Case Name: Eric Burke, et al. v. Ford Motor Company, et al.
Case No.: 2015-1-CV-287164

I. Background and Discovery Dispute

This is a lemon law action brought by Eric and Stacey Burke (collectively, “Plaintiffs”) against Ford Motor Company (“Defendant”) arising out of their purchase of a Ford automobile.

According to the allegations in the complaint, Plaintiffs purchased a Ford Edge in 2011. During the warranty period, the Ford Edge began exhibiting the following defects primarily relating to the transmission: loss of power during acceleration, hesitation during acceleration, hesitation while accelerating from a stop, loss of power during down shifting, hesitation during down shifting, and problems with the door entry. Defendant was unable to service or repair these defects, knew it could not repair the vehicle to a condition in conformity with the vehicle warranty, and willfully failed to repurchase the vehicle from Plaintiffs.

Based on these allegations, Plaintiffs assert causes of action against Defendant for violations of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”), breach of express and implied vehicle warranties, and violation of the Magnuson-Moss Warranty Act. Plaintiffs seek civil penalties in connection with their claims.

Plaintiffs served Defendant with requests for the production of documents, set one (“RPD”). (Gi Decl., Exh. 9.) Defendant served identical objection-only responses to RPD Nos. 7, 17-18, 20-21, 23-24, 28, and 36. (Gi Decl., Exh. 10.) Defendant objected and agreed to produce some documents in response to RPD Nos. 26-27. (Gi Decl., Exh. 10.) The parties met and conferred in an effort to informally resolve their discovery dispute, but were unsuccessful. (Gi Decl., Exhs. 13-17, 19.)

Plaintiffs filed the instant motion to compel further responses to RPD Nos. 7, 17-18, 20-21, 23-24, 26-28, 36, 44-47, and 60 and an accompanying request for judicial notice. At the initial hearing on the motion, the Court continued the hearing and ordered the parties to engage in further meet and confer efforts and report the results of such efforts. The parties thereafter filed supplemental declarations indicating only RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36 remain at issue. Both parties agree they informally resolved their discovery dispute with respect to RPD Nos. 7, 44-47, and 60 as Defendant has since agreed to provide supplemental responses to these requests. Neither party requests sanctions in connection with the instant motion.

II. Request for Judicial Notice

Plaintiffs ask the Court to take judicial notice of various orders and tentative rulings from other unrelated cases. These orders and tentative rulings appear to involve similar discovery disputes in which Defendant was also a party. A matter must be relevant to a material issue in order for a court to take judicial notice of it. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) Plaintiffs fail to identify how these documents are relevant. Moreover, the Court is not bound by the rulings of other judges. Plaintiffs’ request for judicial notice is therefore DENIED.

III. Motion to Compel Further Responses

The propounding party may move for an order compelling a further response to an inspection demand if the party deems the responding party’s objections are too general or lack merit or its substantive responses are not code-compliant. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) The propounding party must first demonstrate good cause for the discovery sought. (Code Civ. Proc., § 2031.310, subd. (b)(1).) Once the propounding party establishes good cause for the discovery, the burden shifts to the responding party to justify any objections and responses. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

