Judge: Mark H. Epstein, Case: 20STCV16594, Date: 2023-05-23 Tentative Ruling

Case Number: 20STCV16594    Hearing Date: May 23, 2023    Dept: R

The court has before it plaintiff’s motion for terminating sanctions against DAJ.  The motion is DENIED as to terminating sanctions, but is GRANTED  as to monetary sanctions in an amount to be determined later.  The court also ORDERS DAJ to file supplemental declarations within 5 court days setting forth why the various search criteria were used (and if they changed over time, the reasons underlying each iteration) to be provided by the person or persons directing the search parameters; that each search was done and, for each, the search parameters actually used to be provided by each person conducting the search; a statement as to whether any documents that were designated by the search were withheld and, if so, why they were withheld (that is, presumably, why they met the criteria but were nonetheless non responsive) to be provided by the person or persons who reviewed the documents and made the determination.  For the various declarations, detail is the key—dates and times of the actions and the like will be critical.  It would be a bad idea to claim privilege under these circumstances.

The bottom line is this.  Plaintiff has been trying to get all of the communications and documents pertaining to complaints relating to the Wand or similar models for a long time.  DAJ has stated on multiple occasions that it either has no documents or has documents and has provided them.  In some cases, the answer depended on the nature of what DAJ was looking for—time frames, whether other models were being viewed, and whether the complaints had to come from Amazon or could come from anywhere.  But time and again, plaintiff and the court were assured that all of the documents had been produced.  Yet each time the issue finally seems to have been put to bed, more documents are discovered.  In some cases, they were discovered only because plaintiff learned of them and inquired.  In others, it could be because DAJ’s supplemental searches disclosed them.  Because of the number of times the court had thought that everything that was out there had been produced, and the fact that in the most recent iteration another group of documents seems to have been discovered, plaintiff and the court have lost a level of confidence.

Plaintiff is of the view that DAJ is simply hiding the bad documents.  Accordingly, plaintiff asks for a termination sanction or issue sanction.  DAJ contends that it is hiding nothing, but that the search requirements have changed and that its statements are true based on the search parameters in use at the time the statement was made.  More important, DAJ argues, it is not hiding documents and each and every one of the documents that has been found (and turned over) pertain to complaints made after plaintiff bought the Wand.  That is important because the most critical aspect of this discovery goes to the punitive damages issue.  The court said long ago that whether plaintiff can survive a motion for summary adjudication as to punitive damages will depend on whether DAJ (in this case) had reason to know of the danger allegedly posed by the Wand.  One way plaintiff could prove that knowledge would be if DAJ had received prior complaints.  While that might well not be enough standing alone (although it might be), it might lead to enough.  But if DAJ had received no complaint that would put it on notice as to danger prior to the time plaintiff bought her Wand, it is harder to say that DAJ acted with malice, oppression, or fraud in selling the product.  The court is not saying it is theoretically impossible; but some other avenue would have to exist.  The court analogized to the Ford Pinto.  Prior to the discovery of the exploding gas tank, Ford might well have been liable to an injured consumer but there would be no punitive damages.  However, after Ford learned of the danger, the fact that Ford kept selling the car without disclosing the problem did lead to punitive damages.  (The court notes that there is a class action pending.  Issues relating to punitive damages and the timing of complaints have a different impact there than here.)

Because all of the people making complaints made them after plaintiff bought the Wand (at least as disclosed to date), it is hard to see how those complaints would support a punitive damages claim.  It is in that light that the court believes that a terminating sanction or an issue sanction (where the issue would be that DAJ knew that the Wands could explode and cause serious injury) would be punitive and improper.  The record here does not really prove that DAJ is flouting orders to the point where punishment for punishment’s sake is required or that it would be just to have DAJ lose this issue on the basis of alleged discovery abuse.

Of course the information has other uses.  It could lead plaintiff to other witnesses or be used to defeat a claim that plaintiff so grossly misused the product that there is no liability.  But those aspects are a bit removed from any use that would give rise to the sanctions plaintiff now seeks.  Further, at least beyond the punitive damages issue, plaintiff has other evidence to prove her case.  As such, no gross sanction would be appropriate for those risks.

But, while the court is not prepared to impose an issue or terminating sanction (and there would be no purpose in an evidentiary sanction), the court does need to put an end to this once and for all.  The sorts of detailed declarations described above, all to be completed and signed under penalty of perjury by the people with actual knowledge, are the kind that will allow plaintiff to cross-examine with effect should the statements prove false, and would also provide this court with a rock-solid foundation for a punitive sanction should additional materials be discovered.  Of course, it is the court’s hope and belief that the punishment and impeachment will not be necessary, but rather that what has already been done coupled with this exercise will ensure that all of the documents in question have now been produced for good and all.  At that point, we can move forward.

The case is barreling to trial.  It is time to eliminate the chaff and have the parties focus on proving or defending the case on the merits or, in the alternative, resolving the matter amicably.