The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 XIAOYONG LAI, Case No. 5:24-cv-06470-NW (SVK)
8 Plaintiff, ORDER GRANTING IN PART AND
DENYING IN PART WITHOUT
9 v. PREJUDICE PLAINTIFF’S MOTION
FOR DISCOVERY SANCTIONS
10 MENG JING LU and LU ZHANG,
Re: Dkt. No. 105
11 Defendants.
12
13 Before the Court is Plaintiff Xiaoyong Lai’s Motion for Sanctions against Defendants
14 Meng Jing Lu (“Defendant Lu”) and Lu Zhang (“Defendant Zhang”).1 Dkt. 105 (the “Motion”).
15 Plaintiff contends that Defendants violated the Court’s prior discovery order by refusing to
16 provide adequate responses to Plaintiff’s interrogatories (“ROGs”) and requests for production of
17 documents (“RFPs”), and by failing to appear for their noticed depositions. Motion at 8. Plaintiff
18 further contends that these alleged deficiencies warrant the imposition of terminating sanctions
19 under Rule 37(b)(2)(A).2 Id. Defendants oppose the Motion. Dkt. 107 (the “Opposition”). The
20 Court finds the Motion suitable for resolution without oral argument. Civil L.R. 7-1(b). Having
21 considered the Parties’ submissions, the relevant law and the record in this action, the Court
22 GRANTS IN PART and DENIES IN PART, partially with and partially without prejudice, the
23 Motion as specified below.
24 ////
25 ////
26
27 1 Plaintiff has also filed motions to reopen discovery and for partial summary judgment. Dkts.
1 I. BACKGROUND
2 This action arises out of a dispute between Plaintiff, an attorney, and his former client,
3 Defendant Lu. See Dkt. 1. Plaintiff, appearing pro se, brings claims against Defendant Lu for
4 unpaid attorney’s fees, as well as claims for conspiracy and fraudulent transfer, alleging that
5 Defendant Lu transferred real property to her niece, Defendant Zhang, to avoid paying the debt.
6 See id. Defendant Lu, in turn, asserts several counterclaims against Plaintiff and alleges that she
7 has filed a complaint against him with the California State Bar. Dkt. 67 ¶¶ 24, 68-85.
8 On March 3, 2026, Plaintiff served interrogatories and requests for production (“RFPs”) on
9 Defendants. Dkt. 92 ¶ 4. On March 5, 2026, Plaintiff noticed the depositions of Defendants for
10 April 1 and 2, 2026. Id. The present Motion follows Plaintiff’s subsequent efforts to obtain
11 responses to these written discovery requests and secure Defendants’ attendance at their
12 depositions.
13 A. Defendants’ First Deficient Responses and The Court’s Order
14 The underlying discovery dispute first came before the Court in May 2026. On May 15,
15 2026, the Parties filed a joint discovery letter in which Plaintiff identified several alleged
16 deficiencies in Defendants’ responses to his discovery requests. Dkt. 97. Specifically, Plaintiff
17 asserted that Defendant Zhang had failed to respond to any of Plaintiff’s written discovery
18 requests, Defendant Lu had served responses consisting almost entirely of objections and neither
19 Defendant had appeared for their noticed depositions. Id. at 2.
20 On May 20, 2026, the Court issued an order compelling Defendants to provide further
21 discovery responses and attend depositions. Dkt. 100 (the “Prior Order”). The Court ordered
22 Defendant Zhang to respond to all written discovery requests without objection. Prior Order at 2.
23 With respect to Defendant Lu, the Court considered each of her objections to Plaintiff’s
24 interrogatories and RFPs, together with the Parties’ stipulated and adopted model protective order
25 (Dkt. 99) and provided detailed guidance regarding the scope of her required responses to each
26 request. Dkt 100-1. The Court also ordered both Defendants to make themselves available for
27 depositions and produce the documents identified in their deposition notices. Prior Order at 2.
1 B. Defendants’ Second Responses
2 As of the filing of this Order, Defendants have not made themselves available for
3 deposition. Id ¶¶ 20, 23. Defendants did, however, supplement their responses to Plaintiff’s
4 interrogatories and RFPs, dated May 20, 2026 and verified May 23, 2026, (see, e.g. Dkt. 106-2 at
5 10), which Plaintiff received on May 29, 2026. See Dkt. 106 ¶ 7.
6 On July 10, 2026, Plaintiff filed the present Motion arguing that, in their written responses,
7 Defendants “produced only a minimal number of documents and refused to provide any
8 meaningful responses or documents regarding the alleged fraudulent transfers.” Motion at 7-8;
9 see also Dkt. 106-1 at 2-3. This conduct, Plaintiff argues, constitutes a direct violation of the Prior
10 Order and warrants the imposition of discovery sanctions under Rule 37(b)(2)(A). Motion at 8.
11 Defendants disagree, asserting that their written responses fully complied with the Prior
12 Order; “Plaintiff Lai simply disagrees with the content of certain answers and speculates that
13 additional documents must exist.” Opposition at 4. Defendants further contend that, even
14 assuming arguendo that they failed to comply with the Prior Order, any such noncompliance was
15 substantially justified, rendering sanctions unwarranted. Opposition at 13.
16 II. LEGAL STANDARD
17 “If a party … fails to obey an order to provide or permit discovery,” the Court may issue
18 sanctions. Fed. R. Civ. P. 37(b)(2)(A). Such sanctions include “prohibiting the disobedient party
19 from supporting or opposing designated claims” or “directing that the matters embraced in the
20 order or other designated facts be taken as established for the purposes of the action, as the
21 prevailing party claims.” Id. “The imposition and selection of particular sanctions are matters left
22 to the sound discretion of the trial court.” Goldberg v. TeachBK, Inc., No. 24-cv-04525-LJC,
23 2026 WL 242035, at *2 (N.D. Cal. Jan. 29, 2026).
