Judge: Mark H. Epstein, Case: 20STCV16594, Date: 2023-02-02 Tentative Ruling

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Case Number: 20STCV16594    Hearing Date: February 2, 2023    Dept: R

This is a motion to compel further responses.  It is GRANTED.  However, because the court concludes that Amazon.com’s position had sufficient justification, the sanctions request is DENIED.

On March 10, 2022, the court denied an earlier request to compel further responses to identify various potential witnesses and produce other information about them—those who posted reviews about the product in question (the “Wand”).  The court held that the broad scope of the request—encompassing a large number of people—was overly broad and infringed on the privacy rights of those individuals, at least based on the showing made there.  However, the court also stated that a more targeted request—aimed at those who were asserting issues similar to those plaintiff was alleging—could be viewed in a different light. 

Plaintiff took that advice to heart.  Plaintiff’s counsel went through the various responses and identified 13 that counsel believed were making claims similar to those plaintiff made.  Plaintiff then sent a new request seeking documents pertaining to those people only.  Presumably included in the responsive documents will be information identifying how to contact those 13 people.

Defendant has objected to the more limited discovery.  Defendant agrees that this request is narrowed—after all, it is 13 people, not everyone.  Even so, defendant argues that the information will invade the privacy rights of those 13 people.  Defendant focuses on identifying information in that regard (which makes sense, as the rest of the information sought would not as directly invade any privacy right to which the court has been pointed).  Defendant notes that addresses (physical or electronic) and other identification are not actually the specific request anyway.  While defendant is right that identifying information is not a specific request (that would be an interrogatory), as stated above that information likely will be in the documents.  (If it is not, then that is really plaintiff’s problem, not defendant’s problem.)

The court could read defendant’s response as akin to a motion for a protective order, seeking to redact or shield contact information from the responsive documents.  But even in that light, the court must agree with plaintiff.  These 13 people are potential witnesses.  Plaintiff has two sides to her case.  One is that the product is defective and defendant must pay damages for the injury the product caused even if nothing like this had ever happened before.  The information sought is only indirectly relevant to that side of the case.  It could be relevant to the extent that it could help plaintiff establish that the injury was caused by a defect of some sort rather than misuse, but it is a bit attenuated.  The other side is more direct.  Plaintiff contends that the Wand’s defect was known to both Amazon and Onyx (the manufacturer) and therefore not only is it more likely that the injury was caused by a defect rather than misuse, but enhanced and punitive damages are appropriate as well because defendant continued to sell the product (or facilitate the sale) knowing the risk of harm.  To prove that up, plaintiff will need to talk to those witnesses and obtain admissible evidence from them.  Further, those witnesses might well have communicated with Onyx directly, which puts Onyx on notice.  What they said to Onyx is relevant as well.

While it is true that at least some aspects of the foregoing can be established with hearsay, the evidence would be weak.  Hearsay evidence would establish that the communication about the Wand was made, but it would not establish the truth of the matter claimed—that what happened actually happened.  There is a good chance that such evidence would be excluded, and even if not excluded, it would come with a limiting instruction that greatly reduces any evidentiary value it might have.  Plaintiff’s contention that it needs this information to be able to secure admissible evidence rings true.  Thus, while the court agrees that these individuals have privacy rights, the court has balanced their right to privacy against plaintiff’s need.  The evidence sought is directly relevant or necessary for plaintiff to prove aspects of her case.  There is no less restrictive way to obtain the evidence.  And the intrusion upon the individuals’ privacy interest is minimal and contained.  At least at this point the court is not ordering any of those individuals to talk to plaintiff nor has plaintiff sought to compel any depositions.  Of course, that might happen in the future, but the court need not rule on that now.  Rather, the court will hear that motion if and when it is made.

Amazon also as a motion for summary adjudication pending.  Part of that motion is an attempt to strike the request for punitive damages.  The court has said from the start that it views the case through the lens of knowing what defendant knew and when it knew it.  If there were sufficient complaints of similar injuries that defendant found to be valid, the fact that defendant kept selling the product is more troubling than if this is the first serious injury the Wand ever caused (or at least the first one of which defendant was aware).  This is the kind of discovery plaintiff needs to rebut defendant’s contention that the case falls far more squarely into the latter pattern than the former.  And, of course, if this discovery does not yield the information that plaintiff seeks, then defendant’s motion might well be granted, but plaintiff will have been given a full and fair opportunity to respond.

Amazon has also claimed that four of the 13 people really are not germane at all.  The court has read the papers and agrees with plaintiff even as to these four.  While the complaints are not identical, they are similar enough to justify further investigation.  (And, at least as to “Webb,” the review was taken down, so there could well be some information that would explain that decision and whether the decision to take down the review was based on evil intent, as plaintiff suggests it might be.)

Accordingly, the motion to compel further responses is GRANTED.  Given the need to get this information quickly in light of the trial and the summary adjudication motion, further verified responses consistent with the foregoing will be provided within 10 days of the date of this order.  The actual documents will be provided within 10 days thereafter and will be subject to the protective order (not at the eyes only level, however) that the court believes already exists as to this case, at least with regard to identifying or personal information.  The court has considered whether to stay the order to allow defendant to seek a writ.  On this record, the court does not believe such a delay is necessary.  If a writ is in fact sought, however, the court will at least consider a request to delay the actual turnover of documents for a short additional period to allow the Court of Appeal to decide whether to consider the petition on its merits or to issue an emergency stay.  (Obviously, if the court receives an order to show cause or an alternative writ, the court will stay its production order pending appellate resolution without the need for any further order from the Court of Appeal.)

The court has considered the request for sanctions.  While the court agrees with plaintiff on the merits, the court believes that defendant’s position had substantial justification.  Accordingly, the request for sanctions is DENIED.