IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ZAK SMITH,

 Appellant,

 v.

GEN CON LLC, a Washington State 

Limited Liability Company; PETER 

ADKISON, an individual; and PETER 

ADKISON AND DENISE FENTON,

and the marital community composed 

thereof,

 Respondents.

No. 85425-9-I

DIVISION ONE

UNPUBLISHED OPINION

BOWMAN, J. — Zak Smith sued Gen Con LLC and Peter Adkison for 

defamation, defamation per se, false light, and interference with a business 

expectancy. The trial court dismissed his lawsuit as a discovery sanction. Smith 

argues the trial court abused its discretion by dismissing his case and granting 

defendants’ requests for attorney fees. We affirm. 

FACTS1

Smith is an artist who began developing tabletop role-playing games 

(RPGs) in 2010. Gen Con is the largest and longest-running tabletop convention 

company in North America. Adkison is the co-owner and board chairperson of 

Gen Con. Smith regularly attended Gen Con events and generated business 

 

1 We repeat the relevant facts set forth in our prior opinion as necessary for the 

issues we address in this opinion. See Smith v. Gen Con LLC, No. 82672-7-I (Wash. Ct. 

App. July 11, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/826727.pdf. 
No. 85425-9-I/2

2

relations, consulting jobs, sales, and other business in the RPG industry from the 

conventions. 

In February 2019, Smith’s estranged wife published a Facebook post,

accusing Smith of sexual assault during their marriage. Adkison then published 

a statement in response to the accusations on Gen Con’s website, banning 

Smith from Gen Con events. He also posted a link to his statement on Facebook

in support of the ban, declaring that the “ ‘evidence was overwhelming’ ” that 

Smith is an “ ‘abuser.’ ” 

On February 8, 2021, Smith sued Gen Con, Adkison, and Adkison’s wife, 

(collectively Gen Con), alleging defamation, defamation per se, false light, 

outrage, interference with a business expectancy, and violation of the Consumer 

Protection Act (CPA), chapter 19.86 RCW. Gen Con moved to dismiss the 

complaint for failure to state a claim under CR 12(b)(6), and the trial court 

granted the motion. Smith appealed the order. We affirmed dismissal of the

outrage and CPA claims but reversed and remanded the claims of defamation,

defamation per se, false light, and intentional interference with a business 

expectancy for further proceedings.

2

 

On October 21, 2022, Gen Con served Smith with its first requests for 

production and first set of interrogatories. Smith did not timely respond, so the 

parties met and conferred about the issue on November 30. Smith submitted his 

responses on December 2. 

 

2 Smith, No. 82672-7-I, at 12, 17. On November 10, 2022, Smith amended his 

complaint, alleging only defamation, defamation per se, false light, and interference with 

a business expectancy. 
No. 85425-9-I/3

3

On December 23, 2022,3 Gen Con wrote Smith a letter, acknowledging 

receipt of his discovery responses but explaining that they were provided “12 

days past the deadline” and “deficient.” Gen Con identified several incomplete

responses, including Smith’s failure to identity each person likely to have 

discoverable information related to his claims, and a description of what that 

information may be. Smith listed several names but did not provide contact 

information or identify the discoverable information each person possessed. Gen 

Con also told Smith that he failed to “[i]dentify, quantify, and describe in detail all 

the damages” he suffered, or each “game forum, company, group, or other 

organization” he claimed blacklisted or banned him as a result of Gen Con’s 

alleged wrongful conduct. 

Around that time, Smith hired a new lawyer, Matthew Davis. Gen Con 

emailed Davis and attached a copy of the December 23 letter. It asked for 

interrogatory responses by January 6, 2023. Davis responded by email on 

December 28, 2022, but did not address the alleged deficient discovery 

responses. Instead, he asked whether Gen Con would “acknowledge the 

consequences of its actions for Mr. Smith’s life” and, if not, notified Gen Con’s 

attorney that he “will be noting a CR 30(b)(6) deposition of your client for the third 

week of January.” Gen Con responded on December 29. Gen Con’s counsel

told Davis that “we’ve been asking for Smith’s documents and discovery 

responses for many weeks now,” and we “need those documents so that we can 

schedule [Smith’s] deposition.”

