Compass Chem. Int'l, LLC v. True No. Prod., LLC
Compass Chem. Int'l, LLC v. True No. Prod., LLC
2011 WL 13213912 (N.D. Ga. 2011)
May 4, 2011

Johnson, Walter E.,  United States Magistrate Judge

Spoliation
Sanctions
Forensic Examination
Cost Recovery
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Summary
Compass Chemical International, LLC sought spoliation sanctions against True North Products, LLC, Brian K. Failon, and Source 1 Specialty Chemicals, Inc. for wiping the laptop's hard drive. The Court found that Mr. Failon's actions were the cause of the extensive spoliation proceedings and awarded Compass attorneys' fees, travel expenses, and expert fees and costs in the amount of $123,835.95.
Additional Decisions
COMPASS CHEMICAL INTERNATIONAL, LLC, Plaintiff,
v.
TRUE NORTH PRODUCTS, LLC, Brian K. Failon, and Source 1 Specialty Chemicals, Inc., Defendants
CIVIL ACTION FILE NO. 1:09-CV-3491-RLV-WEJ
United States District Court, N.D. Georgia, Atlanta Division
Signed May 04, 2011

Counsel

Lawrence S. Burnat, Philip R. Green, Andrew John Lavoie, John Anthony Christy, Schreeder Wheeler & Flint, LLP, Atlanta, GA, for Plaintiff.
Brian K. Failon, Richmond, VA, pro se.
Johnson, Walter E., United States Magistrate Judge

FINAL REPORT AND RECOMMENDATION

*1 By Order [222] dated March 21, 2011, the Honorable Robert L. Vining, Jr., Senior United States District Judge, adopted this Court's Report and Recommendation [219] (hereafter “R&R”) granting in part Plaintiff's Motion for Spoliation Sanctions [159], and referred this matter to the undersigned to assess the amount of attorney's fees to be awarded to plaintiff, Compass Chemical International, LLC (“Compass”). For the reasons explained below, the undersigned RECOMMENDS that attorneys' fees, travel expenses, and expert fees and costs in the amount of $123,835.95 be awarded to plaintiff.
I. FACTUAL BACKGROUND
The Court assumes the reader's familiarity with the aforementioned R&R. Reference will be made to that R&R herein as appropriate. For purposes of the instant referral, it is sufficient to note that the R&R (as adopted by the District Court) limits plaintiff's recoverable attorneys' fees and expenses to those incurred in direct preparations for, and attendance at, the first two days of the evidentiary hearing (December 29-30, 2010), as well as briefing the spoliation motion (both pre-and post-hearing). Thus, the undersigned will only recommend awarding to plaintiff those attorneys' fees and expenses directly associated with its Motion for Spoliation Sanctions.
II. ANALYSIS
In response to this Court's Order [223], Compass submitted an Application for Attorneys' Fees and Costs [230], supported by the Affidavit [230-1] of its lead counsel, Lawrence S. Burnat (“Burnat Aff.”). Mr. Burnat's Affidavit attaches, inter alia, relevant time records from his firm, Schreeder, Wheeler & Flint, LLP (Ex. A [230-2] ), and invoices from plaintiff's expert, PM Investigations, Inc. (Ex. D [230-5] ). That application seeks a total of $126,797.63. Defendants True North Products, LLC, Brian K. Failon, and Source 1 Specialty Chemicals, Inc. (collectively, “Mr. Failon”) submitted a Response [237] challenging plaintiff's application and submitting that a sanction in the range of $60,000 would be appropriate. Plaintiff submitted a Reply [238].
The various items in the fee application are summarized below. Items challenged in whole or in part by Mr. Failon are marked with an asterisk.
attorneys' fees
$111,077.41*
travel (Burnat to Richmond, Va.)
$ 897.65
travel (Vaughn to Atlanta, Ga.)
$ 885.68*
travel (Burnat to Rome, Ga.)
