Judge Margaret L. Oldendorf, Case 22AHCV00425 2023-03-02 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22AHCV00425, Date: 2023-03-02 Tentative Ruling

Plaintiff Kenneth Powell (Powell) sues Defendant General Motors, LLC (GM) for violations of the Song-Beverly Consumer Warranty Act, Civ. Code §§1792 et seq. The litigation concerns Powell’s purchase of a 2019 Cadillac XTS. Specifically, Powell alleges defects with the vehicle’s battery and engine. Complaint, ¶14.

Before the Court is Powell’s motion for an order compelling GM to provide further responses to Requests for Production, Set One, Nos. 1, 11, 18, 21, 23, 27, 30, 31, 35, 38, 39, 53, 64, 67, 76, 78, 81, 83, 84 and 86. For the reasons that follow, the motion is granted.

Code Civ. Proc. §2031.310 governs motions to compel further responses to requests for production. It provides in pertinent part as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.

(d) In a motion under subdivision (a) relating to the production of electronically stored information, the party or affected person objecting to or opposing the production, inspection, copying, testing, or sampling of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of the undue burden or expense shall bear the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense.

(e) If the party or affected person from whom discovery of electronically stored information is sought establishes that the information is from a source that is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery if the demanding party shows good cause, subject to any limitations imposed under subdivision (g).

(f) If the court finds good cause for the production of electronically stored information from a source that is not reasonably accessible, the court may set conditions for the discovery of the electronically stored information, including allocation of the expense of discovery.

(g) The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that any of the following conditions exists:

(1) It is possible to obtain the information from some other source that is more convenient, less burdensome, or less expensive.

(3) The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.

(4) The likely burden or expense of the proposed discovery outweighs the likely benefit, taking into account the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.

Code Civ. Proc. §2017.010 permits a party to “obtain discovery regarding any matter, not privileged, that is relevant to the subject matter . . . if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” According to a leading treatise, “For discovery purposes, information should be regarded as ‘relevant’ to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Citations.]” Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group June 2022), ¶8:66.1, emphasis in original.

Even though relevance is quite broad, it is not without limits. The case of Obregon v. Superior Court (1998) 67 Cal.App.4th 424, though its holding does not directly concern the merits of the objections, described the discovery requests there as “very broad” and stated that “their full scope does not appear reasonably related to the issues in the case.” Id. at 431. “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.” Ibid, bolding added. When that is the case, the burden is on the propounding party to “explain why interrogatories of such breadth are proper.” Id. at 432.

In Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, the Court of Appeal also spoke to the issue of overbreadth, though in the context of third-party discovery. Subpoenas for records must specifically describe each item or be reasonably particularized as to categories or items. Code Civ. Proc. §2020.410(a). Documents demanded pursuant to Code Civ. Proc. §2031.030 do not contain the same specificity requirements. Nevertheless, Calcor made a point of stating that the “outrageous abuse of the discovery system” that occurred there exemplified the way discovery statutes may be misused against both parties and nonparties. Id. at 221.

The subpoena at issue in Calcor contained three pages of definitions and three pages of instructions. Rather than fulfilling the particularity requirement, Calcor determined that the subpoena’s description of documents amounted to a “blanket demand.” Id. at 222.

4. The term “SUBJECT VEHICLE” means the 2019 Cadillac XTS, vehicle identification number 2G61M5S31K9145640, which is the subject of this lawsuit.

5. The term “CADILLAC VEHICLES” refers to all vehicles of the same make, model, and year as the SUBJECT VEHICLE.

6. The term “TRANSMISSION DEFECT(S)” shall be understood to mean such defects that result in symptoms, including, hesitation and/or delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering; symptoms requiring reprogramming of the Transmission Control Module (“TCM”) and/or Powertrain Control Module (“PCM”); failure and/or replacement of the valve body; and/or any other similar concern identified in the repair history for the SUBJECT VEHICLE.