24 ////
25 ////
26 ////
27 ////
1 A. Dispositive Sanctions: Dismissal, Default and Their Functional Equivalents
2 “‘Dispositive’ sanctions such as dismissal, default, and their functional equivalents …
3 must meet a higher standard. [N]oncompliance must be due to willfulness, fault or bad faith.” In
4 re Tan, 2007 WL 7541007, at *6 (B.A.P. 9th Cir. Sept. 28, 2007); see also Comput. Task Grp.,
5 Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). At the outset, the Court confirms that the
6 sanctions sought by Plaintiff are all dispositive. Plaintiffs’ primary request is that the Court
7 “strike Defendant’s answer and enter a default,” which Plaintiff concedes is “a terminating
8
sanction.”3 Motion at 1, 8. Plaintiff’s secondary request is that, “in the alternative, [the Court]
9 deem the matters in the action established.” Id. at 1. To the extent Plaintiff’s reference to “the
10 matters in the action” means “all of his factual allegations,” that is “tantamount to dismissal” and
11 so is a dispositive sanction. See Colutions, LLC v. Ventura Seed Co, LLC, No. 2:22-cv-00818-
12 WLH-GJS, 2024 WL 4738214, at *9 (C.D. Cal. July 23, 2024). To the extent Plaintiff only
13 requests the Court “order the claim for fraudulent transfer asserted in Plaintiff’s Complaint be
14 established,” (see Motion at 8), and whether Plaintiff makes this request under subsections
15 (b)(2)(A)(i) or (b)(2)(A)(ii), this too is a dispositive sanction. See In re Tan, 2007 WL 7541007, at
16 *6 (B.A.P. 9th Cir. Sept. 28, 2007) (dispositive sanctions include “the[] functional equivalents” of
17 terminating sanctions, “i.e., refusing to allow the disobedient party to support or oppose
18 designated claims or defenses or precluding any evidence as to a prima facie element of a claim.”).
19 Thus, these sanctions all require a finding “non-compliance must be due to willfulness, fault, or
20 bad faith.” Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993).
21 Additionally, the Court must consider five factors before imposing dispositive sanctions:
22 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
23 dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring
24 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Goldberg v.
25 TeachBK, Inc., No. 24-cv-04525-LJC, 2026 WL 242035, at *4 (N.D. al. Jan. 29, 2026) (citing
26 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).
27
1 The first and second factors generally favor sanctions, while the fourth factor generally weighs
2 against them. Henry, 983 F.2d at 948. Accordingly, “the key factors are prejudice and the
3 availability of lesser sanctions.” Id.
4 B. Attorney’s Fees and Costs
5 In addition, Rule 37 requires the Court to award “the reasonable expenses, including
6 attorney’s fees, caused by the failure” to obey the discovery order, “unless the failure was
7 substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ P.
8 37(b)(2)(C). The party facing sanctions bears the burden of demonstrating the existence of
9 mitigating factors. See Cruz v. Nike Retail Servs., Inc., 346 F.R.D. 107, 111 (S.D. Cal. 2024)
10 (citing Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981)). A finding of bad faith is not required
11 for the imposition of attorney’s fees. See, e.g., RG Abrams Ins. v. Law Offs. Of C.R. Abrams, 342
12 F.R.D. 461, 521-22 (C.D. Cal.); see also In re StubHub Refund Litig., No. 20-md-02951-HSG,
13 2024 WL 2305604, at *3 (N.D. Cal. May 20, 2024).
14 III. DISCUSSION
15 A. Compliance with the Prior Order
16 As a threshold matter, the Court first considers whether Defendants’ supplemental
17 discovery responses complied with the Prior Order. As discussed below, the Court finds that
18 Defendants failed to comply with the Prior Order in certain respects.
19 1. Defendant Lu’s Supplemental Responses
20 Plaintiff identifies the following supplemental responses served by Defendant Lu as
21 deficient: responses to Interrogatory nos. 7-20 and RFPs 1-3, 5-6 and 8-11. Dkt. 106 ¶¶ 9-14.
22 The Prior Order instructed Lu to supplement her responses “consistent with this Court’s
23 Order in the attachment,” yet nearly all of Defendant Lu’s supplemental responses contain
24 objections that the Court had already overruled. To the extent the supplemental responses assert
25 new objections not previously raised, those objections are waived. See Proofpoint, Inc. v. Vade
26 Secure, Inc., No. 19-cv-04238-MMC, 2020 WL 6591210, at *3 (N.D. Cal. Nov. 11, 2020)
27 (rejecting as “untenable” the contention that a party “can make a tactical decision to withhold
1 to file multiple motions to compel the same discovery materials, and such as to force this court to
2 repeatedly adjudicate multiple motions to compel the same material…”). Accordingly, where
3 Defendant Lu responds “subject to and without waiving” objections––including, among others,
4 that Plaintiff’s requests invade her privacy, constitute “impermissible fishing expedition[s]” or
5 seek foreign records that are “completely irrelevant” to the issues in this case” (see e.g., Dkt. 106-
6 2 at 5-9; Dkt 106-4 at 3)––those objections are waived and do not excuse her failure to provide
7 the information required by the Prior Order. The Court therefore evaluates Defendant Lu’s
8 supplemental responses without regard to any objections contained therein:
9 Substantive Request Prior Order (Dkt. Supplemental Court’s Ruling re
100-1) Response Compliance
10 (Objections
Omitted)
11
ROG State the amount of Objections Defendant states Non-compliant. The
12 debts YOU owed to Lu OVERRULED. that the property Court previously
7 Zhang and when they Defendant will answer transfer executed overruled all of Lu’s
13
were incurred. the interrogatory. with Lu Zhang objections and directed
regarding the Defendant to answer the
14
Newcastle Road interrogatory, which
15 property was Defendant has not done.
legitimate, lawful, Defendant must state the
16 and derivative of amount of debts owed to
separate family Defendant Zhang and
17
obligations, not when they were incurred
18 an attempt to (if “none,” Defendant
evade a valid must so state), not
19 debt. submit non-sequitur
responses.
