1 2 3 4 5 6 9 10 DAVID HASTINGS, Case No.: 19-cv-2217-BAS-MDD
11 Plaintiff, ORDER ON PLAINTIFF'S 12 v. MOTION TO COMPEL
13 FORD MOTOR COMPANY, et al., [ECF No. 63] Defendants. 14 15 16 This case involves the purchase by Plaintiff of a 2013 Ford F-350 truck 17 in Texas. Plaintiff alleges that the vehicle contained a defective engine and 18 that Defendants failed to repair the vehicle and refused to re-purchase the 19 vehicle. After considerable litigation, the operative First Amended 20 Complaint alleges a violation of the federal Magnuson-Moss Warranty Act, 15 21 U.S.C. §§ 2301 et seq., fraud by omission, and negligent repairs (Sixth Cause 22 of Action), Negligent Repair (Seventh Cause of Action) and Fraud by 23 Omission (Eighth Cause of Action). (ECF No. 24). Plaintiff’s claims under 24 California’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§ 1790 et 25 seq., were dismissed without prejudice by Plaintiff (by its terms, the Song- 26 Beverly Act only applies to new vehicles sold to consumers in California). 1 requests for production served by Plaintiff. (ECF No. 63). Defendants 2 responded in opposition on March 30, 2021. (ECF No. 71). 4 The Federal Rules of Civil Procedure authorize parties to obtain 5 discovery of “any nonprivileged matter that is relevant to any party’s claim or 6 defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). 7 “Information within the scope of discovery need not be admissible in evidence 8 to be discoverable.” Id. District courts have broad discretion to limit 9 discovery where the discovery sought is “unreasonably cumulative or 10 duplicative, or can be obtained from some other source that is more 11 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 12 A party may request the production of any document within the scope of 13 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 14 must either state that inspection and related activities will be permitted as 15 requested or state an objection to the request, including the reasons.” Rule 16 34(b)(2)(B). If the responding party chooses to produce responsive 17 information, rather than allow for inspection, the production must be 18 completed no later than the time specified in the request or another 19 reasonable time specified in the response. Id. An objection must state 20 whether any responsive materials are being withheld based on that objection. 21 Rule 34(b)(2)(C). An objection to part of a request must specify the part and 22 permit inspection or production of the rest. Id. The responding party is 23 responsible for all items in “the responding party’s possession, custody, or 24 control.” Rule 34(a)(1). Actual possession, custody or control is not required. 25 Rather, “[a] party may be ordered to produce a document in the possession of 26 a non-party entity if that party has a legal right to obtain the document or 1 of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). 3 Plaintiff is seeking an order compelling Defendants to produce 4 additional records pursuant to its requests for production (“RFP”) 1, 7, 19, 21, 5 24, 26, 27, 61, 63, 64, 68 and 69. In support, Plaintiff argues that it is 6 seeking information relevant to its claims, “including civil penalty liability 7 under California’s [Song-Beverly Act].” (ECF No. 63-1 at 2, 15-17).1 Plaintiff 8 is under the impression that the remedies of the Song-Beverly Act are 9 available to him despite the dismissal of all Song-Beverly claims. The Court 10 disagrees. 11 1. Discovery Relevant to Song-Beverly Act Damages 12 The Magnuson Moss Warranty Act (“MMWA”) does not include a 13 remedial scheme. Instead, for claims raised under the MMWA, courts look to 14 “applicable state law” to determine damages. See Order on Defendants’ 15 Motion to Dismiss (ECF No. 40 at 13). Previously, in this case, the district 16 judge declined to address Defendants’ argument that Plaintiff is not entitled 17 to remedies under the Song-Beverly Act. The Court ruled that because 18 Plaintiff is entitled to remedies under the California Commercial Code, Cal. 19 Com. Code § 2714(2), the Court need not address the availability of remedies 20 under the Song-Beverly Act. ECF No. 43 at 7. 21 To the extent that Plaintiff is seeking discovery relevant only to 22 damages available under the Song-Beverly Act, it behooves this Court to 23 determine Plaintiff’s entitlement to that discovery. Plaintiff is entitled to 24 discovery relevant to “claims and defenses” under Rule 26. With the 25