$ 205.64
travel expense subtotal
$ 1,988.97
PM Investigations (May 6, 2010)
$ 5,000.00*
PM Investigations (Oct. 18, 2010)
$ 1,650.00*
PM Investigations (Nov. 9, 2010)
$ 68.75*
PM Investigations (Nov. 19, 2010)
$ 275.00*
PM Investigations (Nov. 24, 2010)
$ 687.50*
PM Investigations (Nov. 29, 2010)
$ 687.50*
PM Investigations (Dec. 13, 2010)
$ 1,787.50*
PM Investigations (Dec. 29, 2010)
$ 1,650.00*
PM Investigations (Dec. 30, 2010)
$ 1,925.00
expert fees and costs subtotal
$ 13,731.25
Total:
$126,797.63
The undersigned first examines the largest category–attorneys' fees–and then the other categories where appropriate to determine whether the attorneys' fees, travel expenses, and expert costs and fees sought are directly related to the Motion for Spoliation Sanctions and, if so, whether they are reasonable.
A. Attorneys' Fees
1. Governing Standard
*2 The reasonableness of attorneys' fees is assessed using the lodestar analysis set forth in Norman v. Housing Auth. of Montgomery, 836 F.2d 1292 (11th Cir. 1988). The analysis is the product of a reasonable hourly rate times the number of hours reasonably expended. City of Burlington v. Dague, 505 U.S. 557, 559 (1992). The following twelve factors should be considered when determining what constitutes a reasonable rate and amount of hours:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1350 n.2 (11th Cir. 2008) (per curiam);[1] Barker v. Niles Bolton Assocs., Inc., 316 Fed.Appx. 933, 944 (11th Cir. 2009).
Moreover, the Eleventh Circuit defines a reasonable hourly rate as “the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299; see also Smith v. Atlanta Postal Credit Union, 350 Fed.Appx. 347, 349 (11th Cir. 2009) (per curiam) (same). The fee applicant bears the burden of producing evidence that the requested rate comports with prevailing market rates. Norman, 836 F.2d at 1299. The applicant attorney's customary billing rate for fee paying clients ordinarily is the best evidence of his market rate, although that information is not necessarily conclusive. Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir. 2000) (per curiam). At a minimum, such evidence should be more than the affidavit of the billing attorney, and must speak to rates billed and paid in similar lawsuits. Norman, 836 F.2d at 1299. However, the Court is itself an expert on reasonable fees and may make the lodestar award on its own expertise where documentation is inadequate. Id. at 1303.
Likewise, the Court must exercise its discretion to adjust hours claimed to exclude time for excessive, redundant,[2] or unnecessary work on a given task. Norman, 836 F.2d 1301-02; see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (holding that court should exclude from fee calculation hours not reasonably expended). The Court must weigh the hours claimed against its own knowledge and experience of the time required for similar activities. See Allapattah Servs., Inc. v. Exxon Corp, 454 F. Supp. 2d 1185, 1213 (S.D. Fla. 2006). The Eleventh Circuit characterizes hours to be excluded as “those that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at 1301 (citing Hensley, 461 U.S. at 434 (explaining that hours not properly billed to one's client also are not properly billed to one's adversary)). However, “the measure of reasonable hours is determined by the profession's judgment of the time that may be conscionably billed and not the least time in which it might theoretically have been done.” Norman, 836 F.2d at 1306. The Court must be precise when excluding hours. Id. at 1301.
2. Components of a Fee Application
*3 In Norman, the Eleventh Circuit provides the following guidance on submission of a fee application:
As the Supreme Court said in Hensley, “[a] request for attorney's fees should not result in a second major litigation.” 461 U.S. at 437, 103 S. Ct. at 1941. The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates. Id. As indicated earlier, fee counsel bears the burden in the first instance of supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity. Hensley, 461 U.S. at 437 n.12, 103 S. Ct. at 1941 n. 2; NAACP v. City of Evergreen, 812 F.2d [1332, 1337 (11th Cir. 1987) ]. A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case.
Norman, 836 F.2d at 1303. A party opposing a fee application must submit specific and reasonably precise objections and proof. ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999); see also Duckworth v. Whisenant, 97 F.3d 1393, 1397 (11th Cir. 1996) (per curiam) (any objections to the hours claimed must be voiced with exactitude).
The fee application submitted by plaintiff's counsel here complies with the aforementioned requirements. Plaintiff's counsel maintained records sufficient to show the time spent on the various activities, and the general subject matter of the time expenditures were set out with sufficient particularity so that the undersigned could assess the time claimed for each activity. Moreover, the billing records contain a convenient summary. (SeeBurnat Aff. Ex. A.) Thus, the Court has sufficient documentation from which to work.
