Jill Putman, et al. v. BMW of North America, LLC, et al Case No. CV-17-3485-JAK (KSx) United States District Court, C.D. California Filed May 14, 2018 Counsel Christine J. Haw, Carey B. Wood, Eleazar D. Kim, Erin Melody-Rosenfeld, Gabrielle A. Pedone, Jacob William Cutler, Payam Shahian, Strategic Legal Pracies APC, Benjeman R. Beck, Consumer Law Experts PC, Los Angeles, CA, Steven Brower, Brower Law Group APC, Laguna Hills, CA, Dara Tabesh, Ecotech Law Group PC, San Francisco, CA, for Jill Putman, et al. Brian Takahashi, Richard L. Stuhlbarg, Corinne D. Orquiola, Jimmy Yongki Park, Lindsay G. Carlson, Stephen Jude Kelley, Bowman and Brooke LL, Torrance, CA, for BMW of North America, LLC, et al. Stevenson, Karen L., United States Magistrate Judge ORDER DENYING PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS *1 Before the Court is Plaintiffs' Motion to Compel Production of Documents (“Motion”) filed on March 27, 2018. (Dkt. No. 51.) On May 8, 2018, the Court held oral argument on the Motion and took the matter under submission. (Dkt. No. 69.) PROCEDURAL BACKGROUND On March 13, 2017, Plaintiffs filed this consumer warranty action in Los Angeles County Superior Court alleging causes of action arising from their purchase of a used 2012 BMW 750Li Sedan and, specifically, alleging violations of California's Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). Defendant BMW of North America, LLC (“BMW NA”) removed the action to this district court on May 9, 2017. (Dkt. No. 1.) On July 6, 2017, the Honorable John A. Kronstadt, issued civil minutes setting the Scheduling Order in this action. (Dkt. No. 21.) His order established January 29, 2018 as the cut-off date for non-expert discovery and March 12, 2018 as the last day to file motions, including discovery motions. (Id.) On March 13, 2018, Plaintiffs filed an Ex Parte Application for an Order to modify the Scheduling Order to extend the motion cut-off. (Dkt. No. 42.) On March 21, 2018, Judge Kronstadt, finding “limited good cause,” granted Plaintiffs' Ex Parte Application and extended the last date to file motions to March 27, 2018, “solely to allow Plaintiff to file the motion to compel further discovery described in the Application.” (Dkt. No. 48.) He expressly noted, “this Order does not determine whether Plaintiff's lack of diligence in seeking this relief or in pursuing additional discovery with respect to a request filed months ago, should be considered and weighed as part of the decision on the merits of Plaintiff's motion to compel further discovery including as to the scope of any required production.” (Id.) Plaintiffs filed the Motion on March 27, 2018. (Dkt. No. 51.) On April 10, 2018, the Court held a telephonic conference and directed the parties to further meet and confer in an effort to narrow or resolve the discovery disputes addressed in the Motion. (Dkt. No. 57.) On April 18, 2018, the parties filed a Status Report indicating they were unable to resolve the issues. (Dkt. No. 58.) On April 24, 2018, BMW NA filed its Opposition (Dkt. No. 59), along with Objections to and FRCP 12(f) Motion to Strike the Declaration of Benjeman Beck (“Motion to Strike”) (Dkt. No. 60); the Declaration of Stephen J. Kelley (“Kelley Decl.”) in Opposition to the Motion (Dkt. No. 61); and the Declaration of Daniel Mark (“Mark Decl.”) in Opposition to the Motion (Dkt. No. 62). On May 3, 2018, Plaintiff filed a Reply. (Dkt. No. 63), along with (1) a Notice of Errata regarding the Amended Pedone Declaration (“Pedone Decl.”), which was previously misidentified as a Declaration of Benjeman Beck (Dkt. No 64); and (2) Evidentiary Objections to the Declaration of Daniel Mark filed by BMW NA (Dkt. No. 65). On May 4, 2018, Plaintiff filed a Memorandum in Opposition to BMW NA's Motion to Strike. (Dkt. No. 66.) As noted, the Court held oral argument on the Motion on May 8, 2018. (Dkt. No. 69.) *2 Having carefully considered the Motion, the parties' declarations and related exhibits, the evidentiary objections, motions to strike submitted by all parties, the oral argument of counsel, and relevant portions of the record in this case and for the reasons discussed below, the Motion is DENIED. THE DISPUTED