*1 This cause came on for consideration without oral argument on the following motion filed herein:

Plaintiff Pacific Coast Marine Windshields Limited (“PCMW”), brought consolidated actions against defendants Malibu Boats, LLC (“Malibu”) and Tressmark, Inc. (“Tressmark”), Marine Hardware, Inc. (“Marine Hardware”), MH Windows, LLC, and their owner John F. Pugh alleging infringement of U.S. Patent Nos. D555,070 (“the ′070 Patent”); 7,418,917 (“the ′917 Patent”); and 7,441,510 (“the ′510 Patent”); infringement of copyrights; and misappropriation of trade secrets. Defendants denied each of PCMW's claims, with Malibu asserting counterclaims against PCMW and Darren Bach for conversion of its ownership interest in the ′070 patent, breach of warranty, and unfair competition[1].

PCMW now seeks sanctions, including striking Malibu's Answer and Counterclaims, and barring the offending individual from testifying at trial, arising out of production of altered hard-drives that contained relevant files with incorrect creation dates in 2002. Following receipt of relevant files with incorrect creation dates as belatedly produced by Malibu from one of its independent contractors who provided computer-aided design (“CAD”) services—Neil Gilbert, PCMW filed a motion to compel production of Gilbert's hard drives. This date discrepancy—2002 creation date on a file admittedly not created before 2005 (if then)—in the produced CAD files led PCMW yo file a motion to compel inspection of Gilbert's computer, which the Court granted on June 7, 2012. Doc. 175. The Court's order required Malibu to produce Gilbert's computer and related documents by June 17, 2012 or Gilbert would not be allowed to testify at trial. Doc. 175. The Order was appealed by Malibu; District Judge Antoon affirmed the ruling for Malibu to turn over Gilbert's hard drives.

PCMW, having now received and reviewed the Gilbert computer, from which files were undisputedly deleted the day before the court-ordered production of Gilbert's hard drives, moves for sanctions, including the prohibiting Gilbert from testifying at trial, striking Malibu's Answer and Counterclaims, and monetary sanctions. Doc. 273. Malibu does not dispute that Gilbert used the CCleaner application on the computer prior to the inspection; however Malibu contends that it did not condone the conduct, had no advance knowledge of it, would have prevented such conduct if it had known, and argues that it is unfair to sanction Malibu for the independent actions of Gilbert when his actions disregarded the plain instructions conveyed to Gilbert's counsel for Gilbert to deliver the computer in an “unaltered” state. Doc. 294.

*2 PCMW manufactures windshields for recreational boats; Darren Bach is PCMW's owner and chief executive officer. PCMW and Bach have been in the business of designing and manufacturing boat windshields since 1989. In 2005, a new ornamental design was developed for a ski boat windshield, which incorporated several innovations in the windshield frame. The U.S. Patent Trademark Office issued the ′070 Patent and the ′510 Patent to Bach, as the sole inventor, and the patents were subsequently assigned to PCMW. PCMW began production of the windshield in the spring of 2006 and began supplying two hundred windshields per month to Malibu.

Malibu contends via counterclaims that its designer, Dan Gasper, is a co-inventor of the asserted windshield design and utility patents based on an automotive-style, corner-post marine windshield that Gasper conceived for use on boats in 2004 while viewing the Shelby Cobra Concept Car at a 2004 car show. Gasper subsequently mentioned the design to Darren Bach, in late September 2005, during a brainstorming session during a car ride. Malibu contends that it developed certain CAD drawings illustrating the design it wished PCMW to build in October 2005, when Gasper, with the assistance of Neil Gilbert, a contract computer aided design (“CAD”) software operator, at Gasper's direction, began designing a marine windshield. They allegedly refined their design by adding side wings, refining the glass shape, and adding vent holes to the corner posts. Malibu contends that Gasper and Bach discussed patenting the windshield design, however, when the ′070 patent application was filed three months later, Bach was listed as the sole inventor and Gasper was not listed on the ′ 070 patent.

During late 2006 and early 2007 Malibu began obtaining marine windshields from Marine Hardware. In 2007, Bach learned of Malibu's plan to put the Marine Hardware windshields on its boats; Bach contacted Malibu, notifying the company of the ′070 Patent and Malibu's need to obtain a license. Malibu began including Marine Hardware's windshields as part of its boats in 2008 without PCMW's permission. This litigation subsequently ensued.

