Song v. Drenberg

Background

The plaintiffs sued Aaron Drenberg for defamation, violating the Computer Fraud and Abuse Act, and fraud concerning a Digital Millennium Copyright Act takedown notice. The parties presented several discovery disputes involving document production.

Drenberg previously asked the court to require James K. Song to provide compliant written responses to Drenberg’s second set of document requests and to produce documents in usable form. The court granted that relief and ruled that Song had waived privilege or other protection for responsive documents because he had not provided a privilege log. The court also noted that Song should have known better than to repeat errors identified in earlier orders.

On November 1, 2019, the plaintiffs voluntarily dismissed their claims against Drenberg. Before the sanctions motion was fully briefed, the plaintiffs appealed earlier orders, temporarily preventing the district court from addressing the sanctions motion. After the Ninth Circuit issued its mandate on July 13, 2021, the district court regained jurisdiction. The court had already denied Drenberg’s request for an order of contempt.

Sanctions request and jurisdiction

Drenberg initially sought sanctions against both Song and Song’s counsel, Adam Engel, under Federal Rule of Civil Procedure 37, the court’s inherent authority, and 28 U.S.C. § 1927. At the hearing, Drenberg abandoned reliance on Rule 37, so the court considered only inherent-authority sanctions and section 1927.

The court rejected Song’s argument that it lacked authority to decide the sanctions motion. It explained that courts retain related authority over attorney-fee disputes and sanctions proceedings even after judgment or a voluntary dismissal. The plaintiffs’ appeal had delayed consideration of the motion, but the Ninth Circuit’s mandate restored the district court’s jurisdiction over it.

Court’s analysis

A court’s inherent authority permits monetary and other sanctions for bad-faith conduct when that authority has not been displaced by a statute or rule. Section 1927 allows a court to require a lawyer who unreasonably and vexatiously multiplies proceedings to personally pay the excess costs, expenses, and attorney fees reasonably caused by that conduct. The court noted that section 1927 does not authorize sanctions against a party.

In response to Drenberg’s second set of document requests, Engel served responses on Song’s behalf that were identical to responses the court had previously found deficient concerning Drenberg’s first set of requests. Engel also failed to produce responsive documents in usable form. Neither Song nor Engel provided a justification for that conduct.

The court did not decide whether Song or Engel acted in bad faith. It found that the record clearly established at least reckless conduct. The failure to provide compliant responses and usable documents required Drenberg to bring another discovery dispute involving issues the court had already resolved against Song. The court concluded that this conduct unreasonably and vexatiously multiplied the proceedings and warranted sanctions under section 1927.

Disposition

The court granted Drenberg’s motion for sanctions as to Engel. It required Engel to reimburse Drenberg for the fees and costs reasonably incurred in preparing the motions to compel Song’s compliance with his discovery obligations concerning the second set of document requests. Drenberg could submit a request for a specific amount, supported by evidence, by November 8, 2021; Engel could respond by November 22, 2021. The parties could instead stipulate to the amount. The order did not impose these section 1927 sanctions on Song.