Erik A Hennings vs CMW of North America LLC et al
Case No: 17CV02351
Hearing Date: Fri Aug 30, 2019 9:30

Nature of Proceedings: Motion: Compel; Motion: Protective Order on Pl Second Notice of Deposition

TENTATIVE RULING:

(1) As set forth herein, the motion of plaintiff Erik A. Hennings to compel compliance with his second notice of deposition of June 12, 2019, is granted in part and denied in part. The motion is granted to require defendant BMW of North America, LLC, to produce witnesses and documents for deposition as set forth herein. Unless the parties agree (on the record or in writing) or the court orders otherwise, the deposition shall take place on September 4, 2019, at the time and location set forth in the deposition notice. To the extent that declarations are provided as permitted herein in lieu of testimony or production of documents, such declarations shall be served on counsel for plaintiff at or prior to the commencement of the deposition. The motion, including the request for sanctions, is otherwise denied.

(2) To the extent set forth herein, the motion of defendant BMW of North America, LLC, for a protective order is granted in part and denied in part.

Background:

On May 30, 2017, plaintiff Erik A. Hennings filed his original complaint in this action asserting causes of action for violation of the Song-Beverly Consumer Warranty Act, fraud, and negligent repair. The complaint alleges that these causes of action arise out of plaintiff’s purchase of a new 2013 BMW 328i that was equipped with faulty Takata airbags.

On June 23, 2017, defendant BMW of North America, LLC (BMW NA) filed its original answer to the complaint. On June 29, 2019, 2017, BMW NA filed its first amended answer to the complaint, generally denying the allegations of the complaint and asserting 21 affirmative defenses.

On April 30, 2019, defendants BMW NA and GMG Motors, Inc., dba BMW of San Diego filed their motion for summary judgment or alternatively for summary adjudication. This motion was originally set for hearing on July 12.

On June 12, 2019, plaintiff served its second notice of deposition of BMW NA’s person most knowledgeable and custodian of records (Notice). (Kalinowski decl. re Motion to Compel, ¶ 6 & exhibit D [the Notice]; Shin decl. re Protective Order, ¶ 2 & exhibit A.) The Notice set the deposition to take place on June 25.

On June 17, 2019, BMW NA served its written objections to the Notice, stating that BMW NA would not produce a deponent for deposition. (Kalinowski decl. re Motion to Compel, ¶ 7 & exhibit E.)

On June 24, 2019, the court granted plaintiff’s ex parte application, continuing the hearing on the summary judgment motion to September 13, 2019, to allow for needed discovery. The hearing on the summary judgment motion was subsequently further continued to September 20, 2019.

On July 24, 2019, following an unsuccessful meet-and-confer process, BMW NA filed its motion for a protective order regarding compliance with the Notice. The motion for a protective order is opposed by plaintiff.

On August 1, 2019, plaintiff filed his motion to compel compliance with the Notice. The motion to compel is opposed by BMW NA.

Trial is now set for October 25, 2019.

Analysis:

Both of the motions now before the court address the same Notice and the same issues. The motions will therefore be addressed together. It is useful to consider the subject matter categories for examination separately from the categories of documents.

Plaintiff seeks deposition testimony with respect to the following matters:

“1. All investigations performed by YOU pertaining to potential defects in the Takata airbag from 2003 through 2013.

“2. YOUR investigation of a rupturing Takata Airbag in a BMW vehicle in Switzlerland [sic] that occurred in 2003.

“3. YOUR investigation of Autolive’s findings pertaining to defects in the ammonimum nitrate airbag designed by Takata.

“4. YOUR discussions between 2003 and August 2013 relating to recalls to the Takata airbag.

“5. Any investigation regarding Honda’s 2008-2009 recall of vehicles equipped with the Takata airbag.

“6. YOUR policies and procedures from 2008 through 2013 regarding testing Takata supplied airbags equipped in YOUR vehicles.

“7. All testing from 2008 through 2013 regarding Takata airbags equipped in YOUR vehicles.

“8. All DOCUMENTS between 2003 and August 2013 regarding defects in the Takata airbag.

“9. YOUR discussions from 2008 through 2017 regarding replacing Takata airbags with a substitute airbag.

“10. YOUR investigations of complaints pertaining to the Takata airbag from 2008 through 2013.

“11. All defects identified by YOU in Takata airbags between 2004 and 2013.

“12. When YOU first became aware of potential defects in the Takata airbag.” (Notice, pp. 3-4.)

BMW NA objects that these topics go beyond the limited scope of BMW NA’s knowledge as a vehicle distributor, that these topics seek information on airbag issues other than the potential airbag ruptures that serve as the foundation of plaintiff’s claims and hence are overbroad, and that the burdens and costs associated with the deposition are unjustified. (Motion for Protective Order [MPO], pp. 4-5.)

