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De Simone, who patented the formulation, stepped down as VSL’s CEO in 2014. De Simone must pay VSL’s costs and attorneys’ fees associated with investigating the spoliation of documents and in preparing its related motion for sanctions, Magistrate Judge Timothy J. Sullivan, of the U.S. District Court for the District of Maryland said. The circumstances of this case are “a cause for serious concern,” he said. De Simone retrieved documents from VSL’s long-time law firm, Hyman Phelps & McNamara PC, at time when he was planning his departure from the company. He instructed the firm to destroy its copies of those documents and later destroyed some of the documents sent to him. “De Simone appears to have had little regard for his duty to preserve relevant evidence,” Sullivan said. The ruling should serve as reminder that a party can face sanctions when a court finds the intentional destruction of evidence, even if the court must infer the prejudice to the opponent. The former VSL executive was able to avoid harsher sanctions, such as the dismissal of his claims or facing an adverse inference jury instruction, because the court found that VSL had only been slightly harmed in its ability to prove claims and defense in the case, and there wasn’t evidence of bad faith. By his own admission, De Simone threw the documents away intentionally.

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