Vibra-Tech Engineers, Inc. v.
Kavalek, Slip Copy (2010)
2010 WL 11570354
Only the Westlaw citation is currently available.
United States District Court,
D. New Jersey,
Camden Vicinage.
VIBRA–TECH ENGINEERS, INC., Plaintiff,
v.
Scott KAVALEK, et al., Defendants.
Civil No. 08–2646 (NLH/AMD)
| monetary sanctions against Defendants. The Court has
Signed 08/24/2010
Attorneys and Law Firms
Edward F. Borden, Jr., Charles Patrick Montgomery, Earp
Cohn, PC, Cherry Hill, NJ, John Joseph Master, Jr., Law
Offices of John J. Master, Jr., Haddonfield, NJ, for
Plaintiff.
Alacoque Hinga Nevitt, Michael S. Friedman, Jackson
Lewis LLP, Alexander Nemiroff, Gordon & Rees LLP,
Philadelphia, PA, Stephen J. Labroli, Leonard, Sciolla,
Hutchison, Leonard & Tinari, LLP, Moorestown, NJ,
Andrew John Podolski, Stark and Stark, PC, Princeton,
NJ, for Defendants.
ORDER
ANN MARIE DONIO, UNITED STATES
MAGISTRATE JUDGE
*1 This matter comes before the Court by way of motion
[Doc. No. 110] of Plaintiff, Vibra–Tech Engineers, Inc.,
seeking sanctions for the alleged destruction of evidence
by Defendants Scott Kavalek, Roberta Kavalek,
Integrated Geotechnical Solutions, Inc. (hereinafter,
“IGS”) and Geotech Instruments, Inc. (hereinafter,
“Geotech”).1 Plaintiff specifically requested an adverse
inference instruction, leave to amend the complaint to add
a fraudulent concealment claim, and an award of
attorney’s fees and costs incurred in uncovering the
spoliation, in otherwise proving Scott Kavalek’s
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
involvement with IGS and in filing this motion. The Court
held oral argument on the motion, at which time it
appeared that the parties agreed to a resolution of the
request for a spoliation inference. 2 The Court directed the
parties to submit a supplemental letter advising as to
whether the motion was resolved in part. The parties
subsequently submitted a stipulation, which was entered
by the Court on June 3, 2010, in which they agreed that
certain facts were established for all purposes in this
action. (Stipulation Concerning Evidence Tampering
[Doc. No. 130–1], June 3, 2010.) Consequently, at this
time, the only issue to be resolved is Plaintiff’s request for
considered the submissions of the parties and the
arguments of counsel, and for the reasons that follow,
Plaintiff’s motion for sanctions is granted in part, denied
in part, and dismissed in part as moot.
Plaintiff initiated this action on May 29, 2008 generally
alleging that Defendants Scott and Robert Kavalek
breached employment agreements with Plaintiff and
converted Plaintiff’s property that purportedly resulted in
benefits to their own corporations, IGS and Geotech. (See
generally Compl. [Doc. No. 1].) Upon filing the
complaint, Plaintiff sought a temporary restraining order
and preliminary injunction. On May 29, 2008, the same
day the complaint was filed, the District Court entered a
Temporary Restraining Order and Order to Show Cause,
by which Defendants were “temporarily restrained and
enjoined from: ... removing, altering, modifying or
destroying any business records or other documents
related to the operation of the business of Integrated
Geotechnical Solutions, Inc. or Geotech Instruments, Inc.
or the relations of either corporation with any of its
customers or employees [.]” (Temporary Restraining
Order and Order to Show Cause [Doc. No. 4], May 29,
2008.) Plaintiff represents that Defendants were
personally served with the Temporary Restraining Order
on May 30, 2008. (Decl. of Edward F. Borden, Jr. in
Supp. of Mot. for Spoliation Sanctions (hereinafter,
“Borden Decl.”) [Doc. No. 110] ¶ 13.) Thereafter, the
District Court entered a Consent Order dated June 9, 2008
granting a preliminary injunction, by which Defendants
were enjoined from “removing, altering, modifying or
destroying any business records or other documents
related to the operation of the business of Integrated
Geotechnical Solutions, Inc. or Geotech Instruments, Inc.
or the relations of either corporation with any of its
customers or employees[.]” (Consent Order Granting
Preliminary Injunction [Doc. No. 5], June 9, 2008.)
*2 In the Stipulation dated June 3, 2010, the parties
agreed that the following facts are established for all
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Vibra-Tech Engineers, Inc. v. Kavalek, Slip Copy (2010)
purposes in this action:
A. Scott Kavalek and Roberta Kavalek, acting on
behalf of themselves and on behalf of defendant
Integrated Geotechnical Solutions, Inc[.] (“IGS”),
knowingly and purposefully changed, tampered with
and withheld evidence that was contrary to the factual
and legal contentions they have advanced in this action;
B. In so doing, Scott Kavalek and Roberta Kavalek
acted with the intent and purpose to deceive both the
court and the other parties to this action; and
C. After performing the acts of tampering, Scott
Kavalek and Roberta Kavalek then engaged in a series
of acts to conceal and cover up the actions they had
taken. These included giving false deposition
testimony, filing and supplying false affidavits and
declarations under oath, and causing their counsel to