At the heart of the instant dispute over the ′070 and ′510 patents are metadata and the contents of CAD files[3] from Neil Gilbert's computer. Malibu contends that the November 18, 2005 email from Gasper to Bach containing renderings of the boat design establish a date by which certain CAD files were completed because, Malibu argues, these files had to be completed before they could be emailed to someone else. On March 22, 2012, Malibu produced two CAD files with similar corner posts and boat windshield images that it had belatedly received from Neil Gilbert; the files were named “cornerholes.prt” and “windowtowercomp-c-holes.prt” and showed creation dates of November 2002. Doc. 166–1. Gilbert testified at his deposition two months later on May 15, 2012[4] that he had emailed the second CAD file to Gasper in November 2005, but the email was lost when his computer crashed in 2006. Doc. 275–2, Gilbert Dep. at 139. Gilbert explained that he did not produce the CAD files initially, and waited until March 2012, because Gasper did not ask for the design files, only for emails. Doc. 275–2, Gilbert Dep. at 142–43.

*3 It is undisputed that the dates in the metadata of the CAD files were wrong, reflecting a creation date of November 2002, though Gilbert's testimony is that they are from 2005. At his deposition, Gilbert was questioned extensively about the origin of the CAD files. Gilbert explained that all of his emails disappeared from the relevant time period (which would be relevant to Malibu's claim of co-inventorship) because he had a catastrophic computer failure. Doc. 275–2, Gilbert Dep. at 139. Malibu has produced emails allegedly sent by Gilbert to Gasper from the relevant time period in 2005.

Pursuant to Federal Rule of Civil Procedure 37(b), permissible sanctions are: (I) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed.R.Civ.P. 37(b)(2)(A). District courts have “broad discretion” in determining the appropriate sanction for the violation of discovery orders. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir.2005).

As Judge Jenkins of this District has observed in weighing the factors addressing spoliation sanctions:

*4 Southeastern Mechanical Servs., Inc. v. Brody, 657 F.Supp.2d 1293, 1300 (M.D.Fla.2009). The concern about the missing evidence comes into play, however, only when a party's misconduct prevents its adversary from learning the contents, and hence the relevance, of the spoliated evidence.

The spoliation doctrine is concerned not only with rectifying prejudice, but with deterring similar misconduct in the future. Collazo–Santiago, 149 F.3d at 29. Where the misconduct violates a court's order granting a motion to compel under Rule 37(a), it is punishable under Rule 37(b)(2)(A), which also does not treat prejudice to the adverse party as essential to the imposition of sanctions. See, e.g., Rockwood v. SKF USA Inc., No. 08–cv–168, 2010 WL 3860414 (D.N.H. Sept.30, 2012) (citing Malloy v. WM Speciality Mortg. LLC, 512 F.3d 23, 27 (1st Cir.2008)). Rule 37(b)(2)(A) authorizes the court to “issue further just orders” if a party violates an order to permit or provide discovery, including a number of specified sanctions. Though drawing an adverse inference against the offending party is not among them, the list is non-exhaustive, see, e.g., Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 177 (2d Cir.2008), and appellate courts have upheld drawing an adverse inference against a party for disobeying a discovery order. See, e.g., United States v. Palmer, 956 F.2d 3, 4 (1st Cir.1992).

IV. ANALYSIS

PCMW argues that the “windowtowercomp-c-holes.prt” CAD file and other electronically stored information on Gilbert's hard drives is critical to Malibu's inventorship challenge to the ′070 and ′510 patents as well as Malibu's defense of the claims for copyright infringement and trade secrets misappropriation. PCMW argues that, since the production of the Gilbert files, Defendants have relied heavily upon the named “windowtowercomp-c-holes.prt” CAD file and emails exchanged between Gilbert and Gasper (in October and November 2005) to establish Malibu's inventorship claim. Doc. 273 at 11 (citing Doc. 205 at 9 (relying on image of Gilbert file to oppose PCMW's motion for summary judgment on inventorship) & Doc. 211 at 10–11 (relying on image of Gilbert file to in defendants' motion for summary judgment on inventorship). PCMW argues that the emails at issue attached images of boats with windshields, which were allegedly created by Gilbert; however, Gasper had previously testified at his deposition that the CAD file from which the images were created could not be located by Gilbert in responding to PCMW's discovery. PCMW also contends that the CAD file from which the images were created is important in that it reveals details and information that are not otherwise evident from the JPEG files attached to the emails, explaining that the JPEG files are merely pictures of the windshield design, whereas a CAD file contains details such as critical tolerances and extrusion profiles necessary for the actual manufacture of the windshield. Doc. 273 at 16 & n. 9. Gilbert's computer hard drives and the CAD files stored on them are of particularly high evidentiary value in this case, PCMW argues, given Defendants' reliance on CAD files and other electronic information created and stored on Gilbert's computer to support the Gasper/Malibu co-inventorship claim[5]. See Doc. 273 at 16.

