Song v. Drenberg

Background

On October 11, 2019, the court ordered James K. Song and/or his counsel to reimburse Aaron Drenberg for reasonable attorneys’ fees and costs incurred in preparing motions to compel responses to Drenberg’s first set of document requests. The order followed Song’s failure to comply with earlier orders requiring written responses that followed Federal Rule of Civil Procedure 34(b)(2) and requiring production of responsive documents.

Song sought relief from that sanctions order. Before Judge Lucy Koh ruled on that request or other pending motions, plaintiffs voluntarily dismissed the action on November 1, 2019. On November 4, 2019, Judge Koh denied Song’s request for relief from the sanctions order. Judge Koh denied the other pending motions as moot because of the voluntary dismissal, while stating that plaintiffs still had to comply with the October 11 sanctions order.

Motion at Issue

On November 15, 2019, Drenberg moved for an order holding Song’s counsel in contempt and for additional sanctions concerning Drenberg’s second set of document requests. Drenberg acknowledged that no prior court orders specifically addressed Song’s responses to the second set. He argued that the earlier orders’ requirements applied equally to the second set because Song’s responses were identical to the responses the court had already found deficient.

Before briefing on the second-set sanctions request was complete, plaintiffs appealed Judge Koh’s November 4 orders to the Ninth Circuit.

Court’s Analysis and Ruling

The court explained that filing a notice of appeal gives the appeals court authority over the parts of the case involved in the appeal and removes the district court’s control over those parts. It therefore concluded that it could take no further action concerning the October 11 sanctions order for the first set of document requests.

The court also concluded that it lacked authority to consider Drenberg’s request for sanctions concerning the second set. That request relied on the court’s reasoning for awarding sanctions concerning the first set and therefore involved an aspect of the case covered by the appeal.

The court reached a different conclusion about the contempt request. That request was based on a separate order requiring Song’s counsel to read specified federal and local civil rules, personally investigate the existence and location of responsive documents, and submit a declaration under penalty of perjury. Because the contempt issue was unrelated to the sanctions order on appeal, the court retained authority over that part of Drenberg’s motion and would consider only the contempt issue.

Next Steps

The court permitted Drenberg to file a reply brief addressing only the contempt issue by December 16, 2019. It continued the hearing on Drenberg’s motion from December 31, 2019, to January 7, 2019, as stated in the opinion.