3. The Lodestar Analysis
As noted above, the lodestar analysis is the product of a reasonable hourly rate times the number of hours reasonably expended. The Court reports on reasonable rates in Part II.A.3.a, infra, and on reasonable hours expended in Part II.A.3.b, infra.
a. Reasonable Hourly Rates
Plaintiff seeks the following hourly rates for its timekeepers' work:
2009
2010
2011
Lawrence S. Burnat, partner (LSB)
$365
$365
$365
Phillip R. Green, associate(PRG)
$185
$195
$195
Andrew J. Lavoie, associate (AJL)
$185
$185
(See Burnat Aff. ¶ 7.)
The Affidavit of plaintiff's lead counsel, Mr. Burnat, states that the above-listed standard hourly billing rates charged by his firm, Schreeder, Wheeler & Flint, LLP, are reasonable and within the range charged by similarly-experienced Atlanta-based partners and associates practicing in the fields of civil, business, and general litigation. (See Burnat Aff. ¶¶ 14-15.) However, those assertions do not establish that counsel's requested rates are reasonable. See Norman, 836 F.2d at 1299 (noting that, at minimum, evidence should be more than affidavit of billing attorney). However, Mr. Failon's counsel offers no affidavits in opposition and does not challenge the hourly rates charged by plaintiff's counsel.
*4 Plaintiff also submits the Going Rate survey published in the Fulton Daily Report for partners and associates in the Atlanta market. (See Burnat Aff. Ex. B [230-3] for partners; Ex. C [230-4] for associates.) Those surveys provide general billing rate ranges for Atlanta-based partners and associates focusing on business litigation. However, these surveys do not identify rates billed and paid in similar lawsuits in the Atlanta legal market. Nevertheless, according to the Going Rate surveys, attorneys focusing on business litigation in the Atlanta market in 2009-2011 billed clients in the following hourly ranges:
2009
2010
2011
Partners
$275 to $675
$300 to $805
$415 to $730
Associates
$185 to $440
$185 to $530
$295 to $535
(Burnat Aff. Exs. B-C.) The Court agrees with plaintiff that the standard hourly rates billed by the partner (Mr. Burnat–$365) and associates (Messrs. Green and Lavoie–$185-195) here are comparable to, or below, rates charged by attorneys of similar experience practicing in this District. (Burnat Aff. ¶¶ 14-15.)
However, Mr. Burnat avers that the rates actually charged to plaintiff were less than these standard hourly billing rates given substantial discounts awarded to the client. (Burnat Aff. ¶ 8.) According to the Court's calculations, attained by dividing the actual fees incurred and billed by the total hours worked, Mr. Burnat's reduced rate was $320.05 per hour; Mr. Green's reduced rate was $171.44 per hour; and Mr. Lavoie's reduced rate was $148.48 per hour. (See Burnat Aff. Ex. A at 14; see also Defs.' Resp. 6 n.3 (making similar calculation).)
Although plaintiff's counsel has presented substantial evidence about fees charged by other lawyers, he has not submitted evidence of rates billed and paid in similar lawsuits in the Atlanta legal market. Despite the lack of such evidence, the Court may rely on its own expertise in determining whether the aforementioned hourly rates for plaintiff's timekeepers are reasonable. See Norman, 836 F.2d at 1303 (“Where documentation is inadequate, the district court is not relieved of its obligation to award a reasonable fee, but the district court traditionally has the power to make such an award without the need of further pleadings or an evidentiary hearing.”) (citations omitted). The undersigned is familiar with the prevailing market rates charged by Atlanta lawyers with similar experience to plaintiff's timekeepers and for similar types of cases. The reduced rates requested by plaintiff's counsel are reasonable because they are comparable to or below the market rates for Atlanta attorneys of similar experience for business civil litigation in this market. See Waschak v. Acuity Brands, Inc. Senior Mgmt. Benefit Plan, No. 1:07-CV-3121-TWT, 2009 WL 2461038, at *7 (N.D. Ga. Aug. 6, 2009)(hourly rates sought by plaintiff's counsel found reasonable, given attorney's education and experience, “based upon [the Court's] personal knowledge of what Atlanta lawyers of equal or greater experience charge for their services in civil litigation”), rev'd on other grounds, 384 Fed.Appx. 919 (11th Cir. 2010).
