Song v. Drenberg

Background

The plaintiffs asserted claims against Aaron Drenberg for defamation, violation of the Computer Fraud and Abuse Act, and fraud concerning a Digital Millennium Copyright Act takedown notice. The parties asked the court to resolve disputes about James K. Song’s written responses and document production concerning Drenberg’s first and second sets of requests for production.

The court had previously ordered Song to serve compliant responses and begin producing documents. It later ordered him to amend his responses, stated that he had waived objections other than attorney-client privilege and attorney work-product protection, and required production of responsive documents by specified dates. Song served amended responses, but Drenberg argued that the responses and production still failed to comply with the prior orders and the discovery rules.

First Set of Requests

The court found that Song’s boilerplate responses did not adequately state whether responsive documents existed, whether documents were being withheld, or whether production was limited by privilege. A separate privilege log could identify particular documents, but Song’s response to each request still had to state whether documents within that request’s scope were being withheld on privilege grounds. The court concluded that Song had waived attorney-client privilege and attorney-work-product protection, subject to a limited opportunity to amend his privilege log under a separate order. The court also directed Song either to provide unqualified responses or to explain the scope of the production he agreed to make.

The court denied Drenberg’s request to require Song to identify the existence, location, and custodian of responsive documents outside Song’s possession, custody, or control. It found that Drenberg cited no rule or authority requiring that information and that the demand was unreasonable as applied to the 125 requests in the first set.

For Requests 100 and 101, the court rejected Song’s assertion that the requested materials were protected work product merely because they had been collected in anticipation of litigation. The court ordered Song to produce the photographs and event descriptions posted by Song’s former girlfriend that showed or described her time in Thailand and Myanmar with Song, as well as all other documents responsive to those requests, including documents withheld as work product. The court explained that the requests covered underlying evidence on which Song relied in his complaints and that the purpose for collecting evidence did not, by itself, protect it from discovery.

The court also found that Song’s electronically stored information was not produced in the form in which it was ordinarily maintained or in a reasonably usable form. It ordered him to organize and label the production so that it corresponded to the document requests, identify documents responsive to multiple requests, produce the documents in a format showing where each discrete document began and ended, and give every page a unique identifier unless the parties agreed otherwise for certain files. Song did not have to eliminate duplicates. The parties also had to confer about whether allegedly unreadable screenshots could be provided in another format or made available for inspection; Song did not have to create new screenshots.

Second Set of Requests

The court treated the disputes concerning the second set similarly. It ordered Song to serve amended responses that were either unqualified or explained the scope of the production. If he had withheld responsive documents as privileged, he had to produce them by October 21, 2019. Because Song had not provided a privilege log for the second set, the court found that he had waived any privilege or protection for those documents.

Song did not have to identify responsive documents outside his possession, custody, or control. By November 1, 2019, he had to organize and label the production by request, identify documents responsive to more than one request, produce the documents in a format showing each discrete document, and give each page a unique identifier unless the parties stipulated otherwise. The screenshot and duplicate-document instructions for the first set also applied to the second set.

Ruling and Additional Order

Judge Virginia K. DeMarchi granted in part and denied in part Drenberg’s motion to compel. The court ordered Song to amend his written responses and produce documents responsive to both sets of requests. It also ordered Song’s counsel, Adam Engel, to read Title V of the Federal Rules of Civil Procedure and the applicable local rules, personally investigate the existence and location of documents responsive to Drenberg’s requests, and file a declaration under penalty of perjury by October 21, 2019, confirming compliance.