REQUESTS FOR PRODUCTION Plaintiffs seek to compel production of three broad categories of information sought in fifteen separate requests for production (“RFPs”) contained in Plaintiffs' Third Request for Production served on December 26, 2017. (Motion at 5-6.) The disputed requests seek documents relating to all 2012 BMW 750Li Sedans equipped with N63 engines and all 2012 BMW vehicles equipped with the N63 engine (the “Requests”): (1) BMW's internal investigation and analysis of the OIL CONSUMPTION DEFECTS and ENGINE DEFECT (including ESI and emails) and BMW's responses to these defects (RFP Nos. 4, 6, 11, 36, and 42) (2) BMW's internal communications, including emails, regarding the OIL CONSUMPTION DEFECTS and ENGINE DEFECT (RFP Nos. 5, 7, 12, 37, and 43); and (3) Customer complaints, dealer contacts (PuMA[1] cases and measures), and warranty claims regarding the OIL CONSUMPTION DEFECTS and ENGINE DEFECT (RFP Nos. 13, 14, 23, 38, and 44). (Motion at 5-6; Pedone Decl. ¶ 30, Ex. V (Plaintiff's Request for Production, Set Three).) Plaintiffs define the capitalized terms as: “ENGINE DEFECT(S)” shall be understood to mean such defects which result in symptoms, including but not limited to, rough running; engine misfires; failure of the fuel injector; failure of the spark plugs, premature failure of the engine vacuum pump; premature failure of the low pressure sensor/fuel line; premature failure of the fresh air intake turbo seals; premature failures of the crankcase ventilation lines; loss of performance; premature failure of the timing chain; smoke from tailpipe; failure of the intake and/or exhaust valve stem seals, loss of power at acceleration, intermittent failure to accelerate, engine grinding, cylinder misfires, drivetrain malfunction, illumination of the “drivetrain malfunction” light, and/or any other similar concern(s) identified in the repair history for SUBJECT VEHICLE.[2] “OIL CONSUMPTION DEFECT” shall be understood to mean issues which result in symptoms, including the recurrent activation of the low engine oil message, the need to frequently add engine oil, the need to “top off” engine oil in between scheduled maintenance visits, excessive engine oil consumption; excessive burning of engine oil and/or oil leaking from the oil pan gasket. Defendant objects to the discovery and opposes the Motion on the grounds that Plaintiffs seek information that is not relevant to the claims and defenses in this single vehicle action, and is not proportionate to the needs of the case as required under Rule 26(b)(1) as amended in 2015. (See Opposition at 6-17.) LEGAL STANDARD *3 Under Rule 26 of the Federal Rules of Civil Procedure, a party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). As amended in December 2015, Rule 26(b)(1) identifies the following factors to be considered when determining if the proportionality requirement has been met: the importance of the issues at stake in the action; the amount in controversy; the parties' relative access to the relevant information; the parties' resources; the importance of the discovery in resolving the issues; and whether the burden or expense of the proposed discovery outweighs its likely benefit. (Id.) Relevant information need not be admissible to be discoverable. (Id.) District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751) (superseded by statue on other grounds). DISCUSSION A. Evidentiary Objections and the Motions to Strike As a preliminary issue, the Court addresses the evidentiary objections and motions to strike filed in connection with the Motion. Defendant filed objections and a Motion to Strike the Declaration of Benjeman Beck pursuant to FRCP 12(f). (Dkt. No. 60). Defendant's evidentiary objections Nos. 1 – 9 are OVERRULED. The Motion to Strike is also DENIED as Plaintiffs subsequently filed an Amended Declaration of Gabriella Pedone that was previously misidentified as a declaration from Benjeman Beck. (See Dkt. No. 64.) Plaintiffs filed evidentiary objections to the Declaration of Daniel Mark filed in support of Defendant's Opposition to the Motion. (Dkt. No. 65.) Plaintiffs' evidentiary objections to the Mark Declaration paragraphs 1 – 13 are OVERRULED. (See Dkt. No. 