*5 PCMW argues that Gilbert is an “agent” and as a long-term contractor for Malibu—Gilbert's largest customer—Malibu had control over his actions. Malibu contends (for a second time) that it does not bear any responsibility for Gilbert's actions and it should not be sanctioned.

Control may be inferred, even when a party does not have possession or ownership of the evidence, “when that party has the right, authority, or practical ability to obtain [the evidence] from a non-party to the action.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D.Md.2010). The discrepancy in the creation date for the two belatedly-produced CAD files originally led to PCMW's Motion to Compel inspection of Gilbert's computer. When the Court granted the Motion on June 7, 2012 after hearing argument on the issue, Malibu was in effect ordered to exercise “its authority or practical ability” to have Gilbert produce his hard drive (and related documents), or, to Malibu's detriment, Gilbert would not be allowed to testify at trial. Doc. 175.

Malibu filed an objection/appeal to the portion of the Order requiring Malibu to produce the Gilbert hard drive, arguing that it was not in “the possession, custody, or control” of Malibu, but instead was in Gilbert's exclusive possession[6] and he was outside the Court's jurisdiction. Doc. 193. Malibu argued that the admissibility of Gilbert's testimony was an issue that should be determined by the Court at trial, “with the benefit of the full record concerning Defendants' compliance with the June 7 Order and the probative value of any Gilbert CAD files and testimony in the context of the parties' positions asserted, and evidence proffered, at trial” because “Defendants believe that there is no genuine dispute as to the creation dates of these Gilbert CAD files.” Presiding District Judge Antoon reviewed the June 7, 2012 Order and affirmed it; thus, the issues raised by Malibu pertaining to its lack of “custody and control” over Gilbert's CAD files on his computer were considered and rejected. Doc. 201. The end result is that, at least as to Gilbert's work on this particular computer-aided design of the corner-post windshield project in dispute, Malibu exercised adequate “authority or practical ability” to obtain Gilbert's compliance in producing the computer. However, despite the reported admonitions[7] by Malibu's counsel to deliver the computer in an unaltered state, Gilbert chose to run a file deletion program the night before producing the computer.

Malibu's counsel represents that, immediately after entry of the Court's June 7 Order, Malibu's counsel contacted Gilbert's counsel to advise him of the order and to coordinate the delivery of Gilbert's computer for inspection. Malibu's counsel specifically advised Gilbert's counsel of the importance of complying with the order and emphasized that the computer must be delivered for inspection in an unaltered state. Doc. 295. Over the ensuing weeks, counsel for the parties discussed the logistics for the inspection of the computer hard drives, the protocol for the inspection, the location for the inspection, and agreed to the inspection date, July 19, 2012. Doc. 295, Berliner Decl.

*6 Apparently in spite of the admonition to Gilbert that his computer must be delivered in an unaltered state, it is undisputed that Gilbert ran a file-deletion or “computer cleaning/wiping” program named “CCleaner” the night before delivering his computer for inspection. See Doc. 274–2, Forensic Analysis of Nigel Holmes of TCS Forensics. CCleaner is an anti-forensic software application that can be configured to securely delete or even wipe data within the computer hard drive and permanently remove evidence of the deletion even occurring. Doc. 274–2. It is also undisputed that due to the nature and design of CCleaner, the experts have not been able to determine exactly what data was deleted; however, Malibu's forensic computer expert, Samuel Rubin, opines that some of the files “are still forensically recoverable and available for inspection.” Doc. 296. Mr. Rubin argues CCleaner was used to “delete certain operating system and application-specific files and settings; however, it was not used to ‘wipe’ this information, and he was able to identify categories of files “targeted” by the software; then “by parsing certain backups available on the forensic image called ‘volume shadow copies,’ [he] was able analyze multiple different versions of every category of information targeted by CCleaner for 10 different periods in time dating back to June 15, 2012.” Doc. 296 at 5. He opines that CCleaner was not used to selectively wipe or delete any user-created files or folders including “windowtowercomp-c-holes.prt” and “cornerholes. prt” because, using the recovery system he described, he found four copies of these files, none of which had been affected by the operation of CCleaner. Doc. 296 at 5.