20
ROG IDENTIF[Y] any Objections Defendant Non-compliant as
21 DOCUMENTS OVERRULED. identifies the dependent on the
8 evidencing the debts in Defendant to either recorded Grant, previous, non-compliant
22 reference to the identify documents or Bargain, Sale answer. Defendant must
previous interrogatory. affirm that responsive Deed for the 4284 answer the question fully
23 documents will be Newcastle Road without objection,
produced in property. qualification or
24
accordance with Rule limitation.
25 33(d).
ROG IDENTIFY any and all Objections Defendant states Non-compliant, as this
26 money of $10,000 or OVERRULED. she has not answer is evasive and
9 more that YOU Defendant will answer transferred any qualified in a manner not
27
TRANSFERRED to the interrogatory. Any assets to China called for by the
through 2023, adequately addressed for the purpose of Defendant must answer
1
including the date of in the Protective Order avoiding or the question fully
2 the transfer, the amount (Dkt. 99). obstructing any without objection,
of the transfer, the type validly qualification or
3 of transaction, the bank established lawful limitation.
or financial institution debt owed to the
4 from which the money Plaintiff.
was transferred, the
5
recipient of the
6 transfer, and the
purpose of the transfer.
7 ROG For each and every Objections Defendant states: Non-compliant as
money TRANSFER OVERRULED. None dependent on the
8
10 IDENTIFIED in Defendant will answer previous, non-compliant
9 YOUR response to the the interrogatory. Any answer. Defendant must
previous interrogatory privacy concerns are the question fully
10 (No. 9), state the date adequately addressed without objection,
of the TRANSFER. in the Protective Order qualification or
11 (Dkt. 99). limitation.
12 ROG For each and every Objections Defendant states: Non-compliant as
money TRANSFER OVERRULED. None. dependent on the
13 11 IDENTIFIED in Defendant will answer previous, non-compliant
YOUR response to the the interrogatory. Any answer. Defendant must
14 previous interrogatory privacy concerns are the question fully
(No. 9), state the adequately addressed without objection,
15
purpose of the in the Protective Order qualification or
16 TRANSFER... (Dkt. 99). limitation..
ROG For each and every Objections Defendant states: Non-compliant as
17 money TRANSFER OVERRULED. None. dependent on the
12 IDENTIFIED in Defendant to either previous, non-compliant
18
YOUR response to the identify documents or answer. Defendant must
19 previous interrogatory affirm that responsive the question fully
(No. 9), IDENTIFY documents will be without objection,
20 any and all produced in qualification or
DOCUMENTS accordance with Rule limitation..
21 concerning or 33(d). Any privacy
constituting the record concerns are
22
of the TRANSFER. adequately addressed
23 in the Protective Order
(Dkt. 99).
24 ROG State when YOUR Objections any personal Non-compliant. The
house in China was OVERRULED. hardships Response is improper
25
13 auctioned by a Chinese Defendant will answer referenced in argument and evasive.
26 court in reference to the interrogatory with historical emails Defendant must answer
YOUR email to facts known to her do not alter the the question fully
27 PLAINTIFF dated following a reasonably fact that Plaintiff without objection,
in accordance with Defendant and qualification or
1
Rule 33. breached his limitation.
2 operational
agreements.
3 ROG State the address of Objections Defendant denies Non-compliant. The
YOUR house in China. OVERRULED. possessing real Response is improper
4
14 Defendant will answer property assets argument and evasive.
5 the interrogatory. Any that interfere with Defendant must answer
privacy or security the appropriate the question fully
6 concerns are resolution of this without objection,
adequately addressed litigation. qualification or
7 in the Protective Order limitation.
(Dkt. 99).
8
ROG State when YOU Objections [No response Non-compliant.
9 redeemed YOUR OVERRULED. beyond Defendant refused to
15 house in China from Defendant will answer objections] respond to this
10 the auction in reference the interrogatory with interrogatory in direct
to the previous facts known to her contravention of this
11
interrogatory. following a reasonably Court’s Prior Order.
12 diligent investigation, Defendant must answer
in accordance with the question fully
13 Rule 33. without objection,
qualification or
14 limitation.
15 ROG State the reasons why Objections [No response Non-compliant.
YOUR house in China OVERRULED. beyond Defendant refused to
16 16 was auctioned by the Defendant will answer objections] respond to this
Chinese court. the interrogatory with interrogatory in direct
17 facts known to her contravention of this
following a reasonably Court’s Prior Order.
18
diligent investigation, Defendant must answer
19 in accordance with the question fully
Rule 33. without objection,
20 qualification or
limitation.
21
ROG IDENTIFY any Objections [T]he documents Non-compliant.
22 DOCUMENTS OVERRULED. relevant to the Response is improper
17 supporting YOUR Defendant will answer current dispute argument. Defendant
23 claim that YOU were the interrogatory with are those must answer the
"impersonated facts known to her establishing question fully without
24 by a villain in China following a reasonably Plaintiff's own objection, qualification
and became a diligent investigation, actionable or limitation.
25
shareholder in a in accordance with fraudulent billing
26 company... Rule 33. patterns and
inflated hours
27 within this
ROG State the amount and Objections Defendant denies Non-compliant. The
1
date when YOU OVERRULED. possessing real Response is improper
2 18 transferred money to Defendant will answer property assets argument and evasive.
