done with willful and intentional defiance to the Court's September 12, 2008 Order. This Court agrees with Magistrate Judge Jones' recommendation to recommend to the United States Attorney to investigate into the matter of criminal contempt for the reasons articulated. iii. Attorney's Fees The Court adopts Magistrate Judge Jones' recommendation regarding the award of attorney's fees because the Poindexters produced no evidence to suggest that the attorney's fees were not reasonably necessary to uncovering the truth buried by the contemptuous behavior of the Poindexters. After finding that a party is in civil contempt, the Court has broad discretion is fashioning an appropriate remedy, which can include “ordering the contemnor to reimburse the complainant for losses sustained and for reasonable attorney's fees.” Buffalo Wings Factory, Inc. v. Mohd, 574 F.Supp.2d 574, 577 (E.D.Va.2008) (quoting United States v. United Mine Workers of Am., 330 U.S. 258, 303–04 (1947)). SonoMedica's attorney has already provided calculations of service in conjunction with the costs associated with the first deposition, the September 24, 2008 deposition, the Motion to Show Cause Filed Against Valerie and Jerry Poindexter and Overflow Properties, costs and attorney's fees in connection with Plaintiff's Motion to Lift Stay and Sanctions, other costs related to the Poindexters, the cost of the forensic examiner, and other court fees. (R & R 9–11.) The total amount due including all fees and costs is $108,212.15. The Poindexters do not challenge the fee rate or the hours expended on the services provided. (Tr. of Obj. to Report & Recommendation at 58–59, SonoMedica Inc. v. Mohler, 1:08cv230. *6 Both parties briefed this issue and the Poindexters did not produce any evidence that the fees sought were not reasonably necessary. Forensic examinations are not a routine part of discovery. SonoMedica's concerns about Mr. Poindexter's veracity and compliance with the subpoena was substantially confirmed by a costly examination and multiple motions caused by the Poindexters' recalcitrant production. The attorney's fees are reasonable and Magistrate Judge Jones' recommendation is affirmed. III. CONCLUSION The Court accepts Magistrate Judge Thomas Rawles Jones' recommendations. The Court adopts Magistrate Judge Jones' Report and Recommendation with regards to finding the Poindexters in civil contempt because the Poindexters failed to comply with the subpoena; Mr. Poindexter failed to tell the truth in their September 24, 2008 depositions; and failed to turn over the computer without altering files contained on the hard-drive. The Court refers the matter to the United States Attorney to investigate possible criminal sanctions because the Court finds that the Poindexters willfully, contumaciously, and intentionally violated the Court's September 12, 2008 Order and a criminal contempt sanction would vindicate the authority of the Court by punishing the contemnor and deterring future litigants' misconduct. The Court adopts Magistrate Judge Jones' recommendation regarding attorney's fees because the Poindexters produced no evidence to suggest that the attorney's fees incurred by SonoMedica's attorneys were unreasonable or unnecessary. For the foregoing reasons, it is hereby ORDERED that Kerry and Valerie Poindexter are found to be in contempt of court. It is further ORDERED that Mr. Kerry Poindexter, Mrs. Valerie Poindexter, and Overflow Properties, jointly and severally pay attorney's fees and costs to SonoMedica in the amount of $108,212.50. It is further ORDERED that the United States Attorney investigate the possibility of criminal sanctions. The Clerk is directed to forward a copy of this Order to counsel. REPORT AND RECOMMENDATION THOMAS RAWLES JONES, JR., United States Magistrate Judge. This matter is before the court on plaintiff's Motion for Sanctions Against Third Party Witnesses Kerry Poindexter, Valerie Poindexter, and Overflow Properties, LLC (docket no. 171). The magistrate judge finds that sanctions are warranted against Kerry Poindexter, Valerie Poindexter, and Overflow Properties, jointly and severally, and recommends that they pay attorneys' fees and costs to plaintiff in the amount of $108,212.50. PROCEDURAL AND FACTUAL SUMMARY The present motion arises in a breach of fiduciary duty case. Plaintiff Sonomedica, Inc. alleges that its employees, Sailor H. Mohler and Sailor C. Mohler, agreed to transfer ownership and rights in Sonomedica's “Cardiosond” product[1] to an unnamed investor group without Sonomedica's consent. Pl.'s Compl. p. 1. On August 15, 2008, plaintiff filed a Motion for Order to Show Cause Against Valerie Poindexter and Overflow Properties[2] for Failure to Comply with a Subpoena Duces Tecum (docket no. 108) and a Motion for Order to Show Cause Against Kerry Poindexter for Failure to Comply with a Subpoena Duces Tecum and for Perjury During his Deposition (docket no. 114). In its motion, plaintiff requested that the court permit it to examine the Poindexters' computer for any documents not produced pursuant to the subpoenas duces tecum (docket no. 109, p. 1, docket no. 115, p. 1). On August 22, 2008, the magistrate judge issued two orders to show cause (docket nos. 123, 125) directing both Valerie and Kerry Poindexter to appear in court on September 5, 2008 to show cause why they should not be held in contempt of court for failing to comply with the subpoenas duces tecum. The matter was continued by the court until September 12, 2008 (docket no. 138). *7 On September 12, 2008, the magistrate judge found that Kerry Poindexter, Valerie Poindexter, and Overflow Properties were in contempt. September 12, 2008 Tr. at p. 7. Specifically, the magistrate judge found that the Poindexters and Overflow Properties did not comply with the subpoenas duces tecum. In addition, the magistrate judge found that the Poindexters failed to tell the truth during their depositions. Id. Accordingly, the magistrate judge ordered the Poindexters, in their presence, to “each submit to reopened depositions for one or more additional sessions as may be necessary [and] to deliver their computers [sic] to Mr. Lieberman's office not later than ten o'clock Monday morning.” Tr. at p. 7–8. The magistrate judge explicitly ordered the Poindexters not to touch their computer except to turn it off and immediately deliver it to Mr. Lieberman's office for inspection. Tr. at p. 8. To ensure that the Poindexters either complied with the court's order or faced the consequences, the magistrate judge scheduled two hearings in front of Judge Lee. Tr. at p. 9. The magistrate judge observed that while he did “not have the power to jail someone for contempt. Judge Lee does.” Id. The magistrate judge found that the Poindexters could purge themselves of the contempt by telling the truth at their redeposition and by delivering all of the documents that the subpoenas required them to produce. In providing the Poindexters with this opportunity, the magistrate judge responded to the Poindexters' counsel's question whether the parties would purge themselves of contempt by “participating in the redeposition” by stating: Not by participating, not merely by participating, but [by] having produced everything that the subpoena required them to produce and by having testified truthfully at the depositions. Merely showing up is not going to be enough to purge anyone of contempt. Tr. at p. 12. Further, the magistrate judge ordered the Poindexters, in their presence, to deliver their computer to Mr. Lieberman's office by ten o'clock a.m. on September 15, 2008 and stated that they may not touch the computer in the interim except to turn it off: And, and they may not touch the computers except to turn them off between now and then. They may not do anything that would cause any file to be erased on the computer or changed in any way beyond what might happen through the ordinary, everyday act of turning off the computer. Tr. at p. 8. On Monday morning September 15, 2008, the Poindexters delivered their computer to Mr. Lieberman's office (docket no. 172 at p. 4). On September 17, 2008, Mr. Lieberman enlisted the services of Sensei Enterprises (“Sensei”) to conduct a forensic examination of the computer. Id. at p. 5. After conducting the forensic examination, Sensei determined that the computer was not shut off until approximately four o'clock a.m. on September 15, 2008 and that approximately 22,603 files/folders were affected as a result of the computer being operational from September 12, 2008 through September 15, 2008. Id. Sensei later determined that of the 22,603 files/folders affected, 556 were deleted manually by the computer's user during the time period September 12 through September 15 and these deletions were not the result of any automatic electronic application initiation by the computer's operation system. Id. Sensei was able to recover some of the deleted files and many of the deleted files recovered referenced Sonomedica. Id. at p 5–6. *8 Thereafter, on September 24, 2008, Valerie Poindexter appeared for a new deposition. Id. at p. 6. She did not bring any of the documents responsive to the subpoena issued to Overflow Properties with her. Id. During the deposition, Ms. Poindexter stated that she did not delete any of the files on the computers, but acknowledged that she had used the computer from September 12, 2008 through September 15, 2008. Id. Ms. Poindexter claimed that her attorney, Chester Banks, told her that she could use the computers, despite the fact that she was present in the courtroom during the September 12, 2008 hearing to hear the magistrate judge's clear directive not to touch the computer except to turn it off. Id. at p. 7. Kerry Poindexter was also deposed on September 24, 2008 and readily acknowledged that his wife had used