b. Number of Hours Reasonably Expended
With the reasonable hourly rates established in Part II.A.3.a, the Court turns to the number of hours reasonably expended, which is the issue Mr. Failon contests. Mr. Failon objects to the fee application because it exceeds the scope of the sanction and seeks reimbursement that goes to the merits of the case. From that premise, he makes three specific objections and one general to the fee application. The specific objections relate to (1) plaintiff's expert, James B. Persinger; (2) expenses related to Mr. Failon's expert, Mr. James Vaughn; and (3) expenses related to Mr. Sean O'Donnell. The general objection is Mr. Failon's insistence that the attorneys' fees are simply too high.
*5 Because Mr. Failon's objections conflate the issues of attorneys' fees, travel expenses, and expert fees and costs, the undersigned also addresses them together in this section, beginning with the specific objections.
(1) James B. Persinger
Mr. Failon first contends that plaintiff improperly seeks to recover all the fees and costs of its computer expert (Mr. Persinger) and related attorneys' fees, not just those directly associated with the spoliation motion. He argues that plaintiff's computer forensic expert performed work that relates to the underlying claims. (Defs.' Resp. 2.) Mr. Failon asserts that the scope of Mr. Persinger's engagement was broader than the spoliation motion, as reflected in both his deposition and expert report. (Id. at 3-4.) Moreover, Mr. Persinger spent considerable time examining the thumb drive that had not been spoliated and recovering documents that go to the ultimate issues in this case, not spoliation. (Id. at 4-5.) Finally, Mr. Failon asserts that his counsel took Mr. Persinger's deposition, that it was not directly associated with the spoliation motion, and that it would have been taken regardless of any spoliation. (Id. at 5.) Thus, Mr. Failon asks the Court to disallow $9,715 in attorneys' fees because the hours plaintiff's counsel expended were not directly related to the spoliation issue. (Id. at 6; see also Defs.' Resp Ex. A [237-1], identifying disputed attorney hours with “P” notation.) Mr. Failon also seeks to disallow $9,306 in expert fees and costs incurred for Mr. Persinger's services. (Defs.' Resp. 6.)
Plaintiff responds that it retained Mr. Persinger to determine what happened to the data on the computers that Mr. Failon used during his Compass employment, and would not have hired him if spoliation had not occurred. Once Mr. Persinger examined the computers and determined the likely prejudicial effects of Mr. Failon's acts, plaintiff asserts that Mr. Failon prolonged the spoliation proceedings—and with them, Mr. Persinger's involvement—by concealing and actively lying about the true nature of his conduct. Plaintiff argues that Mr. Failon has not shown that it seeks to recover expert costs or fees incurred for services unrelated to the spoliation motion, and asserts that a review of the invoices from Mr. Persinger's firm confirms that they are all directly related to the spoliation issue. (Pl.'s Reply 2-3.).
The Court thus reviews those invoices from plaintiff's expert. For instance, Mr. Failon contests $2,500 sought for the forensic examination that Mr. Persinger performed on the desktop computer that Mr. Failon used during his employment. (Defs.' Resp. Ex. B [237-2] at 2.) While the Court found that spoliation had occurred through the wiping of the laptop computer's hard drive, Mr. Failon reformatted the desktop computer's hard drive while employed by Compass. In granting plaintiff's spoliation motion in part, the Court agreed to allow introduction of evidence of the circumstances surrounding the reformatting of the desktop's hard drive if this case goes to trial—circumstances that would have remained largely hidden but for the actions of Mr. Persinger and the costs incurred by plaintiff. The Court agrees with plaintiff that the $2,500 cost incurred in examining the desktop computer was necessary to, and directly associated with, an understanding of the totality of the facts that gave rise to plaintiff's motion. In ordering the desktop computer's hard drive reformatted, Mr. Failon created suspicions about the data on the desktop computer and caused plaintiff to incur the costs of an expert forensic examination of that computer. That forensic examination, in turn, gave rise to the sanctions ultimately assessed against defendants and revealed information that will have relevance if the case goes to trial. The Court agrees with plaintiff that those costs ($2,500) should be assessed against Mr. Failon.