make a series of false representations to the court, most
of which were made in the Kavaleks’ presence.
(Stipulation Concerning Evidence Tampering [Doc. No.
130–1] ¶ 1.)
Plaintiff now seeks monetary sanctions based upon the
admitted destruction of documents by Scott and Roberta
Kavalek on behalf of themselves and IGS. In support,
Plaintiff contends that it has been “forced to conduct
discovery in a time consuming, expensive and roundabout
manner in order to gather directly and admissible
evidence, all of which was in the possession of the
defendants and could have been quickly and
inexpensively produced.” (Pl.’s Br. in Supp. of Mot. for
Spoliation Sanctions [Doc. No. 110] 14.) Plaintiff further
asserts that it was “forced to file motion after motion to
obtain discovery, to subpoena third parties for records and
testimony, to conduct depositions without possession of
all relevant and complete documents, and to spend hours
comparing falsified records produced by IGS with true
versions from customers for discrepancies.” (Id.) Plaintiff
thus seeks an Order directing Defendants to reimburse
Plaintiff “for all attorney’s fees and costs incurred in
investigating and proving that Scott Kavalek was actively
involved in the management and operation of IGS, in
proving that the defendants manipulated, tampered with,
and withheld evidence, and in bringing this motion.” (Id.
at 14–15.)
In opposition, Defendants “acknowledge that they have
engaged in conduct that is indefensible in a misguided
initial effort to conceal certain information in their
possession.” (Defs.’ Br. in Response to Pl.’s Mot. for
Spoliation Sanctions [Doc. No. 112] (hereinafter, “Defs.’
Opp. Br.”) 1.) At oral argument, defense counsel agreed
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that Defendants’ conduct ran afoul of the discovery rules.
(Transcript of March 8, 2010 Hearing [Doc. No. 123], at
57:15–17.) Defendants argue, however, that monetary
sanctions are not warranted because the information that
was allegedly spoliated has now been produced, and no
“substantive fact has been proven by these documents that
wasn’t there before [.]” (Id. at 58:21–59:8.)3 Additionally,
Defendants contend that Plaintiff has engaged in
discovery misconduct and thus purportedly has “unclean
hands,” which Defendants argue warrants denial of the
motion. (Id. at 59:12–17.)
*3 Pursuant to FED. R. CIV. P. 37(b)(2), when a party
“fails to obey an order to provide or permit discovery,”
the Court may “order the disobedient party ... to pay the
reasonable expenses, including attorney’s fees, caused by
the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.”
FED. R. CIV. P. 37(b)(2)(C). Additionally, under FED. R.
CIV. P. 37(c)(1), if a party fails to provide information,
the Court “may order payment of the reasonable
expenses, including attorney’s fees, caused by the
failure[.]” FED. R. CIV. P. 37(c)(1)(A). “Rule 37
sanctions are available to the district court ‘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[.]’ ”
Wachtel v. Health Net, Inc., 239 F.R.D. 81, 84 (D.N.J.
2006) (citing Nat’l Hockey League v. Metropolitan
Hockey Club, 427 U.S. 639, 643, 96 S. Ct. 2778, 49 L.Ed.
2d 747 (1976)). “The Court also has inherent power to
police litigant misconduct and impose sanctions on those
who abuse the judicial process.” Id. (citing Chambers v.
NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 115 L.Ed.
2d 27 (1991)). In imposing sanctions, the court “must
ensure that there is an adequate factual predicate for
flexing its substantial muscle under its inherent powers,
and must also ensure that the sanction is tailored to
address the harm identified.” Republic of Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994).
Spoliation “is the term that is used to describe the hiding
or destroying of litigation evidence, generally by an
adverse party.” Rosenblit v. Zimmerman, 166 N.J. 391,
400–01, 766 A.2d 749 (N.J. 2001). In this case,
Defendants Scott and Roberta Kavalek, acting on behalf
of themselves and IGS, admit that they engaged in
spoliation in that they stipulate that they “knowingly and
purposefully changed, tampered with and withheld
evidence that was contrary to the factual and legal
contentions they have advanced in this action,” with the
intent and purpose to “deceive both the court and the
other parties to this action[.]” (Stipulation Concerning
Evidence Tampering [Doc. No. 130–1] ¶¶ 1A, 1B.) Such
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Vibra-Tech Engineers, Inc. v. Kavalek, Slip Copy (2010)
actions violated Rule 37(b) and (c), as well as the District
Court’s May 29, 2008 Temporary Restraining Order and
June 9, 2008 Order enjoining Defendants from
“removing, altering, modifying or destroying any business
records or other documents[.]” (Temporary Restraining
Order and Order to Show Cause [Doc. No. 4], May 29,
2008; Consent Order Granting Preliminary Injunction
[Doc. No. 5], June 9, 2008.) Moreover, the conduct at
issue was not an isolated incident. Defendants Scott and
Roberta Kavalek stipulate that after “performing the acts
