*1 In this “lemon law” action, Jesse Santos Teixeira (“Plaintiff”) has alleged that BMW NA (“Defendant”) breached its express and implied warranties for a BMW X5 M Competition that Plaintiff has under lease. ECF Docket Nos. (“Dkts.”) 15-1 at 9–10; 1-1 at 11–14. The primary issues in the case are whether the vehicle had a substantially impairing defect that was not repaired in a reasonable number of attempts and whether the vehicle was fit for the ordinary purposes for which vehicles are used. Id. Also relevant here are Defendant's affirmative defenses 6–10, which assert that:

Dkt. 1-2 (“Answer”) at 2–3.

On March 14, 2023, Plaintiff filed a Motion to Compel seeking an order compelling further written discovery responses from Defendant with respect to fifty-two (52) Requests for Production (Nos. 1–52), seventeen (17) Interrogatories (Nos. 1–17), and fourteen (14) Requests for Admission (Nos. 1, 4–16). Dkt. 15. Plaintiff's Motion included a detailed declaration from Plaintiff's counsel, describing attempts to meet and confer dating back to September 2022, and detailing the relevance of each specific item sought. See Dkt 15-2.

On March 29, 2023, Defendant filed an Opposition to the Motion to Compel. Dkt. 17. The Opposition was only six (6) pages in length and failed to substantively oppose the Motion on the ground of relevance or burden; rather, the Opposition alleged only that Plaintiff had failed to comply with their meet and confer obligations under Fed. R. of Civ. P. and Local Rule 37, and cursorily stated that the volume of Plaintiff's discovery requests is grossly disproportional to the needs of the case. Id. Defendant attempted to justify the brevity of their Opposition by arguing Plaintiff belatedly reneged on an agreement to withdraw the Motion on the day the Opposition was due, forcing Defendant to scramble to file a timely Opposition. Id. Notably, Defendant did not request an extension of time to file the Opposition or seek permission to file any supplemental brief.

On April 5, 2023, Plaintiff filed a Reply explaining that they had only agreed to withdraw the Motion to Compel upon receiving certain discovery from Defendant. Dkt. 18 at 2–3, 7. Though Defendant apparently provided some additional material, Plaintiff's counsel did not find it to be complete, and thus declined to withdraw the Motion. Id. Plaintiff's counsel acknowledged he neglected to request an informal discovery conference pursuant to the undersigned's procedures listed on the Court's website, but noted that he promptly attempted to schedule one when he realized his mistake, and that the Court ultimately gave him permission to proceed without such a conference; he argued that he otherwise was diligent in his attempts to meet and confer. Id. at 5–6.

*2 On April 24, 2023, the Court granted Plaintiff's Motion to Compel in full, ordering Defendant to provide further discovery by May 5, 2023 and to pay Plaintiff's reasonable expenses incurred in bringing the Motion to Compel. Dkt. 22. The Court found Plaintiff had substantially complied with his meet and confer obligations under Fed. R. of Civ. P. and Local Rule 37 and that Defendant had failed to meet their burden to show the discovery was not justified. Id.

On May 1, 2023, Defendant filed a “Motion for Relief” before the district judge. Dkt. 24. Though the Motion appeared to seek reconsideration of the Court's April 24 order, it did not cite or apply the relevant standards, citing only Local Rule 7-17, which requires that any motion seeking relief from a judge's prior order should be presented to the same judge whenever possible.[1] Id. The Motion requested that the district judge “reconsider its Ruling and schedule an Informal Discovery Conference to address the scope of Plaintiff's discovery requests.” Id. at 11.

On May 3, 2023, the district judge struck Defendant's Motion for Relief, noting that any request for an informal discovery conference should be made to the undersigned magistrate judge. Dkt. 26.

Notably, Defendant did not seek an informal discovery conference before this Court. Rather, Plaintiff sought an informal discovery conference on other discovery issues, as well as on the instant Motion for Sanctions. Declaration of Stephen Parnell in Support of Motion for Sanctions (“Parnell Decl.”) at ¶ 17–21. The Court scheduled an informal discovery conference, but, pursuant to its typical procedures, notified the parties via email that an informal discovery conference is not a substitute for a briefed Motion, and that no orders would result from an informal discovery conference. Dkt. 31. Plaintiff's counsel took this to mean that discussing the instant Motion for Sanctions at the conference would be pointless, as Defendant's alleged violation of a prior order would necessitate further orders. Parnell Decl. at ¶ 17–21.

