United States District Court, N.D. California, San Jose Division
JAMES K. SONG, et al., Plaintiffs,
AARON DRENBERG, Defendant.
ORDER DENYING MOTION FOR AN ORDER OF CONTEMPT RE:
DKT. NO. 117
VIRGINIA K. DEMARCHI United States Magistrate Judge.
Aaron Drenberg moves for an order holding plaintiffs'
counsel, Adam Engel, in contempt of court under Federal Rule
of Civil Procedure 37. Dkt. No. 117. Mr. Drenberg asks that the
Court order Mr. Engel to reimburse Mr. Drenberg's
reasonable attorneys' fees and costs in bringing the
motion. Id. at 2-4. Mr. Engel opposes the
motion. Dkt. No. 134. The Court deems this matter suitable
for resolution without oral argument. Civ. L.R. 7-1(b).
Having considered the parties' submissions, the Court
denies Mr. Drenberg's request for an order of contempt.
October 11, 2019, following numerous discovery disputes
addressing the same issues (see, e.g., Dkt. Nos. 23,
29, 30, 38, 39, 65, 66, 67, 68, 69, 70), the Court determined
that Mr. Engel was not well-informed about his or his
clients' discovery obligations. Dkt. No. 84. To remedy
that problem, the Court ordered Mr. Engel to: (1) read Title
V of the Federal Rules of Civil Procedure (“Disclosures
and Discovery”), including the Advisory Committee Notes
corresponding to the current rules, and Civil Local Rules
26-37; (2) personally investigate the existence and location
of documents responsive to each of Mr. Drenberg's
document requests; and (3) file a declaration by October 21,
2019 attesting under penalty of perjury that he had complied
with the two foregoing directives. Id. at 12.
October 18, 2019, plaintiff James Song sought an extension of
Mr. Engel's deadline to file the required declaration.
Dkt. No. 92. The Court extended Mr. Engel's filing
deadline to October 28, 2019. Dkt. No. 98.
review of the docket shows that Mr. Engel filed several
motions, including a motion to withdraw as plaintiffs'
counsel, between October 25, 2019 and October 30, 2019 (Dkt.
Nos. 101, 102, 103, 106). However, he never filed the
required declaration, and the Court never entered an order
relieving him of that obligation. On November 1, 2019,
plaintiffs voluntarily dismissed the action in its entirety.
Dkt. No. 111; see also Dkt. Nos. 112, 113. Mr.
Drenberg later moved for an order of contempt based on Mr.
Engel's failure to file the declaration attesting that he
had read the discovery rules and notes and investigated the
existence and location of responsive documents, as previously
ordered. Dkt. No. 117.
may sanction a party for failing to obey a discovery order
and may treat the failure as contempt of court. Fed.R.Civ.P.
37(b)(2)(A)(vii). Civil contempt “consists of a
party's disobedience to a specific and definite court
order by failure to take all reasonable steps within the
party's power to comply.” In re Dual-Deck Video
Cassette Recorder Antitrust Litig., 10 F.3d 693, 695
(9th Cir. 1993). “The contempt ‘need not be
willful,' and there is no good faith exception to the
requirement of obedience to a court order.”
Id. (quoting In re Crystal Palace Gambling Hall,
Inc., 817 F.2d 1361, 1365 (9th Cir. 1987)). “The
party alleging civil contempt must demonstrate that the
alleged contemnor violated the court's order by
‘clear and convincing evidence,' not merely a
preponderance of the evidence.” Id. (quoting
Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc.,
689 F.2d 885, 889 (9th Cir. 1982)).
Court's October 11, 2019 discovery order was not
ambiguous, and the parties do not dispute that Mr. Engel did
not file the declaration as ordered. Although Mr. Engel
argues that he could not comply with the directive to
personally investigate the documents responsive to Mr.
Drenberg's document requests because he was unable to
communicate with his clients, Dkt. No. 134 at 4-5, he does
not contend he was unable to comply with the directive to
read the Federal Rules of Civil Procedure, the Advisory
Committee Notes, and the Civil Local Rules concerning
discovery, or unable to submit a declaration attesting that
he had done so.
the Court finds that holding Mr. Engel in contempt would
serve no practical purpose in this case. “Under
traditional principles of equity practice, courts have long
imposed civil contempt sanctions to ‘coerce the
defendant into compliance' with [a court order] or
‘compensate the complainant for losses' stemming
from the defendant's noncompliance with [a court
order].” Taggart v. Lorenzen, 139 S.Ct. 1795,
1801 (2019) (quoting United States v. United Mine Workers
of Am., 330 U.S. 258, 303-04 (1947)); see also
Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d
770, 778 (9th Cir. 1983) (summarizing purposes of civil
contempt). An order of contempt would serve neither purpose
the Court directed Mr. Engel to familiarize himself with the
discovery rules, investigate his clients' responsive
documents, and file a declaration attesting that he had done
so in order to promote Mr. Engel's and his clients'
compliance with their discovery obligations going forward. As
plaintiffs have since dismissed this action, there are no
further discovery proceedings for which compliance with those
obligations will be required. Contempt does not serve any
legitimate coercive purpose with respect to future conduct.
Mr. Drenberg has not suffered and will not suffer any
prejudice or harm because Mr. Engel failed to file the
declaration as ordered. Mr. Drenberg no longer has an
interest in Mr. Engel's or his clients' future
compliance with their discovery obligations, and the Court
has already issued a sanctions order that contemplates an
award of reasonable attorneys' fees and costs to Mr.
Drenberg for plaintiffs' and counsel's past discovery
misconduct. See Dkt. No. 87. Contempt also
does not serve a compensatory purpose with respect to Mr.
Mr. Drenberg urges the Court to punish Mr. Engel for flouting
the Court's authority. Dkt. No. 140 at 9 (“The
Court's not enforcing its own rules gives attorneys like
Mr. Engel a license to continue his misconduct. . . . No.
party or their counsel should be allowed to ignore Court
Orders as Mr. Engel has done.”). While the Court
appreciates Mr. Drenberg's concern for the Court's
authority, an order of contempt in these circumstances
furthers neither the interest of justice nor any other
interest of the Court. Rather, Mr. Drenberg's
post-dismissal motion for contempt serves only to multiply
proceedings in an action that was ...