Mr. Rubin opines, based on a review of Gilbert's Internet browsing history (to personal, non-work related websites, including Facebook and YouTube) that he was able to recover, that Gilbert, like other individuals in Mr. Rubin's experience, took steps to delete or “clean” information from the computer that was personal, and thus, Mr. Rubin suggests, Gilbert's use of CCleaner in this case most likely would have deleted such personal web browsing history. Doc. 296 at 5–6. Without actually recovering the files that were deleted, Mr. Rubin's opinion on what or why items were deleted is nothing more than pure speculation. Regardless, there is no dispute between the experts that Gilbert running CCleaner manually was intentional.

Mr. Holmes noted other indicia of computer expertise consistent with Gilbert's manual execution of CCleaner to intentionally delete files from the hard drives. Although the hard drives Mr. Holmes examined were from the work station Gilbert used on a regular basis for his design work for Malibu and the expert would normally expect them to contain a list of files recently accessed by Gilbert in the registry portion of Gilbert's computer, the registry, Holmes examined was empty and the deletion of data normally populated in this registry is a specific function of CCleaner. Based on these findings coupled with the destructive nature of the application CCleaner, Mr. Holmes opined that data that would otherwise assist in a forensic investigation is missing or deleted due to Gilbert's deliberate execution of CCleaner. Doc. 274–2 at 20–21.

*7 Further investigation by Mr. Holmes indicates that the execution of CCleaner the night before Gilbert's producing the computer for inspection was not innocent or accidental. The expert was asked to identify the original file creation date and time stamps of various CAD files because Gilbert had stated at his deposition that there had been a computer hard drive crash in the past that ultimately affected the date and time stamps for the creation date of the CAD files in dispute; thus, an in-depth investigation was conducted of the metadata associated to verify the actual file creation date, which Mr. Holmes ultimately could not obtain—since the file created time found was June 13, 2010 but the modified date was January 14, 2002—Mr. Holmes' opined that Gilbert's explanation for the 2002 last modified dates on his files (due to hard drive crashes in 2004 and 2006[8]) was not supported by the evidence. Doc. 274–2. Mr. Holmes also determined that Gilbert's hard drive contained applications and files that had indications they were copied without authorization from DVD's or the internet, using software “cracks” and software “keygens”—commonly used to bypass, or circumvent software protection mechanisms the software vender may have put in place to protect their software against wrongful duplication or piracy[9]. Doc. 274–2. Mr. Holmes opines:

Due to the nature and design of CCleaner, it is not possible to determine what data was deleted. But since the program was run the night before the computer was to be produced and forensically preserved, and given the destructive nature of the application CCleaner, it is our opinion that data that would otherwise assist in a forensic investigation and/or evidence that could be used at trial is missing or deleted.

Doc. 274–2 at 23 (emphasis added). All of this evidence indicates to the Court that Gilbert has a high level of sophistication and familiarity with software and computer technology, and the running of CCleaner would not have been an accidental or negligent execution of the computer cleaning software program, but a deliberate act in defiance of the Court's order.