*6 Mr. Failon further contests $1,650 in fees charged by Mr. Persinger for time he spent witnessing defendants' forensic examination firm image the computers that Mr. Failon used while employed by Compass. (Defs.' Ex. B at 3.) For the same reasons stated above, these costs are attributable solely to Mr. Failon's actions. Mr. Persinger testified that witnessing the imaging of the two computers aided him in determining that the laptop computer had no “bad sectors” when Mr. Failon ordered it wiped—despite Mr. Failon's claims to the contrary—a point of contention that grew into an issue addressed in the R&R. Also, as the invoices reflect, Mr. Persinger's attendance at the imaging of the two computers preceded by two days the filing of the spoliation motion. At this point, the parties were fully engaged in what would prove to be a time-consuming spoliation battle. Because Mr. Persinger's attendance at the imaging process of the two computers was relevant to the motion for spoliation sanctions, the costs incurred by plaintiff for his services ($1,650) should be assessed against Mr. Failon.
Mr. Failon also contests the $1,718.75 in costs incurred by plaintiff due to Mr. Persinger's involvement in this case throughout November 2010. (Defs.' Ex. B at 4.) By that time, the motion for spoliation sanctions had been filed, based on the information that plaintiff had discovered to date. But, once Mr. Failon revealed that he had concealed and lied about the existence of the thumb drive that he refused to produce during discovery, plaintiff asserts that it became aware of facts not addressed by the motion–that additional spoliation could have taken place through the use of the thumb drive. All of the work performed by Mr. Persinger and billed to plaintiff during November 2010 related to a full examination of both an image and the actual thumb drive. While the Court adopted the undersigned's recommendation that monetary sanctions should derive from Mr. Failon's actions regarding the laptop computer, the concealment of the thumb drive played a major role in the Court's disbelief of Mr. Failon's explanations for his actions and its conclusion that he bore a pre-suit duty to preserve evidence that he breached. Further, as with the desktop computer, the District Court will allow introduction of evidence surrounding Mr. Failon's concealment of the thumb drive, which was instrumental to showing his bad faith. The circumstances concerning such concealment would have never been revealed but for Mr. Persinger's close analyses and the resultant costs incurred by plaintiff. Therefore, these costs ($1,718.75) were directly associated with plaintiff's spoliation motion and should be awarded.[3]
*7 Finally, Mr. Failon contests $3,437.50 in costs incurred by plaintiff as a result of Mr. Persinger's deposition (on December 13, 2010) and his appearance at the first day of the hearing (December 29, 2010). (Defs.' Ex. B at 5.) Mr. Persinger's deposition concerned topics other than the spoliation motion. But, the transcript reveals that a significant portion of that deposition related to Mr. Persinger's detailed examinations of the computers and storage devices that Mr. Failon used while employed by Compass, obviously with the pending spoliation motion in mind. Again, simply because Mr. Persinger's deposition involved topics other than those directly associated with the spoliation motion does not mean that the costs incurred for his time spent attending the deposition should be disregarded. Additionally, the mere fact that Mr. Persinger did not testify at the first day of the hearing on December 29, 2010, does not mean that his presence that day was not directly associated with plaintiff's motion. Plaintiff represents that Mr. Persinger attended the first day of the hearing in case he was called to testify. Neither plaintiff nor defendants knew how long direct and cross examinations would take or when Mr. Persinger might be called, and his presence at the hearing was undisputedly directly associated with the spoliation motion. When he eventually testified on the second day of the hearing, Mr. Persinger successfully rebutted and exposed untruths in Mr. Failon's testimony. But because Mr. Persinger's attendance at the first day of the hearing was directly associated with the motion, and necessary and reasonable to ensure his presence were he called, the Court should award plaintiff the fees and costs sought ($3,437.50).
For the reasons explained above, the undersigned also recommends that plaintiff be awarded $9,715 in attorneys' fees that it seeks for its lawyer's work related to Mr. Persinger. Mr. Failon does not assert that those fees and costs are unreasonable, and as plaintiff has shown, those fees and costs were directly associated with, and were incurred in bringing the motion for spoliation sanctions on which plaintiff prevailed.