A. Good Cause

To satisfy its burden of demonstrating good cause for the discovery sought, the moving party must make “a fact-specific showing of relevance.” (Glenfeld Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Discovery is allowed for any matters not privileged that are either relevant to the subject matter involved in the action or reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant to the subject matter if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Ibid., original italics.) Courts liberally construe the relevance standard, and any doubts as to whether a request seeks information within the scope of discovery are generally resolved in favor of discovery. (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
Claims for violation of the Song-Beverly Act require a plaintiff to prove, amongst other things, a manufacturer failed to repair a defect within a reasonable number of attempts or failed to offer to repurchase or pay restitution for a vehicle that could not be repaired. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.) The buyer may recover civil penalties if the manufacturer willfully failed to repair or repurchase the vehicle. (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184.) “[A] violation is not willful if the defendant’s failure to replace or refund was the result of a good faith and reasonable belief the facts imposing the statutory obligation were not present.” (Id. at p. 185.) For example, a violation is not willful “if the manufacturer reasonably believed the product did conform to the warranty, or a reasonable number of repair attempts had not been made, or the buyer desired further repair rather than replacement or refund.” (Ibid., original italics.) On the other hand, if a manufacturer “adopted internal policies that erected hidden obstacles to the ability of an unwary consumer to obtain redress under the [Song-Beverly] Act” its violation may be considered willful. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1105.)
RPD Nos. 17-18, 20-21, 23-24, and 26-28 seek documents and electronically stored information (“ESI”) pertaining to complaints made about and Defendant’s investigation into transmission defects in the Ford Edge. Plaintiffs persuasively argue there is good cause for these requests because they may demonstrate whether or not Defendant willfully violated the Song-Beverly Act. Specifically, the discovery sought will likely disclose the extent of Defendant’s knowledge of the defects prior to the complaints made by Plaintiffs. In turn, this may demonstrate whether or not Defendant reasonably believed it could repair the vehicle in a reasonable number of attempts instead of repurchasing the vehicle. Additionally, this discovery appears likely to reveal whether Defendant implemented internal policies or erected hidden barriers that inhibited purchasers of the Ford Edge, including Plaintiffs, from obtaining redress under the Song-Beverly Act. Accordingly, the discovery sought is relevant to Plaintiffs’ claims and will assist them in evaluating their case and preparing for trial.
RPD No. 36 seeks Defendant’s policy on the retention of documents and ESI. Plaintiffs persuasively argue Defendant’s document retention policy is relevant because it may show whether and to what extent Defendant made decisions to repair or repurchase vehicles based on existing complaints, warranty, and maintenance records. As with the other RPD, such information is probative of whether Defendant willfully violated the Song-Beverly Act.
Defendant argues its document retention policy is not relevant absent an accusation of spoliation. As Plaintiffs correctly point out, it would be difficult for them to assess whether all responsive documents have been produced or to otherwise determine which documents Defendant destroyed or does not possess, either permissibly or in the context of an accusation of spoliation, without its document retention policy. Defendant’s argument is therefore unmeritorious.
Based on the foregoing, Plaintiffs have shown good cause for the discovery sought. The burden therefore shifts to Defendant to justify its objections and substantive responses.

B. Objections

Defendant argues its objections on the grounds of relevance, overbreadth, and undue burden and oppression, which were asserted to all of the discovery requests at issue, are justified. Defendant does not attempt to substantiate any of its other objections. Defendant’s remaining objections on the grounds of vagueness and ambiguity, confidentiality, and the trade secret privilege are therefore overruled. Its objections on the grounds of the attorney-client privilege and the work product doctrine, although undefended, are preserved. (See Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-89.)

1. Relevance Objection

As discussed above, RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36 seek information relevant to Plaintiffs’ claims under the Song-Beverly Act. Defendant’s relevance objection to each request therefore lacks merits and is overruled.
2. Overbreadth Objection

Defendant’s overbreadth objection pertains to Plaintiffs’ definition of transmission defect. Plaintiffs’ definition is a description of the symptoms or defects they experienced, as identified in the complaint, and is limited to those defects arising with respect to the 2011 Ford Edge. Defendant argues it is overbroad because Plaintiffs’ “definition may relate only to a one-time issue with a specific vehicle based on individual circumstances” or “[t]hey also may not relate to an issue that has anything to do with any ‘defect’ in the transmission.” (Opp. at pp. 9-10.)

As to the first argument presented, it is generally unclear what Defendant means by stating the definition itself may only relate to a one-time issue with a specific vehicle. Assuming Defendant means documents responsive to Plaintiffs’ request may relate to a one-time issue with a specific vehicle, it still fails to explain how such documents would not be relevant, thereby rendering the definition overly broad and inclusive, if the particular documents concern the same transmission defect Plaintiffs experienced. Defendant’s first supporting argument therefore lacks merit.

As to Defendant’s second argument, it specifically states a definition of transmission defect that includes when the check-engine light comes on is overbroad because it would result in the production of documents pertaining to a wide range of issues completely unrelated to the transmission, such as if the gas cap was not screwed on all the way. Defendant’s argument is well-taken, but Plaintiffs have since removed the check-engine light component from their definition of transmission defect as a result of the parties’ continued meet and confer efforts. Accordingly, the requests will be treated as modified to exclude the check-engine light component. Defendant does not otherwise articulate how Plaintiffs’ definition is problematic. Defendant’s argument therefore lacks merit.

