Judge: John J. Kralik, Case: 22BBCV01204, Date: 2023-08-18 Tentative Ruling

Case Number: 22BBCV01204    Hearing Date: September 8, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiffs Jose C. Espino and Paola Espino (“Plaintiffs”) allege that on October 15, 2020, they entered into a warranty contract with Defendant Ford Motor Company (“Ford”) regarding a 2022 Ford Escape.  Plaintiffs allege that defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including but not limited to brakes and transmission.  Plaintiffs allege they delivered the subject vehicle to an authorized Ford repair facility for repair of the nonconformities, but Defendants were unable to conform the vehicle to the applicable express warranty after a reasonable number of repair attempts.

Plaintiffs allege that they delivered the subject vehicle to Defendant Vista Ford Inc. dba Vista Ford Lincoln (“Vista Ford”) for repair on October 27, 2022.  They allege that prior to delivering the vehicle to Vista Ford, the vehicle had continuing transmission-related problems including the vehicle shaking, shifting problems, and the vehicle stalling.  Plaintiffs allege that Vista Ford breached its duty by failing to store, prepare, and repair the subject vehicle with industry standards. 

The first amended complaint (“FAC”), filed April 13, 2023, alleges causes of action for: (1) violation of Song-Beverly Act – breach of express warranty against Ford; and (2) negligent repair against Vista Ford.

B.     Motions on Calendar

On July 14, 2023, Plaintiffs filed a motion to compel further responses to Request for Production of Documents (“RPD”) from Ford.  Plaintiffs seek $2,460 against Ford and its attorney of record.  On August 14, 2023, Ford filed opposition papers.  On August 18, 2023, Plaintiffs filed a reply brief.

On August 11, 2023, Ford filed a motion for protective order to govern the production of confidential materials.  On August 25, 2023, Plaintiffs filed an opposition brief.  On August 31, 2023, Ford filed a reply brief. 

DISCUSSION

            Plaintiffs move to compel Ford’s further responses to RPD Nos. 16, 19-29, and 31.  Ford moves for entry of a protective order to govern the production of the documents.  The Court will consider the two motions together.

Plaintiffs’ RPDs seek the following documents:

·         RPD No. 16 asks Ford for all of its warranty claim policy and procedure manual(s) from 2022 to the present. 

·         RPD No. 19 asks Ford for all documents which describe the procedures used by Ford for evaluating and responding to complaints by California consumers regarding vehicles it manufactured or distributed since 2022. 

·         RPD No. 20 asks for all documents which describe policies, procedures, and/or instructions since 2022 that Ford’s employees and agents should follow when evaluating a customer request for a refund of their money towards or owed on a motor vehicle manufactured or distributed by Ford. 

·         RPD No. 21 asks for all documents describing Ford’s policies, procedures, or guidelines for determining whether a vehicle is eligible for a vehicle repurchase pursuant to the Song Beverly Act since 2022. 

·         RPD No. 22 asks for all training material regarding the handling of consumer requests for a vehicle repurchase in California since 2022. 

·         RPD No. 23 asks for all training materials for Ford’s employees/agents tasked with determining whether a vehicle is eligible for a vehicle repurchase pursuant to the Song Beverly Act since 2022. 

·         RPD No. 24 asks Ford for all scripts and flow charts that it utilized in handling California consumer requests for a vehicle repurchase or replacement since 2022. 

·         RPD No. 25 asks for all documents describing Ford’s policies, procedures, and parameters for determining what constitutes a repair presentation to determine eligibility for a vehicle repurchase pursuant to the Song Beverly Act since 2022.

·          RPD Nos. 26-28 ask for all documents describing its policies, procedures, and parameters for determining what constitutes a (26) “non-conformity”; (27) “substantial impairment” of a vehicle use/value/safety; and (28) “reasonable number of repair attempts,” to determine eligibility for a vehicle repurchase pursuant to the Act since 2022. 

·         RPD No. 29 asks for all documents describing its policies, procedures, and parameters for establishing the turn-around time to respond to a vehicle repurchase request pursuant to the Act since 2022. 

·         RPD No. 31 asks for all documents which evidence or describe Ford’s policies, procedures and/or instructions since 2022 which Ford’s authorized repair facilities should follow regarding customer requests for a refund of the price paid for a vehicle pursuant to the Act.

To RPD Nos. 16 and 22, Ford stated it would comply and produce all documents that it is able to locate, including its Warranty Policy and Procedure Manual for 2022 (which it states also applies to 2023) subject to a protective order due to the proprietary nature of the document.  Ford objected that the RPD seeks irrelevant documents outside of the relevant timeframe, warranty claim, and vehicle type at issue.  