(2) Mr. James Vaughn
In his second specific objection, Mr. Failon argues that the Court should disallow $4,518 in fees and expenses incurred when plaintiff's counsel took the deposition of his computer expert, Mr. James Vaughn. (Defs.' Resp. 6.)[4] Mr. Failon asserts that he retained Mr. Vaughn solely to rebut Mr. Persinger's expert opinions (which he argues were broader than the Motion for Spoliation Sanctions and go to the ultimate merits of plaintiff's claims relating to the alleged misappropriation of confidential information). Moreover, Mr. Vaughn successfully rebutted the testimony of Mr. Persinger as to the second thumb drive, which this Court noted. Mr. Failon argues that plaintiff should not be reimbursed for taking the deposition of a successful rebuttal witness. Thus, Mr. Failon asks the Court to disallow $3,633 in attorneys' fees incurred by plaintiff because the hours billed were not directly related to the spoliation issue. (Id. at 7; see also Defs.' Resp Ex. A [237-1], identifying disputed attorney hours with “V” notation.)
Although Mr. Vaughn's deposition may have referenced other matters than plaintiff's spoliation motion, a review of the deposition transcript reveals that the majority of the deposition revolved around Mr. Vaughn's competing evaluation and conclusions regarding the computer devices that Mr. Failon used while employed by Compass. As shown above, all of these devices, whether spoliated or not, played a role in the Court's ultimate decision to recommend sanctions. Thus, Mr. Vaughn's deposition was necessary to, and directly associated with, the full factual circumstances surrounding plaintiff's motion, and the fees and costs incurred by plaintiff relative to taking his deposition should be assessed against Failon–with one exception. Mr. Failon contends that Mr. Vaughn's travel expenses ($885.68) should not be assessed against him because plaintiff had agreed to pay (and did pay) them in lieu of taking Mr. Vaughn's deposition by telephone or video conference. (Defs.' Resp. 7.) Plaintiff does not rebut this contention in its Reply Brief. Because it appears that these travel expenses were incurred for plaintiff's convenience, and would not have been incurred had plaintiff taken the deposition by telephone or video conference, the undersigned recommends that they not be assessed against Mr. Failon.
(3) Mr. Sean O'Donnell
In his third specific objection, Mr. Failon asserts that this Court should disallow attorneys' fees associated with plaintiff's contacts with Mr. Sean O'Donnell, the president of Datacor, Inc. (Defs.' Resp. 7.) According to Mr. Failon, plaintiff first disclosed Mr. O'Donnell on October 1, 2010 as a person with knowledge concerning the operation of Chempax and eChempax, the access that he (Failon) had to these databases, the nature of the reports he accessed, and the security of those databases. (Id.) Mr. Failon then took Mr. O'Donnell's deposition regarding the topics identified by plaintiff, all of which he asserts go to the ultimate merits of plaintiff's claim that he misappropriated confidential information. Mr. Failon argues that there was no discussion during the deposition regarding any alleged spoliation. Thus, Mr. Failon asks the Court to disallow $2,076 in attorneys' fees billed by plaintiff's counsel because the hours expended were not directly related to the spoliation issue. (Id. at 8; see also Defs.' Resp Ex. A [237-1], identifying disputed attorney hours with “O” notation.)[5]
*8 The Court agrees with Mr. Failon that Mr. O'Donnell's deposition transcript does not address spoliation.[6] Plaintiff asserts that it deposed Mr. O'Donnell because it had to show prejudice resulting from the spoliation, and that this Court relied on Mr. O'Donnell's deposition testimony in the R&R. (Pl.'s Reply 10-11 (citing R&R at 10-11 n.9).) This is inaccurate on both points. Plaintiff incurred those costs not in furtherance of its Motion for Spoliation Sanctions, but because defendants elected to depose Mr. O'Donnell. Further, although a small portion of that deposition was read (by defense counsel) at the hearing and included in a footnote in the R&R, that testimony was not material to the R&R and the Court did not rely on it. Thus, the costs incurred by plaintiff ($2,076) in connection with Mr. O'Donnell's deposition were not directly associated with the spoliation motion and should not be assessed against Mr. Failon. In its conclusion, infra, the Court deducts $2,076 from the recommended award of attorneys' fees.
