Tenenbaum and Nesson ordered to pay labels' fees over discovery dispute; court finds 'no extenuating circumstances'

It's still unclear how much of the jury's award of $675,000 in statutory damages Joel Tenenbaum will have to pay for his admitted copyright infringement. But now it's near certain that Tenenbaum and his counsel, Harvard Law School Professor Charles Nesson, will have to fork over a few thousand dollars to the record labels for their shenanigans during the discovery process. That's the result of an order Judge Nancy Gertner issued today, requiring Tenenbaum, a Boston University physics grad student, and Nesson, who is working pro bono, to reimburse the labels for the expenses they incurred in filing a motion to compel the defense team to produce evidence regarding its posting of seven of the songs at issue in this case to a publicly available web site -- a motion that was granted by Judge Gertner last June in an order that slammed the defense and announced that "[t]he court's indulgence is at an end." Here is the motion for costs and fees filed by the plaintiffs pursuant to FRCP 37(a)(5) -- a motion to which the defense never filed an opposition.

Today's order does not specify how much Tenenbaum and Nesson will have to pay; the order gives the plaintiffs until March 8 to file an affidavit setting out the fees incurred in preparing the motion to compel.

Here's the full text of today's order (which I've broken into paragraphs to make a bit more readable):

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).