China to redeem the interrogatory. Any that interfere with Defendant must answer
3 YOUR privacy concerns are the appropriate the question fully
house... adequately addressed resolution of this without objection,
4 in the Protective Order litigation. qualification or
(Dkt. 99). limitation.
5
ROG State when YOU Objections Defendant lacks Non-compliant.
6 received the Notice of OVERRULED. precise Although Defendant
19 Client's Right to Fee Defendant will answer recollection of the states she lacks “precise”
7 Arbitration. the interrogatory. exact calendar recollection of the date,
date of receipt Plaintiff is entitled to
8
due to Plaintiff's Defendant’s best
9 erratic, deceptive, recollection or estimate
and convoluted of the relevant date. If
10 billing Defendant cannot
communications. provide an estimated
11 date, she must so state
without further
12
argument.
13 ROG State the reason why Objections Defendant was Compliant. Defendant
YOU did not request a OVERRULED. actively has sufficiently
14 20 fee arbitration after Defendant will answer attempting to hold answered this
receiving the Notice of the interrogatory. Plaintiff to his interrogatory and no
15
Client's Right to Fee explicit, written further action is
16 Arbitration. text message and required.
17 representations
modifying the fee
18 structure,
rendering
19
traditional state
20 bar
arbitration
21 avenues
secondary to
22
addressing his
23 direct contractual
fraud.
24 RFP Produce any and all Objections Defendant will Compliant. Based on
DOCUMENTS OVERRULED. produce all the prior interrogatory
25
1 IDENTIFIED in Defendant will responsive, non- responses, Defendant’s
26 YOUR response to produce all documents privileged response is satisfactory.
Plaintiff’s identified in responses documents within However, additional
27 Interrogatories, Set to interrogatories and her possession, documents must be
One. custody, or produced in accordance
all responsive control that further supplemental
1
documents pursuant to support her interrogatory responses.
2 Rule 33(d). affirmative
defenses and
3 counterclaims as
identified in her
4 Interrogatory
responses,
5
including
6 relevant text
messages, email
7 communications,
and payment
8 ledger records.
9 RFP Produce any and all Objections Defendant will Non-compliant.
COMMUNICATIONS SUSTAINED IN produce Defendant’s description
10 2 between YOU and PART, OVERRULED responsive, non- of documents to be
PLAINTIFF from 2019 IN PART. Defendant privileged emails produced does not
11 through 2023. to produce all and text messages conform to the Court’s
communications exchanged Order, which stated that
12
between Plaintiff and between Defendant must
13 Defendant in the time Defendant and “produce all
period 2019-2023 Plaintiff during communications
14 upon which Defendant the course of the between Plaintiff and
intends to rely in transactional/legal Defendant in the time
15
support of any claim representation period 2019-2023 upon
or that are relevant which Defendant
16
defense. to the fee intends to rely in
17 agreements, support of any claim or
billing disputes, defense.” Defendant
18 and fee must do so.
modifications at
19
issue in this case.
20 RFP Produce any and all Defendant to produce Defendant will Non-compliant.
DOCUMENTS ALL responsive not produce Response is in direct
21 3 concerning or documents and to documents in contravention to this
constituting the auction affirm by verification response to this Court’s Order. All
22
of YOUR house in under penalty of request. objections have been
23 China by a Chinese perjury that all OVERRULED and all
court, including but not responsive documents responsive documents
24 limited to the Chinese have been produced must be produced.
court’s judgment or
25 order and notice of
auction...
26
RFP Produce a copy of the Objections Defendant will Non-compliant.
27 complaint YOU filed SUSTAINED IN produce a copy of Defendant’s response is
5 against PLAINTIFF PART, OVERRULED the factual improperly qualified.
California on or about IN PART. Defendant submitted to the are adequately addressed
1
January 17, 2023. to produce all State Bar of in the Protective Order
2 responsive documents California in this action. Defendant
in her custody and regarding must produce “the
3 control. For purposes Plaintiff's billing factual complaint
of production, a party acts, submitted to the State
4 has sufficient provided it is Bar” or state that
“control” over treated with specific documents
5
documents held by appropriate (identified by Bates no.)
6 another party if the confidentiality. already produced are all
first party has the legal of the documents
7 right to obtain the responsive to this
documents from the request.
8 second party upon
demand. In re Citric
9
Acid Litig., 191 F.3d
10 1090, 1107 (9th
Cir. 1999).
11 RFP Produce any and all Objections Defendant will Non-compliant.
COMMUNICATIONS OVERRULED. produce non- Defendant’s response is
12
6 between YOU and the Defendant will privileged, formal improperly qualified.
13 State Bar of California produce responsive correspondence Communications
concerning documents. from the State between Defendant and
14 PLAINTIFF. Bar the State Bar of
regarding the California (a third party)
15
initiation or are not privileged, and
disposition of the Defendant may not
16
grievance related arbitrarily limit
17 to Plaintiff's production to “formal”
billing conduct. correspondence or to
18 those concerning
“initiation or disposition
19
of the grievance.” All
20 responsive
communications must be
21 produced without further
objection.
22
RFP Produce any and all Objections Defendant will The identified document
23 DOCUMENTS OVERRULED. produce the must be produced, but
8 concerning or Defendant will publicly recorded the status of Defendant’s
24 constituting the produce responsive Grant, Bargain, compliance is unclear.
FRAUDULENT documents. Any Sale Deed
25 TRANSFER of the two privacy concerns concerning To the extent no
parcels of real property are addressed by the the 4284 additional documents
26
as alleged in the Protective Order. Dkt. Newcastle Road exist, the response is
27 Complaint. 99. property, which compliant. To the extent
establishes a the single identified
property be a limited or
1
transaction. qualification on
2 production, it is
improper and the
3 response is non-
compliant.