PCMW argues that Gilbert's use of CCleaner to permanently destroy data and evidence stored on Gilbert's hard drives after the Court ordered the production of those hard drives was a blatant violation of the Court's previous order to produce the hard drives and is sanctionable pursuant to Rule 37(b)(2). PCMW contends that the appropriate sanction is to strike Malibu's Answer and Counterclaims which would punish Malibu, and deter others from similar misconduct as well as remedy the prejudice to PCMW. PCMW argues that Gilbert's egregious conduct is deserving of harsh sanctions in light of Malibu's strong resistance to PCMW's efforts to obtain the Gilbert discovery, after Malibu's late and suspicious production of the Gilbert CAD files with the obviously false 2002 dates and Gasper's testimony that: (1) all relevant computer files had been produced in the case as of June 2011, and he knew of no other relevant files; and (2) he had already asked for and received from Gilbert “everything” he had related to the corner post windshield project. Malibu, PCMW argues, should not be allowed to rely upon the belatedly-produced Gilbert files to corroborate its co-inventorship theory. Doc. 273. PCMW also points to Malibu's additional two-week delay, even after PCMW successfully obtained an order from the Court compelling the Gilbert discovery, as further evidence that Malibu intended to give Gilbert more time to execute the anti-forensics program. PCMW contends that other courts have entered a default or dismissed claims under similar circumstances of such egregious conduct.

*8 Malibu does not dispute that Gilbert used CCleaner to manually delete unspecified files. However, Malibu argues that PCMW's Sanctions Motion mischaracterizes the facts, and bases its arguments on a forensic investigation that was grossly deficient in failing to recognize that the purportedly deleted files were all recoverable. Malibu argues that PCMW has not been harmed, spoliation sanctions are not warranted, and PCMW's proposed sanctions are vastly overreaching. Malibu argues that it took extraordinary steps to comply with the court order, and the actions complained of in PCMW's Motion were outside of Malibu's control since Gilbert was an independent contractor-third-party witness and Malibu had specifically advised Gilbert of the importance of complying with the Court's order by delivering the hard drive in an unaltered state[10], and to penalize Malibu for the independent actions of a third party witness would be grossly unfair and unjustified. Doc. 294.

Malibu argues that PCMW “wildly overstates” Gilbert's destruction of evidence and offers a highly misleading description of the facts because the files on Gilbert's hard drive were not permanently deleted and Malibu's forensic expert was “able to restore the files without difficulty.” Thus, Malibu argues, it is inexplicable why PCMW's forensic expert was unable to do the same or failed to acknowledge an ability to do so; in addition, the forensic examination shows that the deleted files were “all minor operating system files” having nothing to do with the CAD files, therefore, PCMW has suffered no prejudice to justify its demands for sanctions, and it is nothing more than a tactical move for “an admittedly improper yet ultimately insignificant action” committed by Gilbert.

The appropriate remedy in this case is more challenging to determine than in other cases because the spoliator in this case, Gilbert, is a non-party, independent contractor for Malibu, and not within the Court's jurisdiction. Nonetheless, it is Malibu who benefits from the lack of any adverse creation dates (post-November 2005) or other negative metadata on any of the CAD files that PCMW's expert might have found, had files not been deleted. Initially, the creation date of the CAD files produced was the obviously incorrect date of 2002. Once Malibu was ordered to produce Gilbert's hard drives or lose his testimony as a witness, Malibu was able to obtain Gilbert's hard drives.

Malibu now contends that it should not be sanctioned because, according to Malibu's expert, the deleted files were recoverable—albeit with a good deal of effort “parsing certain backups from the volume shadow copies,” and “analyzing multiple different versions of every category of information targeted by CCleaner for 10 different periods in time dating back to June 15, 2012.” Doc. 296 at 5. The Court is not confident in this somewhat haphazard methodology. PCMW's expert maintains it is not possible to tell what was deleted and therefore he did not recover it.

*9 The Court agrees with PCMW's position that simply because the deleted data might possibly be recoverable through a costly and time consuming forensic investigation, this does negate Gilbert's willful deletion of the ESI. PCMW argues that to find otherwise would allow unscrupulous litigants to always choose the destruction of potentially damaging ESI over producing it, and then argue “no harm, no foul” when the destruction is revealed but the ESI can be recovered. In this case—whether or not the ESI can be recovered—sanctions are warranted to deter others, particularly here where the true creation date and accurate metadata of the CAD files could have assisted PCMW in proving its case.