 

3 The letter is misdated as December 23, 2021.
No. 85425-9-I/4

4

Davis did not respond to the email, so Gen Con sent another on January 

3, 2023, asking if Davis was available to “meet and confer” on January 6. Again, 

Davis did not respond. So, Gen Con emailed him on January 9, referencing the 

alleged deficient discovery responses and requesting his availability to meet and 

confer. On January 11, Gen Con still had not heard from Davis, so it sent 

another email, urging Davis to register for “e-service,”4 asking to meet and 

confer, and explaining that it would “file a motion to compel if we do not receive 

supplemental responses this week.” Davis again did not respond, so Gen Con 

resent the same email on January 18.

The evening of Wednesday, January 18, 2023, Davis responded, asking 

to “speak about the discovery on Monday” so he would have “time to get up to 

speed with it.” Gen Con replied the next day. It told Davis that “we are of course 

available to speak—we’ve been asking for weeks, after all. You’ve largely 

ignored us.” It asked Davis to “please send us times that you are available on 

Monday or Tuesday” and to supplement Smith’s interrogatory responses “by 

Monday end of day.” Davis said, “I will be ready to discuss it on Monday.”

The next day, Friday, January 20, 2023, Gen Con reminded Davis that 

“[y]ou still haven’t told us when you are available on Monday or Tuesday to 

confer. Please provide your availability.” Davis did not respond. On Tuesday, 

January 24, Gen Con told Davis it has “tried repeatedly to confer with you but 

you continue to ignore our requests for a time to speak.” It asked Davis again to 

 

4

“E-service” is a reference to the King County Superior Court electronic filing and 

service system. Under King County Local General Rule (KCLGR) 30, parties must 

electronically file and serve all documents unless the rule provides otherwise. See

KCLGR 30(b)(4)(A), (B)(i). 
No. 85425-9-I/5

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supplement Smith’s interrogatory responses by Friday, January 27, or Gen Con 

would move to compel responses. Davis did not respond.

On February 1, 2023, Gen Con moved to compel discovery. It asked the 

court to order Smith to “fully and without objection” answer Gen Con’s first set of 

interrogatories within 14 days. And it requested “reasonable attorneys’ fees 

associated with this discovery dispute.” Davis did not respond to the motion. 

On February 14, 2023, the trial court issued an order granting Gen Con’s 

motion to compel discovery. The court ordered Smith to produce responses to 

discovery no later than February 28. And it declared that all objections, other 

than those based on privilege, are waived, but that Smith must provide a detailed 

privilege log by February 28. Finally, the court ordered Smith to “pay the 

reasonable attorneys’ fees and costs Defendants have incurred relating to this 

discovery dispute.” 

The afternoon of February 14, 2023, Davis emailed the court,

acknowledging receipt of the order, claiming he did not receive a copy of the 

motion to compel, and asking if he could have a chance to respond. Gen Con 

objected, pointing out that Davis “is signed up for e-service,” that Gen Con had 

served its briefs through e-service, and that Davis received the trial court’s order 

by email, which “is the same e-mail as his e-service.” The trial court did not 

respond to Davis’ request. 

Later that day, Davis emailed Gen Con directly, explaining that he “was 

careful not to claim that [he] did not receive the motion,” and acknowledging that 

he is signed up for e-service and has “received other documents that way.” Still, 
No. 85425-9-I/6

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he could find no evidence that he received the motion to compel. He asked Gen 

Con’s attorney to be “as gracious and cordial as the others” Davis had 

encountered at his firm, Perkins Coie. But Davis also told him that he had

“encountered attorneys who made everything difficult and were essentially jerks,” 

and “I would observe that your client faces a far more extensive discovery burden 

than mine. If that is the way you choose to play it, then I will be forced to play the 

same way.”

On February 27, 2023, a day before the court-ordered deadline, Davis 

emailed Gen Con, asking for more time to complete the discovery responses. 