7. The term “LEMON LAW DOCUMENTS” means any and all documents relating to Defendant’s handling of state Lemon Law obligations, including describing Lemon Law Situations, Lemon Law Prevention, Repeat Repair Attempts, Consumer Protection Laws, Lemon Laws, Lemon Law Manuals, Lemon Law Complaints, and Magnusson Moss Act, State lemon Laws and/or Lemon Law advice. This term includes portions of any and all manuals containing discussions of state Lemon Law requirements, Defendant’s policies and procedures regarding ensuring compliance with state Lemon Law requirements, Defendant’s instructions to its employees, agents, and representatives regarding state Lemon Law requirements, Defendant’s policies and procedures regarding repeat repair visits, Defendant’s policies and procedures regarding defect reporting, Defendant’s policies and procedures regarding technical service bulletin drafting, Defendant’s policies and procedures regarding recall drafting, Defendant’s policies and procedures regarding Lemon Law prevention, Defendant’s policies and procedures regarding warranty claims, etc.

8. The term “APPLICABLE TIME FRAME” shall be interpreted to be the time period from the date of manufacture of the SUBJECT VEHICLE to the present.

In the often-cited case of West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 52 Cal.2d 407, 417-418 (West Pico), the California Supreme Court has this to say about what is meant by a burden and what is oppressive (bolding added):

“Oppression must not be equated with burden. The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. . . . But, under the pertinent code sections burden, alone, is not a ground for objection. In addition to expressly incorporating the provisions of subdivision (b) of section 2016, and of subdivision (b) of section 2019, subdivision (b) of section 2030 provides that the court may ‘protect the (objecting) party from annoyance, expense, embarrassment or oppression.’ Subdivision (b) of section 2019 includes similar language, omitting the word ‘expense.’ Each of the sections grants the power to make such orders as justice requires, but none of them so much as refers to ‘burden.’ This indicates a legislative acknowledgment that some burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the same is predicated upon burden, unless such is the only method of rendering substantial justice.”

In Calcor, the company’s vice president provided a declaration stating that it made three different “gun mounts,” only one of which was the subject of the litigation, and that it would require two people working full-time for 2 ½ to 3 weeks to identify all documents responsive to the broad discovery requests. Calcor, supra, 53 Cal.App.4th at 220.

Here, GM proffers no evidence supporting the objection that the number of RFPs is oppressive. GM also did not seek a protective order. (There are 91 RFPs, so arguably it could have done this.) What a responding party cannot do is selectively respond to some discovery requests and then argue that it would be oppressive to respond to the balance. GM has not done this overtly; nevertheless, it is difficult to evaluate an argument that the number of RFPs is oppressive after GM has already responded to some the discovery requests by indicating that it will produce documents.

GM responded to some of the RFP’s by objecting on the basis that the information sought amounts to a trade secret and/or is confidential. In support of its Opposition, GM offers the Declaration of Huizhen Lu. (Exhibit C to the Declaration of Arash Yaraghchian.) Powell raises a number of objections to this evidence. Objections to the entire declaration are sustained on the basis that it was executed in 2018, four years before this lawsuit was filed. It does not refer to this litigation. As such, objections that it lacks foundation, lacks personal knowledge, and is irrelevant to the present discovery dispute are well-taken, and are sustained.

In urging that his discovery requests are proper, Powell relies on certain lemon law cases. Each of these cases resulted in a jury verdict in the consumer plaintiff’s favor.

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 concerns a 2001 Bentley Arnage that had an “obnoxious odor.” The dealer tried several times to remedy it, without success, and Bentley refused the consumer’s demand that it repurchase the vehicle. There was evidence that Bentley was aware of the odor problem and knew it emanated from corrosion protection wax. Bentley had created a limited number of “service kits” to deal with it but the kits were released to dealers on a restricted basis. The bulk of the opinion focuses on Bentley’s abuses of the discovery process and disobedience of court orders to produce documents. The plaintiff requested terminating sanctions but the trial court instead gave a jury instruction on the issue. In the midst of trial additional evidence came to light showing that Bentley had not produced all relevant documents, and the plaintiff again requested a terminating sanction. That request was also denied. The jury found in favor of the plaintiff on all causes of action except fraud. The appellate court found the trial court had erred in not granting terminating sanctions and reversed as to the fraud cause of action.

Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138 concerns a Ford F-450 truck with transmission problems. The plaintiff took the vehicle in for repairs four times during the warranty period and a fifth time after expiration of the warranty. Following the final repair, the plaintiff demanded that Ford repurchase the truck and it refused. At issue on appeal were two motions in limine of Ford’s that the trial court denied. One sought to exclude evidence of any truck other than the plaintiff’s, and the other sought to exclude evidence of the non-warranty repair.

As to the non-warranty repair, Ford argued that it was not relevant to the issue of whether Ford had repaired the truck to conform to warranty or replace it as required by the statute. In denying the motion in limine the trial court determined that evidence of the non-warranty repair was relevant to show that the transmission had not been repaired in conformance with the warranty. This order was affirmed on appeal.

“Ford contends admitting evidence of other vehicles was prejudicial. Denying its motion opened the door for plaintiff's expert, Mr. Hughes, to testify that the F–450 transmission was defective because he had heard from others that it was ‘problematic.’ Hughes also testified of similar problems with other F–450 transmissions. This testimony, Ford claims, was made without foundation or support and should have been disallowed.

“We disagree with Ford. Hughes’s ‘other vehicle’ testimony was not unduly prejudicial. It did not concern simply other vehicles. It was limited to the transmission model Ford installed in plaintiff's truck and other vehicles. Hughes described what Ford itself had done to notify dealers and technicians about problems with this transmission model. Thus, everything about which he testified that applied to other vehicles applied equally to plaintiff's vehicle. Such evidence certainly was probative and not unduly prejudicial.” Id. at 154. As to the hearsay nature of the expert’s testimony it was noted that experts are permitted to rely on such evidence in forming their opinions.

The most recent case is Santana v. FCS US, LLC (2020) 56 Cal.App.5th 334. This case involves a 2012 Dodge Durango that had recurring problems with starting, a problem with shaking, a recurring seatbelt problem, and a sunroof problem. Plaintiff took it to the dealer numerous times for repairs during the warranty period. He called to demand Chrysler buy it back, and was told that because it was out of warranty he did not qualify for a buyback. A few months later he had the vehicle towed when the dashboard lit up, the temperature spiked, and the engine was pouring smoke. At that point he traded the vehicle in and purchased a new one rather than drive what he considered a “ticking time bomb.”

The case contains an extensive review of the evidence. The evidence included recalls, an Issue Detail Report, and internal Chrysler email chains discussing various malfunctions. The emails apparently contain information about experiments Chrysler conducted to ascertain the source of various problems.

In opposing the motion in this case, GM relies in part on transcripts from discovery hearings on lemon law cases that were pending before other Los Angeles Superior Court Judges. Copies of the transcripts are attached as Exhibits 1 and 2 to the Yarachchian Declaration. While the Court has great respect for the view of fellow bench officers, their rulings in other unreported cases are not controlling. Powell’s Reply brief urges strenuously that GM has violated California Rules of Court, rule 8.1115 by citing to an unpublished opinion. These transcripts are not “opinions,” so the rule does not apply.

This motion is procedurally proper as it was filed within 45 days of GM’s responses and is accompanied by a meet and confer declaration. GM’s opposition argument that Powell failed to meet and confer in good faith is not supported by the evidence. Unlike in Obregon, where the propounding party waited five weeks to send a meet and confer letter, at which time just 13 days remained to file a motion, Powell sent an extensive meet and confer letter two weeks after receiving GM’s responses.[1] Declaration of Rebecca E. Neubauer, ¶¶17 and 24 and Exhibits 6 and 9.

In his meet and confer letter, Powell offered to stipulate to an Order Regarding Electronically Stored Information (ESI) and attached a proposed draft. Exhibit 10. GM has not signed this document. Powell also offered to stipulate to a Protective Order and attached a proposed order; GM responded with a revised document. The parties have executed this document but it does not appear that it has been presented to the Court for signature yet. Exhibit 11.