Finally, for the first time in its supplemental declaration, Defendant insists the definition of transmission defect should be based on and limited to two Technical Service Bulletins (“TSBs) it issued — TSB 11-12-10 and TSB 13-3-18 — pertaining to sluggish acceleration from a stop and 0-5 miles per hour. First, these two TSBs do not adequately reflect all of the symptoms articulated by Plaintiffs in their complaint or definition of transmission defect. Second, limiting the definition of transmission defect to “TSB 11-12-10,” “TSB 13-3-18,” or the limited statement of defects therein will not result in the location and production of all responsive documents showing Defendant’s knowledge, which is the critical element of Plaintiffs’ claims. Specifically, as evident from the face of the bulletins, a TSB is a troubleshooting guide or description of a method for repairing a defect in an automobile that is distributed to mechanics and authorized dealerships who service the manufacturer’s vehicles in order to help them repair widespread and recurring problems arising in a particular automobile or based on a specific part. A TSB reflects information Defendant intends to communicate to the public and forward-looking information, including a repair protocol. Notably, a TSB does not necessarily reflect Defendant’s internal analysis, internal investigation of the problem, or other knowledge and information about the defect that, while germane, might not be a part of the repair protocol outlined in the TSB. While Defendant wishes to further narrow discovery by limiting the definition in this way, it fails to provide a persuasive argument in support of its overbreadth objection. Defendant has not adequately substantiated a basis to adopt its proposed definition. Moreover, even if it had succeeded in justifying its overbreadth objection, its proposed definition would be far too narrow. Defendant’s argument is therefore unmeritorious.

Defendant does not argue its overbreadth objection regarding RPD No. 36, which requests its document retention policy and is not framed with reference to transmission defects, and fails to justify its objection to this request.

Defendant fails to justify its objection for any request at issue. Defendant’s overbreadth objections to RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36 are therefore overruled. Finally, for the first time in its supplemental declaration, Defendant insists the definition of transmission defect should be based on and limited to two Technical Service Bulletins (“TSBs”) it issued — TSB 11-12-10 and TSB 13-3-18 — pertaining to sluggish acceleration from a stop and 0-5 miles per hour. First, these two TSBs do not adequately reflect all of the symptoms as articulated by Plaintiffs in their complaint or definition of transmission defect. Second, limiting the definition of transmission defect to “TSB 11-12-10,” “TSB 13-3-18,” or the limited statement of defects therein will not result in the location and production of all responsive documents showing Defendant’s knowledge, which is the critical element of Plaintiffs’ claims. Specifically, as evident from the face of the bulletins, a TSB is a troubleshooting guide or description of a method for repairing a defect in an automobile that is distributed to mechanics and authorized dealerships who service the manufacturer’s vehicles in order to help them repair widespread and recurring problems arising in a particular automobile or based on a specific part. A TSB reflects information Defendant intends to communicate to the public and forward-looking information, including a repair protocol. Notably, a TSB does not necessarily reflect Defendant’s internal analysis, internal investigation of the problem, or other knowledge and information about the defect that, while germane, might not be a part of the repair protocol outlined in the TSB. While Defendant wishes to further narrow discovery by limiting the definition in this way, it fails to provide a persuasive argument in support of its overbreadth objection. Defendant has not adequately substantiated a basis to adopt its proposed definition. Moreover, even if it had succeeded in justifying its overbreadth objection, its proposed definition would be far too narrow. Defendant’s argument is therefore unmeritorious.

Defendant does not discuss whether its overbreadth objection is justified with respect to RPD No. 36, which requests its document retention policy and is not framed with reference to transmission defects. Defendant therefore fails to justify its objection with respect to this request as well.

None of Defendant’s arguments are meritorious and it fails to justify its objection with respect to each request at issue. Defendant’s overbreadth objections to RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36 are therefore overruled.

3. Undue Burden and Oppression Objection

Defendant argues that to respond to each of the RPDs at issue would be unduly burdensome and oppressive because the cost of locating and producing responsive documents, primarily emails, exceeds the value of the case and the amount Plaintiffs stand to recover.

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. of Los Angeles v. Superior Court (“West Pico”) (1961) 56 Cal.2d 407, 417-18.) “The objection of burden is valid only when that burden is demonstrated to result in injustice.” (Ibid.)

“If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense . . . the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible.” (Code Civ. Proc., § 2031.210, subd. (d).)

In justifying an objection on the ground of undue burden and oppression, the responding party must articulate specific facts demonstrating the amount of time and effort required to comply with each request are incommensurate with the importance or value of the requested discovery. (West Pico, supra, 56 Cal.2d at p. 417; see also Code Civ. Proc., § 2031.310, subd. (d) [responding party bears the burden of justifying objection to production of ESI].) Even if the responding party can establish the ESI sought “is not reasonably accessible because of the undue burden or expense, the court may nonetheless order discovery [of ESI] if the demanding party shows good cause.” (Code Civ. Proc., § 2031.310, subd. (e).) In making such an order, a court shall limit the frequency or extent of the discovery of ESI if 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 issues in the litigation, and the importance of the requested discovery in resolving the issues.” (Code Civ. Proc., § 2031.310, subd. (g)(4).)