He explained that he was doing his best to be thorough but needed another two 

weeks, and hoped that it would “accept my statement and allow me time to finish 

the work.” Gen Con responded that Davis had “used variations of the same 

excuse” for months, that it expects “full compliance by the deadline,” and that if 

he did not comply, it would “bring this issue to the Court’s attention in a motion 

for an order to show cause and for sanctions.” Davis told Gen Con to “[d]o what 

you want. I am working as fast as I can. If you demand the impossible, you 

probably won’t get it.”

Smith did not provide supplemental discovery responses on February 28 

as ordered by the court. So, on March 2, 2023, Gen Con moved for a show 

cause order and discovery sanctions. It asked for daily monetary penalties until 

Smith complied with the court’s order, an order to show cause why the court 

should not hold Smith and Davis in contempt, and an award of attorney fees and 

costs. Smith did not respond to the motion. 
No. 85425-9-I/7

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On March 13, 2023, the trial court issued an “Order Granting Defendants’ 

Fee Petition” related to its February 14 order compelling discovery. In the March 

13 order, the court told Smith it was aware as of March 10 that he “still had not 

complied with the February 28, 2023 deadline” in the order compelling production 

of discovery. And that “failure to comply with discovery can be considered 

evidence of willfulness, that delay in providing discovery is prejudicial to trial 

preparation, and that failure to comply with court orders may lead to 

consideration of more significant sanctions.”

5

On March 15, 2023, the court issued an order on Gen Con’s March 2 

show cause motion. The court found that Smith “appears to date to have 

disregarded my February 14” order, and that he “has not provided any 

explanation for his failure to comply” with the order “or indeed any response at all 

to this motion.” The court ordered Smith to “immediately provide discovery as 

directed” in the February 14 order and to pay reasonable attorney fees and costs 

“associated with this present motion.” Later, the court granted Gen Con’s fee 

petition related to the court’s March 15 discovery order. The court again warned 

that “continued failure to promptly comply in full with the Court’s orders 

compelling” discovery will “likely lead to much more significant sanctions,

including, possibly, dispositive relief.”6

 

5 The trial court awarded Gen Con $23,337.50 in attorney fees. Smith refused to 

pay the attorney fees. Davis argued alternatively that the court’s order was interlocutory 

and “not enforceable until entry of a final judgment pursuant to CR 54(b),” and that Smith 

could not afford to pay. 

6 The court awarded Gen Con $29,945.50 in attorney fees. Smith again refused 

to pay the fees. 
No. 85425-9-I/8

8

On March 22, 2023, Smith provided supplemental responses to Gen 

Con’s interrogatories and requests for production. On March 24, Gen Con 

emailed Davis with a list of alleged deficiencies in the responses. Gen Con 

pointed out that Smith still had not identified the discoverable information 

possessed by the list of people he claimed had such information, provided details 

of the damages he claimed to suffer, nor provided sufficient details of each game 

forum, company, group, or other organization he claimed blacklisted or banned 

him as a result of Gen Con’s alleged wrongful conduct. 

Davis did not respond to the email. So, on March 28, 2023, Gen Con 

asked Davis to meet and confer. The parties met on April 3 and agreed that 

Davis would supplement Smith’s responses by April 10. On April 10, Davis 

emailed Gen Con with Smith’s supplemental responses. Davis told Gen Con that 

“Smith does not have contact information for the persons . . . he listed” as having 

discoverable information, and that Smith “does not know what knowledge they 

possess.” And he told Gen Con that Smith “has provided all responsive 

information in his possession or control” about the amount of damages he 

suffered. He explained that “[y]ou might not like his answer, but it is his answer.” 

Gen Con replied that “the supplemental responses remain as deficient as they 

were last week.”

On April 17, 2023, Gen Con moved for termination sanctions. It argued 

that Smith willfully refused to comply with several court orders to provide full 

discovery, and that lesser sanctions have not successfully compelled 
No. 85425-9-I/9

9

responses.7 And it asked for attorney fees and costs. On April 25, Gen Con 

replied to its motion, pointing out that Smith had again filed no response. 

That same day, Davis responded, claiming that for “the second time in this 

case,” he did not receive notice of Gen Con’s motion. Davis asked to move the 

hearing date so he could adequately respond to Gen Con’s motion. Over Gen 

Con’s objection, the trial court rescheduled the hearing date to May 10 and set 

new briefing deadlines.