4
If there are additional
5
documents to be
6 produced, Defendant
must produce them; if
7 there are none,
Defendant will so state
8 in a verified response
9 RFP Produce any and all Objections Defendant will Non-compliant.
DOCUMENTS OVERRULED. produce only the Response is in direct
10 9 concerning or Defendant will recorded deeds contravention to this
constituting property produce responsive and standard Court’s Order. All
11 tax payments for the documents. Any ownership objections have been
properties located at privacy concerns are transfer OVERRULED and all
12
4284 Newcastle Rd., addressed by the disclosures responsive documents
13 Las Vegas, NV 89103 Protective Order. Dkt. directly relevant must be produced.
and 4210 Gannet 99. to
14 Circle, Las Vegas, NV the ownership
89103 from 2020 to the history of the
15
present. Newcastle Road
property
16
mentioned in the
17 pleadings.
RFP Produce any and all Objections Defendant will Non-compliant.
18 DOCUMENTS OVERRULED. not produce Response is in direct
10 concerning or Defendant will domestic utility contravention to this
19
constituting utility produce responsive bills. Court’s Order. All
20 payments (e.g., documents. Any objections have been
electricity, water, gas, privacy concerns OVERRULED and all
21 internet) for the are addressed by the responsive documents
properties located at Protective Order. Dkt. must be produced.
22
4284 Newcastle Rd... 99.
23 and 4210 Gannet
Circle... from 2020 to
24 the present
RFP Produce copies of bank Objections Defendant states Non-compliant.
25
statements showing OVERRULED. she possesses no Response is in direct
26 11 any and all money Defendant will bank records contravention to this
TRANSFERS of produce responsive reflecting asset Court’s Order. All
27 $10,000 or more that documents. Any transfers executed objections have been
YOU privacy concerns are to unlawfully OVERRULED and all
China from 2019 Protective Order. Dkt. evade or hinder a responsive documents
1
through 2023. 99. validly must be produced.
2 established legal
debt owed to
3 Plaintiff.
4 In sum, Defendant Lu has complied with the Court’s Prior Order only as to Interrogatory
5 no. 20 and RFP 1, and her remaining supplemental responses violate the requirements set forth in
6 that Order.
7 2. Defendant Zhang’s Supplemental Responses
8 Plaintiff identifies the following responses as deficient: responses to interrogatory nos. 2,
9 4-7 and 9-11 and RFPs 1-5. Dkt. 106 ¶¶ 15-17.
10 Because Defendant Zhang had failed to respond to Plaintiff’s first set of requests, Zhang
11 waived her opportunity to object, and the Court specifically ordered Zhang to respond to each
12 request “without objection.” Prior Order at 2. She nonetheless incorporates a set of general
13 objections into each response, asserting, among other things, that the requests improperly assume
14 the existence of a debt between herself and Defendant Lu, seek documents protected by work-
15 product doctrine and statute of limitations or request deeply personal information. See, e.g., Dkt.
16 106-7 at 3; 106-9 at 3. This is clearly non-compliant and, to the extent Defendant Zhang responds
17 “subject to and without waiving” these objections, such language does not excuse her failure to
18 provide the information required by the Prior Order. See Proofpoint, Inc., 2020 WL 6591210, at
19 *3. The Court therefore evaluates Defendant Zhang’s responses without regard to any objections
20 contained therein:
21 Substantive Request Response Court’s Ruling re
(Objections Omitted) Compliance
22
ROG State YOUR Defendant states she has resided at her Compliant. Defendant
23 residential address for current residence address during the has answered this
2 the past five years, and relevant timelines associated with this interrogatory and no
24 the dates you lived at dispute. further action is required.
each ADDRESS.
25
ROG State when and how Defendant states that the property title Non-compliant. All
26 YOU became the title conveyance was legally and validly objections have been
4 owner of the residential executed in accordance with real estate OVERRULED and
27 property situated at records on file with the Clark County Defendant must answer
4284 Newcastle Rd, and was born out of legitimate intra- without objection,
1
Las Vegas, NV 89103. family obligations completely qualification or
2 independent of Plaintiff’s contested fee limitation.
invoicing.
3 ROG State when YOU Defendant states she has lawfully Non-compliant. All
visited the United traveled to and resided within the objections have been
4
5 States in the past ten United States during timelines relevant OVERRULED and
5 years. to her property ownership. Defendant must answer
the questions fully,
6 without objection,
qualification or
7 limitation.
8 ROG State the duration and Defendant will not provide immigration Non-compliant. All
purpose for each of document histories in response to this objections have been
9 6 YOUR visits to the contract dispute. OVERRULED and
United States in Defendant must answer
10 the past ten years. the questions fully,
without objection,
11
qualification or
12 limitation.
ROG State the types of visas Defendant's historical visa typologies Non-compliant. All
13 for each of YOUR have no bearing on the contractual or objections have been
7 visits to the United fraudulent billing issues at the center of OVERRULED and
14
States in the past this lawsuit. Defendant will not provide Defendant must answer
15 ten years. immigration document histories in the questions fully,
response to this contract dispute. without objection,
16 qualification or
limitation.
17
ROG For each affirmative The affirmative defenses are based on Compliant. Defendant
18 defense in the the fact that Plaintiff entered into an has answered this
9 ANSWER, state all "Agreement to Modify Fee Structure" interrogatory and no
19 facts upon which the via written electronic communications, further action is required.
affirmative defense is which he subsequently breached, while
20 based. simultaneously inflating his billable
operational hours and unjustly retaining
21
$175,397.56 of Co-Defendant Mengjing
22 Lu's funds. Because the underlying debt
is illegitimate, the family property
23 transfers executed regarding the Las
Vegas parcels were entirely proper,
24 lawful, and separate from any attempt to
evade a valid creditor.
