T & E INVESTMENT GROUP LLC, d/b/a Roberts Investment Group, et al., Plaintiffs, v. CHRISTOPHER FAULKNER, et al., Defendants No. 11-CV-0724-P, Consolidated with No. 3:11-CV-1558-P United States District Court, N.D. Texas, Dallas Division February 12, 2014 Counsel Ben L. Krage, Mark A. Hendrix, Krage & Janvey LLP, Dallas, TX, for Plaintiffs. Carter Boisvert, Lawrence J. Friedman, Robert Brian Shields, Ryan K. Lurich, Friedman & Feiger LLP, Dallas, TX, for Defendants. Solis, Jorge A., United States District Judge ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE *1 On July 5, 2013, the assigned Magistrate Judge issued Findings, Conclusions, and Recommendation (“FCR”) in which he recommended that the Court grant in part and deny in part Plaintiffs' Motion for Sanctions and Motion for Contempt Judgment (“Motion for Sanctions”) (doc. 53), sanction Defendants by instructing the jury with respect to an adverse inference due to spoliation of evidence, and monetarily sanctioning Defendants in an amount of $27,500. (See FCR, doc. 110.) Defendants timely objected to the recommendation. (See Defs.' Obj'n to Report & Recommendation [hereinafter Obj'ns], doc. 111.) They urge the Court to reject the FCR. (Id. at 11–12.) Plaintiffs have not responded to the objections. For the reasons that follow, the Court accepts the FCR as supplemented herein, after reviewing all relevant matters of record, including the FCR, the filed objections, and the transcripts of two evidentiary hearings, in accordance with 28 U.S.C. § 636(b) (1) and FED. R. CIV. P. 72(b)(3). I. Authority of Magistrate Judge and Standard of Review Section 636(b) (1)(B) of Title 28 of the United States Code grants magistrate judges authority to issue findings and recommendations regarding dispositive matters in cases referred to them. The statute provides for the filing of written objections to proposed findings and recommendations and for a de novo determination of matters “to which objection is made.” Objections asserted in accordance with this provision serve “to narrow the dispute” and enable district judges “to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute.” Thomas v. Arn, 474 U.S. 140, 147 & n. 6, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). And § 636(b)(1) “does not on its face require any review at all ... of any issue that is not the subject of an objection.” Id. at 149. Nevertheless, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Id. at 154. Rule 72(b) (3) of the Federal Rules of Civil Procedure likewise provides for a de novo determination of “any part of the magistrate judge's disposition that has been properly objected to.” Rule 72(b)(2) requires the objecting party to file “specific written objections” and grants other parties fourteen days to respond to such objections. While Rule 72(b) does not facially require any review in the absence of a specific objection, the advisory committee notes following its adoption in 1983 state: “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Credibility issues do not require the district court to hold a de novo hearing, but they do require consideration of the actual testimony, not merely a review of the findings and recommendations. Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). Observing witnesses is crucial to adequately determine their credibility. Louis v. Blackburn, 630 F.2d 1105, 1110 (5th Cir.1980). Such observation “may be accomplished either by the district judge accepting the determination of the magistrate after reading the record, or by rejecting the magistrate's decision and coming to an independent decision after hearing the testimony and viewing the witnesses.” Id. *2 Consistent with § 636(b)(1) and Rule 72(b)(3), the Court reviews the findings and recommendation of the Magistrate Judge in this case. It “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3); accord 28 U.S.C. § 636(b)(1). II. Background In response to a motion to compel filed by Plaintiffs T & E Investment Group LLC and Timothy Roberts (hereinafter “Plaintiffs”), the Court ordered on November 9, 2011, that a “third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives” and identified Lance Fogarty, as that expert. (See Order Mot. Compel, doc. 37.) Following a forensic examination by Fogarty, Plaintiffs moved for sanctions against Defendants Christopher Faulkner, Breitling Oil and Gas Corporation, Parker Hallam, and Dustin Rodriguez (hereinafter collectively referred to as “Defendants”) for spoliation of evidence and to hold each defendant in contempt for violating the November 9, 2011 order. (See Mot. Sanctions at 1.) Plaintiffs provided a Confidential Computer Forensic Examination Report (“Original Report”) from Fogarty to support claims of spoliation of evidence on three computers (BRT–Breitling–PCL–02 (“PCL–02”), BRT–Breitling–PCL–03 (“PCL–03”), and BRT–Breitling–PCD06 (“PCD–06”)) and claims that Defendants withheld various computers from production, including one identified as Alienware. (See Orig. Report, attached as Ex. A to Mot. Sanctions, at 13–41.) The Court later ordered Defendant Faulkner to produce five previously unproduced computers to Fogarty for forensic examination. (See Order of June 8, 2012, doc. 62.) The Court also set a June 29, 2012 deadline for Plaintiffs to supplement their motion for sanctions. (Id.) After that deadline passed without supplementation, the Court limited the scope of the motion for sanctions to spoliation issues related to the three computers identified by Fogarty and set deadlines for further briefing on the motion. (Order of July 5, 2012, doc. 65.) Upon the filing of a response (doc. 66) and a reply brief (doc. 67), the motion for sanctions became ripe for ruling. On January 9, 2013, the Court referred the motion to the assigned magistrate judge for hearing, and if necessary, report and recommendation. (See Order of Jan 9, 2013, doc. 74.) The Magistrate Judge held a hearing on the motion on May 2, 2013. (See Electronic Minute Entry, doc. 102.) Fogarty testified that Defendant Faulkner created a new profile on PCL–03, copied data to it, and used a bulk file changer to alter the data in an apparent “attempt to make it look like that was his computer that he used all the time.” (Tr. Hearing of May 2, 2013, [hereinafter Tr.] at 21.) Fogarty testified that he believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case. (Tr. at 27.) He connected the missing computer to the use of the bulk file changer as follows: “And we clearly have a computer that was used throughout the entire year of 2011 up to and including the date of the Court order, and that computer has never been produced, and instead we got a computer that had falsified information on it pretending to be Mr. Faulkner's computer.” (Tr. at 32.) He identified four computers, including the one identified as Alienware, that he believed were used in the Faulkner home in 2011, but not produced in this case. (Tr. at 54–55 .) *3 Faulkner[1] testified that he looked for the Alienware computer, which is a brand owned by Dell, but he only found and produced two that were not identified by Fogarty. (Tr. at 71–72.) When asked whether the Alienware computer was used at his home, Faulkner expressed uncertainty, but firmly explained that the computer used an IP address provided by Covad while his internet provider was Megapath. (Tr. at 72–74.) He testified that he does not possess the Alienware computer sought by Fogarty even though Fogarty reported that the computer securely connected to Faulkner's wife's computer the day after the Court ordered him to produce all computers used in 2011. (Tr. at 81–84.) He also testified that he copied files to PCL–03 and used the bulk file changer to attempt to change the files to read only so that they could not be deleted. (Tr. at 61–63, 86–91, 93–94.) Although his wife could still access the files, he “set them as read only.” (Tr. at 63.) He characterized the copied files as “a multitude of things related to our investor files, a lot of photos, PDF's, Word documents, just standard stuff that we update our investor base with.” (Id.) On May 3, 2013, Fogarty initiated contact with staff of the Magistrate Judge to informally inform the Court of certain conclusions that Fogarty had reached regarding the veracity of Faulkner's testimony at the May 2, 2013 hearing, and the staff later directed Fogarty to submit the substance of that communication in writing. (See Order of May 9, 2013, doc. 103.) On May 8, 2013, Fogarty delivered a copy of a second Computer Forensic Examination Report (“Supplemental Report”) dated May 7, 2013. (See id. at 2.) In the Supplemental Report, Fogarty stated that Faulkner made false and misleading statements to the Court regarding (1) Covad and Megapath (they had merged in September 2010 and Covad was merely a brand of Megapath), (2) the nature of the files copied to PCL–03 (only