On May 1, 2023, Davis filed a “Response to Motion for Termination 

Sanctions,” arguing that Smith “has fully answered defendants’ discovery 

requests,” so the court should deny the motion. On May 10, the trial court issued 

an “Order Granting Defendants’ Motion for Termination Sanctions.” It determined 

that Smith had willfully refused to comply with several of the court’s orders to fully 

produce discovery, that he had done so despite the imposition of lesser 

sanctions, and that the failure to produce prejudiced Gen Con. As a result, the 

court dismissed Smith’s complaint with prejudice. The court denied Gen Con’s 

request for attorney fees and costs, explaining that further monetary sanctions 

were not warranted. 

Smith appeals.

 

7 Gen Con also complained about what it characterized as Davis’ “threats”

throughout their communications. For example, Davis intermittently told Gen Con that 

Smith would bring his own motion to compel and seek sanctions. He said Gen Con may 

want to “advise whoever runs Perkins Coie that a motion seeking substantial CR 26(g) 

sanctions is on the way because of the manner in which you have obstructed discovery.” 

And Davis told Gen Con that “[t]hings are about to get interesting.” 
No. 85425-9-I/10

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ANALYSIS

Smith argues that the trial court erred by dismissing his complaint as a 

discovery sanction and awarding Gen Con excessive attorney fees.

1. Termination Sanction for Discovery Violations

Smith argues the trial court abused its discretion by dismissing his 

complaint as a discovery sanction. We disagree.

A trial court has broad discretion in imposing discovery sanctions under 

CR 37(b), and we will not disturb its determination absent a clear abuse of that 

discretion. Mayer v Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006). 

A trial court abuses its discretion when its decision is manifestly unreasonable or 

exercised on untenable grounds or for untenable reasons. State v. Thurlby, 184 

Wn.2d 618, 624, 359 P.3d 793 (2015).

A discretionary decision rests on “untenable grounds” or is based 

on “untenable reasons” if the trial court relies on unsupported facts 

or applies the wrong legal standard; the court’s decision is 

“manifestly unreasonable” if “the court, despite applying the correct 

legal standard to the supported facts, adopts a view that no 

reasonable person would take.” 

Mayer, 156 Wn.2d at 6848(quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 

P.3d 638 (2003)). 

CR 37 authorizes the trial court to impose sanctions against a party who 

violates a discovery order. Under CR 37(b)(2), a trial court “may make such 

orders in regard to the failure [to obey a discovery order] that are just.” The rule 

provides a nonexhaustive list of possible sanctions, which includes “dismissing 

the action or proceedings or any part thereof.” CR 37(b)(2)(C). Generally, the 

 

8

Internal quotation marks omitted. 
No. 85425-9-I/11

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trial court should impose the least severe sanction that will adequately 

compensate the harmed party; deter, punish, and educate the wrongdoer; and 

ensure that the wrongdoer does not profit from the wrong. Barton v. Dep’t of 

Transp., 178 Wn.2d 193, 215, 308 P.3d 597 (2013). 

When a trial court imposes one of the harsher remedies under CR 37(b), 

the record must clearly show that one party willfully or deliberately violated the 

discovery rules and orders, that the opposing party suffered substantial prejudice 

in its ability to prepare for trial, and that the trial court explicitly considered 

whether a lesser sanction would have sufficed. Magaña v. Hyundai Motor Am., 

167 Wn.2d 570, 584, 220 P.3d 191 (2009). A court may consider a party’s 

disregard of a court order without reasonable excuse or justification as willful. Id. 

But willfulness does not necessarily follow from the violation of a court order 

alone. Jones v. City of Seattle, 179 Wn.2d 322, 345, 314 P.3d 380 (2013). 

“Something more is needed.” Id.

The record supports the trial court’s determination that Smith willfully or 

deliberately violated discovery rules and court orders. Smith’s initial response to 

Gen Con’s requests for discovery was late. Then, Gen Con repeatedly explained 

to Davis what it believed to be deficiencies in Smith’s discovery responses and 

sought to meet and confer about the issues. Davis ignored most of Gen Con’s 

requests to meet and confer and failed to meet the agreed deadline for 

supplemental responses after a meeting did occur. Smith failed to respond to 

each of Gen Con’s motions to compel and ignored the deadlines established for 

production of discovery in each of the court’s orders. While Davis asked Gen 
No. 85425-9-I/12

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Con to agree to an extension of the trial court’s deadline to produce discovery, he 

made no motion to the court to extend the deadline. 