Powell’s 11-page meet and confer letter contains legal argument regarding GM’s various objections with citations to case law, and outlines his position regarding GM’s obligations with regard to ESI. The letter closes with argument as to why further responses are warranted as to each group of RFPs. This portion of the letter is confusing as it discusses RFPs 1-154, but there are only 91 RFPs here.

GM responded to Powell’s meet and confer letter on December 5, 2022. This seven-page letter defends GM’s objections and is supported by legal argument. The letter takes issue with the definition of the defect: “Plaintiff’s definition of the alleged defect makes no attempt to narrow the scope of responsive documents. It would be an insurmountable burden on GM to produce ‘all documents, including ESI and e-mails’ related to any potential cause of these generic systems in any 2019 Cadillac XTS regardless of whether they have any relation to Plaintiff’s vehicle.” The letter also defends GM’s position as to ESI. The letter also offers certain concessions, and indicates that additional documents will be provided based on those concessions.

Powell wrote a responsive letter December 21, 2022. That letter contains an agreement to modify the definition of the defect: “Plaintiff offers to strike the last line of the Transmission Defects definitions consisting of ‘and/or any other similar concern identified in the repair history for the SUBJECT VEHICLE.’ With the removal of this language from the definitions, Defendant should now be able to identify and produce the relevant documents that relate to the symptoms of the Transmission Defects experienced by Plaintiff as listed in the definitions.”

Though the parties were not able to informally resolve the matter, these letters evidence that efforts were made to do so. It is possible that additional compromises could have been reached if the parties had continued to meet and confer. However, it was not unreasonable to file this motion as the 45-day limit was approaching.

RFP #1 - All DOCUMENTS regarding the SUBJECT VEHICLE that are maintained in YOUR databases. [This Request requires Defendant to produce these DOCUMENTS in their entirety and with all fields, columns, tables, rows, attachments and/or datapoints, and all available information, including field names, codes, problem codes, causal codes, defect codes, their description, category, and/or all the information that appears on these DOCUMENTS with respect to the SUBJECT VEHICLE. This request also requires Defendant to search all of its databases using the SUBJECT VEHICLE’s VIN: 2G61M5S31K9145640, and produce all responsive documents.].

GM responded with objections and a list of documents it would produce. The following objections are overruled: overbroad, unduly burdensome, oppressive, lack of relevance. The confidentiality/trade secret objection is not supported by any evidence. Moreover, given the stipulated Protective Order, GM’s confidentiality and any trade secrets will be protected. If any responsive document is protected by the attorney-client privilege, GM must provide a privilege log. Code Civ. Proc. §2031.240(c). GM is ordered to provide a further response.

RFP #11 - All DOCUMENTS regarding any communications between YOU and Plaintiff, or someone on Plaintiff’s behalf, concerning the SUBJECT VEHICLE. [Additional language omitted here.]

GM’s objection that “communications” and “concerning” are vague and ambiguous are overruled. GM’s other objections (overbroad, unduly burdensome, oppressive, lack of relevance) are also overruled. GM is ordered to provide a further response.

RFP #18 - All DOCUMENTS, including ESI and emails, concerning any internal analysis or investigation by YOU or on YOUR behalf regarding TRANSMISSION DEFECT(S) in CADILLAC VEHICLES equipped with the same transmission as the SUBJECT VEHICLE. [This request shall be interpreted to include any such investigation and analysis to determine the root cause of such TRANSMISSION DEFECT(S), any such investigation to implementing a countermeasure or permanent repair procedure for such TRANSMISSION DEFECT(S), any such investigation into the failure rates of parts associated with such TRANSMISSION DEFECT(S), any cost analysis for implementing a proposed repair procedure, any savings analysis for not implementing proposed repair procedures, etc. [This Request requires Defendant to produce all associated DOCUMENTS, where applicable, by the Custodian’s name, job title, and job description.]

GM responded with objections and indicated that no documents will be produced. GM’s objection that the words “concerning,” “internal analysis,” “investigation,” “TRANSMISSION DEFECT(S),” and “failure rates” are vague and ambiguous is overruled except that Powell’s agreement to modify the definition of “TRANSMISSION DEFECT(S)” (as set out in the meet and confer letter) is read to modify the RFP. GM’s other objections are also overruled, except as to attorney-client privilege.