twenty files belonged to Breitling Oil and Gas—.06 percent of the total data transferred), and (3) his use of the bulk file changer (no files changed to read only, but dates of the files were changed). (Supp. Report, doc. 109, at 1–5.) Following receipt of the supplemental report, the Magistrate Judge scheduled oral argument for May 16, 2013, (see Order of May 9, 2013), and ultimately held a second evidentiary hearing regarding the motion for sanctions on June 3, 2013, (see Electronic Minute Entry, doc. 107). At this second hearing, Fogarty testified that altering the data on PCL–03 is relevant because “it was utilized to hide a computer that likely does contain information relevant to this case,” namely the Alienware computer. (Tr. Hearing of June 3, 2013, [hereinafter Tr. Vol. 2] at 17.) He further testified that, from his forensic examination, “we know [the Alienware computer] was in the Faulkner's home and we know it connected and made a secure connection to the Faulkner home computer or [the wife's] computer in this case.” (Id. at 18.) He also testified that Faulkner had sent e-mails from the Alienware computer for years and that e-mails from Faulkner's wife's e-mail account were also sent from that computer. (Id. at 18–19, 42.) He viewed the use of the bulk file changer as a clear intent to hide the Alienware computer and that no files were converted to read only. (Id. at 27–28.) *4 On July 2, 2013, the assigned Magistrate Judge ordered that the May 7, 2013 report be filed. (See Notice of Filing of Supp. Report of Lance Fogarty, doc. 109.) Three days later, the Magistrate Judge issued the FCR that is now before the Court. The Magistrate Judge noted that Fogarty's initial “report found that Defendants had spoliated data on several computers.” (FCR at 2.) The Magistrate Judge recognized that the spoliation issues were limited to the three computers identified in the July 5, 2012 order. (Id. at 3 and 13 n. 2.) And he found that Faulkner's use of a bulk file changer on PCL03 and transferring large amounts of data from an external hard drive to that computer satisfied the elements of sanctionable spoliation under applicable law. (Id. at 5–18.) More specifically, the Magistrate Judge found that Defendant Faulkner manipulated data on PCL–03 to avoid producing the Alienware computer. (Id. at 13–14 & n. 2.) In finding that Plaintiffs were prejudiced by the spoli-ation of evidence, the Magistrate Judge addressed an objection raised by Defendants “that a request for sanctions for a failure to turn the Alienware computer over to Fogarty in response to the 11/9/11 Order is beyond the scope” of the motion for sanctions as limited by the Court. (Id. at 17–18 .) The Magistrate Judge was of the view that that failure is not itself the sanctionable spoliation but is a related circumstance that cannot be disentangled from Defendants' spoliation of PCL–3 (a computer clearly at issue on Plaintiffs' Motion for Sanctions)—and need not be, for present purposes, where Defendants had ample opportunity to present evidence and cross-examine Fogarty regarding the Alienware computer's existence, significance, and location at both evidentiary hearings. (Id. at 18.) The Magistrate Judge concluded that the sanctionable spoliation of evidence by Defendants warrants an adverse inference instruction and monetary sanctions. (Id. at 18–20.) III. Objections Defendants assert sixteen enumerated objections to the FCR. (See Obj'ns at 3–8.) They primarily object that many portions of the FCR (1) exceed the scope of the motion for sanctions and the Court's order limiting that motion to spoliation issues related to the three specified computers and (2) violate their rights to due process and adequate notice. (See id.) They also specifically object that the recommended monetary sanction is excessive. (See id. at 7–8.) And they assert other objections that the Court considers separately after the three identified ones. A. Exceeding Scope of Motion In their first objection, Defendants contend that the Magistrate Judge finds spoliation from facts and circumstances that exceed the scope of the motion for sanctions and the July 5, 2012 order that limits the motion to spoliation issues related to three computers. (Obj'ns at 3.) They object that any issue regarding the Alienware computer exceeds that scope. (Id.) In Objections 2, 3, 4, 6, 7, 9, 11, and 12, they argue that particular findings or conclusions of the Magistrate Judge exceed the scope of the motion. (Id. at 4–7.) *5 Courts generally decline to decide questions that exceed the scope of a filed motion. MidContinent Cas. v. Eland Energy, Inc., No. 3:06–CV1 576–D, 2010 WL 610713, at *4 (N.D.Tex. Feb. 22, 2010). But “spoliation” is broadly defined as the “destruction or material alteration of evidence or ... the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 799 (N.D.Tex.2011) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001) and citing Black's Law Dictionary 1531 (9th ed.2009)). And when a party has made allegations of sanction-worthy spoliation, the Court must consider whether there is “a duty to preserve the information, a culpable breach of that duty, and resulting prejudice to the innocent party.” Id. at 800. Consequently, resolving a spoliation motion is fact intensive, requiring the court to assess when the duty to preserve commenced, whether the party accused of spoliation properly complied with its preservation duty, the degree of culpability involved, the relevance of the lost evidence to the case, and the concomitant prejudice to the party that was deprived of access to the evidence because it was not preserved. Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 508 (D.Md.2009). In some situations, the courts must also consider whether evidence has been destroyed or materially altered. The culpability element, furthermore, may involve considering whether actions were taken in bad faith. Ashton, 772 F.Supp.2d at 800–01. Given the fact intensive nature of resolving a spoliation motion, limiting the motion for sanctions to spoliation issues related to three specific computers does not preclude the Court from considering facts and circumstances pertinent to those issues. With respect to PCL–03, the motion for sanctions alleges use of a bulk file changer to allow the user to change metadata for multiple files at one time. (Mot. Sanctions at 4.) Defendant Faulkner admitted that he copied files to PCL–03 and used the bulk file changer to attempt to change attributes of those files. (Tr. at 61–63, 86–91, 93–94.) According to the independent forensic expert, the alteration by Faulkner is relevant to this case because it shows an attempt to hide a failure to produce the Alienware computer. (Tr. Vol. 2 at 17 .) That relevancy makes the alteration material within the meaning of the spoliation definition. The Magistrate Judge properly found that manipulating data on the PCL–03 computer to avoid production of the Alienware computer or other relevant evidence was within the scope of the motion as limited by the Court. Despite the limited scope of the motion for sanctions, the Magistrate Judge properly found testimony from Defendant Faulkner not credible. Faulkner materially altered the contents of PCL–03 by transferring data to it and then using the bulk file changer to change aspects of the transferred files. Such conduct clearly falls within the scope of the spoliation issues raised in the motion for sanctions. (See Mot. Sanctions at 4 (discussing use of the bulk file changer on PCL–03).) *6 Once the Magistrate Judge found the material alteration, he properly considered the three elements set out in Ashton to determine whether the alteration constituted sanctionable spoliation. Defendants unquestionably had a duty to preserve the evidence contained within their computers, including PCL–03 and the Alienware computer, no later than November 9, 2011, when the Court ordered them to provide Fogarty access to all of their computers used in 2011. On November 15, 2011, Faulkner created a user profile “Chris” on PCL–03 and copied data from an external hard drive to that computer. (See Orig. Report at 15 (showing dates); Tr. at 61–63, 86–91, 93–94 (showing that Faulkner made the changes).) The new user profile was manually given a creation date of May 15, 2009, two years before the computer was even purchased. (Orig. Report at 15; Tr. at 21–24.) On November 18, 2011, Faulkner used the bulk file changer to alter aspects of the copied files. (See Supp. Report at 4 (showing date); Tr. at 61–63, 86–91, 93–94 (showing that Faulkner was the computer user).) The files were not changed to read-only as stated by Faulkner; instead, their dates were manually changed to reflect a date of 2009. (See Supp. Report at 4.) Considering the totality of the circumstances, the Court agrees that Faulkner acted in bad faith when he materially altered PCL–03 to make it appear that he had used that computer for a number of years so as to conceal the Alienware computer from production. Additionally, the totality of the circumstances support a reasonable conclusion that the Alienware computer contained relevant information that would have aided Plaintiffs in supporting their claims. The evidence supports finding that Defendants have not produced the Alienware computer even though the day after the November 9, 2011 court order, that computer made a secure connection to PCL–03 using an IP address within the same subnet and wireless network ID as PCL–03. This evidence is relevant to whether Plaintiffs were prejudiced by the material alteration of the contents of PCL–03. Plaintiffs have carried their burden to show that the bad faith spoliation of PCL–03 by Defendant Faulkner has prejudiced them. For the foregoing reasons, the Court overrules all objections that the Magistrate Judge exceeded the scope of the motion for sanctions as limited by the July 5, 2012 order.