Accordingly, on May 9, 2023, Plaintiff filed the instant Motion for Sanctions. Dkt. 28. Plaintiff argues that Defendant has yet to provide the discovery compelled by the April 24 order and seeks sanctions in the form of issue preclusion on affirmative defenses 6–10 and reasonably incurred fees and expenses. Id.

On May 17, 2023, Defendant filed an Opposition to the instant Motion. Dkt. 32. Defendant essentially admitted they have yet to fully comply with the April 24 order, maintaining that they are requesting relief from the order and intend to refile their Motion for Relief if the informal discovery conference did not resolve the discovery issues. Id. at 5–6. They argue that they had substantially complied with the discovery requests before Plaintiff had even filed the Motion to Compel, and the remaining discovery sought “has no bearing on Plaintiff's prima facie case” and is otherwise disproportionate and burdensome. Id. at 2–6. Defendant also argues they have not otherwise engaged in discovery misconduct that would justify the imposition of sanctions. Id. at 6–9. Notably, like many of their other filings, Defendant's Opposition cites primarily California caselaw. See id. Defendant also filed a “Separate Statement” which detailed Defendant's efforts and objections with respect to each pending RFP. Dkt. 31–1.

*3 On May 22, 2023, Plaintiff filed a Reply and objections to Defendant's Separate Statement and Defendant's counsel's declaration. Dkts. 34–36. Plaintiff notes that Defendant failed to address their failure to provide responses to Plaintiff's Requests for Admission or Interrogatories. Dkt. 36 at 7–8. Plaintiff also argued that Defendant's Separate Statement should be stricken for failure to comply with applicable Local Rules, and in any case, appeared to be a belated attempt to oppose Plaintiff's Motion to Compel.[2] Id. at 8–9. Plaintiff also argued that Defendant's failure to provide the requested discovery is not substantially justified or harmless, explaining the specific relevance of the requests that Defendant cited in their Opposition as irrelevant and disproportionate. Id. at 9–16.Finally, Plaintiff argues that Defendant's conduct demonstrates that escalating sanctions in the form of issue preclusion is the appropriate next step. Id. at 16–18.

On May 24, 2023, the Court held an informal discovery conference addressing the other discovery issues, but declined to entertain arguments related to the Motion for Sanctions, which was already scheduled for oral argument on June 7, 2023, or arguments related to matters outside the scope of the request for the conference, including any hypothetical motion for reconsideration of the April 24 order. Dkt. 37.

On May 31, 2023, both parties separately requested to appear remotely for the June 7, 2023 hearing on the instant Motion; the Court granted the parties' requests. Dkts. 38–39, 42–43. On June 6, 2023, Defendant refiled the previously stricken Motion for Relief, which is set for hearing before the district judge on July 7, 2023. Dkt. 44. On June 7, 2023 the Court heard oral argument on the Motion. Dkt. 46.

A. APPLICABLE LAW

Federal Rule of Civil Procedure 37(b)(2)(A) authorizes a district court, in its discretion, to enter sanctions against a party who violates a discovery order. Fed. R. Civ. P. 37(b)(2)(A). These sanctions may include evidentiary sanctions or rendering a default judgment against the disobedient party. Id. Instead of, or in addition to, these sanctions, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

B. ANALYSIS

Here, Defendant essentially admits they have not fully complied with this Court's April 24 order compelling production of Requests for Production Nos. 1–52, Interrogatories Nos. 1–17, and Requests for Admission Nos. 1, 4–16. See Dkts. 32 at 5–6; 32-1. Accordingly, they are, by definition, in violation of a discovery order.

To the extent Defendant seeks to justify its failure to comply with the fact that they are seeking relief from the order, the Local Rules make clear that the pendency of a motion for review does not stay the challenged order; court orders remain in effect until the order is affirmatively stayed or modified.[3] Local Rule 72-2.2 (“Regardless of whether a motion for review has been filed, the Magistrate Judge's ruling remains in effect unless the ruling is stayed or modified by the Magistrate Judge or the District Judge.”). Neither this Court nor the district judge has yet stayed or modified the April 24 order. The Court also notes that Defendant's Motion for Relief was filed just a day before oral argument, and over a month after the April 24 order, and thus may be considered untimely.[4] Indeed, Defendant failed to diligently respond to the district judge's order striking their ambiguous “Motion for Relief,” either by promptly refiling the motion or by attempting to schedule a discovery conference before this Court. Ultimately, Defendant has not shown why a pending—and potentially untimely—motion for relief would provide justification for failing to comply with the April 24 order.