(4) Downward Adjustment Sought
Finally, Mr. Failon's general objection is that plaintiff expended too many hours pursuing the spoliation motion. (Defs.' Resp. 9.) He argues that he never disputed that he wiped the laptop's hard drive, which is the only computer device that was the subject of plaintiff's motion. However, in pursuit of its motion, Mr. Failon asserts that plaintiff investigated the desktop computer, the first (known) thumb drive, and the second (unknown) thumb drive, but the Court ultimately ruled that only the laptop had been spoliated. Thus, Mr. Failon requests a “general downward adjustment” to the costs and fees sought in the application that the Court deems “appropriate.” (Id.)[7]He argues that the issue here was simple, i.e., whether he was on notice of pending or contemplated litigation or should have anticipated litigation at the time he wiped the laptop's hard drive. (Id. at 10.) Given the simplicity of that issue, Mr. Failon argues that plaintiff's demand for $126,797 in attorneys' fees, costs, and expenses is exorbitant, as that sum constitutes twenty-five percent of the $508,601 he has spent to date defending himself in this matter. (Id.)
Plaintiff responds that Mr. Failon's assertions rest on one central mischaracterization of the spoliation proceedings–he was the one who needlessly prolonged and complicated the spoliation issue by his conduct. Plaintiff argues that this attempt to shift blame for the breadth of the spoliation proceedings onto it is “astonishing, to say the least.” (Pl.'s Reply 12.) Plaintiff argues that the spoliation proceedings in this case were prolonged, complicated, and exacerbated not by plaintiff's acts, but rather by Mr. Failon's, and that his initial spoliation, outright refusal to participate in discovery, concealment of the thumb drive on which the bad faith found by the Court hinged, and his unwavering propensity to prevaricate, caused the fees and costs about which he now complains. (Id.) Plaintiff asserts that it did not choose this course of action–Mr. Failon did. Compass argues that it simply pursued the bad faith that eventually revealed itself once Mr. Persinger exposed Mr. Failon's acts and Mr. Failon realized that he could no longer hide that which he concealed for so long. (Id. at 12-15.)
*9 The undersigned agrees that Mr. Failon should be held responsible for his actions, which were the cause of these extensive spoliation proceedings. The Court disagrees with Mr. Failon's assertion that the issues here were simple–it took 84 pages in the R&R to explain the facts and the law. Moreover, plaintiff's fee request is not exorbitant, given the unnecessary work which Mr. Failon's actions forced plaintiff's lawyers to do. Plaintiff bore the burden of proving spoliation, which required the hiring of an expert and the deposition of Mr. Failon's expert, as well as tracking down and deposing people like Elijah Lorenz. Plaintiff should not be penalized for the unfortunate circumstance of pursuing an opponent who refused to be pinned down until there was no alternative. Further, the documentation submitted in support of the fee application shows that plaintiff's counsel closely tailored the work related to the spoliation motion and billed plaintiff efficiently and below prevailing market rates, only requesting fees and costs incurred (1) as a direct result of Mr. Failon's acts and (2) when necessary to prevail.
Finally, the undersigned cannot simply make a downward adjustment in a fee application absent some specific showing by Mr. Failon that plaintiff's attorneys billed hours that were excessive, redundant, or unnecessary. Norman, 836 F.3d at 1301-02. His general arguments do not satisfy that standard. Moreover, the fact that the fees and costs sought here total about twenty-five percent of what Mr. Failon has spend defending himself is immaterial. Had he not engaged in spoliation, Mr. Failon could have saved himself the fees assessed here and those he paid his own lawyers.
III. CONCLUSION
For the reasons explained above, the undersigned RECOMMENDS that attorneys' fees, travel expenses, and expert fees and costs in the amount of $123,835.95 be awarded to plaintiff. This sum is allocated as follows:
attorneys' fees
$ 109,001.41
travel costs ($897.65 + $205.64)
$ 1,103.29
expert fees and costs
$ 13,731.25
Total
$ 123,835.95
Given that the District Court referred this matter to the undersigned for a recommendation concerning only the amount of fees and costs to assess, defendants' request that imposition of this sanction be deferred until conclusion of a trial on the merits (where it could be added to a final judgment or offset against attorneys' fees and costs defendants may receive) is outside the scope of the referral. Defendants may make an argument against immediate imposition of any sanction to the District Court.
The Clerk is DIRECTED to terminate the reference to the Magistrate Judge.
SO RECOMMENDED, this 4th day of May, 2011.