[2] B. Due Process and Notice For fourteen of the sixteen enumerated objections, Defendants also object on grounds of due process and inadequate notice. (See Obj'ns at 3–8.) These objections primarily stem from the contention that the Magistrate Judge exceeded the scope of the motion for sanctions. Having found that the Magistrate Judge did not exceed the scope of that motion, the Court finds the contention to be an insufficient basis for any objection based on due process or inadequate notice. Furthermore, at the first hearing before the Magistrate Judge, Defendants argued that some evidence exceeded the scope of the motion for sanctions. (Tr. at 9.) Plaintiffs argued that the evidence related to considering potential sanctions. (Id.) The Magistrate Judge allowed Plaintiffs to present the evidence subject to a running objection that Defendants lacked notice. (Id. at 9–16.) By the time the Magistrate Judge conducted the second hearing a month later, Defendants were well aware of Plaintiffs' arguments that the spoliation of PCL–03 was connected to the failure to produce the Alienware computer. Defendants had ample opportunity to present argument and evidence to rebut or contest the Plaintiffs' arguments and evidence. There appears to be no merit to the objections based on due process or inadequate notice. *7 Objections based on due process and inadequate notice appear inappropriate, furthermore, when objecting to the Magistrate Judge's recommendation in this case. As already mentioned, Defendants had two opportunities to present evidence and cross-examine witnesses. Furthermore, the recommendation itself provides sufficient notice of the findings, conclusions, and recommendations of the Magistrate Judge. It also informs the parties that they may object to any part of the FCR within fourteen days. (See FCR at 23.) Upon receiving timely objections to a recommendation, the Court conducts a de novo review or determination of those parts of the FCR to which specific object-ions have been asserted. See 28 U.S.C. § 636(b); FED. R. CIV. P. 72(b)(3). Because the Court conducts a de novo review or determination, objecting parties have another adequate opportunity to present whatever they want the Court to consider. For all of these reasons, the Court overrules the due process and notice objections. C. Excessive Monetary Sanction Through Objection 16, Defendants object that the $27,500 monetary sanction is excessive because “the majority of spoliation allegations made by Fogarty do not meet the legal standard [for] spoliation of evidence and/or were not pursued by Plaintiffs as sanctionable.” (Obj'ns at 7–8.) The Magistrate Judge, however, specifically considered that some allegations of spoliation do not constitute actionable spoliation under the law. (See FCR at 20–23.) He also considered that some alleged sanctionable conduct was no longer at issue. (See id. at 22–23.) Despite such knowledge, the Magistrate Judge determined that $27,500 was an appropriate monetary sanction for the conduct found sanctionable. As recognized by the Magistrate Judge, the choice of sanction is essentially a matter of the Court's sound discretion. (See id. at 18 (citing Ashton, 772 F.Supp.2d at 801).) On de novo review, the Court determines that $27,500 is an appropriate monetary sanction for the same reasons stated by the Magistrate Judge. The Court overrules Objection 16. D. Other Objections Although the preceding sections cover most of the specific asserted objections, Defendants also specifically objects to a material and substantial altering of the burden of proof in Objection 12. (See Obj'ns at 7.) Objection 12 also appears to contain an unspecified objection to one finding or conclusion of the Magistrate Judge. (See id. at 6–7.) And Defendants appear to object in Objections 5, 8, 10, 13, and 14 to specific findings or conclusions of the Magistrate Judge on grounds other than due process and inadequate notice although those objections are the only ones specifically asserted. (See id. at 4–7.) Lastly, Defendants assert Objection 15 without stating any basis for it. (See id. at 7.) Objection 12 relates to the prejudice section of the FCR. To put it in proper context the Court quotes it in full: *8 Defendants object to the finding and/or conclusion that “the undersigned is of the view that that failure is not itself the sanctionable spoliation but is a related circumstance that cannot be disentangled from Defendants' spoliation of PCL–3 (a computer clearly at issue on Plaintiffs' Motion for Sanctions)—and need not be, for present purposes, where Defendants had ample opportunity to present evidence and crossexamine Fogarty regarding the Alienware computer's existence, significance, and location at both evidentiary hearings.[”] Defendants further object to the indictment for failing to present evidence and cross-examine Fogarty regarding the Alienware computer's existence, significance, and location at both evidentiary hearings on the ground that it exceeds the scope of Plaintiffs' Motion for Sanctions and Magistrate Judge Kaplan's July 5, 2012 Order and materially and substantially alters the burden of proof. Defendants were not on notice that the Alienware computer would be the subject of the hearing on Plaintiffs' Motion for Sanctions; but, in fact, were expressly put on notice that the Alienware computer's existence, significance, and location was not the subject of the hearings and could not support the imposition of sanctions for allegedly spoliating evidence. Defendants further object on due process and inadequate notice grounds. (Obj'ns at 6–7 (citation omitted).) This objection asserts three specific objections: (1) exceeding scope of the motion for sanctions, (2) altering burden of proof, and (3) due process and notice. Because the first sentence of Objection 12 is not connected to any particular objection and because Defendants state that they “further object” on the three specific grounds, it appears that they also assert some unspecified objection to the finding or conclusion quoted in the first sentence. The Court has already overruled the objections based on the scope of the motion, due process, and notice. It now overrules the objection that the Magistrate Judge altered the burden of proof. The Magistrate Judge properly placed the burden on Plaintiffs to show that a sanction for spoliation was warranted. (See FCR at 10 (quoting Ashton ).) The Magistrate Judge found that Plaintiffs carried their burden to show prejudice. (Id. at 17.) And while addressing an objection that a request for sanctions based on a failure to produce the Alienware computer to Fogarty is beyond the scope of the motion for sanctions, the Magistrate Judge stated the view quoted above. (Id. at 17–18.) Stating that view does not alter the burden of proof. It instead provides reasons for not disentangling the related failure to produce the Alienware computer from the specific spoliation of PCL–03 placed at issue by the motion for sanctions. As already discussed, that failure undoubtedly relates to the prejudice issue that arises from the spoliation of PCL–03. Upon finding that a party has carried its burden, furthermore, judges may note an opportunity to present evidence and cross-examine witnesses by the other party without altering the burden of proof. *9 The first sentence of Objection 12 may assert some other objection. But to the extent it does so, the objection is conclusory and “fails to meet the Rule 72 requirement of a specific objection.” See Harbolt v. Quarterman, No. 3:06–CV–1964–N–BH, 2009 WL 3496290, at * 1 & n. 1 (N.D.Tex. Oct.28, 2009) (recognizing that “[c]onsistent with Rule 72's requirement of a specific objection, many Circuits have held that in order to be specific, an objection must not only identify the finding or recommendation to which objection is made, but also