Judge: Elaine Lu, Case: 21STCV11044, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCV11044    Hearing Date: August 23, 2022    Dept: 26

The Court rules as follows as to Plaintiff’s motion to compel further responses to Plaintiff’s Requests for Production (RFPs) Set Two:

MOTION TO COMPEL FURTHER RESPONSES

In nearly identical responses to RFPs 90, 91, 92, 93, 94, 95, 98, 99, 100, 101, 102, 103, 117, 118, 119, 120, and 121, Defendant initially provided boilerplate objections, none of which are well founded.  Contrary to Defendant’s contention, none of these RFPs are vague, ambiguous, overbroad, burdensome, oppressive, or irrelevant.  To the contrary, each of these RFPs appears reasonably calculated to lead to the discovery of admissible evidence.  Notably, at the outset of Plaintiff’s RFP set 2, Plaintiff has defined the term “JEEP VEHICLES” to refer to vehicles of the same make, model, and year as Plaintiff’s SUBJECT VEHICLE.  (Plaintiff’s RFP Set 2, paragraph 5.)  In doing so, Plaintiff has properly narrowed the scope of the RFPs.  Defendant has also failed to articulate a privacy interest invaded by these RFPs, and Defendant has failed to justify its privacy objection.  Nor has Defendant complied with Code of Civil Procedure section 2031.240(b)(1)’s requirement to identify what documents Defendant is withholding on the basis of any of its objections.

With respect to Defendant’s attorney-client and work-product objections, the Court notes that “[i]n general, when a party asserts the attorney-client privilege, that party has the burden of showing the preliminary facts necessary to support the privilege.”  (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 102.)  “The party asserting the privilege need only present facts which ‘support a prima facie claim of privilege.”  (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 894.)  “After this burden is met, or where there is no dispute concerning the preliminary facts, the burden shifts to the party opposing the privilege to show either the claimed privilege does not apply, an exception exists, or there has been an express or implied waiver.”  (Venture Law Group, supra, 118 Cal.App.4th at p.102.)

Here, none of the RFPs at issue appear on their face to seek documents protected by attorney client privilege.  Moreover, Defendant has failed to provide any privilege log identifying what if any documents that are responsive are being withheld based on attorney client privilege/work product.  Thus, to the extent that there are privileged documents, Defendant has not indicated which specific document are privileged.  This is insufficient.  A privilege log must identify what documents are being withheld and enough factual information to support a prima facie claim of privilege. (See CCP § 2031.240(b)(1-2), [“b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”] [Italics added.].) 

Accordingly, Defendant must provide a privilege log identifying all documents that are being withheld if any and enough information to establish that the document is protected by attorney client privilege/work product.

With respect to the adequacy of Defendant’s supplemental responses, the Court rules as follows:

RFPs 90, 91, 94: Defendant’s supplemental responses to RFPs 90 and 91 are contradictory and not Code-compliant.  It is impossible to discern from Defendant’s supplemental response whether any records are being produced in response to these RFPs.  Defendant’s supplemental response initially states “FCA US has complied in full with this request,” suggesting that there are documents that FCA will produce.  If Defendant’s intention is truly to allow these RFPs in full and to produce all documents within this category, Defendant should withdraw the previously raised objections and use the mandatory language of Code of Civil Procedure section 2031.220, i.e., that this RFP will be allowed in whole, and that all documents or things in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Instead of using this mandatory language, Defendant’s response confusingly indicates that “no such documents currently exist or have ever existed.”  However, if it is true that no documents have ever existed, then Defendant fails to explain why Defendant’s supplemental response starts off stating that Defendant “has complied in full with this request” when instead Defendant should have simply responded that it is unable to comply. 

Further, if Defendant intended to express an inability to comply, Defendant failed to use the mandatory language of Code of Civil Procedure section 2031.230 and: (1) affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand, (2) specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party, and (3) set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.  (Code of Civil Procedure section 2031.230.)  The Court makes one final observation: rather than using the straightforward language set forth in section 2031.230, Defendant supplemental responses provides a long and circuitous explanation, the purpose of which is unclear.  For example, it is unclear whether Defendant is attempting to explain certain limitations that Defendant imposed on the search that Defendant performed for the documents.  Instead, Defendant should use the plain, straightforward language of section 2031.230 without caveats and qualifications. 

Thus, Plaintiff’s motion to compel further responses to RFPs 90 and 91 is GRANTED.

RFP 92: Defendant’s supplemental response complies with Code of Civil Procedure section 2031.220.  No further response is required.  Plaintiff’s motion to compel further response to RFP 92 is DENIED.

RFP 93:

Defendant served a supplemental response to RFP 93 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 93.  Moreover, the supplemental August 4, 2022 response complies with Code of Civil Procedure section 2031.230.

RFP 95:

Defendant’s supplemental response fails to unequivocally state that Defendant has produced or will produce all documents in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Defendant must serve a supplemental response that corrects this defect, in compliance with Code of Civil Procedure section 2031.220.

