Judge Nancy Gertner was clearly incredulous that Team Tenenbaum would upload, for worldwide distribution via the Internet, the very songs at issue in this case. Now Plaintiffs have filed a motion to recover their attorneys' fees for filing the motion, now granted by Judge Gertner, to compel discovery responses regarding this imbroglio. Rule 37(a)(5) says the party who loses such a motion "must" pay the winner's attorneys' fees, unless the loser's position was "substantially justified" or "other circumstances make an award of expenses unjust." From her order, it does not appear Judge Gertner thought Tenenbaum's position was even marginally justified. The only way I can see her not awarding attorneys' fees her is if she believes it would be "unjust," given the imbalance of resources between the parties.
Judge Nancy Gertner says her "indulgence is at an end." We shall see.
Plaintiffs Motion for Attorneys Fees Re Uploading Songs