of tampering, [they] then engaged in a series of acts to
conceal and cover up the actions they had taken,”
including “giving false deposition testimony, filing and
supplying false affidavits and declarations under oath, and
causing their counsel to make a series of false
representations to the court[.]” (Stipulation Concerning
Evidence Tampering [Doc. No. 130–1] ¶ 1C.) The Court
finds that Defendants Scott and Roberta Kavalek’s willful
and intentional efforts to hide evidence and impede the
fact-finding process, as well as their subsequent deliberate
misrepresentations in affidavits filed with the Court, in
violation of the court rules and the District Court’s
Temporary Restraining Order and Preliminary Injunction
Order, warrants sanctions under Rule 37 and the Court’s
inherent authority.4
In fashioning an appropriate sanction, the Court considers
the prejudice to Plaintiff and whether Plaintiff may be
restored to the position it would have been in had Scott
and Roberta Kavalek not engaged in the discovery
misconduct set forth above. See Mosaid Tech. Inc. v.
Samsung Elec. Co., Ltd., 348 F. Supp. 2d 332, 335
(D.N.J. 2004) (“Spoliation sanctions serve a remedial
function by leveling the playing field or restoring the
prejudiced party to the position it would have been
without spoliation.”) Additionally, the Court notes that
spoliation sanctions “serve a punitive function, by
punishing the spoliator for its actions, and a deterrent
function, by sending a clear message to other potential
litigants that this type of behavior will not be tolerated
and will be dealt with appropriately if need be.” Id.
*4 The only sanction sought at this time is a monetary
sanction. Plaintiff specifically seeks an award of “all
attorneys’ fees and costs incurred in proving that Scott
Kavalek was actively involved in the management and
operation of IGS, in proving that the defendants tampered
with evidence, and in bringing this motion.” (See
Proposed Order [Doc. No. 110] 2.) Defendants argue that
sanctions are not warranted because they “determined to
unilaterally acknowledge prior misconduct” and have now
“produce[d] copies of all of the original relevant
documents that had ever been in their possession.” (Defs.’
Opp. Br. 2, 3.) However, Scott and Roberta Kavalek did
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
not disclose their wrongdoing until confronted by
Plaintiff’s counsel with evidence that documents had been
altered. (Aff. of Roberta Kavalek [Doc. No. 112] ¶ 14;
Aff. of Scott Kavalek [Doc. No. 112] ¶¶ 12, 13.)
Therefore, although Scott and Roberta Kavalek eventually
disclosed their discovery misconduct, Plaintiff was forced
to expend resources to obtain documents related to
whether Scott Kavalek performed any work for IGS,
which ultimately led to the disclosure of the altered
documents, including invoices. Moreover, Scott and
Roberta Kavalek’s discovery misconduct might never
have been disclosed but for the discovery by Plaintiff’s
counsel through document requests to a third party and
Plaintiff’s counsel comparison of the documents to those
produced by Defendants. Under these circumstances, the
Court finds that an appropriate sanction to remedy the
prejudice to Plaintiff is an award of those reasonable
attorneys’ fees and costs incurred that would not have
been incurred but for the discovery misconduct of Scott
and Roberta Kavalek set forth above.5 Such fees and costs
include, for example, the costs incurred for the time
Plaintiff’s counsel spent determining that there had been
spoliation of evidence, such as reviewing and comparing
altered invoices, the conferences with the Court
concerning the discovery misconduct, the limited
depositions the Court permitted with respect to the
discovery misconduct, and the filing of the present
motion, and any discovery necessitated because of the
altered evidence. Such fees and costs may also include the
efforts of Plaintiff’s counsel to prove that Scott Kavalek
was actively involved in the management and operation of
IGS, provided that such fees were incurred as a result of
Scott and Roberta Kavalek’s discovery misconduct. Such
fees and costs would not include discovery that Plaintiff
would have conducted even if Defendants had not
changed, tampered with or withheld evidence. The Court
will address the specific amounts to be awarded following
submission of an affidavit as set forth below. Accordingly,
Plaintiff’s motion for monetary sanctions is granted
insofar as Plaintiff seeks reasonable attorneys’ fees and
expenses incurred in connection with the discovery
misconduct of Scott Kavalek, Roberta Kavalek and IGS
as set forth above, and is denied insofar as Plaintiff seeks
all attorneys’ fees and costs incurred in proving that Scott
Kavalek was actively involved in the management and
operation of IGS without regard to discovery that would
have been conducted even if there had been no discovery
misconduct.6
CONSEQUENTLY, for the reasons set forth above and
for good cause shown:
IT IS on this 24th day of August 2010,
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Vibra-Tech Engineers, Inc. v. Kavalek, Slip Copy (2010)

