Judge: Malcolm Mackey, Case: 21STCV19032, Date: 2023-02-28 Tentative Ruling
Case Number: 21STCV19032 Hearing Date: February 28, 2023 Dept: 55
MEZA
v. FORD MOTOR COMPANY 21STCV19032
Hearing Date: 2/28/23,
Dept. 55
#7:
MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR
PRODUCTION FROM DEFENDANT FORD MOTOR COMPANY.
MOTION FOR ENTRY OF PROTECTIVE ORDER TO GOVERN
PRODUCTION OF CONFIDENTIAL MATERIALS.
Notice: Okay
Opposition
MP:
Plaintiffs
Defendant
RP:
Defendant
Plaintiffs
Summary
On 5/20/21, plaintiffs filed a Complaint alleging that
Plaintiff purchased a 2018 Ford F-150 having engine and electrical defects, and
the manufacturer failed to replace the vehicle or make restitution after a
reasonable number of repair attempts.
The causes of action are:
1. VIOLATION OF
SONG-BEVERLY ACT - BREACH OF EXPRESS WARRANTY.
2. VIOLATION OF
SONG-BEVERLY ACT - BREACH OF IMPLIED WARRANTY.
Plaintiffs’
Positions
Plaintiffs request an order compelling Defendant’s
further documents production, and denying the customized portions of the protective
order, and awarding sanctions as to plaintiffs’ motion and opposition ($2,270.00
and $750), on grounds including the following:
·
The document requests at issue are
requests seeking Ford’s policies, procedures, and parameters for determining
what constitutes a repair presentation (RFP 25), a non-conformity to warranty
(RFP 26), a substantial impairment to the vehicle’s use, value, or safety (RFP
27), and a reasonable number of repair attempts when determining eligibility
for a vehicle repurchase under the Song-Beverly Act since 2019 (RFP 28).
·
A manufacturer’s policies—or lack of
policies—related to how it deals with consumer complaints and its decision on
whether to replace or repurchase are important in determining whether a
manufacturer has committed a willful violation of the Act. (Jensen v. BMW of
North America, Inc. (1995) 35 Cal.App.4th 112, 136.
·
Defendant’s policies, procedures, and
parameters—are relevant because they would show whether they are meant to
hinder consumers from seeking their statutory remedies, whether they comport
with Defendant’s duties under the Song-Beverly Act including whether they seek
to provide an inferior remedy, what criteria Defendant uses for determining
whether a vehicle qualifies for repurchase or replacement, or whether Defendant
has enacted any policies or procedures for dealing with its obligations.
·
This information would tend to prove
whether Defendant has committed a willful violation.
·
Defendant’s discovery objections are
boilerplate and unsupported.
·
Meeting and conferring was unsuccessful.
·
Ford is burdening the Court seeking the
entry of a protective order that deviates from the model protective order
without good reason.
·
Ford improperly seeks to limit the
attorneys who are permitted access to the confidential documents to only those
attorneys within the same firm. (Proposed protective order ¶ 7.) This
limitation could conceivably prevent Plaintiffs’ counsel from disclosing the
documents to any other attorneys that serve as Plaintiffs’ co-counsel.
·
Ford would require hundreds of employees
sign the Exhibit A form, every time that the parties enter into a protective
order in all cases litigated between Plaintiffs’ counsel and Ford.
·
The LASC model protective order differently
would require that mock jury participants sign the Exhibit A attachment that
requires them to provide their address and telephone number.
·
The model protective order already
addresses Ford’s proposal to add that “such documents may not be posted on any
website or internet accessible document repository that is accessible to anyone
other than the persons noted in paragraph 7 above” and that one “shall not
under any circumstance sell, offer for sale, advertise or publicize either the
Confidential Materials or the information contained therein or the fact that
such persons have obtained the Confidential Materials.” (Proposed protective
order ¶ 8.)
·
Ford uselessly seeks to modify paragraph
21. The LASC model protective order provides that “counsel for each party may
maintain in its files, in continuing compliance with the terms of this
Stipulation and Protective Order, all work product, and one copy of each
pleading filed with the Court.” (Proposed protective order ¶ 21.)
Defendant’s
Positions
Defendant advocates denying an order compelling
discovery, and granting a protective order, for reasons including the
following:
·
Ford properly objected, then supplemented
its responses to Request Nos. 25-28.
·
Ford agreed to produce its Warranty Policy
and Procedure Manual, policies and procedures for Ford’s CRC, and its RAV
Policy & Procedure Manual, for 2020.
·
Ford objected to producing these documents
for other years because they are unrelated to Plaintiffs’ claims, their
vehicle, or their request for repurchase.
·
Ford filed a Motion for Entry of a
Protective Order on December 27, 2022, so that Ford can produce the
confidential documents identified in Ford’s supplemental responses to Request
Nos. 25-28.