25
ROG State the name, home The persons with knowledge include: Compliant. Defendant
26 address, and telephone • Lu Zhang (Defendant), 95 Loma has answered this
10 number of all Vista Dr., Orinda, CA 94563. interrogatory and no
27 PERSONS who have • Mengjing Lu (Co-Defendant), further action is required.
knowledge of the facts Vegas, NV 89103, Tel: 702-622-
1
upon which the 0778.
2 affirmative defense is • Xiaoyong Lai (Plaintiff), 84 W.
based. Santa Clara St. Ste 700, San Jose,
3 CA 95113, Tel: (408) 228-3995.
Defendant reserves the right to
4 supplement this list as discovery
progresses.
5
ROG For each affirmative Defendant identifies: Compliant. Defendant
6 defense in the • Written electronic messages and has answered this
11 ANSWER, IDENTIFY email communications from interrogatory and no
7 any and all Plaintiff modifying his further action is required.
DOCUMENTS that operational billing structure.
8
support or tend to • Publicly recorded deeds and
9 support the affirmative standard property transfer records
defense. filed with the Clark County
10 Recorder regarding the Las Vegas
properties.
11 • Itemized financial billing ledgers
and bank transaction records
12
demonstrating Plaintiff's retention
13 of unearned funds.
RFP Produce any and all Defendant will produce all responsive, Compliant. However,
14 DOCUMENTS non-privileged documents within her the documents must be
1 IDENTIFIED in possession, custody, or control that produced and should have
15
YOUR response to support her defenses and are referred to been produced already.
16 Plaintiff’s in her interrogatory responses, including
Interrogatories, Set relevant publicly recorded title transfers
17 One. and standard property records.
RFP Produce any and all Defendant will produce only non- Non-compliant.
18
COMMUNICATIONS privileged written communications or Communications between
19 2 between YOU and logistical text records in her possession Defendant Zhang and
MENGJING LU from that directly discuss the explicit title Defendant Lu are not
20 2019 through 2023. mechanics and execution dates of the privileged, and and
contested Las Vegas properties at issue Defendant may not
21 in the pleadings. arbitrarily limit
production to “logistical
22
text records” or those that
23 “directly discuss the
explicit title mechanics
24 and execution dates.” All
responsive
25
communications must be
26 produced without further
objection.
27
RFP Produce any and all Defendant will produce responsive, The identified document
1
DOCUMENTS non-privileged documents in her must be produced, but the
2 3 concerning or possession, custody, or control status of Defendant’s
constituting the concerning the property conveyances, compliance is unclear.
3 transfer of the specifically the recorded Grant, Bargain,
properties situated at Sale Deeds and related public To the extent no
4 4284 Newcastle Road, instruments on file with the Clark additional documents
Las Vegas, NV 89103 County Recorder. exist, the response is
5
and 4210 Gannet compliant. To the extent
6 Circle, Las Vegas, NV the single identified
89103. document is intended to
7 be a limited or
qualification on
8 production, it is improper
and the response is non-
9
compliant.
10
If there are additional
11 documents to be
produced, Defendant
12
must produce them; if
13 there are none, Defendant
will so state in a verified
14 response
RFP Produce any and all Defendant will produce non-privileged Compliant. However,
15
DOCUMENTS documentation, receipts, or family the documents and must
4 concerning or agreement records in her possession that be produced and should
16
constituting what YOU reflect the intra-family consideration, have been produced
17 gave, paid, or promised long-standing asset arrangements, and already.
to Mengjing Lu as personal obligations that formed the
18 consideration for the basis of the property transactions.
transfer of the
19
properties situated at
20 4284 Newcastle Road,
Las Vegas, NV 89103
21 and 4210 Gannet
Circle, Las Vegas, NV
22 89103.
23 RFP Produce any and all Defendant will produce responsive, non- Compliant. Defendant
DOCUMENTS privileged documentation or records has answered this RFP
24 5 concerning or reflecting the underlying familial and no further action is
constituting any debts obligations and financial structures that required.
25 that Mengjing Lu owed prompted the property title
to YOU. conveyances, to the extent such
26
documents are available and within her
27 possession, custody, or control.
1 In sum, Defendant Zhang has, at best, complied with the Court’s Prior Order as to
2 Interrogatory nos. 2, 9, 10 and 11 and RFPs 1, 4 and 5, and her remaining responses violate the
3 requirements set forth in that Order. Moreover, her assertion of “general objections” in
4 contravention of the Court’s Order is noncompliant.
5 3. Defendant’s Depositions
6 With respect to Defendants’ depositions, Plaintiff does not contend that Defendants
7 violated the Prior Order but makes note of the fact that Defendants have a “history of … delaying
8 and refusing to attend depositions.” See Motion at 8. Nevertheless, the Prior Order expressly
9 required Defendants to make themselves available for deposition, and they did not. Prior Order at
10 2; Dkt. 106 ¶¶ 18-21. Nor has either Defendant addressed that failure in their Opposition. See
11 Opposition. This violation of the Court’s express directive provides another basis for considering
12 sanctions under Rule 37.
13 * * *
14 In sum, the Court concludes that the following written responses comply with the Prior
15 Order: Defendant Lu’s responses to Interrogatory no. 20 and RFP 1 and Defendant Zhang’s
16 responses to Interrogatory nos. 2, 9, 10 and 11 and RFPs 1, 4 and 5. To the extent Plaintiff’s
17 Motion for Sanctions is based on these responses, the Motion is DENIED with prejudice.
18 As to the remaining deficient responses and Defendants’ failure to make themselves
19 available for depositions, the Court finds noncompliance and next considers whether the
20 imposition of either dispositive sanctions or attorney’s fees is appropriate.
