Tenenbaum & his attorney ordered to pay costs of RIAA's motion to compel

In SONY BMG Music Entertainment v. Tenenbaum, Judge Gertner has granted the RIAA's motion for costs and fees incurred in connection with its motion to compel production regarding dissemination of mp3 song files by the defendant's counsel during the lawsuit:

Judge Nancy Gertner: Electronic ORDER entered granting [851] Motion for Costs and Fees Under Rule 37(a)(5). Plaintiffs request that the Court order the defense to pay the reasonable expenses they incurred in filing a motion to compel (document #842) that the Court granted on June 16, 2009. Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a court grants a motion to compel a response to a discovery request, "the court must... require the party... whose conduct necessitated the motion, the... attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." An award of costs and fees to the prevailing party is mandatory unless the court finds that (1) "the movant filed the motion before attempting in good faith to obtain the... discovery without court action"; (2) "the opposing party's nondisclosure... was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A); see also Midland-Ross Corp. v. Ztel, Inc., 113 F.R.D. 664, 666 (D. Mass. 1987) (quoting M&D Builders, Inc. v. Peck, 109 F.R.D. 410, 411-12 (D. Mass. 1986)). The defendant has not filed an opposition to plaintiffs' motion for costs and fees, and the Court concludes that the plaintiffs' motion should be granted. As indicated in their motion to compel, the plaintiffs attempted to resolve their discovery dispute with the defendant, but the defense refused to disclose the requested information. The defense also has made little effort to show that its nondisclosure was "substantially justified." Defense counsel's terse response to plaintiffs' motion to compel merely stated that, in his personal opinion, the plaintiffs' requests were not relevant to this litigation. As indicated in this Court's June 16, 2009, order, plaintiffs' request for information relating to the defense's unauthorized distribution of the very copyrighted works on which plaintiffs' claims were based was clearly relevant to such issues as the willfulness of the defendant's conduct and the amount of damages to be awarded by the jury. Finally, the Court concludes that there are no extenuating circumstances in this case that would make the award of attorneys' fees and other costs unjust. Accordingly, the Court will hold both the defendant, Joel Tenenbaum, and his attorney, Charles Nesson, jointly and severally liable for the reasonable expenses that plaintiffs incurred in filing their motion to compel. See 8A Charles Alan Wright, Arthur Miller & Richard Marcus Federal Practice and Procedure § 2288, at 662 (2d ed. 1994) (noting that an award of reasonable expenses under Rule 37(a) may be made against both the losing party and his attorney and citing cases in which an attorney has been ordered to pay an award). The plaintiffs are ordered to file an affidavit containing an itemized statement of the expenses they incurred in filing the motion to compel by March 8, 2010. (Hourihan, Lisa)

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