ORDERED that Plaintiff’s motion [Doc. No. 110]
seeking sanctions for the spoliation of evidence by
Defendants Scott Kavalek, Roberta Kavalek, IGS and
Geotech shall be, and is hereby, GRANTED to the extent
Plaintiff seeks, as a monetary sanction against Scott
Kavalek, Roberta Kavalek, and IGS, an award of
reasonable attorneys’ fees and costs incurred that would
not have been incurred but for the discovery misconduct
set forth above, DENIED to the extent Plaintiff seeks
sanctions against Geotech and to the extent Plaintiff seeks
an award of all fees and cost incurred by Plaintiff’s
counsel to prove that Scott Kavalek was actively involved
in the management and operation of IGS without regard
to discovery that would have been conducted even if there
had been no discovery misconduct, and DISMISSED
WITHOUT PREJUDICE to the extent Plaintiff seeks a
spoliation inference or leave to amend the complaint to
assert a claim for fraudulent concealment; and it is further
ORDERED that Plaintiff shall be granted reasonable
attorneys’ fees and expenses incurred in connection with
the discovery misconduct of Scott Kavalek, Roberta
Kavalek and IGS as set forth in this Order. Plaintiff’s
counsel is granted leave to file by no later than
September 7, 2010 an affidavit setting forth the
reasonable attorneys’ fees and expenses incurred and
explaining why such fees and expenses would not have
been incurred but for the discovery misconduct of Scott
Kavalek, Roberta Kavalek and IGS. Defendants may
provide, by no later than September 21, 2010, a response
on the issue of reasonableness of the fees and costs set
forth in the affidavit submitted by Plaintiff’s counsel.
All Citations
Slip Copy, 2010 WL 11570354