must state the basis for the objection”). On de novo review, moreover, the Court finds no reason to disagree with the quoted finding or conclusion. Accordingly, any unspecified objection is overruled. For the same reasons, the Court overrules Objections 5, 8, 10, and 13. They each object to specific findings or conclusions of the Magistrate Judge. (Obj'ns at 4–7.) But other than stating a “further objection” premised on due process and inadequate notice, Defendants provide no specific basis for any of these objections. (See id.) The Court has already overruled the objections based on due process and notice. And to the extent Defendants assert a different objection it does not qualify as a specific objection. The Court, moreover, has already conducted a de novo review of the findings and conclusions placed at issue by Objections 5 (bad faith), 8 (culpability, including bad faith),[3] 10 (prejudice),[4] and 13 (prejudice),[5] and determined that it has no disagreement with those findings and conclusions. Objection 14 states a general objection to the recommendation that the Court grant the motion for sanctions in any respect. (Obj'ns at 7.) Although it also states a “further objection” based on due process and notice, the Court has already overruled such objections. The non-specific, general objection provides no basis for further de novo review. See Harbolt, 2009 WL 3496290 at *1 n. 1. The Court overrules Objection 14. In Objection 15, Defendants object to the finding or conclusion of the Magistrate Judge that an adverse inference is necessary or appropriate. (Obj'ns at 7.) This non-specific, general objection likewise provides no basis for de novo review. The Court finds no clear error in finding that an adverse inference instruction is necessary and appropriate under the circumstances. Even under a de novo review, the Court agrees that such a sanction is warranted for the conduct found sanctionable. E. Conclusions Regarding Objections Having conducted a de novo review and determination as to the issues to which Defendants have specifically objected, the Court finds no merit to any specifically asserted objection. And it finds no merit to any general objection under both a de novo review and a review for clear error. Accordingly, the Court overrules all objections asserted by Defendants. IV. Review for Clear Error Having reviewed the remainder of the Findings, Conclusions, and Recommendation of the Magistrate Judge for clear error, the Court finds only one matter that warrants further discussion. The Magistrate Judge recommended that Plaintiffs recover $27,500 from Defendants for the sanctionable conduct found in the FCR. (See FCR at 19–20, 23.) While this might be construed as recommending that the Court impose a monetary sanction against Defendants generally, the Magistrate Judge did not undertake to apportion the monetary sanctions between the various defendants. But it is clear from the FCR and evidence before the Court that Defendant Faulkner is the only party directly culpable for materially altering PCL–03. Although it appears proper to attribute his actions to Defendant Breitling Oil and Gas based upon his status as CEO of that defendant, there appears to be no reason to monetarily sanction the other two individual defendants—Parker Hallam and Dustin Rodriguez. Accordingly, the Court reasonably construes the FCR as not recommending that Defendants Rodriguez and Hallam be monetarily sanctioned, but instead merely recommends that the Plaintiffs recover the monetary sanction from whichever defendants are identified by the Court. This construction properly recognizes that the Court's discretion in fashioning an appropriate sanction includes making the sanction proportionate to the culpable conduct of the spoliating party. See Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 801 (N.D.Tex.2011). Because the Magistrate Judge did not find any culpable conduct on the part of either Hallam or Rodriguez, they should not be held responsible for any part of the recommended monetary sanction. Absent a later order of the Court, the monetary sanction should be apportioned between Defendant Faulkner and his employer Breitling Oil and Gas in whatever manner that they deem appropriate. With this clarification and supplementation of the FCR, the Court finds no clear error on the face of the record. V. Conclusion *10 After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, the filed objections, and the transcripts from the evidentiary hearings, in accordance with 28 U.S .C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court finds that the Findings and Conclusions of the Magistrate Judge are correct, as supplemented herein. It has conducted a de novo review and determination as to the issues to which Defendants have specifically objected. Having reviewed the remainder of the Findings, Conclusions, and Recommendation of the Magistrate Judge for clear error, it is satisfied that there is no clear error on the face of the record. Accordingly, the Court hereby accepts the Findings and Conclusions of the Magistrate Judge as the Findings and Conclusions of the Court as discussed and supplemented herein. Accordingly, it accepts the recommendation and DENIES in part and GRANTS in part Plaintiffs' Motion for Sanctions and Motion for Contempt Judgment (doc. 53). For the conduct found sanctionable by the Magistrate Judge, the Court will give the jury a spoliation instruction that will entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party. It also imposes upon Defendant Faulkner and his employer Breitling Oil and Gas a monetary sanction in the amount of $27,500 payable to Plaintiffs. Within thirty days of the date of this order, those defendants shall collectively pay $27,500 to Plaintiffs and file a notice of payment with the Court to show compliance with the sanction. The motion is otherwise denied. SO ORDERED. FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE DAVID L. HORAN, United States Magistrate Judge. Plaintiffs' Motion for Sanctions and Motion for Contempt Judgment [Dkt. No. 53] has been referred to the undersigned magistrate judge for hearing, report, and recommendation pursuant to 28 U.S.C. § 636(b). See Dkt. No. 74. The undersigned issues the following findings of fact, conclusions of law, and recommendation. Procedural History Plaintiffs T & E Investment Group, LLC and Timothy Roberts (“Plaintiffs”) filed a motion for sanctions and for a contempt judgment. See Dkt. No. 53. In the motion, Plaintiffs sought sanctions against Defendants Christopher Faulkner, Breitling Oil and Gas Corporation, Parker Hallam, and Dustin Rodriguez a/k/a Michael Miller (“Defendants”) for spoliation of evidence and asked that the Court hold Defendants in contempt for violating an Order on Motion to Compel entered by Judge Kaplan, dated November 9, 2011 (the “11/9/11 Order”) [Dkt. No. 37]. The 11/9/11 Order required Defendants to permit Lance Fogarty, a jointly selected independent computer forensic expert and employee of Protegga LLC (“Protegga”), to have access to all of the computers used by Defendants during the year 2011, wherever located, for examination of the computers' hard drives. See Dkt. No. 37 at 1. The 11/9/11 Order stated that the examination should include, without limitation, examination of documents, writings, and metadata related to the postings and websites made the basis of this suit and a determination as to whether items have been deleted by Defendants or whether Defendants have used disk wiping programs to destroy evidence that at one time was reposed on computer hard drives. See id. at 1–2. *11 Defendants provided Fogarty with two computers on November 17, 2011 and with five additional computers on November 18, 2011. See Dkt. No. 53–1 at 8 of 107. Fogarty signed a report dated February 24, 2012 [Dkt. No. 53–1] (the “Initial Report”). The report found that Defendants had spoliated data on several computers by (1) deleting URLs in the registry key on November 17, 2011 on the computer identified as BRT–Breitling–PCL–02 (“PCL–2); (2) by downloading, installing, and executing PC Optimizer Pro (a program with the ability to permanently delete files) on November 14, 2011 and November 15, 2011 on the computer identified as BRTBreitling–PCL–02; (3) by using a software program called a bulk file changer on the computers identified as BRT–Breitling–PCL–03 (“PCL–3”) and BRT Breitling–PCL–06 (“PCL–6”); and (4) by connecting an external hard drive to PCL–3 and PCL–6. Fogarty also determined that a number of computers, smart phones, and tablets were used by Defendants in 2011 but withheld from the examination. See Dkt. No. 53–1. Based on the contents of the Initial Report, Plaintiffs filed a motion for sanctions and motion for contempt judgment on May 3, 2012. See Dkt. No. 53. On June 8, 2012, Judge Kaplan, pursuant to a letter from Plaintiffs, and