26 1 The Court will refer to pincites supplied by CM/ECF rather than original pagination 1 dismissal of all Song-Beverly claims, the question is whether Plaintiff’s claim 2 under the MMWA incorporates the remedial scheme of the Song-Beverly Act. 3 If so, Plaintiff is entitled to discovery to support his damage claim under the 4 MMWA. If not, that is, if the MMWA does not include Song-Beverly damages 5 in this case, Plaintiff is not entitled to Song-Beverly discovery. Recently, one 6 of our sister courts decided that very issue adversely to Plaintiff’s position. In 7 Scott v. Jayco, Inc., 443 F. Supp. 3d 1143, 1150-51 (E.D. Cal. 2020), the court 8 found that the relevant or applicable state law to inform the remedies 9 available under the MMWA to a plaintiff in California who cannot assert 10 claims under the Song-Beverly Act, but has remedies otherwise available 11 under state law, is that other state law, and not the Song-Beverly Act. 12 Here, the district judge has found that Plaintiff has a remedy under the 13 California Commercial Code, Cal. Com. Code § 2714(2). The remedy 14 comports with Plaintiff’s claim under the MMWA for violation of an express 15 warranty. Consequently, as in Scott, the Court finds that Plaintiff is not 16 entitled to discovery relevant only to damages available under the Song- 17 Beverly Act. Plaintiff argues his desire to obtain this discovery but does not 18 tie those desires to any specific RFPs. To the extent that Plaintiff seeks that 19 discovery in connection with the disputed RFPs, the motion to compel is 21 2. Custodians and Search Terms 22 Plaintiff addresses in detail his desire to obtain additional information 23 about “Symptom Codes,” “Field Reports,” “Internal Service Messages,” 24 “Warranty Information,” and “Owner Reports,” without tying those desires to 25 specific RFPs. (ECF No. 63-1 at 2-8). Plaintiff wants Defendants to identify 26 custodians and search databases using search terms provided by Plaintiff. To 1 cursory manner. (ECF No. 63-1 at 12-13). Plaintiff does not mention RFP 7 at 2 all and addresses the other eleven disputed RFPs mostly in passing. 3 Nonetheless, Plaintiff suggests that he is entitled to determine the way 4 Defendants search their records, including identifying custodians, databases 5 and search terms. Again, this is not tied to any particular RFP so the Court 6 is compelled to address the matter generally. 7 Rule 34, Fed. R. Civ. P., governs request for production of documents. It 8 does not differentiate between information stored on paper or on an electronic 9 medium. It requires the requesting party to request “information.” Rule 10 34(a)(1). The producing party must produce the requested information or 11 object to the request. Rule 34(b)(2)(B).
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1 2 3 4 5 6 9 10 DAVID HASTINGS, Case No.: 19-cv-2217-BAS-MDD
11 Plaintiff, ORDER ON PLAINTIFF'S 12 v. MOTION TO COMPEL
13 FORD MOTOR COMPANY, et al., [ECF No. 63] Defendants. 14 15 16 This case involves the purchase by Plaintiff of a 2013 Ford F-350 truck 17 in Texas. Plaintiff alleges that the vehicle contained a defective engine and 18 that Defendants failed to repair the vehicle and refused to re-purchase the 19 vehicle. After considerable litigation, the operative First Amended 20 Complaint alleges a violation of the federal Magnuson-Moss Warranty Act, 15 21 U.S.C. §§ 2301 et seq., fraud by omission, and negligent repairs (Sixth Cause 22 of Action), Negligent Repair (Seventh Cause of Action) and Fraud by 23 Omission (Eighth Cause of Action). (ECF No. 24). Plaintiff’s claims under 24 California’s Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§ 1790 et 25 seq., were dismissed without prejudice by Plaintiff (by its terms, the Song- 26 Beverly Act only applies to new vehicles sold to consumers in California). 1 requests for production served by Plaintiff. (ECF No. 63). Defendants 2 responded in opposition on March 30, 2021. (ECF No. 71). 4 The Federal Rules of Civil Procedure authorize parties to obtain 5 discovery of “any nonprivileged matter that is relevant to any party’s claim or 6 defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). 7 “Information within the scope of discovery need not be admissible in evidence 8 to be discoverable.” Id. District courts have broad discretion to limit 9 discovery where the discovery sought is “unreasonably cumulative or 10 duplicative, or can be obtained from some other source that is more 11 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 12 A party may request the production of any document within the scope of 13 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 14 must either state that inspection and related activities will be permitted as 15 requested or state an objection to the request, including the reasons.” Rule 16 34(b)(2)(B). If the responding party chooses to produce responsive 17 information, rather than allow for inspection, the production must be 18 completed no later than the time specified in the request or another 19 reasonable time specified in the response. Id. An objection must state 20 whether any responsive materials are being withheld based on that objection. 21 Rule 34(b)(2)(C). An objection to part of a request must specify the part and 22 permit inspection or production of the rest. Id. The responding party is 23 responsible for all items in “the responding party’s possession, custody, or 24 control.” Rule 34(a)(1). Actual possession, custody or control is not required. 