the computer from September 12, 2008 to September 15, 2008. Id. at p. 11–12. During the deposition, Mr Poindexter stated that he understood the magistrate judge's ruling on September 12, 2008 to mean that neither he nor his wife could delete any of the files on the computer, but could still use the computer to pay bills and check bank accounts. Id. at p. 12. In addition, Mr. Poindexter stated that he did not touch the computer or delete any files between September 12, 2008 and September 15, 2008. Id. at p. 11. On September 26, 2008, defendants Sailor H. Mohler and Sailor C. Mohler, filed for bankruptcy in the District of Maryland. On September 29, 2009, they filed a notice to that effect (docket no. 157). This court stayed the case on October 1, 2008 and removed it from the active docket (docket no. 158). As a result, the two contempt of court hearings for Valerie and Kerry Poindexter scheduled in front of Judge Lee did not occur. However, on January 2, 2009, plaintiff filed a Motion to Lift the Stay Against Third Party Witnesses Kerry Poindexter, Valerie Poindexter, and Overflow Properties (docket no. 168), which was granted on January 14, 2009 (docket no. 176). Also on January 2, 2009, Plaintiff filed the present Motion for Sanctions Against Third Party Witnesses Kerry Poindexter, Valerie Poindexter, and Overflow Properties (docket no. 171). During the February 6, 2009 hearing on the motion, the magistrate judge found the Poindexters in contempt for a second time. I can and do find this morning based on the uncontested part of what's been represented to me by counsel, that in addition to the contempt that I have previously found, Mr. And Mrs. Poindexter are both in contempt as a result of their willful defiance of my orders and their testimony which was, to say no more, knowingly inaccurate at their depositions. (docket no. 181, exhibit A, February 6, 2009 Tr. at p. 28). Moreover, based on the Poindexters' willful defiance of the court's order, the magistrate judge found that, in addition to monetary sanctions, the Poindexters may be subject to additional penalties to punish their wrongful conduct. *9 I am ready as I sit here to recommend to Judge Lee that all the fees that were reasonably incurred with respect to Mr. And Mrs. Poindexter and Overflow basically from the time the first subpoena was issued should be borne by Mr. and Mrs. Poindexter. I am bordering on a finding that would result in me recommending to Judge Lee that he refer the matter to the United States Attorney for prosecution for criminal contempt and perjury. Id. The court then ordered the Poindexters to deposit $100,000 in the registry of the court to secure plaintiff for whatever fees the court ultimately awards and ordered the parties to file supplemental briefs addressing the amount of fees to which plaintiff is entitled. Tr. at p. 28–29. FINDINGS The magistrate judge finds that the Poindexters are in civil contempt and recommends that, under these circumstances, sanctions for civil contempt are warranted. The magistrate judge also finds that the matter should be referred to the United States Attorney for criminal contempt proceedings. In so finding, the magistrate judge notes that purpose for imposing sanctions for civil contempt is to “compensate the complainant for losses sustained.” Buffington v.. Baltimore County, 913 F.2d 113, 133 (4th Cir.1990). On the other hand, criminal contempt sanctions are intended “to vindicate the authority of the court by punishing the contemnor and deterring future litigants' misconduct.” Bradley v. American Household, Inc., 378 F.3d 373, 378 (4th Cir.2004) (quoting Buffington, 913 F.2d at 133). In this case, the magistrate judge finds that the plaintiff should be compensated by the Poindexters for the losses it sustained and that the Poindexters should be punished for their willful defiance of this court's orders. A court may enforce and punish willful violations of its orders with its contempt powers. Columbus–America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 n. 5 (4th Cir.2000). The court's contempt power extends to non-parties who fail to comply with subpoenas. Federal Rule of Civil Procedure 45(e) provides that “[t]he issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena.” Fed.R.Civ.P. 45(e). After finding that a party is in civil contempt, the court has broad discretion is fashioning the appropriate remedy, which can include “ordering the contemnor to reimburse the complainant for losses sustained and for reasonable attorney's fees.” Buffalo Wings Factory, Inc. v. Mohd, 574 F.Supp.2d 574, 577 (E.D.Va.2008) (quoting United States v. United Mine Workers of America, 330 U.S. 258, 303–04 (1947)). Here, the Poindexters, on two occasions were in contempt of court. First, on September 12, 2008, the court found that the Poindexters were in contempt because they failed to provide documents pursuant to the subpoenas duces tecum.