The cases on which Powell relies provide support for the production of emails and internal analyses or investigation of problems (if any). The RFP does not wrongly assume that a defect exists or that documents about a defect exist, and GM is free to respond as appropriate. If any responsive document is subject to a privilege, a privilege log must be prepared. Code Civ. Proc. §2031.240(c). GM is ordered to provide a further response.

RFI #21 - All DOCUMENTS, including ESI and emails, regarding any internal investigation regarding root cause efforts, problem-solving efforts, or efforts to identify any actual or potential problem(s), failure(s), malfunction(s), condition(s) and/or defect(s) relating to CADILLAC VEHICLES equipped with the same transmission as the SUBJECT VEHICLE.

GM raised objections only and indicated that no documents will be produced. Its objection that the words “investigation,” “efforts,” “problem(s),” “failure(s),” “malfunction(s),” “condition(s),” “defect(s)” and “relating to” are vague and ambiguous is overruled. All other objections are overruled for the reasons already discussed, except as to attorney-client and/or attorney work product privileges, for which a privilege log must be prepared.

RFI #23 - All DOCUMENTS concerning field reports, dealer contacts, warranty claims, customer complaints, claims, reported failures regarding TRANSMISSION DEFECT(S) in vehicles equipped with the same transmission as the SUBJECT VEHICLE, including any DOCUMENTS concerning YOUR response to each field report, customer complaint, reported failure, and warranty claim. [This request shall be understood to also include communications and/or reports, which Defendant is required to maintain pursuant to the Code of Federal Regulations, Title 49, Section 579.21. This Request requires Defendant to produce these DOCUMENTS in their entirety and with all fields, columns, tables, rows, attachments, and/or datapoints, and all available information (other than any identifying customer contact information) including field names, codes, symptom codes, part numbers, claim numbers, and/or all other information that exists. This request requires that the responding party produce such DOCUMENTS in Excel or Microsoft Access format with only the customer contact information and the last 6 digits of the VIN redacted.].

GM responded with objections only and indicated that it will not be producing any documents. GM’s objection that the terms “concerning,” “customer complaints,” “claims,” and “TRANSMISSION DEFECT(S)” are vague and ambiguous is overruled, except as to “TRANSMISSION DEFECT(S)” as noted above. GM is ordered to provide a further response and, if necessary, a privilege log.

RFP #27 - All DOCUMENTS, including ESI and emails to or from YOUR agents, representatives, engineers, employees or part suppliers concerning common parts failures for the transmission of CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

GM’s objection that the terms “part suppliers,” “concerning,” and “common parts failures” are vague and ambiguous is overruled. GM’s remaining objections are overruled for the reasons already discussed. GM is ordered to provide a further response.

RFP #30 - All DOCUMENTS, including ESI and emails, concerning failure rates of CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE as a result of the TRANSMISSION DEFECT.

GM’s objection that the terms “concerning,” “failure rates” and “TRANSMISSION DEFECT” are vague and ambiguous is overruled, except as to “TRANSMISSION DEFECT” as noted above. The balance of its objections are overruled for the reasons discussed and a further response is required.

RFP #31 - All Failure Mode and Effects Analysis reports (or comparable analyses) concerning the TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

GM’s objection that the terms “comparable analyses,” “concerning” and “TRANSMISSION DEFECT” are vague and ambiguous is overruled except as to “TRANSMISSION DEFECT” as noted above. The other objections are overruled based on the analysis already provided. GM is ordered to provide a further response and, if necessary, a privilege log.

RFP #35 - All DOCUMENTS, including ESI and emails, concerning any decision to issue any notices, letters, campaigns, warranty extensions, service messages, technical service bulletins and recalls concerning the TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE. [This request requires the responding party to provide the underlying investigation, reports, and/or analysis that resulted in the issuance of such notices, letters, campaigns, warranty extensions, technical service bulletins and recalls concerning the TRANSMISSION DEFECT(S). Thus, such information shall pre-date the issuance of such notices, letters, campaigns, warranty extensions, technical service bulletins and recalls.]

