Judge: Mark H. Epstein, Case: 20STCV16594, Date: 2023-04-28 Tentative Ruling

Case Number: 20STCV16594    Hearing Date: April 28, 2023    Dept: R

Plaintiff sues Amazon.com and Onyx for injuries she suffered when using a product (the Wand) manufactured by Onyx and sold through the Amazon.com website.  Plaintiff alleges that the Wand’s glass head exploded causing her significant harm and injury.  Plaintiff sues not only for strict liability and breach of warranty, but, as part of her claim, she seeks punitive damages.  In prior rulings, the court stated that the punitive damages claim would stand or fall on what defendants knew and when they knew it.  In other words, if the defendants (or either of them) were on notice of this potential danger before plaintiff bought the product but yet kept it on the market, punitive damages was an issue that could well go the jury.  On the other hand, if defendants were not on notice of this risk, then continuing to sell the product would not warrant punitive damages as there would be no fraud, oppression, or malice, or at least plaintiff has not articulated an alternative theory.  Accordingly, the court has allowed discovery into complaints pertaining to the Wand.  At issue are Onyx’s responses to that discovery.

Plaintiff seeks documents concerning complaints made between January 1, 2017 “and the present.”  Onyx objected on a number of grounds.  One was that the end date came too late.  Onyx argued that any complaints received after the incident could not be relevant because no such complaint could have put Onyx on notice of the risk at the time of the incident.  Onyx also objected to the extent plaintiff sought complaints about other models of the Wand.  As to the former, the court held that at least at present, the post-incident complaints could be pertinent to discovery the identity of witnesses, even though they would not be directly relevant to punitive damages.  As to the latter, the court agreed that other models of the Wand were pertinent if they were substantially similar to the one plaintiff used.  In other words, if the only difference was that Model A was blue and plaintiff’s model was red, that would make both models pertinent.  But if Model A was engineered completely differently, the relevance would be harder to articulate.

The parties ultimately seemed to resolve their differences.  Onyx said that it had provided complete responses, at least with “and the present” cutting off on the date that the discovery was propounded.  Onyx says that it has produced all of the documents in its possession, custody, and control as to all of the pertinent modes of the Wand within the relevant time frame.  Plaintiff says that Onyx is lying.

It is beyond the province of a motion to compel to force a party to produce documents it does not have, and generally the verified response is sufficient to so establish.  There are exceptions, though, where the propounding party can present evidence that the verification is false.  That is what plaintiff claims is the situation here.

Plaintiff contends that it is aware of two individuals who complained to Onyx within the relevant time frame (even as Onyx defines it) but whose complaints were not included in the Onyx production: Finkel and Fiorella.  Plaintiff also contends that Onyx is being cagey in its responses and will not say clearly and unequivocally that it has produced everything; it keeps insisting on wiggle room.

On the latter point, the court has been down this road before.  Onyx ought to provide a response that states that it has complied in full with the request for production and that no documents are being withheld on the basis of any objection or privilege (other than documents that post-date the specified cut-off).  It is not that hard.  Or, if Onyx wants to be sure that the models are not in dispute, it can specify the models for which production is being made.  If Onyx makes that clear statement, it is enough.  The fact that plaintiff would like to embellish it further is neither here nor there.  The Code sets forth a compliant response.  The response above is compliant.  If a document turns up later that was responsive and not produced, Onyx will have some serious explaining to do, especially given the heavily litigated nature of the requests.

Which is exactly what plaintiff contends is the situation.  Plaintiff asserts that Finkel and Fiorella contacted plaintiff’s counsel and disclosed that they had made written complaints to Onyx during the relevant time period, yet Onyx did not produce the complaints.  That is very troubling to the court and the court would like to hear Onyx’s explanation.  If there is a good explanation, then so be it.  The motion will be denied.  On the other hand, if there is no good explanation then the court has grave concerns and will consider the appropriate sanction.  While a terminating sanction is highly unlikely (given that both complaints in fact post-date the incident), something other than a slap on the wrist would make sense. 

One possible explanation plaintiff suggests is that Onyx limited its search to the domain “onyxdist.com” but failed to look at the domain “puredailycare.com,” which (plaintiff suggests) is the site to which complaints are directed.  If that is the explanation, then the court has a concern.  But it is partially a concern of plaintiff’s making.  Plaintiff’s definition of “COMPLAINT” meant “all COMMUNICATIONS between AMAZON and any dissatisfied CUSTOMERS who purchased the NU DERMA WAND.”  And that, it turns out, would yield a search only of the “onyxdis.com” domain.  What is troubling is that this was not resolved in the meet and confer process.  When plaintiff presumably brought up the problem, the court would assume that Onyx would have said that it responded fully because the communications of which plaintiff complained were not between Amazon and a dissatisfied customer.  That would have led to a discussion about the best way to resolve the problem.  Onyx could have stood its ground, which would have caused plaintiff to propound a new request that had the proper parameters, or Onyx and plaintiff could agree to a broader limit, in which case the search would widen and the document would be disclosed.

The problem is that this dispute, like so many in this case, has spiraled out of control.  What should have been easy to handle has become a motion by plaintiff for terminating sanctions and statements to the court by Onyx that it has made a full production and leading the court to believe that it did not limit the production to Amazon documents. 

So the court will suggest that Onyx produce all complaints it received (in written or electronic form) from anyone at any time from the start date to the date the RFP’s were propounded about the Wand, including documents pertaining to similar models.  It will then provide a clean verification as described above.  Unless plaintiff has still more evidence to show that the production was incomplete, that is the end of it.  One might wonder what is in it for Onyx to agree to such a proposal.  Simply this.  Onyx has a summary adjudication motion pending to strike punitive damages.  The court’s view is that its motion will hinge on whether it can shift the burden to demonstrate that it had no knowledge of these sorts of problems, and then whether plaintiffs can establish a triable issue of fact on the question.  But Onyx cannot shift the burden without some evidence that plaintiff does not have and cannot obtain evidence that Onyx had knowledge.  While it might be that a declaration from Onyx would do, the court is not so sure.  On the other hand, a document response that is clean and verified and on point likely would shift the burden.  Of course, that is not an actual ruling—it is just a musing.  But if Onyx really has the better of this argument, then it ought to do what it can to put this issue to bed.

Because both sides are not without some fault here, sanctions are DENIED.