So, with respect to topic 1 (“All investigations performed by YOU pertaining to potential defects in the Takata airbag from 2003 through 2013”), BMW NA argues that it “lacks knowledge on the manufacturer-focused topics plaintiff identifies in his second Notice … [because] BMW NA is the distributor of BMW brand motor vehicles—it does not design, manufacture, assemble, or test airbags pre-production.” (Separate Statement in Opposition to Motion to Compel, p. 3.)

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.230.)

A corollary to the requirement of section 2025.230 is that the person most qualified to testify on a particular subject may not know any information on the subject or have any information reasonably available. In the context of topic 1, if there were no investigations performed by BMW NA, then there would be no person with knowledge (personal or reasonably available) of such investigations. It is proper, nonetheless, for someone to be in a position to state in a deposition under oath that the reason why the designated witness has no knowledge is that the entity has no information on that subject. This may not be the most efficient approach, but it is wholly within the scope and contemplation of section 2025.230.

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That the deposition not be taken at all. [¶] … [¶]

“(5) That the deposition be taken only on certain specified terms and conditions. [¶] … [¶]

“(7) That the method of discovery be interrogatories to a party instead of an oral deposition. [¶] … [¶]

“(10) That the scope of the examination be limited to certain matters.” (Code Civ. Proc., § 2025.420, subd. (b)(1), (5), (7), (10).)

The relevance of the subject matter of these topics as argued by plaintiff is BMW NA’s knowledge of the Takata airbag defects at the time plaintiff purchased his vehicle. (Motion to Compel [MTC], pp. 6-7.) In opposition to the MTC and in support of its own MPO, BMW NA provides only the declaration of its own counsel in support. BMW NA does not provide any evidence from a person with personal knowledge at BMW NA as to the truth of the facts asserted regarding BMW NA’s knowledge. BMW NA also provides no evidence regarding burden or location of persons who would otherwise be designated as the persons most qualified to be examined on the topics identified.

The only self-evident fact is that, where the topic of examination is an activity that did not take place, personal examination to establish that negative fact would unreasonably waste resources where the negative fact can be established by simpler means. In such case, the objections are overruled. To address the unnecessary expense issue, the court will permit a written response as follows:

With respect to topic 1, in lieu of a producing a witness for deposition, BMW NA may instead provide a declaration from an officer, director, managing agent, employee, or agent of BMW NA which states, without objection, that, from 2003 through 2013, BMW NA has performed no investigations relating to potential defects in the Takata airbag relating to defects that can cause ruptures in the airbag. The declaration shall also state (1) the name and title of the declarant, (2) that the declarant is authorized to make this declaration on behalf of BMW NA, (3) sufficient facts to demonstrate that the declarant has personal knowledge of the facts so stated or that the declarant has undertaken a reasonable and diligent investigation to verify the facts so stated, and (4) that the declarant is the officer, director, managing agent, employee, or agent most qualified to make this declaration and would be designated as the witness to respond to this subject pursuant to Code of Civil Procedure section 2025.230 if deposition testimony were required.

The same form of declaration may be used in lieu of deposition testimony for topics 2, 3, 5, 6, 7, 10, and 11, in which the principal declaration statement relating to the topic affirmatively states that no investigation, testing, or defect (as appropriate to the topic and as further defined by the Notice) was performed, conducted, or identified (as appropriate). BMW NA may designate one or more declarants as specific to each such topic, but the declaration must include facts specific to each affirmative statement relating to the topic. To the extent that BMW NA cannot truthfully make the unqualified affirmative statement discussed, BMW NA will need to produce one or more witnesses to testify on that topic (if no declaration is provided) or on the qualification (if the declaration statement is in any way qualified).

With respect to topic 12 (“When YOU first became aware of potential defects in the Takata airbag”), this topic is directly related to the knowledge issue raised as an element of plaintiff’s fraud claims and denied by BMW NA. BMW NA will be required to produce one or more witnesses to testify on this topic as required by section 2025.230. The “potential defects” relate specifically to potential defects that can cause ruptures of Takata airbags. Fairly within the scope of topic 12 is the manner in which BMW NA became aware of the potential defects and the extent of such knowledge as it was acquired (if such knowledge was not acquired all at once).

With respect to topic 4 (“YOUR discussions between 2003 and August 2013 relating to recalls to the Takata airbag”), the topic is vague and overbroad. The relevance argued by plaintiff is knowledge of defects. To the extent that discussions of recalls relate to when BMW NA became aware of potential defects in the Takata airbag, those discussions are within topic 12 for which testimony will be required. Otherwise, the potential scope of “discussions” is unwieldy. BMW NA will not be required to provide any witness to address topic 4 to the extent the subject matter is not otherwise addressed by another topic for which testimony will be required by this order.