21 B. Dispositive Sanctions Are Not Appropriate at this Juncture
22 To impose dispositive sanctions for Defendants’ noncompliance with the Prior Order, the
23 Court must determine (1) whether the five factors established by this Circuit weigh in favor of
24 such sanctions, and (2) whether Defendants’ noncompliance was the result of willfulness, fault or
25 bad faith. See, supra, § II.A. The Court addresses each element in turn below.
26 ////
27 ////
1 1. Application of the Five-Factor Test
2 Only the third and fifth factors––prejudice and the availability of lesser sanctions––are in
3 serious dispute here.4 See, supra, § II.A.
4 a. The Third Factor, Prejudice, Weighs in Favor of Sanctions
5 As to prejudice, Plaintiff contends that, absent compliant responses from Defendants, he is
6 “completely blind to Defendant’s baseline factual contentions and evidence,” and therefore
7 “cannot properly prepare for trial.” Motion at 8. Defendants respond that their supplemental
8 responses provide sufficient information for Plaintiff to “present his claim on the merits.”
9 Opposition at 5. After all, Defendants argue, Plaintiff “remains able to challenge Defendants’
10 factual assertions through deposition testimony, documentary evidence, third-party discovery,
11 dispositive motions, and trial.” Id. at 12. The Court is not persuaded.
12 “Failure to produce documents as ordered … is considered sufficient prejudice.” Adriana
13 Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Here, Defendants failed to comply
14 with discovery obligations that the Court has already determined seek relevant and proportional
15 information. See Prior Order; Dkt. 100-1. As a result, Plaintiff has been left with “incomplete
16 and spotty evidence,” which itself constitutes prejudice. See Leon v. IDX Sys. Corp., 464 F.3d
17 951, 959 (9th Cir. 2006). Defendants’ assertion that Plaintiff may obtain the necessary
18 information through “deposition testimony” or any other discovery mechanism rings hollow given
19 Defendants’ own failure to make themselves available for deposition. The prejudice to Plaintiff is
20 apparent and the third factor weighs in favor of imposing dispositive sanctions.
21 b. The Fifth Factor, the Availability of Lesser Sanctions, Weighs
Against Dispositive Sanctions at this Juncture
22
23 The fifth factor, however, weighs against dispositive sanctions at this stage. A district
24 court may not impose dispositive sanctions without first considering lesser sanctions, determining
25 that lesser sanctions would be futile or warning the disobedient party of the possibility of
26
27
4 Defendants also address the fourth factor in their Opposition. See Opposition at 14-15.
1 dispositive sanctions. See Conn. Gen. Life Ins. Co., 482 F.3d at 1116 (citation omitted). For
2 example, dispositive sanctions are generally appropriate where previously imposed monetary
3 sanctions have proven ineffective. See, e.g. Henry, 983 F.2d at 948 (finding “no reason to expect
4 that [plaintiff] would respond more satisfactorily to a second round of intermediate sanctions than
5 he did to the first”); see also Faerfers v. Caviar Creator, Inc., No. 08-16339, 2009 WL 4912367,
6 at *2 (9th Cir. Nov. 16, 2009). Here, however, the Court has not previously imposed sanctions
7 against Defendants, and Defendants have not been warned that noncompliance may result in
8 dispositive sanctions.
9 Accordingly, while Defendants’ conduct has caused substantial prejudice to Plaintiff and
10 approaches the level warranting more severe sanctions, the Court declines to impose dispositive
11 sanctions at this juncture. The Court instead imposes monetary sanctions and orders Defendants
12 to provide further responses notwithstanding the close of discovery. See, infra, §§ III.C, IV.
13 2. Bad Faith
14 The remaining question is whether Defendants’ noncompliance was the product of
15 willfulness, fault, or bad faith. Plaintiff argues that it was, relying principally on Valley Engineers
16 Inc. v. Electrical. Engineering Co. and Connecticut General for the proposition that violation of a
17 court order, alone, is enough to justify dispositive sanctions. Motion at 5 (citing 158 F.3d 1051,
18 1052 (9th Cir. 1998) and 482 F.3d at 1097, respectively). Indeed, courts may infer bad faith from
19 individual violations – “‘disobedient conduct not shown to be outside the control of the litigant” is
20 all that is required to demonstrate willfulness, bad faith, or fault.” Henry, 983 F.2d at 948
21 (quoting Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1341 (9th Cir. 1985)). However,
22 whether a party has acted willfully or in bad faith is a “carefully case-specific” determination.
23 Valley Eng’rs, 158 F.3d at 1056 (citing Fjelstad, 762 F.2d at 1343).
24 The records in Valley Engineers and Connecticut General, where bad faith was found
25 based on a single violation of a court order, contained compelling evidence of intentional
26 misconduct. In Valley Engineers, the defendants knowingly withheld a “smoking gun”
27 memorandum while producing the remainder of the document, leaving little doubt that the
1 defendant intentionally photocopied docket sheets in a manner that altered the appearance of filing
2 dates – a deception the district court readily identified by comparing the altered copies with the
3 authentic dockets in its possession. See 482 F.3d at 1094-95.
4 The present record, although deeply troubling, is not quite so stark. Although Plaintiff
5 contends that Defendants intentionally “concealed” evidence, (Motion at 8), the record does not
6 contain affirmative evidence that Defendants deliberately withheld documents, fabricated evidence
7 or otherwise engaged in the type of deception present in Valley Engineers or Connecticut General.
8 This case is more akin to Fjelstad, where the court could not foreclose the possibility that the
9 defendants’ failure to comply stemmed from a misunderstanding rather than bad faith. See 762
10 F.2d at 1342-43. Had Defendants repeatedly violated court orders or continued their
11 noncompliance after lesser sanctions had proved ineffective, the Court would more readily infer
12 bad faith. See Comput. Task Grp., 364 F.3d at 1115 (inferring bad faith from five consecutive
13 violations of orders compelling discovery).