GM responded with objections and an agreement to provide certain specified documents. GM’s objections are overruled for the reasons discussed above. A further response is required.

RFP #38 - All DOCUMENTS, including ESI and emails, concerning or relating in any way to any decision to modify the transmission, and/or any of its component parts, in response to the TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE, from one year prior to Plaintiff’s purchase of the SUBJECT VEHICLE until the present.

GM’s objection that the terms “concerning or relating in any way to,” “modify,” “component parts,” and “TRANSMISSION DEFECT(S)” are vague and ambiguous is overruled, except as to “TRANSMISSION DEFECT(S)” as noted above. All other objections are overruled for the same reasons discussed. A further response is required.

RFP #39 - All DOCUMENTS, including ESI and emails, concerning any fixes for the TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

RFP #53 - All executive summaries, summaries, reports, analyses, evaluations, or memoranda regarding the problems with the transmission in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE. [This request shall be understood to include information regarding defining the problem, the customer effect, identifying or inability to identify the root cause, recreating any failures, test results, corrective action, countermeasures, lessons learned and/or any next steps.]

All objections are overruled for the reasons noted above, except as to attorney-client and attorney work product. A further response is required.

RFP #64 - All DOCUMENTS that YOU use or have used, since 2020, to evaluate consumer requests for repurchases pursuant to the Song Beverly Consumer Warranty Act.

RFP #67 - The Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2020 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame.]

RFP #76 - All LEMON LAW DOCUMENTS published by YOU and provided to YOUR employees, agents, and representatives. [This request shall also be understood to include copies of any and all DOCUMENTS identified in YOUR response to Plaintiff’s Special Interrogatory No. 8.]

GM objects to these four RFPs in part on the ground that responsive documents are not limited to the SUBJECT VEHICLE. Powell’s defense of these RFPs is that they go to corporate policy and practice as to the repurchase of vehicles. Powell also argues that the information may support a civil penalty, if it shows GM was aware of defects it could not repair. GM’s opposition argument, that its process for handling other consumer complaints is plainly beyond the scope of this litigation, fails to address this point. GM’s objections to this RFP are overruled. A further response is required. To the extent responsive documents are withheld, a privilege log must be prepared.

RFP #81 - All DOCUMENTS, including ESI and emails, regarding any communications between YOU and any government agency or entity (e.g., the National Highway Traffic Safety Administration (“NHTSA”), the Environmental Protection Agency (“EPA”), or any other similar government agency) regarding TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

RFP #83 - All Early Warning Reports (“EWR”) YOU submitted to NHTSA concerning CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

RFP #84 - All Transportation Recall Enhancement, Accountability, and Documentation (“TREAD”) reports YOU submitted concerning CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

GM’s objections as to the terms used in these three RFPs are overruled, except as to “TRANSMISSION DEFECT(S)” as noted above. All other objections are overruled. A further response and privilege log, if necessary, must be provided.

RFP #86 - All DOCUMENTS that refer to, reflect, or relate to any and all expert witness opinions and/or reports that YOU have used or received in any proceeding with respect to TRANSMISSION DEFECT(S) in CADILLAC VEHICLES that are equipped with the same transmission as the SUBJECT VEHICLE.

GM’s objection that certain terms are vague or ambiguous is overruled except as to “TRANSMISSION DEFECT(S)” as noted above. All other objections are overruled. A further response, with privilege log if necessary, must be provided.

Powell’s motion to compel further responses to RFP Nos. 1, 11, 18, 21, 23, 27, 30, 31, 35, 38, 39, 53, 64, 67, 76, 78, 81, 83, 84 and 86 is granted for the reasons stated. GM is ordered to provide further verified responses, without objection, within 20 days.

[1] Powell had also preemptively sent a meet and confer letter regarding creation of an ESI protocol the same day the RFPs were served. Id. at ¶22 and Exhibit 7; GM’s responsive ESI letter (stating its position that the letter was premature) is at Exhibit 8.