In the very recent case of Rockwood v. SKF USA Inc., the court was faced with a similar set of facts where a plaintiff deleted a number of documents two days after he was ordered to produce his laptop for the defendant to mirror-image the hard drive, and the plaintiff claimed he did it to prevent the defendant from accessing his personal information. No. 08–cv–168, 2010 WL 3860414 (D.N.H. Sept.30, 2012). The court found that plaintiff had other, legitimate means at his disposal to protect his personal information, such as asking the defendant to restrict the list of keywords used to search the hard drive so as to avoid encountering those files, or seeking a protective order from the court pursuant to Federal Rule of Civil Procedure 26; the court also discounted plaintiff's claim as “difficult to accept in light of the fact that many of the deleted files were business-related” and not personal. Id. Although the court ultimately found that defendant had not been prejudiced because it had already received paper copies of the deleted documents, the district judge sanctioned the plaintiff with an adverse inference against his credibility as a witness if he testified at trial, holding that some level of sanction was necessary, “to serve this court's ‘strong institutional interest in ensuring that litigants honor [its] orders.’ “ Id. (quoting Malloy, 512 F.3d at 27). “Drawing an adverse inference against [the plaintiff] effects that goal while also preserving the judicial preference for the resolution of cases on the merits, rather than by the application of sanctions.” Id. (citing Collazo–Santiago, 149 F.3d at 29).

PCMW cites several additional cases which illustrate the point that deleting files on the eve of producing the hard drive must be sanctioned as a deterrent to others who may contemplate disobeying court orders and destroying evidence, even if when the evidence is recoverable. See, e.g., Connor v. Sun Trust Bank, 546 F.Supp.2d 1360, 1376 (N.D.Ga.2008) (“Plaintiff is prejudiced by Sun Trust's destruction of the February 12 email [which was later recovered] because it raises a question of whether there were other relevant emails in existence at that time but which were also not produced.”); see also NHL v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (“the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent”); see Gratton v. Great Am. Commc'n, 178 F.3d 1373, 1374 (11th Cir.1999) (“Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process”).

*10 One appellate court has emphasized that “because no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions-all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition.” Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). “To preserve the integrity of the judicial process and maintain confidence in the process, it is indispensable that the parties present the fact finder with truthful, accurate, and relevant facts.” Taylor v. Mitre Corp., No. 1:11–cv–1247, 2012 WL 5473715 (E.D.Va. Sept.10, 2012). “As a result of Plaintiff's intentional spoliation of relevant evidence, it would be impossible for this Court to ensure that the most relevant facts were being presented and for Defendant to be sure they were presenting their strongest defense. In fact, it would be impossible for this Court to conclude that the trier of fact were being presented the truth.” Id.

The Court finds that sanctions are required to keep Malibu from benefitting from Gilbert's intentional conduct and to deter others from similar conduct in the future. See Collazo–Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir.1998) (the spoliation doctrine is concerned not only with rectifying prejudice, but with deterring similar misconduct in the future). There is no jury instruction, however, that can effectively protect the victim of a willful spoliation from the prejudice created by willful deletion of files with the manual running of a CCleaner program. See Taylor, 2012 WL 5473715 (granting motion for dismissal with prejudice for plaintiff's destruction of his hard drive and manual running of CCleaner program that deleted 16,000 files). Nor is there a jury instruction that could adequately deter conduct which “amount[s] to an affront to the integrity of the judicial process.” Id.

However, the cases granting dismissal or default judgments against the spoliator uniformly involve actions by the actual party who intentionally sought to benefit directly from the destruction. Taylor, 2012 WL 5473715 (granting motion for dismissal with prejudice for plaintiff's destruction of his hard drive and running of evidence eliminator and CCleaner programs); Gutman v. Klien, No. 03–cv–1570, 2008 WL 4682208, *12 (E.D.N.Y. Oct.15, 2008) (finding that use of a hard drive wiping program “irretrievably deleted computer files that likely contained important discovery information” and may have deprived the aggrieved party of “crucial evidence” sufficient to warrant a default judgment and attorney's fees and costs); Ameriwood Indus., Inc. v. Liberman, No. 4:06–cv–524–DJS, 2007 WL 5110313, *1 (E.D.Mo. July, 3, 2007) (entering default judgment and awarding fees and costs because defendant's intentional use of “Window Washer” scrubbing software “evidence a serious disregard for the judicial process and prejudice plaintiff”); Arista Records, LLC v. Tschirhart, 241 F.R.D. 462, 466 (W.D.Tex.2006) (awarding fees and costs and proposing an order of default judgment against defendant who willfully destroyed evidence by installing data-wiping software); Communications Center, Inc. v. Hewitt, No. 03–1968, 2005 WL 3277983, *2 (E.D.Cal. April 5, 2005) (recommending entry of default against defendant for use of Evidence Eliminator software while under a court order to undergo computer imaging finding it showed a “stark affront to the judicial process”).

