The Central District of California granted plaintiff Full Tilt Boogie LLC’s motion for attorney's fees following discovery violations by the defendants, KEP Fortune LLC (“KEP”).

Prior to Plaintiff filing its motion, the Court issued a Final Report and Recommendation, partially granting Plaintiff's motion to compel, imposing sanctions on KEP for discovery failures and allowing the Plaintiff to seek attorney's fees. The Court ruled that KEP's discovery responses were inadequate, striking parts of its Cross-Complaint and barring the use of certain evidence at trial, and the Court found KEP's responses to requests for production were deficient. In response to the discovery deficiencies, the Court sanctioned KEP with an adverse inference instruction and precluded certain evidence related to profits, orders, and delays from being presented at trial. Plaintiff filed a motion for attorney’s fees in light of KEP’s discovery misconduct.

The Court opined that under Rule 37 of the Federal Rules of Civil Procedure, a party whose discovery violations lead to a motion to compel is generally required to pay the reasonable expenses incurred in making that motion, including attorney’s fees. The Court rejected Defendant’s argument that attorney fees should be reduced because not all of their discovery responses were found deficient by the Court since Defendant’s discovery responses did not meet Rule 37’s standard that discovery responses be "substantially justified." Additionally, the Court rejected the argument that the Plaintiff failed to meet and confer before filing the motion for attorney’s fees because the Court previously excused the parties from such a requirement and the Final Report and Recommendation did not require a meet and confer.

In conclusion, the Court sent a strong message to litigants that it would not tolerate discovery misconduct by ruling that both KEP and its counsel were jointly and severally liable for the attorney’s fees in addition to the sanctions already imposed on KEP as a result of the Court partially granting Plaintiff’s motion to compel.

If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. At CODISCOVR, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information. Reach out to Nicholas Berenato, associate attorney, CODISCOVR. Nick focuses his practice on information governance and electronic discovery in the construction, higher education, financial services, antitrust, government investigations, white-collar, insurance defense, and health care and life sciences industries.