To RPD Nos. 19-21, 23, 25-29, and 31, Ford responded that it would comply with the request and referred Plaintiff to the Owners’ Guide Scheduled Maintenance Guide and Warranty Guide for the 2020 Ford Escape on its website and information regarding California law (with link provided).  Ford also stated it would produce its Warranty Policy and Procedure Manual, its policies and procedures for Ford’s Customer Relationship Center (“CRC”), and its Reacquired Vehicle (“RAV”) Policy & Procedure Manual for 2022 (regarding refunds and replacement of vehicles) subject to a protective order.  Ford then objected that the requests were overly broad, unduly burdensome, and sought irrelevant documents, which could include attorney-client privileged document and documents protected under the work product doctrine. 

To RPD No. 24, Ford responded that it would produce its policies and procedures for Ford’s CRC for 2022, the year for when Plaintiff filed the lawsuit, subject to a protective order.  Ford then objected that the requests were overly broad, unduly burdensome, and sought irrelevant documents, which could include attorney-client privileged document and documents protected under the work product doctrine. 

Ford argues that a protective order is necessary to protect its confidential information regarding its Warranty Policy & Procedure Manual, CRC Policies & Procedures, and RAV Policy & Procedure Manuals.  In opposition, Plaintiffs argue that they agreed to execute the Los Angele Superior Court’s model protective order, but Ford improperly seeks to enter a protective order that deviates from the model form.  Ford seeks to modify the model protective order at paragraphs 7, 8, and 21 as follows:

Specifically, Ford seeks to modify Paragraph 7 to clarify in sub-section (b) that the term “affiliated attorneys” mean attorneys in the same firm and that Plaintiffs’ counsel’s office personnel who have access to Ford’s confidential documents must sign Exhibit A; to include videographers and litigation support companies with court reporters in sub-section (d); to preclude mock jurors from accessing Ford’s confidential documents because Ford has no ability to identify such persons or ensure (or confirm) their compliance, as set forth in sub-section (f); and to include non-attorneys along with experts in paragraph (g), and confirm that Ford’s confidential documents may not be shown to competitors of Ford. Ford also seeks to modify Paragraph 8 to prohibit the receiving party from posting Ford’s confidential documents to any website or advertising Ford’s documents for sale. Ford further seeks to modify Paragraph 21 to clarify the process for Plaintiffs’ counsel to return or destroy Ford’s confidential documents at the conclusion of the case, and to require the return of all confidential documents.

(Mot. for Protective Order at p.1.)  Ford provides a red-lined copy off the proposed amended protective order as Exhibit E to the declaration of Hannah Biemann. 

            In support of the motion for protective order, Ford provides the declaration of Jacob Doss, who is a Manger in Ford’s CRC since 2012.  He states that Ford protects its confidential information and documents from public disclosure as they are proprietary to Ford, constitute Ford’s trade secrets and business intelligence, and would be of value to Ford’s competitors.  (Doss Decl., ¶4.)  He states that Ford’s Warranty Policy & Procedure Manual, CRC Policies & Procedures, and the RAV Policy & Procedure Manuals contain sensitive, confidential, and proprietary information.  (Id., ¶¶6-8.)   He states the CRC Policy & Procedure Manual contains proprietary information because it reveals Ford’s process and methodology to identify, document, assess, and resolve customer or product concerns; addresses the specifics of how customer calls and contacts should be handled; sets forth the process that the CRC may follow to process, document, diagnose, handle, and resolve customer concerns; addresses the role and responsibility with the CRC and reveals Ford’s process to address/resolve/elevate customer concerns; and determines how Ford classifies customer concerns and how/when to elevate a concern, repurchase a vehicle, or communicate with its customers.  (Id., ¶9.)  Mr. Doss states that the information was developed by Ford over time and after considerable investment in its staff and third-party vendors who operate Ford’s call center, and that disclosure of these documents would benefit Ford’s competitors who are training their own employees.  (Id., ¶¶9-10.)  He states that the Warranty Policy & Procedure Manual contains confidential processes for its dealers to receive, execute, document, and diagnose warranty and recall repairs in conformity with Ford’s defined processes and procedures, as well as the process when submitting warranty reimbursement requests.  (Id., ¶11.)  He states that the document includes proprietary discussions of allowances, costs, and reimbursements provided by Ford to its dealers.  (Id.)  Mr. Doss states that the RAV Policy & Procedure Manuals contain confidential processes regarding how Ford’s employees may proceed when a decision has been made to repurchase a specific vehicle.  (Id., ¶12.)  His declaration appears to support why a protective order is necessary, but does not address why the specific modification Ford seeks to make in the model protective order are necessary. 