65 at 14-16.) B. The Song-Beverly Act Plaintiffs allege that Defendant violated California's Song-Beverly Consumer Warranty Act, California Civil Code § 1790 et seq., (“Song-Beverly Act”) based on breaches of both express and implied warranties. (See Complaint at ¶¶ 14-30.) A plaintiff suing under the Song-Beverly Act must prove the following: (1) the product had a defect or noncomformity covered by the express warranty; (2) the product was presented to an authorized representative of the manufacturer for repair; and (3) the manufacturer or its representative did not repair the defect or nonconformity after a reasonable number of repair attempts. Ibrahim v. Ford Motor Co., 214 Cal. App. 3d 878, 884 (1989); and see Gonzalez v. Drew Industries Inc., 750 F. Supp. 2d 1061, 1073 (C.D. Cal. 2007). A consumer who establishes a manufacturer's failure to comply with the Song-Beverly Act, may recover damages and, if the buyer proves the violation was willfull, the judgment may include a civil penalty. CAL. CIV. C. § 1794, subd. (c); Jensen v. BMW of North America, Inc., 35 Cal. App. 4th 112, 121 (1995). C. Plaintiffs' Discovery Requests Are Not Proportional to the Needs of the Case. Plaintiffs argue that the discovery sought is relevant to proving Defendant's knowledge and willfulness. However, after the 2015 amendments to Rule 26(b)(1) of the Federal Rules of Civil Procedure, relevance alone is not sufficient to warrant the sweeping discovery sought here. The Court now must specifically consider whether the discovery sought is proportional to the needs of the case in light of, among other things, the claims and defenses in the actions and the amount in controversy. Plaintiffs attached to the Motion what appear to be orders granting motions to compel in several unrelated vehicle warranty cases brought in the California Superior Court. (See Pedone Decl., ¶ 85, Ex. T.) These rulings are unhelpful here. First, federal litigation is governed by the Federal Rules of Civil Procedure. Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423, 437 (federal rules of civil procedure “govern the mode of proceedings in federal court after removal”). Second, the California Rules of Civil Procedure are not only inapplicable here, but do not contain the federal proportionality requirements that are now integral to Rule 26(b)(1). Third, while the Court may take judicial notice of the records of other courts (see FED. R. EVID. 201), this Court has no way to know if the specific circumstances and factual record that were before those courts are consistent with the record and evidence here. Accordingly, the Court does not find the mere fact of these state court rulings persuasive. D. The Requests, Even if Arguably Relevant, Are Facially Overbroad. *4 This is not a class action or a consolidated proceeding. Rather, this case involves an individual lawsuit about a single vehicle. (SeeComplaint at ¶ 7.) Plaintiffs maintain that the information sought is relevant to establishing Defendant's knowledge and willfulness for purposes of possibly obtaining a civil penalty under the Song-Beverly Act. (Motion at 10-12.) Defendants counter that the information is not relevant to the claims and defenses in this action and is unnecessary because the proof to establish Defendant's liability relates only to the service records for Plaintiffs' individual vehicle. (Opposition at 6.) As to the relevance of information about other vehicles, Plaintiffs rely primarily upon Donlen v. Ford Motor, Co., 217 Cal. App. 4th 138 (2013) and Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (2009). Donlen involved an appeal from a grant of a new trial after the jury awarded the plaintiff damages. Donlen, 217 Cal. App. 4th at 141. In that case, the Court of Appeal held that the trial court did not err in admitting evidence about other vehicles where such evidence was limited to the particular transmission model installed in the plaintiff's truck and the appellate court found that expert testimony about transmission problems with other pickup trucks was proper. Id. at 154. In Doppes, the California appellate court found that the trial court erred in failing to impose terminating sanctions for