RFP 98:

Defendant served a supplemental response to RFP 98 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 98.  Moreover, the supplemental August 4, 2022 response complies with Code of Civil Procedure section 2031.230.

RFP 99:

Defendant’s supplemental response fails to unequivocally state that Defendant has produced or will produce all documents in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Defendant must serve a supplemental response that corrects this defect, in compliance with Code of Civil Procedure section 2031.220.

RFP 100:  Defendant’s supplemental response complies with Code of Civil Procedure section 2031.220.  No further response is required.  Plaintiff’s motion to compel further response to RFP 100 is DENIED.

RFP 101: Defendant’s supplemental response fails to unequivocally state that Defendant has produced or will produce all documents in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Defendant must serve a supplemental response that corrects this defect, in compliance with Code of Civil Procedure section 2031.220.

RFP 102: Defendant’s supplemental response fails to unequivocally state that Defendant has produced or will produce all documents in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Defendant must serve a supplemental response that corrects this defect, in compliance with Code of Civil Procedure section 2031.220.

RFP 103: Defendant’s supplemental response fails to unequivocally state that Defendant has produced or will produce all documents in the demanded category that are in the possession, custody, or control of Defendant will be produced.  Defendant must serve a supplemental response that corrects this defect, in compliance with Code of Civil Procedure section 2031.220.

RFP 117:

Defendant served a supplemental response to RFP 117 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 117.  Plaintiff must engage in a new meet and confer and file a new motion to compel a further response beyond the August 4, 2022 response.  However, the Court strongly encourages Defendant to voluntarily supplement its response to RFP 117 because RFP calls for communications between Defendant and any government agency or entity regarding engine defects in vehicles of the same year, make, and model as the subject vehicle.  Instead of responding to this request for communications, Defendant’s August 4, 2022 response to RFP 117 references Technical Service Bulletins – not communications with government agencies.

RFP 118:

Defendant served a supplemental response to RFP 118 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 118.  Plaintiff must engage in a new meet and confer and file a new motion to compel a further response beyond the August 4, 2022 response.  However, the Court strongly encourages Defendant to voluntarily supplement its response to RFP 118 because RFP calls for NHTSA complaints regarding engine defects in vehicles of the same year, make, and model as the subject vehicle.  Instead of responding to this request for NHTSA complaints, Defendant’s August 4, 2022 response to RFP 118 references Technical Service Bulletins – not communications with government agencies.

RFP119:

Defendant served a supplemental response to RFP 119 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 119.  Plaintiff must engage in a new meet and confer and file a new motion to compel a further response beyond the August 4, 2022 response.  However, the Court strongly encourages Defendant to voluntarily supplement its response to RFP 119 because RFP calls for communications between Defendant and any government agency or entity regarding transmission defects in vehicles of the same year, make, and model as the subject vehicle.  Instead of responding to this request for communications, Defendant’s August 4, 2022 response to RFP 119 references recalls and internal investigations – not communications with government agencies.

RFP 120:

Defendant served a supplemental response to RFP 120 on August 4, 2022, thereby mooting Plaintiff’s motion to compel a further response to RFP 120.  Plaintiff must engage in a new meet and confer and file a new motion to compel a further response beyond the August 4, 2022 response.  However, the Court strongly encourages Defendant to voluntarily supplement its response to RFP 120 because RFP calls for NHTSA complaints regarding transmission defects in vehicles of the same year, make, and model as the subject vehicle.  Instead of responding to this request for NHTSA complaints, Defendant’s August 4, 2022 response to RFP 120 references recalls and internal investigations – not communications with government agencies.

RFP 121: Defendant’s supplemental response complies with Code of Civil Procedure section 2031.220.  No further response is required.  Plaintiff’s motion to compel further response to RFP 121 is DENIED.

SANCTIONS

Plaintiff requests sanctions in the amount of $3,262.50 against Defendant to reimburse Plaintiff for the cost of bringing this motion. 

For a motion to compel further responses, “[t]he court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to [request for production], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2031.300(c), [italics added].) Accordingly, sanctions are mandatory for both motions unless the circumstances make the imposition of sanctions unjust.

Here, the Court finds that the amount requested – $3,262.50 – is excessive.  First, Plaintiff’s meet and confer efforts consisted primarily of boilerplate meet and confer letters, none of which identified the precise defects that caused Defendants’ responses to be non-Code compliant.  Plaintiff’s moving papers included an approximate 627-page declaration with attachments, more than half of which did not relate in any way to the discovery issues at hand.  In light of the mixed results above and the fact that much of this litigation could have been avoided with a more robust meet and confer effort, the Court finds that $1,750.00 reasonably compensates Plaintiff for attorney’s fees and costs incurred in bringing this motion.

Defendant is ordered to pay monetary sanctions in the amount of $1,750.00 to Plaintiff by and through counsel, within thirty (30) days of notice of this order.

            Plaintiffs are to give notice of this order and file proof of service of such.