25 Rather, “[a] party may be ordered to produce a document in the possession of 26 a non-party entity if that party has a legal right to obtain the document or 1 of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). 3 Plaintiff is seeking an order compelling Defendants to produce 4 additional records pursuant to its requests for production (“RFP”) 1, 7, 19, 21, 5 24, 26, 27, 61, 63, 64, 68 and 69. In support, Plaintiff argues that it is 6 seeking information relevant to its claims, “including civil penalty liability 7 under California’s [Song-Beverly Act].” (ECF No. 63-1 at 2, 15-17).1 Plaintiff 8 is under the impression that the remedies of the Song-Beverly Act are 9 available to him despite the dismissal of all Song-Beverly claims. The Court 10 disagrees. 11 1. Discovery Relevant to Song-Beverly Act Damages 12 The Magnuson Moss Warranty Act (“MMWA”) does not include a 13 remedial scheme. Instead, for claims raised under the MMWA, courts look to 14 “applicable state law” to determine damages. See Order on Defendants’ 15 Motion to Dismiss (ECF No. 40 at 13). Previously, in this case, the district 16 judge declined to address Defendants’ argument that Plaintiff is not entitled 17 to remedies under the Song-Beverly Act. The Court ruled that because 18 Plaintiff is entitled to remedies under the California Commercial Code, Cal. 19 Com. Code § 2714(2), the Court need not address the availability of remedies 20 under the Song-Beverly Act. ECF No. 43 at 7. 21 To the extent that Plaintiff is seeking discovery relevant only to 22 damages available under the Song-Beverly Act, it behooves this Court to 23 determine Plaintiff’s entitlement to that discovery. Plaintiff is entitled to 24 discovery relevant to “claims and defenses” under Rule 26. With the 25
26 1 The Court will refer to pincites supplied by CM/ECF rather than original pagination 1 dismissal of all Song-Beverly claims, the question is whether Plaintiff’s claim 2 under the MMWA incorporates the remedial scheme of the Song-Beverly Act. 3 If so, Plaintiff is entitled to discovery to support his damage claim under the 4 MMWA. If not, that is, if the MMWA does not include Song-Beverly damages 5 in this case, Plaintiff is not entitled to Song-Beverly discovery. Recently, one 6 of our sister courts decided that very issue adversely to Plaintiff’s position. In 7 Scott v. Jayco, Inc., 443 F. Supp. 3d 1143, 1150-51 (E.D. Cal. 2020), the court 8 found that the relevant or applicable state law to inform the remedies 9 available under the MMWA to a plaintiff in California who cannot assert 10 claims under the Song-Beverly Act, but has remedies otherwise available 11 under state law, is that other state law, and not the Song-Beverly Act. 12 Here, the district judge has found that Plaintiff has a remedy under the 13 California Commercial Code, Cal. Com. Code § 2714(2). The remedy 14 comports with Plaintiff’s claim under the MMWA for violation of an express 15 warranty. Consequently, as in Scott, the Court finds that Plaintiff is not 16 entitled to discovery relevant only to damages available under the Song- 17 Beverly Act. Plaintiff argues his desire to obtain this discovery but does not 18 tie those desires to any specific RFPs. To the extent that Plaintiff seeks that 19 discovery in connection with the disputed RFPs, the motion to compel is 21 2. Custodians and Search Terms 22 Plaintiff addresses in detail his desire to obtain additional information 23 about “Symptom Codes,” “Field Reports,” “Internal Service Messages,” 24 “Warranty Information,” and “Owner Reports,” without tying those desires to 25 specific RFPs. (ECF No. 63-1 at 2-8). Plaintiff wants Defendants to identify 26 custodians and search databases using search terms provided by Plaintiff. To 1 cursory manner. (ECF No. 63-1 at 12-13). Plaintiff does not mention RFP 7 at 2 all and addresses the other eleven disputed RFPs mostly in passing. 3 Nonetheless, Plaintiff suggests that he is entitled to determine the way 4 Defendants search their records, including identifying custodians, databases 5 and search terms. Again, this is not tied to any particular RFP so the Court 6 is compelled to address the matter generally. 7 Rule 34, Fed. R. Civ. P., governs request for production of documents. It 8 does not differentiate between information stored on paper or on an electronic 9 medium. It requires the requesting party to request “information.” Rule 10 34(a)(1). The producing party must produce the requested information or 11 object to the request. Rule 34(b)(2)(B). Production of electronically stored 12 information is addressed specifically in the Rule but only regarding the form 13 of production. Rule 34(b)(2)(D), (E). Nothing in Rule 34 requires a requesting 14 party to identify custodians or search terms or for a producing party to accede 15 to demands that particular custodians’ files be searched or that particular 16 search terms be used. 17 This Court subscribes to the view expressed in Principle No. 6 of the 18 Sedona Principles: 19 Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and 20 producing their own electronically stored information. 