Footnotes

1 The Court notes that Charles Bauman is also named as a defendant in this litigation. The notice of
motion does not indicate that Plaintiff seeks sanctions against Defendant Bauman, and Plaintiff’s
counsel confirmed that the motion is not directed to Defendant Bauman. (Transcript of Mar. 8, 2010
Hearing [Doc. No. 123], at 69:4–8.) Therefore, references herein to “Defendants” do not include
Defendant Bauman.

2 Additionally, at oral argument, in response to the Court’s question as to what relief Plaintiff seeks,
Plaintiff’s counsel did not state that Plaintiff seeks leave to amend the complaint to assert a fraudulent
concealment claim. (See Transcript of March 8, 2010 Hearing [Doc. No. 123], at 49:11–50:20.) The Court
notes that Plaintiff did not file a proposed amended complaint with the motion pursuant to Local Civil
Rule 7.1(f). Moreover, the Court notes that subsequently Plaintiff filed two motions for leave to amend
the complaint, which were granted by Orders dated June 8, 2010 and August 3, 2010, and the amended
complaints filed pursuant to such Orders did not contain counts for fraudulent concealment. It therefore
appears that Plaintiff has withdrawn its request for leave to amend the complaint, and the motion will be
dismissed as moot with respect to this request.

3 Defense counsel stated at oral argument that “perhaps, a fine or some other sanction by the Court
would be appropriate.” (Id. at 67:15–16; see also id. at 68:8–12 (“I’d respectfully request that this
motion be denied and that if a sanction is appropriate and I cannot argue that it’s not, that it be the
Court issue an order imposing some discovery fine, but that it do so with respect to both parties.”).)

4 There is no indication that Defendants’ counsel had any knowledge of or involvement in the discovery
misconduct of his clients. Nor is there any indication that the actions of Scott and Roberta Kavalek were
taken on behalf of Defendant Geotech. Therefore, the sanctions set forth herein are not directed to
Geotech or defense counsel, and shall be imposed only on Scott Kavalek, Roberta Kavalek, and IGS.

5 The Court notes Defendants’ argument that Plaintiff should not be awarded sanctions because Plaintiff
has engaged in discovery misconduct and thus has unclean hands. (Defs.’ Opp. Br. 10–13.) The alleged
misconduct includes Plaintiff’s purported failure to produce documents identifying Plaintiff’s client list,
documents identifying clients for whom no further work should be performed, and documents with
handwritten notations, which purportedly fall within the scope of Defendants’ discovery requests. (Aff. of
Scott Kavalek [Doc. No. 112] ¶¶ 17–29; Aff. of Roberta Kavalek [Doc. No. 112] ¶¶ 17–24.) The Court finds
that allegations of Plaintiff’s purported discovery misconduct do not excuse the intentional and willful
discovery misconduct of Scott and Roberta Kavalek and their subsequent misrepresentations.
Defendants may file an appropriate motion to the extent they believe Plaintiff has also engaged in
discovery misconduct.

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Vibra-Tech Engineers, Inc. v. Kavalek, Slip Copy (2010)

6 By letter dated August 16, 2010, Plaintiff also requested that the Court include with the present
spoliation motion an order awarding fees for the litigation of a separate motion to compel. (Letter from
Edward F. Borden, Jr., Esq. [Doc. No. 153], Aug. 16, 2010.) However, Plaintiff’s request has not been
submitted by formal motion, and the Court shall not impose additional sanctions based solely on an
informal request set forth in Plaintiff’s letter.

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government

Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5