with no objection from Defendants, ordered Defendants to turn over five additional computers to Fogarty. See Dkt. No. 62 at 1. Judge Kaplan ordered Fogarty to complete his examination of the new computers by June 26, 2012 and permitted Plaintiffs to supplement their motions for sanctions based on any new information by June 29, 2012. See id. Plaintiffs did not supplement their motion by the deadline, and Judge Kaplan informed the parties that, as a result, “the court will consider only the spoliation issues identified by plaintiffs and their forensic expert, Lance Fogarty, for the following computers: (1) BRT–Breitling–PCL–02; (2) BRT–Breitling–PCL–03; (3) BRT–Breitling–PCL–06.” Dkt. No. 65 at 1. Accordingly, as Plaintiffs' counsel has acknowledged, Plaintiffs' request for a contempt judgment for violating Judge Kaplan's 11/9/11 Order is no longer pending before the Court on Plaintiff's motion. See Dkt. No. 104, 2:18–24. Defendants filed a response to Plaintiffs' Motion for Sanctions, denying spoliation and stating that they had fully complied with the 11/9/11 Order. See Dkt. No. 66. Defendants hired their own expert, G–C Partners, who prepared a report that Defendants attached to their response. See Dkt. No. 66–1. Defendants also accused Fogarty of bias. See Dkt. No. 66 at 1. Plaintiffs filed a reply in support of their motion. See Dkt. No. 67. The undersigned held an evidentiary hearing on May 2, 2013, at which Fogarty and Defendant Christopher Faulkner testified. See Dkt. Nos. 102 & 104. After the hearing, Fogarty called the undersigned's chambers and informed the undersigned's staff of certain conclusions that he reached, on his own initiative, regarding the veracity of Defendant Faulkner's testimony at the May 2, 2013 hearing on Plaintiffs' Motion for Sanctions.[1] At the undersigned's direction, Fogarty submitted a supplemental report [Dkt. No. 109–1] (the “Supplemental Report”) to the Court and, pursuant to the Court's order, to the parties. See Dkt. No. 103; Dkt. No. 109. *12 The undersigned then held oral argument on May 16, 2013 to hear each party's position on the Supplemental Report, including each party's views on (1) the propriety of the Court's considering Fogarty's Supplemental Report in connection with Plaintiffs' Motion for Sanctions [Dkt. No. 53] and (2) the appropriate procedure and additional proceedings, if any, that the Court should order and implement if it were to consider the substance of the Supplemental Report in connection with Plaintiffs' Motion for Sanctions. See Dkt. Nos. 103 & 105. The parties appeared to agree that the undersigned had the ability to reopen the evidence to hold a second evidentiary hearing. After the May 16, 2013 oral argument, the undersigned issued an order setting a second evidentiary hearing, which was held on June 3, 2013. See Dkt. Nos. 106 & 107. Only Fogarty testified at the second evidentiary hearing, although the parties had the ability to call additional witnesses. See Dkt. No. 106 at 2. For the reasons set forth below, the undersigned recommends that Plaintiff's Motion for Sanctions be granted in part, that the jury receive an adverse inference instruction, and that the Court impose on Defendants a monetary sanction payable to Plaintiffs in an amount of $27,500, which is a reasonable estimate of the portion of Fogarty's fees that Plaintiffs have been invoiced for Protegga's investigation into whether, and to what extent, Defendants spoliated evidence. Facts Although the Initial Report finds several incidences of spoliation (discussed infra ), the undersigned determines that only one incident meets the elements of spoliation under the applicable law, and the evidentiary hearings focused almost entirely on this issue. As detailed in the Initial Report, Fogarty discovered evidence of a software program called a bulk file changer being used on PCL–3. A bulk file changer allows the user to change the metadata for multiple files at one time. See Dkt. No. 53 at 4. At the hearing, Fogarty testified that PCL–3 was, based on its user history, primarily used by Tamra Friedman, Defendant Faulkner's wife. See Dkt. No. 104, 21:8–11. PCL–3 contained two profiles: “Tamra–PC”, which was the administrator, and a second profile called “Chris.” The “Chris” profile was created on November 15, 2011, see Dkt. No. 53–1 at 16 of 107; however, a bulk file changer was used to make the profile appear to have been created in 2009, see Dkt. No. 104, 21:11–18. Fogarty testified that he could not think of a legitimate business or personal reason for Defendant Faulkner to have used a bulk file changer on PCL–3 as he did and that he had asked, without result, for Defendants to supply him with such a reason. See id., 38:22–24. Fogarty also testified that a large amount of data from an external hard drive was transferred onto PCL–3, see id., 20:24–21:5, on November 15, 2011, see Dkt. No. 53–1 at 16 of 107. Fogarty hypothesized that Defendant Faulkner attempted to “make it look like [PCL–3] was his computer that he used all the time. When the reality is based on all the email traffic that I saw there [were] other computers he was using that we haven't received.” Dkt. No. 104, 21:17–22. *13 Specifically, Fogarty believes that Defendant Faulkner attempted to make PCL3 look like his own computer because he failed to turn over a computer named “Alienware.” See id., 55:4–6. Fogarty testified that the evidence shows that the Alienware computer was last used on November 10, 2011 inside the Faulkner home. See id. Fogarty also testified that Defendant Faulkner sent emails from the Alienware computer. See Dkt. No. 108, 18:24–19:4, 41:15–42:15. Fogarty explains more fully in his Supplemental Report that, on November 10, 2011, the Alienware computer connected to PLC–3 and that the computers had IP addresses within the same subnet and wireless network ID. See Dkt. No. 109–1 at 2 of 6. From this information, Fogarty concluded that “both of these computers were in the same location, likely the Faulkner home.” Id. The Alienware computer also remotely connected to the computer identified as BRT–Breitling–PCD–05 on September 30, 2010. See Dkt. No. 53–1 at 24 of 107. Defendant Faulkner acknowledged that he had used a bulk file changer on PCL3 but explained that he had not intended to use the program to change the date on which his profile was created but rather had used it to make the files that he copied from the external hard drive read-only. See Dkt. No. 104, 61:22–62:4. Defendant Faulkner described the files that he uploaded as investor files, including “a lot of photos, PDF's Word documents, just standard stuff that we update our investor base with.” Id., 63:15–20. Defendant Faulkner explained that he wanted to make the files read-only so that his wife—who was angry with him at the time—would not delete the files to sabotage him. See id., 62:1–15. However, Defendant Faulkner acknowledged on cross-examination that read-only files could be deleted. See id., 88:3–5, 17–20. Although Defendant Faulkner appeared to insinuate that extra steps are required to delete a read-only file, see id., Defendants offered no proof to support this assertion. In addition, Fogarty testified that there are no extra steps or knowledge required to deleted a readonly file—“all you have to do is click on it and hit delete.” Dkt. No. 108, 25:7–8. Defendant Faulkner also acknowledged that the bulk file changer had “probably” changed the date of his profile but stated that it was “not my intent” to change the date. Dkt. No. 104, 90:12–23. Defendant Faulkner admitted that he and his wife were the only people with access to PCL–3 and that his wife was “not very computer literate.” Id., 90:24–91:4. Defendant Faulkner testified that he had produced every computer that he thought complied with the Court's 11/9/11 Order and that was in his possession, custody, or control. See id., 64:13–16. Defendant Faulkner explained, however, that he may have accessed other computer terminals that were not in his possession, custody, or control, such as when he was at his mother's house or while traveling, and that he may have accessed computers remotely that were stored at his former place of business. See id., 64:17–65:3. *14 Defendant Faulkner further testified that the IP address Fogarty linked to the “Alienware” computer belonged to the service provider Covad Communication, while Defendant Faulkner used the service provider Megapath. See id., 72:15–75:2. After the evidentiary hearing, Fogarty issued his Supplemental Report as described above. The Supplemental Report is the result of Fogarty's attempts “to validate several claims made by [Defendant] Faulkner” at the evidentiary hearing. Dkt. No. 109–1 at 2 of 6. Fogarty concluded that Defendant Faulkner made false statements as to three separate issues in his testimony. First, Fogarty explained that he had looked up the IP