14 That said, Defendants, whether stonewalling intentionally or out of some sort of
15 misunderstanding, have blatantly violated the Court’s Prior Order. Such conduct cannot be taken
16 lightly. As the Ninth Circuit has aptly observed, “[t]here is no point of a lawsuit, if it merely
17 applies law to lies.” Valley Eng’rs, 158 F.3d at 1058. Thus, “[t]he most critical factor to be
18 considered … is whether ‘a party’s discovery violations make it impossible for a court to be
19 confident that the parties will ever have access to the true facts.” Conn. Gen., 482 F.3d at 1097.
20 While the Court ultimately concludes that the present record falls short of establishing bad faith, it
21 does so only narrowly. Defendants’ conduct approaches the level warranting dispositive sanctions
22 and they are expressly warned that any future failure to comply with this Court’s orders or their
23 discovery obligations will weigh heavily in favor of a finding of bad faith and may result in
24 the imposition of dispositive sanctions.
25 ////
26 ////
27 ////
1 C. Monetary Sanctions Are Appropriate
2 Although Plaintiff does not request monetary sanctions, (see Motion at 1, 8), Rule 37
3 provides that where a party fails to obey a discovery order, the Court must award the reasonable
4 expenses caused by the noncompliance unless the failure was substantially justified. Fed. R. Civ.
5 P. 37(b)(2)(C).
6 Defendant Zhang offers no justification for her noncompliance. See Opposition.
7 Defendant Lu, by contrast, contends that her recent medical complications “materially affected her
8 ability to review documents, communicate with counsel, assist in preparing discovery responses,
9 and otherwise participate in litigation” rendering her noncompliance substantially justified. Id. at
10 13-14. The Court does not minimize the seriousness of Defendant Lu’s medical condition.
11 Nevertheless, counsel had available means to address those circumstances, including stipulating
12 with Plaintiff to extend the discovery deadlines––as the parties had done previously, (see Dkt.
13 92)––or seeking an extension from the Court. See Adriana, 913 F.2d at 1411 (where counsel or
14 parties are unable to comply with discovery obligations because of illness, the reasonable course
15 of action is to seek relief from the court rather than simply fail to comply). The solution is not, as
16 Defendant Lu did here, to effectively refuse to participate in discovery by serving argumentative,
17 qualified and non-responsive answers.
18 Accordingly, the Court finds that neither Defendant has demonstrated substantial
19 justification for failing to comply with the Prior Order and that an award of monetary sanctions is
20 appropriate. The Court therefore imposes sanctions in the amount of $1,500 against each
21 Defendant.5
22 ////
23 ////
24 ////
25 ////
26
27
5 Although Plaintiff does not provide a breakdown of the fees associated with this Motion, the
1 IV. CONCLUSION
2 For the foregoing reasons, Plaintiff’s Motion for Dispositive Sanctions is GRANTED IN
3 PART and DENIED IN PART, with and without prejudice as follows:
4 • The Motion is denied with prejudice insofar as it is based on discovery responses
5 that the Court finds comply with the Prior Order, namely:
6 o Defendant Lu’s responses to Interrogatory no. 20 and RFP 1; and
7 o Defendant Zhang’s responses to Interrogatory nos. 2, 9, 10 and 11 and RFPs
8 1, 4 and 5.
9 • Within 10 days of this Order:
10 o Defendant Lu shall serve complete, verified and unobjected-to responses,
11 without argument, to Plaintiff’s Interrogatory nos. 7-19 and RFPs 2-3, 5-6
12 and 8-11 consistent with the rulings set forth above. See, supra, § III.A.1.
13 o Additionally, Defendant Lu must produce all responsive documents called
14 for in RFPs 2-3, 5-6 and 8-11 following a diligent search. No responsive
15 documents may be withheld. If no responsive documents exist, Defendant
16 Lu’s verified response must so state. Id.
17 o Defendant Zhang shall serve complete, verified, and unobjected-to
18 responses, without argument, to Plaintiff’s Interrogatory nos. 4-7 and RFPs
19 2-3 consistent with the rulings set forth above. See, supra, § III.A.2.
20 o Additionally, Defendant Zhang must produce all responsive called for in
21 RFPs 1 and 4. No responsive documents may be withheld. If no responsive
22 documents exist, Defendant Zhang’s verified response must so state. Id.
23 • Defendants shall each make themselves available for deposition no later than ten
24 days after service of the supplemental discovery responses.6
25 • The motion is granted to the extent it finds that Defendants unjustifiably failed to
26
6 Plaintiff’s concurrently filed Motion to Reopen Discovery, (Dkt. 101), is superseded by this
27
Order and is therefore TERMINATED as moot. The undersigned has conferred with the
] comply with the Court’s Prior Order with respect to the deficient discovery
2 responses above, as well as their failure to make themselves available for
3 deposition. Pursuant to Rule 37(b)(2)(C), the Court orders, sua sponte, that
4 Defendants shall each pay $1,500 to Plaintiff as reasonable expenses within 21
5 days of this Order.
6 e Defendants are expressly warned that failure to comply with this Order will result
7 in a recommendation that the Court impose dispositive sanctions, either in whole or
8 in part depending on the extent of Defendants’ noncompliance.
9 e The Motion is denied without prejudice insofar as it seeks additional dispositive
10 sanctions based on Defendants’ conduct. Plaintiff may renew the request if
11 Defendants fail to comply with this order.
13 SO ORDERED.
14 |) Dated: July 30, 2026
15
Sesion vert
SUSAN VAN KEULEN
17 United States Magistrate Judge
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