*4 Furthermore, to the extent Defendant's Opposition could somehow be construed as a motion for reconsideration in and of itself, Plaintiff has presented no new law or facts that were not previously considered, nor have they demonstrated this Court failed to consider material facts in the first order. See Local Rule 7-18. Their primary justification for their failure to substantively oppose Plaintiff's Motion to Compel is that Plaintiff's counsel falsely promised to withdraw the motion and reneged on the agreement at the eleventh hour. This argument was considered and rejected by this Court in the April 24 order. See Dkt. 22. In any case, this argument is sharply undercut by Defendant's failure to request an extension of time to oppose Plaintiff's Motion to Compel; if the Court found Defendant's account of Plaintiff's counsel's conduct to be at all plausible, the Court would have likely found good cause to extend the briefing schedule and postpone the hearing. Defendant did not make such a request, and thus the Court made a ruling based on the briefing before it. Defendant cannot now belatedly seek a second bite at the apple.

Accordingly, Defendant appears to be in clear violation of the April 24 order, refusing to complete document production. The Court notes that it has already ordered monetary sanctions in the form of reasonably incurred costs and fees. Still, the Court does not find that the significantly more severe sanction of issue preclusion is appropriate at this time. Defendant's Opposition suggests that, due to the potential volume and difficulty in accessing the documents requested, complete compliance with the April 24 would take longer than the relatively short window established by the order. To the extent Defendant's failure to comply is attributable to a delay in gathering the requisite documents, the Court finds it to be substantially justified. In coming to this conclusion, the Court places particular weight on the fact (1) that Defendant has not been entirely obfuscating their discovery obligations and has supplemented discovery both before and after Plaintiff filed their Motion to Compel; and (2) that Plaintiff waited just four (4) days from the imposed deadline to file this Motion for Sanctions.

With respect to Defendant's ongoing compliance, at the hearing, Defendant detailed their continuing efforts to comply with the April 24 order, which include gathering archived data and over thirty deposition transcripts. Defendant averred that they have been and will continue to make reasonable efforts to comply with the Court's order as the Motion for Relief is pending.[5]

Additionally, the fact that Plaintiff filed the instant Motion as soon as the deadline expired suggests that Plaintiff may not have done his full diligence in attempting to avoid this Motion by working out a discovery schedule with Defendant. Indeed, at the hearing on this Motion, Plaintiff's counsel could not recall what efforts he made to meet and confer with Defendant between the May 5 deadline and the filing of this Motion on May 9. Counsel also appeared to admit that certain deposition transcripts he is seeking are relatively less important to Plaintiff's case in comparison to other documents ordered by the April 24 order—yet, he still expects them to be produced. This reflects that Plaintiff's counsel may not be seeking all discovery entirely in good faith.

Finally, Defendant appears to continuously misunderstand the Local Rules and mechanisms of this Court; though Defendant should not be rewarded for any ignorance of the Local Rules and procedures, there is an important distinction between negligence and bad faith in deciding whether to impose severe sanctions.

Nonetheless, the Court wishes to be clear—Defendant has not been relieved of their duty to comply with the April 24 order. And though Defendant's delay with respect to the document production may be partially justified, there is no similar justification for any delay with respect to the Interrogatories and Requests for Admission. Accordingly, having had nearly an additional month by this point, Defendant should be able to complete that production immediately.

*5 Plaintiff, too, is cautioned that the fact that the Court has granted his Motion to Compel does not empower him to avoid continuing to attempt to conduct discovery in good faith. He should continue to make reasonable compromises where possible and endeavor to avoid further court intervention and the imposition of further sanctions. In other words, he cannot weaponize the Court's April 24 order. Any perceived lack of good faith on Plaintiff's part will continue to result in the Court declining to impose further sanctions.

Plaintiff's Motion for Sanctions is therefore DENIED, without prejudice. Defendant shall provide the answers to Plaintiff's Requests for Admissions within five (5) days. Defendant shall make all reasonable efforts to supplement their document production by June 30, 2023.[6]

IT IS SO ORDERED.