egregious violations of discovery where the automobile distributor repeatedly failed to comply with the discovery referee's orders, including orders to produce warranty complaints and service histories for all affected vehicles that may have had odor problems similar to those in plaintiff's vehicle. Doppes, 174 Cal. App. 4th at 973, 978. While Doppes and Donlen suggest that some discovery concerning other vehicles may be relevant in Song-Beverly actions brought in California state court under the California procedural rules, these cases do not control the resolution of the instant Motion because relevance is not the only consideration in determining whether information is discoverable. The Requests at issue here must also meet the post-2015 federal proportionality requirements of Rule 26(b)(1). Plaintiffs argue that the Requests are “narrowly tailored.” (Motion at 20.) Not so. Plaintiffs seek discovery related to potentially thousands of other BMW vehicles, including vehicles unlike the one that Plaintiffs purchased. During oral argument, Plaintiffs' counsel confirmed that the Requests seek not only information concerning the 750Li Sedan that Plaintiff bought, but any BMW vehicle with the N63 engine. Furthermore, the definitions of ENGINE DEFECT and OIL CONSUMPTION DEFECT are vastly overbroad and fail to meet Rule 34's requirement that discovery describe with particularity the information sought. FED. R. CIV. P. 34(b)(1)(A). Language such as “including but not limited to,” “symptoms,” “premature failures,” and “any other similar concern(s)” make it virtually impossible for the responding party to understand what is called for in response to the Requests and for a court to assess whether the requested documents have been produced. See Mailhoit v. Home Depo U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012) (“The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not.’ ”) (quoting Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004)). According to Defendant, even limiting the requests to the same make and model year as Plaintiffs' vehicle—2012 BMW 750Li Sedan—in California would encompass records for some 3,933 vehicles. (Opposition at 15; Mark Decl., ¶ 9.) Under California law, that the relevant evidence needed to prove liability under the Song-Beverly Act are records concerning a plaintiff's specific vehicle. Krotin v. Porsche Cars North America, Inc., 38 Cal. App. 4th 294, 303 (1995) (dealer's service records for a plaintiff's vehicle sufficient to establish defect for purposes of Song-Beverly Act claim). In light of the limited elements Plaintiffs must prove to establish liability against Defendant under the Song-Beverly Act, the Court finds Plaintiffs' discovery requests vastly disproportionate to the claims and defenses at issue in this single vehicle case.[3] E. The Broad Discovery that Plaintiffs Seek Is Neither Proportional to the Amount in Controversy Nor Important to Resolving the Issues in this Case *5 Plaintiffs are pursuing this action against BMW NA to recover under the Song-Beverly Act for claims related to a single used 2012 BMW 750Li Sedan and repeated unsuccessful efforts to repair the vehicle. (See, e.g., Complaint at ¶¶ 9-14.) Defendants assert that the total cash price of the vehicle was $ 64,999.00 and after tax, license, fees, service contracts, and financing, the total amount paid or payable for the vehicle was $98,706.16.[4] (Opposition at 19; Kelley Decl., ¶ 2.) Defendants contend that “the total amount in controversy is approximately $86,548.56.” (Id. at 4; Kelley Decl., ¶4.) At oral argument, Plaintiffs maintained that the total amount in controversy, in light of potential civil penalties and attorney fees and costs, is approximately $300,000. In either case, the amount at issue concerning Plaintiffs' single vehicle does not warrant requiring Defendant to conduct a search of nationwide – or even statewide – records for thousands of other vehicles when the central information necessary to prove or disprove Plaintiffs' claims under the Song-Beverly Act pertains to the service records and history of Plaintiffs' vehicle. In the Motion, Plaintiff argues that in cases where other courts have ordered such