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The Delaware Court's post-trial opinion began: "Most typically, under the American Rule, each party must bear its own litigation expenses, including counsel fees. This court has the discretion, however, to shift litigation expenses, in whole or part, when a party to the litigation has engaged in bad faith litigation conduct."
But -as most attorneys know - presenting clear evidence of bad faith conduct and being successfully awarded litigation expenses, such as attorney's fees and expert fees, is a rarity. Far more often, unless secured with a contractual "prevailing party" clause or other such mechanism, each party simply bears their own expenses.
Atlantic Data Forensics, Inc. (Atlantic) was retained in this case to answer some straightforward but pivotal questions. Were certain stakeholder documents that, in essence, proved who owned a multi-million dollar winery in Europe authentic? And could the individuals vouching for them be trusted? Atlantic Data Forensics launched an investigation by:
- Remote-collecting and analyzing hundreds of emails’ internet protocol (IP) addresses;
- Extracting dynamic email header information, and performing sender & IP cross-referencing;
- Examining relevant documents’ internal temporal and “producer” metadata;
- Performing IP lookups, geolocation mapping, and open-source intelligence gathering on relevant internet service providers (ISPs);
- Providing written and oral context on Regional Internet Registries, ASNs, email domains and mail services, and static and dynamic IP addresses and ranges;
- Identifying emails originating from location- and identity-cloaking Tor nodes;
- Drafting and submitting a formal forensic report that was instrumental in securing an adverse inference;
- Testifying compellingly using tailored visual aids in the Delaware Court of Chancery.
After summarizing the testimony of Jason Briody - Director of Forensic Services at Atlantic - across multiple pages in the Court's post-trial opinion, the Honorable Judge Slights stated, "In this case, I am satisfied that [Plaintiff] has presented 'clear evidence' that [Defendant] engaged in subjective bad faith conduct prior to and during the litigation. [Plaintiff] is entitled to litigation expense-shifting."
"But for [Defendant's] bad faith and meritless reliance on the sham documents," - the sham documents analyzed, reported, and opined upon by Atlantic prior to and during the two-day trial - "and his other subjective bad faith litigation conduct, [Plaintiff] would have avoided substantial litigation expenses."
"In this case," the Court concluded, "[Defendant] will pay two-thirds of [Plaintiff's] counsel's fees and expenses. [Defendant] will pay all of [Atlantic Data Forensics'] fees and expenses."
"It’s a real win for the party that retained us," Atlantic's Jason Briody said. "We're pleased to have participated, once again, as digital forensic expert witnesses. Being faced with tough questions, but defensibly extracting and convincingly communicating evidence to laypeople - that's where we excel as a company. It's truly what we're best at."
About Atlantic Data Forensics, Inc.
Atlantic Data Forensics, Inc. (Atlantic) is a Maryland-based consultancy with satellite offices in Michigan and Colorado. Atlantic provides Digital Forensic, E-Discovery, Cybercrime Response, and Expert Witness services to commercial, educational, and governmental clients.
Featuring experts who have responded to PCI and HIPAA data breaches; trained hundreds of FBI Special Agents in computer crime investigations; lead the electronic side of raids with the U.S. Marshals service; investigated industrial espionage, employment, and intellectual property theft; and testified as experts retained by both the prosecution and defense on multiple homicides, Atlantic is a true leader in the field.
To learn more about Atlantic Data Forensics, please speak with one of our experts at (410) 540-9000, or email us at experts@Atlanticdf.com www.Atlanticdf.com