As an initial matter, Defendant interposed the same boilerplate objection to each RPD at issue and simply listed the words overbroad and unduly burdensome. Defendant failed to identify in its responses themselves which types or categories of sources of ESI it asserts are not reasonably accessible due to the burden and expense of accessing them. Defendant did not therefore effectively object to the production of ESI in compliance with Code of Civil Procedure section 2031.210, subdivision (d).

Even if Defendant had properly objected to these requests, it fails to present evidence of the burden or expense of the proposed discovery. Defendant generally bemoans responding to these discovery requests will require it to determine which of its employees possess responsive documents given it does not maintain a centralized database of emails. The burden described by Defendant appears to be the ordinary responsibility a party bears by nature of its obligation to preserve evidence. Defendant does not specify and the Court cannot otherwise conclude that identifying potential custodians of record is unduly burdensome. (See, e.g., Vasudevan Software, Inc. v. Microstrategy Inc. (N.D.Cal. Nov. 15, 2012 Case No. 11-CV-06637-RS-PSG) 2012 WL 5637611 [discussing identification of custodians and balancing of burdens in resolution of ESI dispute].) Moreover, Defendant presents no specific information or evidence with respect to the anticipated hours or costs involved in identifying responsive documents or custodians. Defendant also fails to address how these purported costs outweigh Plaintiffs’ right to the discovery based on the resources of the parties, the importance of issues in the litigation, and the importance of the requested discovery in resolving the issues. Defendant fails to consider the significance of the requested documents to resolution of the case or the overall significance of this litigation given public and consumer safety are implicated. Defendant’s assertion that some unquantified amount of time and cost exceed the amount in controversy is therefore incomplete and does not justify its objection.

Finally, Defendant only argues the undue burden and expense of producing ESI. Defendant does not justify its burden objection to responsive documents not stored electronically.

Defendant has therefore failed to justify its objections with respect to any documents, whether or not electronically stored. Defendant’s objections on the grounds of undue burden and oppression with respect to RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36 are therefore overruled.

C. Substantive Responses

Of the RPD at issue, Defendant only provided substantive responses to RPD Nos. 26-27, which request an 8D or G8D report and a 14D report. Plaintiffs argue Defendant’s substantive responses to these requests are deficient. Defendant does not attempt to justify its substantive responses.

In substantively responding to an inspection demand, a party may agree to comply or represent he or she is unable to comply. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(2).) In agreeing to comply with an inspection demand, the party must state the documents it will produce as responsive to the particular request. (Code Civ. Proc., § 2031.220.)

Defendant provided the same response to RPD Nos. 26-27 stating: “Without waiving said objection, after a diligent inquiry, Ford lacks sufficient information to respond to this request due to its vagueness.” (Gi Decl., Exh. 10.) It then went on to state it would produce the following: “Recall Information Report, Vehicle Detail Report, Vehicle Information Report, Standard Claims List (Warranty Repair History), Claims Detail Report(s), GCQIS Report Analysis, OASIS Report, FMC 360 Customer Contact Report, Special Service Message (SSM) Report, Technical Service Bulletin (TSB) Report, [and] Field Service Action (FSA) Report.” (Gi Decl., Exh. 10.)

While Defendant characterizes its first statement as a response, it is effectively a restatement of its vagueness objection, which it failed to justify. As to the second part of its response, Defendant appears to be agreeing to produce documents. While Defendant’s agreement to produce documents contains many acronyms, it does not contain an agreement to produce an 8D or G8D report or a 14D report as requested. Defendant’s response is therefore not code-compliant because it fails to state it would produce the specific items sought by RPD Nos. 26-27. In stating it would produce non-responsive documents, Defendant effectively refused to comply with the discovery requests. Further responses to RPD Nos. 26-27 are therefore warranted.

IV. Conclusion

Based on the foregoing, the motion to compel further responses is GRANTED as to RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36. Plaintiffs’ motion is MOOT as to RPD Nos. 7, 44-47, and 60 based on the parties’ informal resolution of their dispute as to these requests.

Defendant shall serve Plaintiffs with verified, code-compliant further responses to RPD Nos. 17-18, 20-21, 23-24, 26-28, and 36, without objections (except for objections on the grounds of the attorney-client privilege or work product doctrine), within 20 calendar days of this order and produce all documents in accordance with these responses.

If any responsive document is withheld on the basis of the attorney-client privilege or the work product doctrine, Defendant must produce a privilege log identifying each document withheld and setting forth sufficient facts for other parties to evaluate the merits of the asserted objection. (See Best Products, Inc. v. Superior Court, supra, 119 Cal.App.4th at pp. 1188-89; see also Code Civ. Proc., § 2031.240, subd. (c).)

The Court will prepare the order.