address associated with the Alienware computer and determined that, while the IP address was owned by Covad Communications, it was registered to Megapath Corporation. Fogarty also noted that he had found a press release, dated September 1, 2010, announcing the finalization of the corporate merger of Megapath, Covad Communications, and Speakeasy. See id. Second, Fogarty asserts that the majority of the documents that Defendant Faulkner copied onto PCL–3 using the external hard drive were not documents for Breitling investor files, as Defendant Faulkner testified, but rather personal photographs of parties and Trend Micro (Mrs. Freidman's employer) documents. See id. at 2–3 of 6. However, Fogarty acknowledges that a portion of the copied files—constituting less than 0.06 percent of the total size of data copied to PCL–3—concerned Breitling Oil and Gas. See id. Finally, Fogarty reports that Protegga investigated the use of the bulk file changer on PCL–3 and determined that someone had manually changed the dates of the uploaded files on November 18, 2011, after a failed attempt on November 15, 2011. See Dkt. No. id. at 4–5 of 6. And none of the files' attributes had been changed to readonly. See id. at 5–6 of 6. At the second evidentiary hearing on June 3, 2013, Defendants made no attempt to contradict the factual assertions in Fogarty's Supplemental Report. Defendant Faulkner was present at the hearing but did not testify. Legal Standards Plaintiffs rely on the Court's inherent powers to control litigation as the basis for the requests in their Motion for Sanctions. In order to exercise its inherent powers, the Court must find that the guilty party disposed of evidence in bad faith that resulted in prejudice to the judicial process. See Chambers v. NASCO, Inc., 501 U.S. 32, 45–46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). In Chambers, the United States Supreme Court held that, in certain circumstances, federal courts have inherent powers to sanction. See id. at 44–45. These inherent powers “ought to be exercised with great caution,” id. at 43 (internal quotation marks omitted), and are reserved for “conduct which abuses the judicial process,” id. at 44–45. “The threshold for the use of the inherent power sanction is high.” Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir.1996). A court's inherent powers to sanction “may be exercised only if essential to preserve the authority of the court,” id., and only when the court “finds that ‘fraud has been practiced upon it, or that the very temple of justice has been defiled,’ ” Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997, 1005 (5th Cir.1995) (quoting Chambers, 501 U.S. at 46). “Because of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44. *15 Spoliation of evidence is among the range of conduct for which a court may assess sanctions using its inherent powers. See Hodge v. Wal–Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir.2004) (“The imposition of a sanction ... for spoliation of evidence is an inherent power of federal courts.”); accord Union Pump Co. v. Centrifugal Technology Inc., 404 F. App'x 899, 905 (5th Cir.2010). “Spoliation is the destruction or material alteration of evidence or ... the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Ashton v. Knight Transp., Inc., 772 F.Supp.2d 772, 799 (N.D.Tex.2011) (internal quotation marks omitted). “The party seeking the spoliation sanction bears the burden of proof.” Id. at 800. The elements of spoliation in the Fifth Circuit are: (1) a duty to preserve the information; (2) a culpable breach of that duty; and (3) resulting prejudice to the innocent party. See id.; see also Rimkus Consulting Group v. Cammarata, 688 F.Supp.2d 598, 612–16 (S.D.Tex.2010) (to obtain sanctions for spoliation of evidence, a party must establish “(1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense .”). Turning to the first element, “[a] duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation.” Ashton, 772 F.Supp.2d at 800. As for culpability, although the level of culpability required for spoliation is not yet settled within the Fifth Circuit, a showing of bad faith or wilful abuse of the judicial process is required for the Court to exercise its inherent powers. See id. In addition, in the Fifth Circuit, “the circumstances of the act [of spoliation] must manifest bad faith” before severe sanctions are available. Vick v. Texas Emp't Comm'n, 514 F.2d 734, 737 (5th Cir.1975). Bad faith has been defined “as conduct involving ‘fraudulent intent and a desire to suppress the truth.’ ” Ashton, 772 F.Supp.2d at 800–01 (quoting Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 344 (M.D.La.2006)). The prejudice element requires that the spoliated evidence be relevant to the lawsuit and that the spoliated evidence it would have supported the inference sought by the moving party. See Rimkus, 688 F.Supp.2d at 616. However, courts recognize that “[t]he burden placed on the moving party to show that the lost evidence would have been favorable to it ought not to be too onerous, lest the spoliator be permitted to profit from its destruction.” Id. (internal citations omitted). Courts are not uniform in their application of the prejudice requirement, and “[t]he Fifth Circuit has not explicitly addressed whether even bad-faith destruction of evidence allows a court to presume that the destroyed evidence was relevant or its loss prejudicial. Case law in the Fifth Circuit indicates that an adverse inference instruction is not proper unless there is a showing that the spoliated evidence would have been relevant.” See id. at 617 (citing Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 & n. 8 (5th Cir.2005)). But at least one court within the Fifth Circuit has held that bad faith destruction of evidence “alone is sufficient to demonstrate relevance.” Consol. Aluminum Corp., 244 F.R.D. at 340 n. 6. In any case, courts have permitted parties to demonstrate that the spoliated evidence would have helped the moving party through circumstantial evidence. See Ashton, 772 F.Supp.2d at 804 (“In sum, the totality of the circumstantial evidence surrounding the Defendants' actions, as recounted in detail throughout this opinion, would permit a reasonable fact finder to conclude that the missing evidence would have aided Plaintiff in proving her claims.”); Yelton v. PHI, Inc., 279 F.R.D. 377, 393 (E.D.La.2011) (“[G]iven the facts and circumstances presented here, the Court finds that PHI has carried its limited burden of demonstrating that the lost documents would have been relevant.”). *16 Prejudice is also a question of degree. When a party is irreparably prejudiced by the bad faith destruction of evidence, striking the pleadings may be appropriate. See, e.g., Ashton, 772 F.Supp.2d at 805. However, “[w]hen a party is prejudiced, but not irreparably, from the loss of evidence that was destroyed with a high degree of culpability, a harsh but less extreme sanction than dismissal or default is to permit the fact finder to presume that the destroyed evidence was prejudicial.” Rimkus, 688 F.Supp.2d at 618. Analysis A. Duty to Preserve There can be no serious dispute that Defendants were under a duty to preserve the evidence at issue, including PCL–3, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.[2] Defendants were under a court order to provide to Fogarty “access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” Dkt. No. 37 at 1. Fogarty determined that the Alienware computer was used by Defendant Faulkner in 2011, likely at the Faulkner home, and Defendants voluntarily submitted PCL–3 to Fogarty for examination. Faced with the 11/9/11 Order, Defendants unquestionably had a duty to preserve the data contained on PCL–3—which means not manipulating the metadata, as Defendant Faulkner admittedly did—and to preserve the Alienware computer. See Dkt. No. 108, 18:19–19:4. While Defendants did, at both evidentiary hearings, vigorously question Fogarty's conclusion that the Alienware computer was located within the Faulkner home, the evidence overwhelmingly supports Fogarty's determination. See Dkt. No. 108, 26:8–27:1; Dkt. No. 109–1 at 2 of 6. The undersigned also notes that Fogarty was in all respects a credible witness. In any case, it is simply not credible that Defendant Faulkner could not identify a computer that he had previously used, that connected in the same subnet and wireless network ID as his wife's computer, and that, a day after Judge Kaplan issued the 11/9/11 Order, made a secure connection to his wife's computer. See Dkt. No. 108, 18:19–19:4. B. Culpability The totality of the evidence presented at the evidentiary hearings and in Fogarty's reports establishes that Defendant Faulkner acted in bad faith. The uncontroverted evidence demonstrates that the Alienware computer, using an IP address within the same subnet and wireless network