Davis argues that Smith fully complied with the court’s orders. According 

to Davis, Smith’s responses to discovery were complete because he had no 

ability to determine the information known by the people he identified as 

witnesses, no duty to provide a “numerical basis” for his damages, and was 

unable to specifically identify any individual or organization that blacklisted him 

because of Gen Con’s conduct. But Davis did not provide this information in 

signed discovery responses, move for a protective order, or otherwise explain to 

the trial court his reasons for Smith not responding to Gen Con’s discovery 

requests. See CR 37(d) (the court will not excuse a party that fails to answer 

properly served interrogatories, or provides “evasive or misleading answer[s],” 

unless the party failing to act “has applied for a protective order” under CR 26(c));

Johnson v. Mermis, 91 Wn. App. 127, 133, 955 P.2d 826 (1998) (if a party 

disagrees with the scope of production, or wishes not to respond to discovery 

requests, it must move for a protective order). Instead, Smith produced 

supplemental responses six months after Gen Con’s discovery requests, which 

Gen Con still alleged were “deficient,” and Davis made no effort to explain why 

he believed the responses were complete until Gen Con moved for termination 

sanctions. 

The record also supports the trial court’s finding that lesser sanctions 

proved inadequate to motivate Davis to respond to Gen Con’s discovery 

requests. The court twice warned Davis that more significant sanctions would 
No. 85425-9-I/13

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follow if he did not comply. And the court twice shifted attorney fees to Smith. 

Still, Davis failed to provide additional discovery responses or explain his reasons 

for not responding by the trial court’s deadlines.

Finally, the trial court concluded that the “prejudice to Defendants is 

obvious.” It explained that given the inadequate responses, Gen Con is unable 

to “determine who to depose and on what topics, prepare for summary judgment 

or trial, or even learn the basis for Plaintiff’s damages and causation claims in his 

complaint.” This is a tenable conclusion given the substance of information 

withheld.

Under these circumstances, the trial court did not abuse its discretion by 

dismissing Smith’s complaint as a sanction for discovery violations.9 

2. Attorney Fees 

Smith argues that the trial court erred by awarding Gen Con excessive

attorney fees for “routine motions to compel discovery.” We disagree.

We review an award of attorney fees for an abuse of discretion. Estrada 

v. McNulty, 98 Wn. App. 717, 723, 988 P.2d 492 (1999). The burden of showing 

that a fee is reasonable rests with the fee applicant. Berryman v. Metcalf, 177 

Wn. App. 644, 657, 312 P.3d 745 (2013). 

Generally, Washington courts apply the lodestar method to calculate 

attorney fees. Mahler v. Szucs, 135 Wn.2d 398, 433, 957 P.2d 632 (1998). To 

arrive at a lodestar award, the court first considers the number of hours 

reasonably expended on the case. McGreevy v. Or. Mut. Ins. Co., 90 Wn. App. 

 

9 Because we affirm the trial court’s order dismissing Smith’s complaint, we need 

not reach Smith’s argument that we should remand to a different judge. 
No. 85425-9-I/14

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283, 291, 951 P.2d 798 (1998). To this end, the attorney must provide 

reasonable documentation of the work performed, including the number of hours 

worked, the type of work performed, and the attorney who performed the work. 

Id. at 292. The court should discount hours spent on unsuccessful claims, 

duplicated effort, or otherwise unproductive time. Id.

Next, the court determines whether the hourly fee charged was 

reasonable. McGreevy, 90 Wn. App. at 291. When attorneys have an 

established rate for billing clients, that rate is likely a reasonable rate. Id. at 293. 

The usual rate is not, however, conclusively a reasonable fee. Id. The court may 

also consider the attorney’s level of skill, reputation, local rates charged by 

attorneys with similar skill and experience, or other factors relevant to the 

desirability and difficulty of the case. Id. The court then multiplies the 

reasonable hourly rate by the number of hours reasonably expended on the 

matter. Id. at 291.

