Song v. Drenberg ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JAMES K. SONG, et al., Case No. 18-cv-06283-LHK (VKD) 9 Plaintiffs, ORDER DENYING MOTION FOR AN 10 v. ORDER OF CONTEMPT 11 AARON DRENBERG, Re: Dkt. No. 117 Defendant. 12 13 14 Defendant Aaron Drenberg moves for an order holding plaintiffs’ counsel, Adam Engel, in 15 contempt of court under Federal Rule of Civil Procedure 37.1 Dkt. No. 117. Mr. Drenberg asks 16 that the Court order Mr. Engel to reimburse Mr. Drenberg’s reasonable attorneys’ fees and costs in 17 bringing the motion.2 Id. at 2–4. Mr. Engel opposes the motion. Dkt. No. 134. The Court deems 18 this matter suitable for resolution without oral argument. Civ. L.R. 7-1(b). Having considered the 19 parties’ submissions, the Court denies Mr. Drenberg’s request for an order of contempt. 20 I. BACKGROUND 21 On October 11, 2019, following numerous discovery disputes addressing the same issues 22 (see, e.g., Dkt. Nos. 23, 29, 30, 38, 39, 65, 66, 67, 68, 69, 70), the Court determined that Mr. Engel 23 1 Mr. Drenberg’s motion also requested sanctions against plaintiff James Song in the form of 24 attorneys’ fees and costs associated with Mr. Drenberg’s motion to compel responses to Mr. Drenberg’s second set of requests for production. Dkt. No. 117 at 4–8. As the Court explained in 25 its December 11, 2019 interim order concerning the instant motion, Mr. Drenberg’s request for sanctions as to his second set of requests relies on the Court’s reasons for awarding sanctions as to 26 the first set of requests for production, which is now on appeal before the Ninth Circuit. Dkt. No. 136. The Court therefore addresses only the contempt portion of Mr. Drenberg’s motion. 27 1 was not well-informed about his or his clients’ discovery obligations. Dkt. No. 84. To remedy 2 that problem, the Court ordered Mr. Engel to: (1) read Title V of the Federal Rules of Civil 3 Procedure (“Disclosures and Discovery”), including the Advisory Committee Notes corresponding 4 to the current rules, and Civil Local Rules 26-37; (2) personally investigate the existence and 5 location of documents responsive to each of Mr. Drenberg’s document requests; and (3) file a 6 declaration by October 21, 2019 attesting under penalty of perjury that he had complied with the 7 two foregoing directives. Id. at 12. 8 On October 18, 2019, plaintiff James Song sought an extension of Mr. Engel’s deadline to 9 file the required declaration. Dkt. No. 92. The Court extended Mr. Engel’s filing deadline to 10 October 28, 2019. Dkt. No. 98. 11 A review of the docket shows that Mr. Engel filed several motions, including a motion to 12 withdraw as plaintiffs’ counsel, between October 25, 2019 and October 30, 2019 (Dkt. Nos. 101, 13 102, 103, 106). However, he never filed the required declaration, and the Court never entered an 14 order relieving him of that obligation. On November 1, 2019, plaintiffs voluntarily dismissed the 15 action in its entirety. Dkt. No. 111; see also Dkt. Nos. 112, 113. Mr. Drenberg later moved for an 16 order of contempt based on Mr. Engel’s failure to file the declaration attesting that he had read the 17 discovery rules and notes and investigated the existence and location of responsive documents, as 18 previously ordered. Dkt. No. 117. 19 II. LEGAL STANDARD 20 A court may sanction a party for failing to obey a discovery order and may treat the failure 21 as contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(vii). Civil contempt3 “consists of a party’s 22 disobedience to a specific and definite court order by failure to take all reasonable steps within the 23 party’s power to comply.” In re Dual–Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 24 693, 695 (9th Cir. 1993). “The contempt ‘need not be willful,’ and there is no good faith 25 26 3 “Where the purpose of contempt is ‘remedial, i.e., to compensate for the costs of the contemptuous conduct or to coerce future compliance with the court’s order, the contempt order is 27 civil.’” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1130 n. 5 (9th Cir. 2006) (quoting 1 exception to the requirement of obedience to a court order.” Id. (quoting In re Crystal Palace 2 Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir. 1987)). “The party alleging civil contempt 3 must demonstrate that the alleged contemnor violated the court’s order by ‘clear and convincing 4 evidence,’ not merely a preponderance of the evidence.” Id. (quoting Vertex Distrib., Inc. v. 5 Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982)). 6 III. DISCUSSION 7 The Court’s October 11, 2019 discovery order was not ambiguous, and the parties do not 8 dispute that Mr. Engel did not file the declaration as ordered. Although Mr. Engel argues that he 9 could not comply with the directive to personally investigate the documents responsive to Mr. 10 Drenberg’s document requests because he was unable to communicate with his clients, Dkt. No. 11 134 at 4–5, he does not contend he was unable to comply with the directive to read the Federal 12 Rules of Civil Procedure, the Advisory Committee Notes, and the Civil Local Rules concerning 13 discovery, or unable to submit a declaration attesting that he had done so. 14 Nevertheless, the Court finds that holding Mr. Engel in contempt would serve no practical 15 purpose in this case. “Under traditional principles of equity practice, courts have long imposed 16 civil contempt sanctions to ‘coerce the defendant into compliance’ with [a court order] or 17 ‘compensate the complainant for losses’ stemming from the defendant’s noncompliance with [a 18 court order].” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (quoting United States v. United 19 Mine Workers of Am., 330 U.S. 258, 303–04 (1947)); see also Falstaff Brewing Corp. v. Miller 20 Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983) (summarizing purposes of civil contempt). An 21 order of contempt would serve neither purpose here. 22 First, the Court directed Mr. Engel to familiarize himself with the discovery rules, 23 investigate his clients’ responsive documents, and file a declaration attesting that he had done so 24 in order to promote Mr. Engel’s and his clients’ compliance with their discovery obligations going 25 forward. As plaintiffs have since dismissed this action, there are no further discovery proceedings 26 for which compliance with those obligations will be required. Contempt does not serve any 27 legitimate coercive purpose with respect to future conduct. 1 Mr. Engel failed to file the declaration as ordered. Mr. Drenberg no longer has an interest in Mr. 2 || Engel’s or his clients’ future compliance with their discovery obligations, and the Court has 3 already issued a sanctions order that contemplates an award of reasonable attorneys’ fees and costs 4 || to Mr. Drenberg for plaintiffs’ and counsel’s past discovery misconduct.* See Dkt. No. 87. 5 Contempt also does not serve a compensatory purpose with respect to Mr. Drenberg. 6 Nevertheless, Mr. Drenberg urges the Court to punish Mr. Engel for flouting the Court’s 7 authority. Dkt. No. 140 at 9 (“The Court’s not enforcing its own rules gives attorneys like Mr. 8 Engel a license to continue his misconduct. .. . No party or their counsel should be allowed to 9 || ignore Court Orders as Mr. Engel has done.”). While the Court appreciates Mr. Drenberg’s 10 || concern for the Court’s authority, an order of contempt in these circumstances furthers neither the 11 interest of justice nor any other interest of the Court. Rather, Mr. Drenberg’s post-dismissal 12 || motion for contempt serves only to multiply proceedings in an action that was already unduly 5 13 contentious and in which the Court has already been asked to (and did) award sanctions against 14 || Mr. Song and his counsel, Mr. Engel, jointly for discovery misconduct. 15 || Iv. CONCLUSION 16 For the foregoing reasons, the Court denies Mr. Drenberg’s motion to hold Mr. Engel in 3 17 contempt. The hearing scheduled for January 7, 2020 is hereby VACATED. IT IS SO ORDERED. 19 Dated: January 6, 2020 20 7 VIRGINIA K. DEMARCHI United States Magistrate Judge 23 24 25 26 27 28 * Plaintiffs appealed the Court’s order awarding sanctions before the Court completed its assessment of the specific amount due. See Dkt. Nos. 87, 120, 126.