Song v. Drenberg

Background

The court had previously ordered James K. Song to comply with discovery requests seeking documents from Aaron Drenberg. In an earlier order, the court warned that Song and/or his counsel could be required to reimburse Drenberg for the consequences of failing to comply unless Song showed that the failure was substantially justified. Song responded mainly by criticizing Drenberg’s counsel’s cooperation during the discovery dispute.

The court later again concluded that Song had not complied with Federal Rule of Civil Procedure 34 and the court’s prior orders. It found that Song’s oppositions to Drenberg’s motions to compel were not substantially justified, with two minor exceptions. The court did not require Song to establish the existence or location of documents outside his possession, custody, or control, and it denied Drenberg’s request for better-quality screenshots.

Ruling

The court relied on Rule 37(b)(2), which permits sanctions when a party fails to obey a discovery order. It concluded that sanctions were warranted because Song’s noncompliance interfered with the progress of discovery, required Drenberg to file successive motions to compel, and prejudiced Drenberg’s ability to obtain, review, and complete discovery.

The court awarded sanctions under Rule 37(b)(2) in Drenberg’s favor and jointly against Song and his counsel. Song and his counsel must reimburse Drenberg for reasonable attorneys’ fees and costs incurred in preparing the motions to compel concerning the first set of document requests, but only as to the matters on which Drenberg prevailed. The court did not determine the final amount in this order. Drenberg could submit a declaration or other supporting evidence by October 31, 2019; Song could respond within seven days, or the parties could jointly stipulate to the amount.