Song v. Drenberg
- Lucy Koh
- 5:18-cv-06283
- U.S. District Court · Northern District of California
- 4
In Song v. Drenberg, Judge Demarchi sanctioned counsel Adam Engel for recklessly multiplying discovery proceedings and ordered reimbursement of fees and costs.
Adam Engel, James K. Song’s counsel, was required to reimburse Aaron Drenberg for qualifying fees and costs; the amount was left for a later submission or stipulation.
What happened
In Song v. Drenberg, Aaron Drenberg sought sanctions after James K. Song’s counsel served responses to a second set of document requests that repeated problems the court had already identified and did not provide usable documents. Song and his counsel opposed the request, and the plaintiffs later voluntarily dismissed their claims.
The court ruled that it still had authority to decide the sanctions request after the dismissal. It found that counsel’s conduct was at least reckless and unreasonably multiplied the proceedings. The court granted sanctions as to Adam Engel and required him to reimburse Drenberg for fees and costs reasonably incurred preparing the successful motion to compel, with the amount to be determined later.
Judge Demarchi issued the order on October 18, 2021. The opinion states that Drenberg’s request relied on the court’s inherent authority and a federal law allowing sanctions against attorneys who unreasonably and vexatiously multiply proceedings; the court did not decide whether Song or Engel acted in bad faith.
The detailed version
- Song v. Drenberg · No. 5:18-cv-06283
- Lucy Koh
- Oct. 18, 2021
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 brought several discovery disputes to the court.
Drenberg previously asked the court to require James K. Song to respond properly to Drenberg’s second set of document requests. The court ordered Song to serve amended responses and produce documents in usable form. It also found that Song had waived privilege or other protection for responsive documents because he had not provided a privilege log. The court had warned that Song’s failure to follow his discovery obligations was not excused because the second requests had not been covered by earlier orders.
Drenberg then moved for sanctions against Song and Song’s counsel, Adam Engel. He relied on 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 its inherent authority and Section 1927. Before the sanctions motion was fully briefed, the plaintiffs appealed certain orders, temporarily removing the sanctions motion from the district court’s jurisdiction. After the appeals court issued its mandate, the district court again had jurisdiction. The plaintiffs had also voluntarily dismissed their claims against Drenberg.
Jurisdiction
The court rejected Song’s argument that it lacked authority to decide the sanctions motion. It held that a court retains related jurisdiction over attorney-fee disputes connected to the underlying case, including after a voluntary dismissal.
Sanctions analysis
The court explained that its inherent authority permits monetary and other sanctions for bad-faith conduct, but that authority must be used carefully. Section 1927 permits sanctions against an attorney who unreasonably and vexatiously multiplies the proceedings by requiring the attorney to pay the excess costs, expenses, and attorney fees caused by that conduct. The court noted that Section 1927 does not authorize sanctions against a party.
The court found that Engel served responses on Song’s behalf that were identical to responses the court had previously found deficient in connection with Drenberg’s first set of document requests. Engel also failed to produce responsive documents in usable form. Neither Song nor Engel provided a justification for that conduct. The court said it did not need to decide whether either person acted in bad faith because the record clearly showed conduct that was at least reckless. The conduct required another discovery dispute involving issues the court had already resolved against Song and therefore unreasonably and vexatiously multiplied the proceedings.
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 successful motion to compel compliance with the second set of document requests. Drenberg could submit a supported request for a specific amount by November 8, 2021, and Engel could respond by November 22, 2021; the parties could alternatively agree on the amount and notify the court.
Judge Virginia K. Demarchi signed the order. The opinion does not state a separate disposition using a motion-denial label for the sanctions request against Song, but the awarded sanctions were directed to Engel because Section 1927 applies to attorneys.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.