*11 Here, considering all of the circumstances, it appears that Gilbert, in belatedly providing the CAD files which had incorrect 2002 creation dates, intended to help Malibu in its co-inventor defense. It further appears that Gilbert, in running the CCleaner program once Malibu was ordered to procure the hard drives from Gilbert, may have acted of his own accord, and in contravention of the reported instruction given by Malibu's counsel, but the Court must assume that the material deleted would have assisted PCMW in either prosecuting its patent infringement claim or in refuting Malibu's co-inventor claim. In this case, PCMW has been deprived of the opportunity to learn the contents of the deleted file, and hence the relevance, of the spoliated evidence through Gilbert's actions. The Court previously concluded that Gilbert was under Malibu's “practical control” with regard to the CAD files he was hired to generate for Malibu, and Malibu remains his single largest customer, representing 40% to 50% of his average income since 2002. Doc. 275–2, Gilbert Dep. at 112–13. However, it is also clear that Gilbert is not under Malibu's complete control, such as an employee would be, and in fact he directly contravened Malibu's directions to deliver the hard drive in an unaltered state. The Court must balance Gilbert's culpability and Malibu's “practical control” over his conduct in determining the appropriate sanctions to impose.

The Court will not strike Malibu's affirmative defenses and counterclaims—which is akin to the extreme sanction of a default or dismissal in this patent dispute—for the conduct of a non-party witness only partially under the control of Malibu. The Court finds that the appropriate sanction as a result of Gilbert's alteration of the hard drives is an expansion of the penalty established in the June 7, 2012 Order for the failure of Malibu to procure them—Gilbert will not be allowed to testify at trial and evidence that originated with him will be excluded. See Fed.R.Civ.P. 37(b)(2)(A)(ii) (sanctions for failing to obey a court order include prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence). Malibu will not be allowed to rely on Gilbert's deposition testimony for summary judgment purposes[11] or at trial, and Malibu will not be allowed to rely on any documents—CAD files, jpegs, or emails, etc.—sent from or to Gilbert that Malibu has produced[12].

Exclusion of the evidence involving Gilbert as a sanction, alone, is insufficient to compensate PCMW, who has needlessly been required to expend attorney's fees and costs on this “electronic discovery debacle” by following up Gilbert's belatedly produced CAD files with the obviously incorrect dates, by taking Gilbert's deposition, and by expending funds for the forensic investigation into Gilbert's altered hard drives. Attorney's fees are to be awarded as a sanction in addition to the other sanctions listed in the Rule where the failure of the party to comply with the Court's order was not substantially justified. Fed.R.Civ.P. 37(b)(2)(C).

*12 If Malibu—recognizing the obvious unreliability of the Gilbert files—had stipulated at an earlier stage of discovery (i.e., March 2012) that the CAD files as produced by Gilbert had creation dates which were clearly incorrect, and the documents were of no evidentiary value, or had agreed to exclude Gilbert's testimony after his deposition when he could not clarify why “2002” dates attached to files allegedly created before his “hard drive crashed in 2006,” this whole costly trip down the rabbit hole might have been avoided. PCMW is entitled to an award of reasonable attorney's fees and the cost of the forensic investigation by Mr. Holmes and his firm. PCMW is also entitled to recover from Malibu the cost of attending Gilbert's deposition in Seattle, Washington.

Accordingly, it is ORDERED that Plaintiff's Motion for Sanctions for Malibu's Destruction of Evidence in Violation of Court's Order (Doc. No. 273) is GRANTED in part and DENIED in part. as set forth above. PCMW is ORDERED to file an affidavit within 10 days setting forth its reasonable attorney's fees and costs; the cost of the forensic investigation by Mr. Holmes and his firm; the costs of attending Gilbert's deposition in Seattle, Washington.

The parties may seek leave to amend their pretrial statement if necessary in light of the ruling herein.

DONE and ORDERED.