Courts must take an active role in assessing the reasonableness of 

attorney fee awards and should not treat cost decisions as a “ ‘litigation 

afterthought.’ ” Berryman, 177 Wn. App. at 657 (quoting Mahler, 135 Wn.2d at 

434). While the court does not need to “deduct hours here and there just to 

prove to the appellate court that it has taken an active role in assessing the 

reasonableness of a fee request,” it must issue findings of fact and conclusions 

of law that “do more than give lip service” to the word “reasonable.” Id. at 658. 

The findings and conclusions must be “sufficient to permit a reviewing court to 

determine why the trial court awarded the amount in question.” SentinelC3, Inc. 
No. 85425-9-I/15

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v. Hunt, 181 Wn.2d 127, 144, 331 P.3d 40 (2014). They must show how the 

court resolved disputed issues of fact and explain the court’s analysis. 

Berryman, 177 Wn. App. at 658.

Citing Berryman, Smith argues that Gen Con’s fees are excessive, and 

that he should not be required to “ ‘pay for a Cadillac approach to a Chevrolet 

case.’ ” 177 Wn. App. at 662. According to Smith, the amount of fees awarded 

is unreasonable “for an unopposed motion to compel discovery” and a “routine 

motion that is opposed.” And he asserts the trial court erred because it “awarded 

Perkins Coie every cent of its requests.” 

In Berryman, the trial court signed a party’s proposed findings of fact and 

conclusions of law “without making any changes except to fill in the blank for the 

multiplier of 2.0.” 177 Wn. App. at 657. The findings did not address the 

opposing parties’ arguments for reducing billed hours to account for duplicative

effort and unproductive time. Id. Instead, the court “simply found that the hourly 

rate and hours billed were reasonable.” Id. We determined that the court’s 

findings were “conclusory” and that there was “no indication that the trial judge 

actively and independently confronted the question of what was a reasonable 

fee.” Id. at 658. 

Unlike the trial court in Berryman, the court’s orders here show that it 

considered and rejected Smith’s arguments. As to the first petition for fees, 

Smith argued to the trial court that motions to compel “are rote work,” and that 
No. 85425-9-I/16

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“37.4 hours on a routine discovery motion” is unreasonable.10 In resolving the 

dispute, the trial court did not simply adopt Gen Con’s proposed order without 

making any changes. Instead, the court said it determined that the amount of 

requested fees was reasonable after “careful scrutiny of the hours expended and 

rates charged,” and explained that the amount compensates all the hours 

“reasonably expended by Defendants in connection with Mr. Smith’s failure to 

engage with the discovery process, not merely in drafting the motion to compel.”

As to the second petition for fees, Smith made no meaningful challenge to 

the reasonableness of counsels’ billing rate or the time spent responding to his 

failure to engage in the discovery process. Instead, he belatedly argued that 

sanctions should not have been imposed in the first place. Smith explained that 

Davis emailed counsel to warn Gen Con that the discovery would not be timely 

provided. And if counsel “had just done what every reasonable attorney does in 

similar situations and worked out an agreement for a short extension,” he would 

have incurred none of the fees. Still, the trial court said in its order that it 

“reviewed Defendant’s [fee] submissions closely” and decided that the fees were 

“well supported” and “reasonable.” 

From these orders, we can conclude that the trial judge actively and 

independently confronted the question of what is a “reasonable” fee. The trial 

court did not abuse its discretion in awarding Gen Con attorney fees.

 

10 Smith also challenged the billing rate for one attorney “with a year of 

experience” but offered no argument about what he believed a reasonable hourly rate 

would be.
No. 85425-9-I/17

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Because the trial court did not abuse its discretion by dismissing Smith’s 

lawsuit as a discovery sanction and awarding Gen Con attorney fees, we affirm.11 

WE CONCUR:

 

11 Smith requests attorney fees on appeal. It appears he seeks fees as the 

prevailing party in a discovery dispute under CR 37(a)(4) and RAP 18.1. Because we

affirm the trial court’s orders, Smith is not the prevailing party on appeal. As a result, we

reject his request for fees.