United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MIXT GREENS,

Plaintiff,

v.

SPROUT CAFÉ,

Defendant.

___________________________________/

No. C-08-5175 EMC

ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFF’S

MOTION FOR CONTEMPT AND

SANCTIONS

(Docket No. 67)

Currently pending before the Court is Plaintiff’s motion for contempt and sanctions. Having

considered the parties’ briefs and accompanying submissions, as well as the oral argument of

counsel, the Court hereby GRANTS in part and DENIES in part Plaintiff’s motion.

I. DISCUSSION

Previously, Plaintiff filed a motion to compel which the Court granted on April 2, 2010. In

the order, the Court instructed Defendant produce certain documents within two weeks of the date of

the order. See Docket No. 62 (order). After Defendant failed to produce the documents within the

timeframe ordered, Plaintiff filed the currently pending motion. In the motion, Plaintiff asks that

Defendant be held in contempt and that Defendant be subjected to both evidentiary and monetary

sanctions.

Plaintiff’s request that Defendant be held in contempt and be subjected to evidentiary

sanctions is made pursuant to Federal Rule of Civil Procedure 37(b). Under the rule, where a party

fails to obey a discovery order, a court “may issue further just orders,” including contempt and

Case 3:08-cv-05175-EMC Document 80 Filed 06/21/10 Page 1 of 4
United States District Court

For the Northern District of California

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 At the hearing, Defendant raised the argument for the first time that, at most, the Court could

consider only an award of fees with respect to the motion for sanctions, and not the underlying motion

to compel. However, Defendant did not cite any authority to support its proposition. Furthermore, as

Plaintiff points out, nothing in the rule requires a motion for sanctions, made in conjunction with a

motion to compel, to be filed at the same time as the motion to compel. See Fed. R. Civ. P. 37(a)(5)(A)

(providing that, “[i]f the motion [to compel] is granted . . . [,] the court must . . . require the party

[and/or attorney] to pay the movant’s reasonable expenses incurred in making the motion, including

attorney’s fees”) (emphasis added).

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preclusion sanctions. Fed. R. Civ. P. 37(b)(2)(A). As indicated by the language of Rule 37(b), a

court has discretion as to whether to sanction and, if so, what type of sanction to issue. See 7-37

Moore’s Fed. Prac. -- Civ. § 37.50[1][b]; see also Fair Hous. v. Combs, 285 F.3d 899, 905 (9th Cir.

2002) (reviewing trial court’s decision to strike defendant’s answer and enter a default judgment

based on discovery violations for abuse of discretion). “[A] primary purpose of a sanction under

Rule 37[(b)] will be to secure or encourage compliance with the underlying discovery order alleged

to have been violated.” 7-37 Moore’s Fed. Prac. -- Civ. § 37.50[1][a]. 

In the instant case, the Court declines to issue any contempt or preclusion sanction. Nearly

all the discovery sought has now been produced with the sole exception of financial information for

2010 which the Court orders shall be produced no later than June 22, 2010. Discovery is still open

and there is ample time to prepare for trial set for October 18, 2010. Plaintiff has not suffered any

substantial or irreparable prejudice as a result of Defendants’ tardy compliance with the Court’s

order. Therefore, issuing a contempt or preclusion sanction would be excessively severe at this

point. 

The only question remaining is whether or not any monetary sanctions should issue. Plaintiff

asks to be awarded its attorney’s fees both for filing the underlying motion to compel and now the

currently pending motion for sanctions. The Court has the authority to issue monetary sanctions

under Federal Rule of Civil Procedure 37(a)(5) (for the underlying motion to compel) and 37(b) (for

the currently pending motion for sanctions). Under both rules, attorney’s fees are to be awarded

unless, e.g., the nonmoving party’s actions were substantially justified or there are other

circumstances that would make an award unjust.1

With respect to the motion to compel, Defendant’s actions were not substantially justified. 

Most notably, with respect to the financial documents sought by Plaintiff, Defendant outright

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refused any production. Defendant did not really contest that the documents are relevant given the

damages claimed by Plaintiff but did assert a privacy objection. That objection was without any

merit because any privacy concerns could have been addressed by a protective order limiting the

disclosure e.g., for attorney’s eyes only. As the Court has already ruled, the privacy objection was

without legal merit; the information was clearly relevant for discovery purposes.

Similarly, with respect to the motion for sanctions, Defendant’s actions were not

substantially justified. Under the Court’s order granting the motion to compel, Defendant was

obligated to produce only a limited set of documents. Furthermore, the Court provided Defendant

with two weeks to produce the documents -- more than enough time given the limited production. 

Although Defendant has now produced the documents at issue, it did so only after the instant motion

for sanctions was filed.

Finally, the Court finds that there are no other circumstances that would an award of

attorney’s fees to Plaintiff unjust. The fact that Defendant is a small company represented by a

small firm does not excuse Defendant from failing to abide by its discovery obligations and the order

of this Court. Nor do counsel’s involvement in other proceedings or inattention constitute a

cognizable excuse under Rule 37.

Accordingly, the Court grants Plaintiff’s request for attorney’s fees under Rule 37. The

Court finds, however, that the amount of fees requested by Plaintiff is excessive. Plaintiff asks for

more than $10,000 for the underlying motion to compel, representing approximately 28 hours of

work, and another $8,000 for the motion for sanctions, representing approximately 22 hours of work. 

While the Court does not have reason to doubt that Plaintiff’s counsel spent this amount of time on

the two motions, the fees are excessive. Neither the motion to compel nor the motion for sanctions

was particularly complex. Indeed, between the two motions, there was at most one substantive legal

issue -- i.e., the merits of the privacy objection raised by Defendant with respect to the financial

documents -- and as indicated above it was a simple one. The Court therefore awards Plaintiff

$10,000 in fees. The Court notes that, at an hourly rate of $375, this compensates Plaintiff for 24

hours of work. The Court notes that it does not in this order make any specific allocation as to

whether the fees should be paid by Defendant itself or by its counsel. However, the Court notes that,

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at the hearing, counsel admitted that he or his firm was responsible for part (although not all) of the

delay in complying with applicable obligations.

II. CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part Plaintiff’s motion. In

addition, per the parties’ agreement, the Court orders that Defendant produce the financial

documents for the year 2010 by June 22, 2010 (i.e., two days prior to the deposition of Defendant’s

accountant).

This order disposes of Docket No. 67.

IT IS SO ORDERED.

Dated: June 21, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

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