ID as PCL–3, made a secure connection to PCL–3 on November 10, 2011, the day after the 11/9/11 Order on the Motion to Compel, and that the Alienware computer was never provided to Fogarty. While the failure to turn that computer over as required by Judge Kaplan's 11/9/11 Order now is not, standing alone, a basis for sanctions on Plaintiffs' motion, the evidence shows that PCL–3 was manually altered, using a bulk file changer, to make the “Chris” profile appear to have been created in 2009 and that certain files were likewise manually altered. *17 Defendant Faulkner testified that he only intended to use the bulk file changer to make certain files “read-only.” However, Fogarty's uncontroverted statements in his Supplemental Report and rebuttal testimony demonstrate that Defendant Faulkner's testimony was false, because any dates must have been changed manually and because no files' attributes were actually changed to read-only. In light of all the evidence and circumstances presented to the undersigned, Defendant Faulkner was not a credible witness at the first evidentiary hearing on May 2, 2013, and the undersigned concludes that he made false statements in his testimony at that hearing concerning the use of the bulk file changer. On the other hand, the undersigned cannot find from the evidence presented that Defendant Faulkner made false statements on the remaining two issues cited in the Supplemental Fogarty Report. First, Defendant Faulkner acknowledged that he could not be certain that Megapath and Covad were not working together and that he was testifying only that he did not believe that they were. See Dkt. No. 104, 81:7–14. Second, although Defendant Faulkner may have mischaracterized or exaggerated the extent to which the files he uploaded until PCL–3 were related to Breitling Oil & Gas investor files, at least some of the files uploaded matched the description to which Defendant Faulkner testified. Therefore, it is not implausible that Defendant Faulkner simply misremembered the exact contents of his file upload. Nevertheless, the record shows that Defendant Faulkner altered metadata on PCL–3 in an apparent effort to make it appear that he had used PCL–3—which does not contain files that relate to the subject matter of this lawsuit—for a number of years, when in fact it was his wife's computer, and that he made false statements to the Court about doing so. The evidence also demonstrates that Defendant Faulkner did so in the context of Defendants' having failed to turn over a computer that Defendant Faulkner had used in 2011 and that made a secure connection to PCL–3 using an IP address within the same subnet and wireless network ID as PCL–3. Defendant Faulkner's false statements to the Court and manipulation of evidence that he was under a court order to preserve, apparently to further an effort to conceal additional evidence that he was under a court order to produce, are sufficient to establish bad faith. C. Prejudice Prejudice is the most difficult element for Plaintiffs to meet. There is no dispute that the files on PCL–3—including those as to which Defendant Faulkner used the bulk file changer to alter their metadata—did not relate to the subject matter of this lawsuit. See Dkt. No. 104, 37:19–22. And, insofar as Plaintiffs assert that the alteration of PCL–3 is sanctionable where it was manipulated in order to hide the Alienware computer, because the Alienware computer was never produced for inspection, it is impossible for Plaintiffs to prove directly that the Alienware computer's contents were relevant to the litigation and would have been helpful to Plaintiffs in proving their claims. Moreover, Fogarty's Initial Report contained dozens of pages of relevant evidence that Plaintiffs have characterized as supportive of their claims. See Dkt. No. 53 at 4. Therefore, Plaintiffs cannot be said to be irreparably prejudiced. *18 Nevertheless, this situation presents “the difficulty and potential for unfairness” that courts have recognized can exist for an innocent party seeking to show that information lost through spoliation is relevant and prejudicial. Rimkus, 688 F.Supp.2d at 616. However, it is not difficult to conclude, based on “the totality of the circumstantial evidence” surrounding Defendant Faulkner's actions, as detailed in these findings and conclusions, that a reasonable fact finder could conclude that the Alienware computer contained information that was relevant and would have aided Plaintiffs in proving their claims. Ashton, 772 F.Supp.2d at 804. Additionally, the fact that Defendant Faulkner sent emails from his work address from the Alienware computer during the relevant time period in the 11/9/11 Order further supports a finding that the Alienware computer would have contained relevant information.[3] See Dkt. No. 53–1 at 25 of 107. The undersigned finds that the requisite prejudice is established from Defendants' bad faith spoliation of PCL–3 and the data thereon in the face of the 11/9/11 Order in an apparent effort to conceal the existence and significance of the Alienware computer. Defendants have objected that a request for sanctions for a failure to turn the Alienware computer over to Fogarty in response to the 11/9/11 Order is beyond the scope of Plaintiffs' Motion for Sanctions as it currently stands. But the undersigned is of the view that that failure is not itself the sanctionable spoliation but is a related circumstance that cannot be disentangled from Defendants' spoliation of PCL–3 (a computer clearly at issue on Plaintiffs' Motion for Sanctions)—and need not be, for present purposes, where Defendants had ample opportunity to present evidence and cross-examine Fogarty regarding the Alienware computer's existence, significance, and location at both evidentiary hearings. Accordingly, the undersigned finds that Plaintiffs have been prejudiced by Defendants' bad faith spoliation of PCL–3. D. Remedy “Courts have broad discretion in crafting a remedy that is proportionate to both the culpable conduct of the spoliating party and resulting prejudice to the innocent party,” including awarding attorneys' fees, deeming certain facts admitted, giving the jury an adverse inference instruction, striking pleadings, entering a default judgment, and dismissing the case entirely. Ashton, 772 F.Supp.2d at 801 (citing Anadarko Petroleum Corp. v. Davis, No. H–06–2849, 2006 WL 3837518, at *27 (S.D.Tex. Dec.28, 2006)). However, in choosing the appropriate remedy, a court must ensure that it is “no harsher than necessary to respond to the need to punish or deter and to address the impact on discovery.” Id. (internal quotation marks omitted). The appropriate sanction should “(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” Id. (internal quotation marks omitted). *19 Here, because the prejudice suffered by Plaintiffs does not appear to make the challenge of proving their claims insurmountable, it would be inappropriate, as Plaintiffs have requested, to strike Defendants' pleadings. See Rimkus, 688 F.Supp.2d at 644 (“The sanction of dismissal or default judgment is appropriate only if the spoliation or destruction of evidence resulted in ‘irreparable prejudice’ and no lesser sanction would suffice.”). Rather, considering all the relevant factors for choosing the appropriate remedy from the range of possible sanctions, the undersigned recommends that the jury be given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party. See generally Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008). This is an appropriate remedy where the Fifth Circuit permits an adverse inference “upon a showing of ‘bad faith’ or ‘bad conduct.’ ” Condrey, 431 F.3d at 203. Such an instruction will serve the important interests of deterring similar conduct, placing on Defendants the risk of any erroneous judgment, and restoring Plaintiffs to a position in which they would have been absent the bad faith spoliation. Further, like an adverse inference instruction, a monetary sanction can deter spoliation and compensate the moving party for additional costs incurred. See Rimkus, 688 F.Supp.2d at 647–48. In this case, Plaintiffs incurred additional costs when Fogarty continued to investigate evidence of spoliation by Defendants. The undersigned recommends that Plaintiffs recover from Defendants as sanctions an amount that is a reasonable estimate of the portion of Fogarty's fees that Plaintiffs have been invoiced for Protegga's investigation of Defendants' spoliation. Specifically, Fogarty billed Plaintiffs a total of $50,119.76 for his services as an independent expert, including a $5,412.50 retainer for his services at the May 2, 2013 evidentiary hearing. At the May 2, 2013 evidentiary hearing, Fogarty testified that Protegga's spoliation investigation caused his fees to be “at least double” of what they would have been absent the spoliation allegations. Dkt. No. 104, 30:10–22. As such, and taking into account additional fees that Fogarty may have accrued for his work on the Supplemental Report and testimony at the June 3, 2013 evidentiary hearing, the undersigned recommends that Defendants be sanctioned in the amount of $27,500. The undersigned finds that, under the particular circumstances of this case, a $27,500 sanction is not overly harsh but restores Plaintiffs to a position in which they would have been but for certain costs that they incurred based on Defendants' bad faith conduct. E. Remaining Allegations of Spoliation While the undersigned finds that the remaining allegations of spoliation by Fogarty and Plaintiffs do not meet the elements of spoliation, the undersigned will address these allegations for the sake of completeness. *20 First, Plaintiffs allege, based on the Initial Report, that the NTUser.dat file from PCL–2 shows that the URLs in the Typed URLs registry key were deleted on November 17, 2011, at 9:14 a.m. See Dkt. No. 53 at 3. Defendants asserted in their Response that G–C Partners recovered the deleted URLs and that they are all irrelevant. See Dkt. No. 66 at 3. At the hearing, Fogarty agreed that he was able to determine that none of the deleted URLs were related to the subject matter of this lawsuit. See Dkt. No. 104, 36:6–8. As such, this allegation clearly fails to satisfy at least the prejudice element required for spoliation. Plaintiffs also allege, based on the Initial Report, that a program called PC Optimizer Pro was downloaded, installed, and executed on November 14, 2011 and executed again on November 15, 2011 on PCL–2. See Dkt. No. 53 at 3. PC Optimizer Pro is a suite of software tools that optimizes a computer's performance by, among other things, cleaning the Windows registry, removing all traces of one's Internet history, and ensuring that files are fully erased and unrecoverable. See id. According to the developer's website (www.pcoptimizerpro.com), the File Shredder tool “can permanently delete files from your disk without the possibility of them ever being recovered.” Id. Defendants responded in their briefing that G–C Partners determined that PC Optimizer Pro was not used to delete files. See Dkt. No. 66 at 4. Further, Defendants cite to two declarations—from Matthew Rapoport (Breitling's IT director) and Parker Hallam—that state that the program was used to clear up viruses that were causing problems with Hallam's computer. See id. at 4 & Exs. B & C. G–C Partners also created a “Volume Shadow Copy data set” to compare files prior to the PC Optimizer Pro's installation and after. G–C Partners concluded that all of the “user created files” (that is, “word processing, spreadsheets, PDF, graphics, music, or other types of files that users typically interact with”) that exist in the Volume Shadow Copy backup also exist as Active files on the current system. Id. at 7. However, Outlook could not be matched because new emails were received. See id. at 8. Finally, G–C Partners tested the PC Optimizer Pro's file shredder function and determined that it would leave artifacts behind. G–C Partners uncovered no artifacts that would suggest that files were tampered with. See id. At the evidentiary hearing, Fogarty admitted that he did not find any evidence that PC Optimizer Pro's file shredder (or “wiping”) function had been used on PCL–2. See Dkt. No. 104, 42:13–19. Although Fogarty vigorously disputed that PC Optimizer Pro would ever be used as an anti-virus program, see id., 45:7–46:3, Fogarty could not demonstrate that PC Optimizer Pro was used to delete files on PCL–2, see id., 53:20–54:16. While Fogarty stated that “[t]here was information removed,” he acknowledged that it could be recovered forensically. Id., 53:24–25. He further stated that, due to some payment issues, he did not fully evaluate the G–C Partners report and was therefore unable to dispute its findings. See id., 104:54:9–16. As such, there is insufficient evidence to demonstrate that evidence was destroyed, much less evidence relevant to the case. *21 In addition, the Initial Report states that the bulk file changer was used on PCL–6 and that an external hard drive connected to PCL–6. See Dkt. No. 53–1 at 18 of 107. However, the record lacks sufficient detail to support allegations of spoliation of PCL–6 by Defendants. Finally, Plaintiffs allege that there is evidence that numerous computers and other devices were used by Defendants in 2011 and not provided to examiner. However, as discussed supra, this issue has been resolved by a prior order. See Dkt. No. 65. Recommendation Plaintiffs' Motion for Sanctions and Motion for Contempt Judgment [Dkt. No. 53] should be granted in part and denied in part. The jury should be given an instruction of adverse inference on the issue of spoliation, and Plaintiffs should be awarded from Defendants a monetary sanction of $27,500, which is a reasonable estimate of the portion of Fogarty's fees that Plaintiffs have been invoiced for Protegga's investigation into whether, and to what extent, Defendants spoliated evidence. A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir.1996). Footnotes [1] Faulkner is CEO of Defendant Breitling Oil and Gas. (Tr. at 58–59.) He testified in both his individual capacity and as corporate representative of Breitling Oil and Gas. (Tr. at 59.) [2] In Objection 7, Defendants object that the following finding or conclusion of the Magistrate Judge exceeds the scope of the motion for sanctions: While the failure to turn that computer over as required by Judge Kaplan's 11/9/11 Order is not, standing alone, a basis for sanctions on Plaintiffs' motion, the evidence shows that PCL–3 was manually altered, using a bulk file changer, to make the “Chris” profile appear to have been created in 2009 and that certain files were likewise manually altered. (Obj'ns at 5.) They then “further object” that while this finding or conclusion may constitute evidence supporting a bad faith finding related to a failure to produce the Alienware computer, “it does not support a finding that actionable spoliation occurred on [PCL–03].” (Id.) To the extent this “further” objection differs from Defendants' exceeding-thescope objection, the Court also overrules it. The finding/conclusion of the Magistrate Judge properly relates to the culpability of Defendants and the bad faith of Defendant Faulkner relative to the sanctionable spoliation. [3] In Objection 8, Defendants object to the following finding of the Magistrate Judge: Nevertheless, the record shows that Defendant Faulkner altered metadata on PCL–3 in an apparent effort to make it appear that he had used PCL–3—which does not contain files that relate to the subject matter of this lawsuit—for a number of years, when in fact it was his wife's computer, and that he made false statements to the Court about doing so. The evidence also demonstrates that Defendant Faulkner did so in the context of Defendants' having failed to turn over a computer that Defendant Faulkner had used in 2011 and that made a secure connection to PCL–3 using an IP address within the same subnet and wireless network ID as PCL–3. (Obj'ns at 5–6.) [4] In Objection 10, Defendants object to the finding of the Magistrate Judge that “the requisite prejudice is established from Defendants' bad faith spoliation of PCL–3 and the data thereon in the face of the 11/9/11 Order in an apparent effort to conceal the existence and significance of the Alienware computer.” (Obj'ns at 6.) [5] Defendants object to the finding or conclusion that “Plaintiffs have been prejudiced by Defendants' bad faith spoliation of PCL–3.” (Obj'ns at 7.) [1] Although Mr. Fogarty has been appointed by the Court in this case, neither the undersigned nor his chambers staff asked Mr. Fogarty to undertake this effort or communicated with Mr. Fogarty, outside of the hearing itself, prior to his phone call to the undersigned's chambers on the morning of May 3, 2013. [2] The undersigned notes that, as described above, only Defendants' conduct with regard to PCL–2, PCL–3, and PCL–6 remains within the scope of the conduct that is allegedly the spoliation that is grounds for sanctions under Plaintiff's Motion for Sanctions. See Dkt. No. 65. Therefore, Defendants' failure to produce the Alienware computer or other relevant evidence beyond PCL–2, PCL–3, and PCL–6 is beyond the scope of the undersigned's Findings, Conclusions, and Recommendation on Plaintiff's motion as a basis, in and of itself, for sanctions or, for that matter, contempt. However, a finding that Defendants manipulated data on PCL–3 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions. [3] The undersigned notes that the email cited in the Initial Report does not appear to be relevant; however, it supports a finding that the Alienware computer was used by Defendant Faulkner for work-related matters.