[3] September 12, 2008 Tr. at p. 7. In addition, the magistrate judge found that Kerry Poindexter was less than truthful during his first deposition. Thereafter, this court gave the Poindexters every opportunity to purge themselves of the contempt. However, despite this court's clear orders on September 12, 2008 to provide the documents, to tell the truth during their re-deposition, and to turn over their computer to plaintiff without touching it except to turn it off and bring it to plaintiff, the Poindexters did not bring the required documents to their re-deposition, did not tell the truth during their re-depositions, used the computer to check their bank accounts and pay bills, and deleted over 500 files from their computer, many of which referenced plaintiff and were relevant to its cause of action. *10 Accordingly, on February 6, 2009, the magistrate judge, for a second time, found the Poindexters in contempt for failing to comply with the magistrate judge's order on September 12, 2008. Not only did the Poindexters turn a blind eye to this court's authority, but also caused plaintiff to incur substantial attorneys' fees and costs. While the Poindexters could have provided the documents pursuant to the subpoenas, a rather simple and ordinary task, they nevertheless chose to put plaintiff through its paces, forcing it to file motions, appear at four or more hearings, take extra depositions, and enlist the services of a forensic examiner to recover deleted computer files all in an effort to obstruct plaintiff's pursuit of discovery. Accordingly, plaintiff should be “compensated for the losses it sustained” as a result of the Poindexters' flagrant disregard of the discovery process. Buffington, 913 F.2d at 133. “A court may impose sanctions for civil contempt.” Comer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 821 (4th Cir.2004). Such sanctions include ordering the contemnors to reimburse the complainant for losses sustained and to pay the complainant's reasonable expenses including attorneys' fees. Buffalo Wings Factory, Inc. v. Mohd, 574 F.Supp.2d at 577. The magistrate judge finds that under these circumstances, it is appropriate to impose sanctions, in the form of attorneys fees and costs, on the Poindexters for their initial willful defiance of this court's order to provide the documents pursuant to the subpoenas. In addition, the magistrate judge finds that sanctions, in the form of attorneys' fees and costs, should be imposed against the Poindexters for their willful defiance of this court's order on September 12, 2008, not to touch the computer except to turn it off. The Poindexters' not only continued to use the computer after this court ordered them not to touch it, but also manually deleted files relevant to Sonomedica's case. Moreover, the Poindexters were less than truthful when asked during their re-deposition if either one of them deleted files. As a result, plaintiff is entitled to recover all of its expenditures related to the Poindexter aspect of the case. The magistrate judge also finds that the matter should be referred to the United States Attorney for criminal contempt proceedings. As noted above, criminal contempt sanctions are necessary to vindicate the court's authority by punishing the contemnor and deterring future misconduct. Bradley, 378 F.3d at 378. Here, the Poindexters should be punished for their blatant disregard of the court's authority and to deliver the message, both to them and others, that there are serious consequences for failing to comply with the court's directives. Id. ATTORNEYS' FEES AND COSTS Plaintiff's counsel avers under oath that the following is an accurate representation of the attorneys' fees and costs incurred because of the events discussed above: Costs and Attorneys' Fees in Connection with the Preparation and Taking of Kerry Poindexter's First Deposition and Subsequent Review Service Rate Time Used Cost Counsel # 1 $350.00 19.35 $6,772.50 Legal Assistant $125.00 19.45 $2,431.25 Total $9,203.75 Costs and Attorneys' Fees Pertaining to Kerry Poindexter's Second Deposition and Valerie Poindexter's Deposition on September 24, 2008 Service Rate Time Used Cost Counsel # 1 Legal Assistant $125.00 17 $2,125.00 Total $7,585.00 Costs and Attorneys' Fees in Connection with Plaintiff's Motion to Show Cause Filed Against Valerie and Kerry Poindexter and Overflow Properties Service Rate Time Used Cost Counsel # 1 $350.00 40.6 $14,210.00 Counsel # 2 $350.00 2.75 $962.50 Legal Assistant $125.00 33.25 $4,156.25 Total $19,328.75 Costs and Attorneys' Fees in Connection with Plaintiff's Motion to Lift Stay and Sanctions Service Rate Time Used Cost Counsel # 1 $350.00 64.45 $22,557.50 Counsel # 2 $350.00 22.1 $7,735.00 Counsel # 3 $350.00 0.8 $280.00 Counsel # 4 $250.00 2.9 $725.00 Counsel # 5 $250.00 17.7 $4,425.00 Legal Assistant $125.00 23.5 $2,937.50 Legal Assistant $125.00 1.1 $137.50 