Torres v. Rothstein, 2:19-cv-00594

On July 6, 2020 the court granted Plaintiff’s motion to compel and gave Defendant Allan Rothstein 14 days to provide dates/times/locations for inspection and copying of documents responsive to Requests for Production Nos. 7–9.
Plaintiff says Rothstein never complied; copies of the order were sent July 8–9, follow-up emails/letters were sent July 19 and August 10, and Rothstein did not respond.
Plaintiff’s counsel’s assistant placed three calls to Rothstein after his deposition; Rothstein disconnected one call and did not answer the others.
Plaintiff moved for sanctions under Fed. R. Civ. P. 37, seeking either striking Rothstein’s answer or precluding him from presenting certain defenses/evidence; Rothstein did not oppose the motion.
The court found Rothstein’s failure to oppose under Local Rule 7-2(d) supported granting the motion, and considered Rule 37 and Ninth Circuit precedent, but declined case-dispositive sanctions because Rothstein had not been previously warned.
The court granted the motion in part: ordered Rothstein to pay plaintiff’s reasonable fees and costs for the sanctions motion (plaintiff to file a fee memorandum; Rothstein given seven days to respond) and ordered Rothstein to show cause by December 7, 2020 why the requested additional sanctions should not be imposed, warning failure to respond may lead to preclusion or striking his answer.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether case-dispositive sanctions (striking answer) are warranted for failure to comply with a discovery order	Rothstein disobeyed the Court’s order and ignored communications; striking his answer or preclusion is appropriate	Rothstein did not oppose or present arguments	Court declined to strike the answer now because Rothstein had not been previously warned; ordered show-cause and warned of possible future case-dispositive sanctions
Whether monetary sanctions (attorney’s fees/costs) should be awarded for preparing the sanctions motion	Plaintiff seeks reasonable fees and costs incurred in bringing the motion	No opposition submitted	Court granted this relief: plaintiff to file a detailed fee memorandum; Rothstein given seven days to respond
Whether failure to oppose the motion constitutes consent under Local Rule 7-2(d)	Plaintiff argues non-opposition constitutes consent to granting the motion	No opposition submitted	Court applied Local Rule 7-2(d) and noted Rothstein’s lack of response supports granting the motion in part

Ritchie v. United States, 451 F.3d 1019 (9th Cir. 2006) (district court has broad discretion to impose discovery sanctions)
Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406 (9th Cir. 1990) (court should examine all instances of a party’s misconduct when imposing sanctions)
Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (U.S. 1976) (case-dispositive sanctions must be available to deter misconduct in appropriate cases)
Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) (sets out five-factor test for case-terminating sanctions under Rule 37)
Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003) (quoting Malone, summarizes five-factor framework for sanctions)
Malone v. U.S. Postal Serv., 833 F.2d 128 (9th Cir. 1987) (part of the jurisprudence articulating factors for sanctions)
Valley Eng’rs v. Electric Eng’g Co., 158 F.3d 1051 (9th Cir. 1998) (discusses availability and consideration of lesser sanctions and the need to warn recalcitrant parties)