            Neither party disputes whether a protective order is appropriate for this case.  As stated in their opposition, Plaintiffs are amenable to entering a protective order, but argue that the model protective order should not be modified and that Ford has not established good cause for the modifications.  The Court will address the proposed modifications here.

·         Paragraph 7:

o   Subsection (b) permits attorneys of record and affiliated attorneys (and other persons) to access/disclose confidential materials.  Ford seeks to narrow the term “affiliated attorneys” to those in the same firm.  Plaintiffs argue that this may hinder their ability to disclose documents to other attorneys serving as their co-counsel and trial counsel.  However, co-counsel and trial attorneys would be considered Plaintiffs’ counsel of record, such that this objection lacks merit. The addition of the language is not prejudicial, such that the Court will allow it. 

o   Subsection (d) permits court reporters from accessing confidential material, but Ford seeks to include videographers, litigation support consultants, and vendors retained by the parties.  Plaintiffs do not appear to dispute this subsection.  As such, this language will be permitted.

o   Subsection (f) permits mock jury participants to access the documents.  Ford seeks to strike this paragraph completely, arguing that it has no ability to identify such persons and ensure/confirm their compliance.  However, the model protective order form requires mock jury participants to sign Exhibit A (Certification Re Confidential Discovery Materials), such that the confidentiality and identification issues raised by Ford would be adequately protected and addressed.  Subsection (f) will not be stricken.

o   Ford’s modification of subsection (g) regarding experts is not contested by the parties.  The Court will allow the modification.

·         Paragraph 8: Ford seeks to add language to paragraph 8 regarding the use of Confidential Materials, by adding subsections (a) and (b), such that: (a) the parties may provide the Confidential Documents by electronic means, but may not be post them on websites or document repositories other than with the people mentioned in paragraph 7; and (b) all persons described in paragraph 7 shall not sell, advertise, or publicize the Confidential Materials or information therein.  This proposed language is perhaps redundant but covers a specific instance of conduct already prohibited by Paragraph 8. While it is, perhaps, an instance of belt and suspenders, the Court will allow it.

·         Paragraph 21: Ford seeks to modify Paragraph 21 to clarify the process for Plaintiffs’ counsel to return or destroy Ford’s confidential documents at the conclusion of the case, and to require the return of all confidential documents. Instead of requiring the documents to be returned within 30 days of a written request, Ford seeks a modification such that documents will be returned within 30 days of a settlement or termination of the action (without the necessity of a written request).  Ford also asks that all documents disclosed to any Qualified Person be returned, all Protected Documents be destroyed, and such destruction be certified in writing.  Ford seeks to strike any language allowing counsel to maintain files in compliance with the Protective Order, all work product, the pleadings, and deposition copies; language regarding the proper preservation of the materials; and the Court retaining jurisdiction to review and rule on the presentation of materials.  Plaintiffs argue that their counsel should be able to retain their complete case files and that any concerns Ford may have would be addressed through the protective order.  The Court will allow the modification that Ford proposes in paragraph 21, except that Ford should make a written request. so that Plaintiffs are aware of when the clock starts to run on their obligation to return documents. 

Thus, the Court grants in part and denies in part the motion for protective order as stated in this written order.

            Now that the merits of the motion for a protective order have been addressed, the Court turns to the motion to compel further responses.  In its responses to the RPD at issue, Ford stated that it would produce the Warranty Policy & Procedure Manual, CRC Policies & Procedures, and RAV Policy & Procedure Manuals for 2022 (which apply to 2023) subject to a protective order.  The Court orders the parties to enter the protective order as modified by this order.  The Court grants the motion to compel further responses to the RPD subject to the entry of a protective order by the parties. 

            Plaintiffs request sanctions in connection with their motion to compel further responses.  In light of the parties’ arguments on the motion to compel further responses and the motion for protective order, the Court finds that Ford was justified in raising its objections and in opposing the motion.  The Court will decline awarding sanctions at this time.  However, the Court may be inclined to impose sanctions for future discovery disputes. 

CONCLUSION AND ORDER

Plaintiffs Jose C. Espino and Paola Espino’s motion to compel Defendant Ford Motor Company’s further responses to the Request for Production of Documents is granted, subject to the parties entering a protective order.

Defendant Ford Motor Company’s motion for protective order is granted in part and denied in part as specifically stated and limited in the Court’s written order. 

The parties are ordered to cooperate in drafting the finalized version of the protective order, sign the document, and provide a copy for the Court’s signing.

Defendant shall provide further responses to the Request for Production of Documents within 20 days of the notice of entry of the Protective Order.

No sanctions shall be awarded.

            Each party shall provide notice of their respective order.