Total 132.55 $38,797.50 Other Costs and Attorneys' Fees Related to the Poindexters Service Rate Time Used Cost Counsel # 1 $350.00 15.7 $5,495.00 Counsel # 2 $350.00 9.4 $3,290.00 Counsel # 3 $350.00 0.5 $175.00 Legal Assistant $125.00 35.7 $4,462.50 Total $13,422.50 Total Attorneys' Fees $9,203.75 $7,585.00 $19,328.75 $38,797.50 $13,422.50 Total $88,337.50 Costs Computer Examiner Fee $16,421.66 Court Reporter Fees $917.40 Deposition Fees $1,513.10 Court Fees $561.00 Court Transcript Fees $187.55 Service of Process Fees $155.00 Copying Costs $118.94 TOTAL $19,874.65 Total Amount Due Attorneys' Fees $88,337.50 Costs $19,874.65 Total $108,212.15 *11 Plaintiff bears the burden of proving that the attorneys' fees requested are reasonable. Robinson v. Equifax, 560 F.3d 235, 244 (4th Cir.2008). To establish the reasonableness of the fee, the applicant must submit “specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award.” Id. Here, however, the Poindexters do not contest the reasonableness of plaintiff's counsel's fees. See Docket no. 181 p. 3 (“Counsel for the plaintiff understands that counsel for the Poindexters is not contesting the reasonableness of the rates charged by plaintiff's counsel's law firm, or that any indicated activity was not in fact performed.). Accordingly, the magistrate judge finds that plaintiff need not submit specific evidence of the prevailing market rates in the Eastern District of Virginia. The Poindexters do dispute the extent of the work for which plaintiff seeks reimbursement. They argue in particular that one of the two depositions would have been necessary anyway, and that some of the forensic work obtained by plaintiff could have been avoided. However, as discussed in colloquy from the bench, the magistrate judge disagrees with both assertions. The Poindexters' dishonesty so infected the depositions that they should not be allowed to require plaintiff, or the court, to estimate what small part, if any, of the expenses should be borne by plaintiff. And, where their dishonesty was so clearly established, it would have been irresponsible for plaintiff's forensic expert to rely on their answers to the questions they now claim he should have asked. The magistrate judge has examined the whole record and considered plaintiff's fee submission in detail. The magistrate judge finds that all of the work done and expenses incurred were made necessary by the contemnors' conduct, and the amount sought is reasonable compensation for effort necessarily expended to enforce plaintiff's rights. RECOMMENDATION The magistrate judge recommends that sanctions, in the form of attorneys' fees and costs, be imposed on Kerry and Valerie Poindexter, jointly and severally, in the amount of $108,212.15. The magistrate judge also recommends that the matter be referred to the United States Attorney for criminal contempt proceedings. NOTICE By means of the court's electronic filing system, and by mailing copies of this report and recommendation to the parties at their addresses for service of process, the parties are notified as follows. Objections to this report and recommendation must be filed within ten (10) days of service on you of this report and recommendation. A failure to file timely objections to this report and recommendation waives appellate review of the substance of the report and recommendation and waives appellate review of a judgment based on this report and recommendation. Footnotes [1] The principal matter in this case involving Plaintiff SonoMedica and the Defendants Sailor H. Mohler and Sailor C. Mohler was settled on June 15, 2009 [2] Magistrate Judge Jones indicated that the Poindexters may purge themselves of their contempt of Court “[n]ot by participating, not by merely participating, but by producing everything that the subpoena required them to produce and by having testified truthfully at the depositions. Merely showing up is not going to be enough to purge anybody of contempt.” (Tr. Hr'g on Mot. Sept. 12, 2008 11–12 .) [3] Ms. Schuler is a computer forensic expert retained by counsel for the interested parties Kerry Poindexter and Valerie Poindexter. [1] The Cardiosond is a medical device intended for use by primary care physicians to detect cardiovascular disease in its early stages. Pl.'s Compl. p. 1. While defendants worked on developing the Cardiosond for Sonomedica, the terms of their employment agreement indicated that all intellectual property rights in the Cardiosond belonged to Sonomedica. Pl.'s Compl. p. 1. [2] Overflow Properties, LLC is the name of Valerie Poindexter's company. [3] Some of the documents sought by plaintiff pursuant to the subpoenas were located on the Poindexters' computer. As a result, plaintiff asked the court to order the Poindexters to turn over their computer so that plaintiff could look for any documents responsive to the subpoenas that the Poindexters did not voluntarily provide.