ORDER FOR SERVICE OF FINAL REPORT AND RECOMMENDATION
Let this Final Report and Recommendation of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and the Court's Local Rule 72.1B, be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Final Report and Recommendation within fourteen days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error(s) made (including reference by page number to any transcripts if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the District Court. If no objections are filed, the Final Report and Recommendation may be adopted as the opinion and order of the District Court, and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
The Clerk is directed to submit the Final Report and Recommendation with objections, if any, to the District Court after expiration of the above time period.
SO ORDERED, this 4th day of May, 2011.

Footnotes

Because the reason for fee-shifting in this case is punitive, serving the dual purpose of vindicating judicial authority and making plaintiff whole for expenses caused by the actions of Mr. Failon, all twelve factors may not be applicable. See Chambers v. NASCO, Inc., 501 U.S. 32, 46, 53-54 (1991).
Redundant hours typically occur when more than one attorney represents a client. Norman, 836 F.2d at 1301-02. Under those circumstances, multiple attorneys may be compensated if they are not unreasonably doing the same work and are each being compensated for his or her distinct contribution. Id. at 1302.
This recommendation negates Mr. Failon's more general objection that the fees and costs incurred in the preparation of Mr. Persinger's “Addendum and Supplemental Report,” which concerns the thumb drive, were not directly associated with the motion for spoliation sanctions. (Defs.' Resp. 4-5.) Once Mr. Failon disclosed the thumb drive, and Mr. Persinger inspected it, certain files were found in its unallocated space that plaintiff assessed for evidence of its allegations. But merely because the deleted files found in the unallocated space of the thumb drive may have touched on the merits of plaintiff's action does not mean that costs associated with Mr. Persinger's involvement with that thumb drive must be stricken as unrelated to the spoliation motion. Rather, as shown above, inspection of the thumb drive and revelation of the facts concerning Mr. Failon's concealment of it, formed the bedrock of the undersigned's recommendation to sanction defendants. The Court agrees with plaintiff that to cast the thumb drive off as irrelevant merely because Mr. Failon never spoliated it misses the point. The thumb drive bore crucial relevance to the spoliation motion because Mr. Failon concealed it throughout discovery, and his repeated lies about its existence and use, revealed his indisputable bad faith—an element necessary to justify the spoliation sanctions that the undersigned recommended (and the District Court awarded). At this point, the materiality of the thumb drive that Mr. Failon repeatedly and wrongfully concealed lies beyond question. Mr. Persinger was instrumental in bringing the thumb drive to light, and the costs incurred by plaintiff as a result of Mr. Persinger's work with the thumb drive should be assessed against Mr. Failon.
Per defendants' calculations, this sum consists of $3,633 in attorneys' fees and $885 in costs related to Mr. Vaughn's travel to Atlanta. (Defs.' Resp. 7.)
Mr. Failon concedes that, while the parties utilized the testimony of Messrs. Persinger, Vaughn, and O'Donnell at the hearing, he asserts that plaintiff's fee application is over-inclusive and does not break down the work that was “directly” associated with the Motion for Spoliation Sanctions, as opposed to the work that was related to proving plaintiff's underlying claims for misappropriation of confidential information. (Defs.' Resp. 8.)
Counsel for plaintiff (with notice to defendants' counsel) provided the Court via email with a .pdf-format copy of Mr. O'Donnell's deposition transcript. This was more efficient than having the certified original [195] mailed to Rome from the Clerk's Office in Atlanta.
The attorneys' fees that Mr. Failon seeks to disallow in his specific objections total $15,424 ($9,715 (related to Persinger) + $3,633 (related to Vaughn) + $2,076 (related to O'Donnell)). The travel expenses and expert fees and costs that Mr. Failon seeks to disallow in his specific objections total $10,191 ($885 (Vaughn) + $9,306 (Persinger)). The specific objections thus total $25,615 ($15,424 + $10,191). Were the Court to accept the specific objections outlined by Mr. Failon, the total sought by plaintiff would be reduced to $101,182 ($126,797 – $25,615). In order to reach the sanction award that Mr. Failon deems appropriate (i.e., $60,000), the Court would have to perform a “general downward adjustment” of $41,182 ($101,182 – $60,000) to plaintiff's fee application, or a reduction of about forty-one percent.