sweeping discovery, “for the vast majority of these cases, BMW settled before producing responsive documents, even though such production was compelled by the courts.” (Motion at 21-22 n.8.) Providing settlement leverage for one party over another is not one of the proportionality considerations in Rule 26(b)(1) and cannot be a basis for compelling the sweeping, class-style discovery sought here. Thus, Plaintiffs, having perhaps revealed the true motive behind the broad discovery requests, fail to demonstrate that the discovery sought is important to resolving the merits of this case, particularly at this late stage in the litigation. Indeed, the Advisory Committee emphasized that in adding the proportionality language to Rule 26(b)(1) “[t]he objective is to guard against redundant or disproportionate discovery” and “to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” Fed. R. Civ. P. 26, Advisory Committee's note to 2015 amendment. F. Plaintiffs' Lack of Diligence in Seeking this Discovery Defendants also argue that Plaintiffs have not been diligent in pursuing the Motion. (Opposition at 3-6.) Judge Kronstadt's March 27, 2018 Order made no determination on whether Plaintiffs' lack of diligence in seeking this discovery should weigh in determining the Motion. (SeeDkt. No. 48.) The Court notes, however, that Plaintiffs served the Requests on December 26, 2017. (Pedone Decl., Ex. V.) Defendant served its responses and objections on January 29, 2018. (Pedone Decl., Ex. W.) Yet, Plaintiffs did not file their Ex Parte Application to allow an extension of time to file the Motion until just days before the originally scheduled motion cut-off. Given the breadth of the Requests and Plaintiffs' arguments that this information is potentially relevant to establishing Defendant's knowledge and willfulness, the Court has doubts about Plaintiffs' diligence in pursuing this Motion months after Defendants served their responses and on the eve of the motion cut-off. However, as discussed above, the Court denies the Motion based on the Requests' facial overbreadth and lack of proportionality. G. The Court Declines to Award Sanctions and Denies Defendant's Request for an Adverse Inference Federal Rule of Civil Procedure 37 provides that if a motion to compel is denied, the Court “must, after giving an opportunity to be heard, require the movant, the party or attorney advising that conduct, or both to pay the reasonable expenses incurred in opposing the motion, including attorney's fees. “But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5) (B). “There is no bright line standard for ‘substantial justification,’ and courts must use discretion” when deciding whether to impose sanctions under Rule 37. Brown v. Iowa, 152 F.R.D. 168, 173 (S.D. Iowa 1993). *6 Even though the Court denies the Motion, the Court exercises its discretion and declines to award sanctions.[5] While the Requests fail to meet the proportionality requirements of Rule 26(b), the Court finds that that the Motion itself was not substantially unjustified. CONCLUSION For the foregoing reasons, the Court hereby DENIES the Motion in its entirety. Further, no monetary sanctions are awarded at this time. IT IS SO ORDERED. Footnotes [1] According to Plaintiffs, “PuMA” refers to a database or document system that BMW NA uses to communicate with authorized dealerships about “identifying, diagnosing, and/or repairing problems, issues, or defects in BMW vehicles.” (Pedone Decl., Ex. V at 2-3.) [2] “SUBJECT VEHICLE” is defined as “the 2012 BMW 750Li, VIN WBAKB8C59CC963231 purchased and/or leased by Plaintiff.” (Pedone Decl., Ex. V at 3.) [3] Because the Court finds the discovery requests facially overbroad, the Court does not reach the issue of undue burden if Defendants were required to further respond to the requests. [4] Plaintiffs do not dispute this figure. (See Pedone Decl., ¶ 3.) [5] Plaintiffs also request that the Court draw an adverse inference against Defendants because of their failure to search for and produce responsive documents. (Reply at 21.) In light of the Court's finding that the Requests are facially overbroad, no adverse inference is warranted and Plaintiffs' request is denied.