·
Request Nos. 25-28 are so broad that they
potentially seek information protected by the attorney-client privilege and/or
the work product doctrine.
·
Plaintiffs’ request for sanctions is
improper and should be denied, because Ford’s Responses, Supplemental
Responses, and objections to the Requests at issue are code-compliant, and its
opposition is substantially justified.
·
Ford’s requested changes to the LASC Model
Order affect three paragraphs—Nos. 7, 8 and 21
(see motion for protective order, ex. G).
·
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 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.
Tentative
Ruling
Plaintiffs’ motion to compel is granted as to the
request to compel, and denied as to sanctions, with a condition of a protective
order.
Defendant’s motion for protective order is granted in
part, as set forth below:
The Court orders that every person involved in this litigation
shall not disclose 1) the Warranty Policy and Procedure Manual, 2) the policies
and procedures for Ford’s Customer Relationship Center, and 3) Ford’s
Reacquired Policy & Procedure Manual, to Defendant’s competitors, and all such
produced information produced (1) shall be used only for the prosecution,
defense, or settlement of the action, (2) shall be disclosed only to attorneys
for the parties, their employees, their expert or consulting witnesses, and
court personnel, and (3) shall be returned to the producing party after the
litigation was concluded.
This ruling is without prejudice to moving and
opposing parties also stipulating to the model protective order, or other
protective order, if they so choose.
Response
Statutory Compliance
The responses fail to indicate the documents being withheld,
such as purportedly irrelevant documents dated in 2021 through 2023, but only
indicate production in part as to some described categories.
“Even where a party deems a demand to be
objectionable, he [she, or it] still must identify those items which fall into
the category of item in the demand to which an objection is being made.” Standon Co. v. Sup. Ct. (1990) 225
Cal. App. 3d 898, 901 n.3. A document
response must consist of: 1) an
agreement to comply, stating whether the productions or inspection will be
allowed “in whole or in part,” and that all documents or things in the
possession, custody or control of the respondent, as to which no objection is
made, will be included, by the date set for inspection (unless informally
extended in writing, or the designated timing is subject to objection); 2) a representation of inability to comply,
with a specification of any person believed or known to have possession of
documents; or, 3) objections and
specification of withheld documents. CCP
§§2031.210(a), 2031.220, 2031.270, 2031.280(b).
Compliance includes all documents or things in
the demanded category that are in the “‘possession, custody, or control’” of
the responding party, such as from other corporations. Roche v. Hyde (2020) 51 Cal.App.5th
757, 813 (quoting CCP § 2031.220).
Trade
Secrets
Opposing party met the burden to evidence trade
secrets, as to narrow categories only— 1) Warranty Policy and Procedure Manual,
2) policies and procedures for Ford’s Customer Relationship Center, and 3) its Reacquired
Policy & Procedure Manual (e.g., ,
Jacob Doss decl., filed 12/27/22, ¶ 6).
Hence, no other information is shown to be protectable trade secrets.
Evidence Code Section 1061(b)(1) requires parties
seeking protective orders in criminal and civil cases to submit an affidavit
based on personal knowledge listing qualifications to opine, identifying
alleged trade secrets and documents disclosing trade secrets, and showing
qualifications of trade secrets. Stadish
v. Sup. Ct (1999) 71 Cal. App. 4th 1130, 1144-1145.
It is error to delegate to parties the task of
determining which items contain trade secrets. Stadish v. Sup. Ct.
(1999) 71 Cal. App. 4th 1130, 1144. See also
Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th
261, 318 (“assuming … courts may in
appropriate circumstances issue an umbrella protective order that allows the
parties to designate as confidential documents produced in discovery …, the declaration
submitted in support of … motion for such a protective order was entirely
conclusory ….”).
The party asserting trade-secret objections has the
burden to establish their existence. Bridgestone/Firestone,
Inc. v. Sup. Ct. (1992) 7 Cal.App.4th 1384, 1390. After the requesting party meets the shifted
burden, the objecting party must show any disadvantages of a protective
order. Bridgestone/Firestone, Inc. v.
Sup. Ct. (1992) 7 Cal.App.4th 1384, 1390.
“A trade secret is “‘information, including a formula,
pattern, compilation, program, device, method, technique, or process, that: [§]
(1) Derives independent economic value, actual or potential, from not being
generally known to the public or to other persons who can obtain economic value
from its disclosure or use; and [§] (2) Is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.’” Perlan Therapeutics, Inc. v. Sup. Ct.
(2009) 178 Cal.App.4th 1333, 1342-43 (quoting Civ.C. §3426.1(d)(1), (2)).