21 22 The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, Principle 6, 23 118 (2018). Moreover, the world of electronic discovery has moved well 24 beyond search terms. While search terms have their place, they may not be 25 suited to all productions. Technology has advanced, and software tools have 26 developed to the point where search terms are disfavored in many cases. See, 1 2012). 2 The Court will not decide whether any proposed custodians are 3 appropriate nor on the use of the requested search terms. Instead, Plaintiff 4 must request information, regardless of how or where it is maintained by 5 Defendants, which Defendants must address as required by Rule 34. That is 6 discovery: A party requests information and the burden is on the producing 7 party to locate and produce it or object legitimately to production. To the 8 extent Plaintiff is seeking to compel Defendants to conduct discovery as 9 directed by Plaintiff, the Court declines to issue such an order. Defendants, 10 however, should consider that rejecting proposed custodians and search 11 terms carries risk: If material information is not preserved or disclosed 12 because of an unreasonable choice, there may be sanctionable consequences. 13 See, e.g., Rule 37(e). The parties should cooperate regarding discovery and be 14 as transparent as possible regarding discovery. 15 3. Specific RFPs 16 Although Plaintiff did not specifically address the RFPs at issue in any 17 substantive way, Defendants did. The Court finds it has enough information 18 to rule on the specific RFPs subject to the general rulings made above. 19 RFP No. 1 20 Plaintiff requests Defendants produce “all documents” regarding 21 Plaintiff’s vehicle. This RFP is overbroad on its face and unenforceable. 22 Nonetheless, Defendants agreed to produce 24 categories of information. 23 (ECF No. 63-6 at 4-6; ECF No. 71 at 17). This is sufficient, and no further 24 production is required. 25 RFP No. 7 26 Plaintiff requests Defendants’ warranty and procedure manuals from 1 to a protective order. Plaintiff did not address this RFP in his motion. The 2 production proposed by Defendants is enough. No further production is 3 required. 4 RFP No. 19 5 Plaintiff requests all documents relating to any field technical reports 6 regarding suggested repair procedures for “commonly observed problems in 7 Ford vehicles.” Although the instructions to the RFPs define “Ford Vehicles” 8 as “all vehicles of the same make, model and year as Plaintiff’s vehicle,” this 9 RFP is patently overbroad, disproportional and unenforceable. This case 10 alleges defects in a specific engine. Discovery of information about other 11 issues in vehicles with other engines has no justification. It is not relevant to 12 any claim or defense. No further response is required. 13 RFPs Nos. 21, 24, 26, 27, 61, 63 and 64 14 These RFPs all suffer an identical flaw: They seek information from 15 Defendants for any “Engine Defect” in “Ford Vehicles” unfettered by any time 16 limitations. Although the definition section of the RFPs limits the term “Ford 17 Vehicles” adequately to vehicles of the same make, model and year as 18 Plaintiff’s vehicle, it does not save these RFPs. The term “Engine Defect” is 19 not limited to the type of engine in Plaintiff’s vehicle. It appears to require 20 the production of information regarding a variety of engine issues regardless 21 of the type of engine. Consequently, it is patently overbroad, disproportional 22 and unenforceable. The Court will not rewrite these RFPs to make them 23 enforceable. Defendants need not respond further. 24 RFPs Nos. 68 and 69 25 These RFPs call for Defendants to produce their 10-K and 10-Q filings 26 for the past 3 fiscal years. Plaintiff does not address these RFPs in his 1 ||Securities and Exchange Commission. No further response is required. 3 Plaintiff's Motion to Compelis DENIED. Rule 37(a)(5)(B), Fed. R. Civ. 4 ||P., requires the Court to order the moving party, the attorney filing the 5 ||motion, or both, to pay the opposing party its reasonable fees and expenses in 6 || opposing the motion. The Court may not order this reimbursement if the 7 ||motion was substantially justified. The Court cannot say that the instant g Motion to Compel was substantially justified. Accordingly, Plaintiff and his 9 ||counsel are ORDERED to SHOW CAUSE why they should not be required ||to reimburse Defendants’ reasonable fees and expenses in opposing this 11 ||Motion. Plaintiff must submit a brief on or before April 16, 2021 and no 12 ||longer than five pages, supporting a finding that the positions taken by 13 || Plaintiff in this motion to compel were substantially justified. Defendants 14 ||may respond on or before April 23, 2021, limited also to five pages. No 15 ||further reply is authorized. Dated: April 2, 2021 Mitel □□ □ Hon. Mitchell D. Dembin 19 United States Magistrate Judge 20 21 22 23 24 25 26 27