Song v. Drenberg

Background

Defendant Aaron Drenberg moved for an order holding plaintiffs’ counsel, Adam Engel, in civil contempt under Federal Rule of Civil Procedure 37. He also asked for reimbursement of the reasonable attorneys’ fees and costs associated with bringing the motion. The court addressed only the contempt portion of the motion because the request for sanctions concerning a second set of document requests relied on reasons supporting an earlier sanctions award that was on appeal.

On October 11, 2019, the court ordered Engel to read the federal and local discovery rules and related notes, personally investigate the existence and location of documents responsive to Drenberg’s requests, and file a declaration under penalty of perjury confirming that he had completed those tasks. The court later extended the filing deadline to October 28. Engel filed several motions, including a motion to withdraw as counsel, but never filed the required declaration. The plaintiffs then voluntarily dismissed the action in its entirety on November 1, 2019.

Legal standard

A court may treat failure to obey a discovery order as contempt. Civil contempt generally requires disobedience of a specific and definite court order, and the party alleging contempt must prove the violation by clear and convincing evidence. The violation need not be willful, and good faith does not excuse noncompliance with a court order.

Discussion

The court found that its October 11 order was clear and that Engel had not filed the required declaration. Engel argued that he could not personally investigate responsive documents because he could not communicate with his clients. But he did not claim that he was unable to read the discovery materials or submit a declaration stating that he had done so.

Even so, the court concluded that holding Engel in contempt would serve no practical purpose. Civil contempt is generally used either to encourage future compliance with a court order or to compensate for losses caused by noncompliance. Because the plaintiffs had dismissed the action, there were no future discovery proceedings requiring compliance with the order. The court also noted that Drenberg had no continuing interest in Engel’s or the plaintiffs’ future discovery compliance and that an earlier sanctions order already contemplated an award of reasonable attorneys’ fees and costs for past discovery misconduct.

The court rejected Drenberg’s request to punish Engel for disregarding the court’s authority, explaining that contempt would not further the interests of justice or another legitimate court interest in these circumstances. The court stated that the post-dismissal motion would instead multiply proceedings in an already contentious action.

Disposition

Judge Virginia K. Demarchi denied Drenberg’s motion to hold Engel in contempt. The court also vacated the hearing scheduled for January 7, 2020.