Judges must act to protect trade secrets by reasonable
means including protective orders, in camera hearings, sealing records and
restricting disclosure. CC §3426.5; Hypertouch, Inc. v. Sup. Ct. (2005)
128 Cal. App. 4th 1527, 1555 n. 16. A
protective order to preserve the secrecy of an alleged trade secret may include
orders in connection with discovery proceedings, ordering any person involved
in litigation not to disclose alleged trade secrets without court approval,
and, most commonly, to limit access to the information by barring the
disclosure of the information to competitors.”
Hypertouch, Inc. v. Sup. Ct. (2005) 128 Cal.App.4th 1527, 1555 n.
16. A court issued a protective order
providing that all documents containing trade secrets (1) shall be used only
for the prosecution, defense, or settlement of the action, (2) shall be
disclosed only to attorneys for the parties, their employees, their expert or
consulting witnesses, and court personnel, and (3) shall be returned to the
producing party after the litigation was concluded. See McGinty v. Sup.Ct. (1994) 26
Cal.App.4th 204, 207.
The Court lacks authority to compel a stipulated
protective order, because that is voluntary.
Unless courts order otherwise, parties may stipulate to modify discovery
procedures. CCP §2017.030; Mercury Interactive Corp. v. Klein
(2007) 158 Cal.App.4th 60, 98 (parties often stipulate for protective orders
limiting disclosure of information deemed by producing party to be
confidential, and obviate the need for court unless the designation is
challenged). Parties often choose to
enter into stipulated protective orders permitting limited use of discovered
information deemed to contain confidential or proprietary information, to avoid
the need for court rulings, but where parties are unable to stipulate, and
must resort to the courts, parties seeking protective orders have the burden to
show good cause. Nativi v. Deutsche
Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 317-18. “The difference between a protective order
issued by the trial court and a secrecy agreement between the parties is that
the protective order balances the interests of the public, the plaintiff and
the defendant by requiring the party seeking to restrict dissemination of
discovered documents to demonstrate ‘good cause’ for the restriction.” Westinghouse Elec. Corp. v. Newman &
Holtzinger (1995) 39 Cal. App. 4th 1194, 1209. “Unless it is clear from the record that both
parties assented, there is no stipulation.”
Sarracino v. Sup. Ct. (1974) 13 Cal. 3d 1, 14. “‘A stipulation is an agreement between
counsel with respect to business before a court….’” Harris v. Spinali Auto Sales, Inc.
(1966) 240 Cal. App. 2d 447, 452.
Privilege
The opposing evidence fails to evidence the
attorney-client or work-product privileges which are instead only generally
asserted.
The objecting party has the burden to file evidence of
the preliminary facts establishing a privilege exists. HLC Properties,
Limited v. Sup. Ct. (2005) 35 Cal. 4th 54, 59; OXY Resources California LLC v. Sup. Ct.
(2004) 115 Cal.App.4th 874, 894. “[I]f
documents responsive to a document request are withheld on privilege grounds, a
privilege log or some equivalent specification of any asserted privilege
objection ‘shall’ be supplied.” Roche
v. Hyde (2020) 51 Cal.App.5th 757, 813
(citing CCP § 2031.240).
Overbreadth
The Court finds no impermissible overbreadth, in the
subject requests specifying documents “since 2019.”
As to overbreadth objections involving no apparent privilege,
courts determine whether the discovery is “ ‘reasonably calculated to lead to
the discovery of admissible evidence’ ”, generally resolving doubt in favor of permitting
discovery. Williams v. Sup. Ct.
(2017) 3 Cal.5th 531, 542. “When
discovery requests are grossly overbroad on their face, and hence do not
appear reasonably related to a legitimate discovery need, a reasonable
inference can be drawn of an intent to harass and improperly burden.” Obregon v. Sup. Ct. (1998) 67
Cal.App.4th 424, 431.
[Emphasis added.]
A document request shall designate documents or things
"by specifically describing each individual item or by reasonably
particularizing each category of item."
CCP §2031.030(c)(1). An extreme
request without any relationship to the manner in which records are kept may be
too broad. Calcor Space Facility,
Inc. v. Sup. Ct. (1997) 53 Cal.App.4th 216, 222-23 (subpoena having six
pages of definitions and instructions made 32 document requests complicated
categories, effectively requesting everything in respondent's possession in any
way related to a category).
Sanctions
Sanctions are denied entirely, the Court finding
substantial justification for some positions of each side, including as
analyzed above.
Generally, monetary sanctions are mandatory as to
parties losing discovery motions, unless courts find substantial justification
or other injustice. E.g., Foothill Properties v. Lyon/Copley
Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58. “ ‘[S]ubstantial justification” has been
understood to mean that a justification is clearly reasonable because it is
well-grounded in both law and fact.” Doe
v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.
*IF PARTIES SUBMIT ON THE COURT’S TENTATIVE RULING;
PLEASE CALL THE COURTROOM AT 213-633-0655*