With respect to topic 9 (“YOUR discussions from 2008 through 2017 regarding replacing Takata airbags with a substitute airbag”), the same analysis applies as to topic 4. To the extent this topic addresses knowledge of potential defects, it is within the scope of topic 12, but otherwise this topic is vague and overbroad. BMW NA will not be required to provide any witness to address topic 9 to the extent the subject matter is not otherwise addressed by another topic for which testimony will be required by this order.

With respect to topic 8 (“All DOCUMENTS between 2003 and August 2013 regarding defects in the Takata airbag”), the topic is ambiguous as to whether it relates to the documents themselves (in the manner of a custodian of records authenticating the documents) or to the substantive contents of the documents. The former is an appropriate topic with respect to documents that are produced in connection with the Notice (as discussed below). The latter does not describe with reasonable particularity the matters on which examination is requested. Similar to the above discussion, to the extent that documents reflect when BMW NA became aware of the potential defects, the subject is within the scope of topic 12. Otherwise, the topic is vague and overbroad. Except as discussed below with respect to document custody and authentication, BMW NA will not be required to provide any witness to address topic 8 to the extent the subject matter is not otherwise addressed by another topic for which testimony will be required by this order.

With respect to documents, the Notice demands production of five categories of documents.

Category 1 is: “All DOCUMENTS consulted or relied upon in preparing for this deposition.”

In its meet-and-confer letter of July 11, 2019, BMW NA agreed to produce specific documents in connection with its discussion of the examination topics. (Shin decl. re MPO, exhibit B.) These agreed-upon documents sufficiently address those categories for which a declaration is presented in lieu of deposition testimony under the court’s ruling, discussed above. To the extent that the court requires deposition testimony, the request on its face presents good cause for production of the documents consulted or relied upon in preparing for such testimony. To the extent that BMW NA asserts privilege or other basis for withholding from production responsive documents, BMW NA must provide a privilege log identifying such documents and setting forth sufficient facts upon which the court can address the claim of privilege or other basis for withholding such documents. The objections to category 1 are otherwise overruled.

As noted above, to the extent that topic 8 of the examination subjects relates to evidentiary foundational issues that would be addressed by a custodian of records, the testimony of a custodian of records is appropriate unless the foundational issues are sufficiently addressed. For each document that is produced, BMW NA may either (1) stipulate that the document is authentic and a business record of BMW NA admissible within the meaning of Evidence Code section 1271, or otherwise stipulate to the document’s admissibility, or (2) produce for examination one or more custodian of records most qualified to testify as to the matters set forth in Evidence Code section 1561, subdivision (a), as they relate to the document.

Category 2 is: “All DOCUMENTS related to any quality problems identified by YOU in the Takata airbag between 2003 and August 2013.”

Category 3 is: “All DOCUMENTS relating to YOUR discussions to replace the Takata airbag with another product between 2008 and 2014.”

Category 4 is: “AllDOCUMENTS evidencing your investigation of potential defects in the Takata airbag from 2003 through 2013.”

In opposition to the MTC, BMW NA states that it has no responsive documents to produce on these issues. The court does not require production of documents that cannot be produced. However, as with the testimony related to these subjects, for completeness, plaintiff is entitled to evidence as to the absence of such records. A sufficient response to categories 2, 3, and 4, is a declaration from a person authorized by BMW NA in a form complying with Code of Civil Procedure section 2031.230. To the extent that BMW NA cannot truthfully verify that no such documents exist, BMW NA shall produce such responsive documents. The terms “quality problems” and “potential defects” are to be construed as relating to the potential defects that can cause ruptures in the airbags. Any responsive document withheld from production shall be identified in a privilege log as discussed above.

Category 5 is: “All DOCUMENTS produced by YOU in the matter of In Re: Takata Airbag Products Liability Litigation, United States District Court, Southern District of Florida, Case No. 1:15-md-02599-FAM.”

Plaintiff has not shown good cause for the production of the category 5 documents. The brief and non-evidentiary explanation of these document demonstrates that this category of documents relates to a large collection of documents in a much broader products liability litigation. It may be that some of these documents are both discoverable and relevant to the issues in this litigation. However, the possibility that documents discoverable within this litigation were also produced in another, different case does not make all of those documents discoverable here. There is no showing of good cause for production of the documents as described in this category in the Notice. (See Code Civ. Proc., § 2025.450, subd. (b)(1).) BMW NA is not required to produce documents responsive to this category that are not otherwise responsive to a different category in the Notice.

The court determines based on the foregoing discussion that an award of sanctions against either party would not be in the interests of justice. Plaintiff’s request for an award of monetary sanctions will be denied.

Because the results of these motions require a deposition and production of documents to take place in aid of plaintiff’s opposition to BMW NA’s motion for summary judgment, the timing of the deposition will be short, but in any event, the court will consider a brief continuance of the hearing to accommodate the deposition ordered by the court, even if the hearing invades the 30 day time period prior to trial. The parties are to be prepared to discuss the timing of the hearing of the summary judgment motion at the hearing of this motion.