*1 This Report and Recommendation is submitted to the Honorable Wesley L. Hsu, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

On August 22, 2023, Jesse Santos Teixeira (“Plaintiff”) filed a Motion for Sanctions against BMW North America (“Defendant”). ECF Docket No. (“Dkt. 63”). After full briefing on the matter, the undersigned issued an order granting the Motion. Dkt. 70.[1] Specifically, the undersigned ordered that Defendant provide “all responsive missing discovery related to the warranty service contracts, service literature, vehicle data, and parts-handling documentation, or a declaration as described [in the order] indicating no further responsive documents exist, by no later than September 29, 2023.” Id. at 13.[2] The undersigned explained that, alternatively, “Defendant may satisfy their obligations with respect to this order by certifying that no further responsive documents exist, explaining their search methodology, and providing a brief explanation rebutting Plaintiff's showing regarding why such documents are likely to exist.” Id. at 11. The undersigned ordered the parties to file status reports by October 6, 2023, and warned that:

Id. at 13. The undersigned also ordered Defendant and their counsel to pay Plaintiff's reasonable costs in bringing the motion, as well as the costs in bringing the underlying Motion to Compel.[3] Id.

On October 6, 2023, the parties filed their status reports. Dkts. 71–72. Defendant's status report indicates that it produced additional documents. Id. Defendant's status report also included the Declaration of Luis Holguin, Lead Engineer, Technical Services with BMW of North America (“Holguin Decl.”). Id., Ex. A. The Holguin Decl. purported to “address[ ] the steps taken to search and inquire regarding the existence of documents requested by plaintiff as described in the Declaration of [Plaintiff's counsel].” Id. at 2. Defendant's status report also included the Declaration of Jacqueline Bruce Chinery, attorney of record for Defendant (“Chinery Decl.”), which purported to “address the further steps taken to understand plaintiff's documents requests, produce additional documents that may be responsive to plaintiff's contentions in his Motion to Compel and supporting Declaration of [Plaintiff's counsel], the subsequent document productions and that the ISTA database used by the BMW dealer technicians is publicly available by subscription, just like the AllData database referred to in the Declaration of [Plaintiff's counsel].” Id. at 2–3, Ex. B.

*2 Plaintiff's status report contends that, of the four (4) categories of documents discussed in the August 22, 2023 order, Defendant produced no additional documents with respect to two (2) of the categories. Dkt. 72 at 2, 5. With respect to the other two (2) categories, Plaintiff contends that Defendant's production was incomplete, and that Defendant failed to explain its failure to produce. Id. at 2, 5–11. Plaintiff also attempts to rebut many of the assertions made by Holguin in his declaration regarding the availability and existence of the types of documents Plaintiff seeks. Id. at 5–14.

On October 15, 2023, Plaintiff filed a Supplemental Status Report indicating that Defendant had produced additional documents, but also arguing that this production remained incomplete, and even cast aspersions on the accuracy of the representations made by Holguin and Chinery in their declarations. Dkt. 77.

Fed. R. of Civ. P. 37(b)(2)(A)(ii) authorizes a district court to issue an order “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii). “A Magistrate Judge may recommend such nonmonetary sanctions by report and recommendation to the District Judge presiding over the case.” RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 493 (C.D. Cal. 2022).

As explained in the August 23, 2023 order, the undersigned found that narrowly-tailored evidentiary sanctions were warranted here due to Defendant's continued violation of the undersigned's previous discovery orders. Dkt. 70. However, before recommending that the sanctions be imposed, the undersigned gave Defendant a final opportunity to comply with previous discovery orders. After reviewing the parties' status reports, the undersigned finds that Defendant has failed to comply with the August 22, 2023 order.

A. THE PARTIES' STATUS REPORTS INDICATE THAT DEFENDANT'S SUPPLEMENTAL PRODUCTION IS INCOMPLETE

First, it is clear that Defendant has not provided all responsive documents. In the August 22, 2023, order, the undersigned found that Plaintiff had provided convincing evidence that further responsive documents existed with respect to four (4) distinct categories of documents. Dkt. 70 at 3–9. Still, as noted above, Defendant has failed to provide any further production for at least two (2) of the categories of documents identified in the order. Furthermore, Plaintiff has pointed out that aspects of the production itself indicate that the production is incomplete. For example, the page numbers on some of the documents Defendant has provided demonstrate that other portions of the documents have not been included in Defendant's production. Dkt. 72 at 5–11. Additionally, the documents indicate that the relevant fault occurred in the vehicle five (5) times, but the data is less complete with respect to three (3) of the fault occurrences as compared to the other two (2). Dkt. 77 at 3. Defendant has not explained these omissions. Finally, Defendant appears to admit that further responsive documents exist, but has not provided them, either without any explanation or by relying on an assertion that the documents are “publicly available” to Plaintiff through a paid subscription service. Id. at 11. Considering all of this together, the undersigned finds that Defendant has not complied with the August 22, 2023 order by providing any and all remaining responsive documents.

B. DEFENDANT HAS NOT SUFFICIENTLY SHOWN THAT NO FURTHER RESPONSIVE DOCUMENTS EXIST

As noted above, the undersigned gave Defendant an alternative path to comply with the August 22, 2023 order—“by certifying that no further responsive documents exist, explaining their search methodology, and providing a brief explanation rebutting Plaintiff's showing regarding why such documents are likely to exist.” Dkt. 70 at 11. Defendant has attempted to comply through this method by submitting declarations from Defendant's counsel and Luis Holguin, who is employed by Defendant as a Lead Engineer in Defendant's Technical Services department. Holguin Decl.; Chinery Decl. However, Defendant's declarations are insufficient for at least three (3) reasons.

*3 First, the declarations do not explicitly certify that no further responsive documents exist for all four (4) categories of documents. With respect to the warranty service contract documents and service literature, neither Holguin nor Defendant's counsel state that no further responsive documents exist. See Holguin Decl. ¶¶ 3–4; Chinery Decl. ¶¶ 3–6. Indeed, the declarations themselves appear to admit that Defendant has responsive documents in its control that have not been produced. Counsel for Defendant states that only “[e]xcerpted portions” of the documents that could be construed as warranty service contracts have been produced. Chinery Decl. ¶ 5. Furthermore, both Holguin and Chinery appear to acknowledge that further service literature may exist, should Plaintiff access it through a paid subscription service. Holguin Decl. ¶ 4; Chinery Decl. ¶ 6.

Second, even where the declarations purport to state that no further responsive documents exist, the declarations either misconstrue Plaintiff's requests or are disguised attempts to relitigate the scope of the Court's prior orders. For example, with respect to the parts-handling documents, Chinery and Holguin state that they do not believe there are any further responsive documents related specifically to Plaintiff's vehicle. Holguin Decl. ¶¶ 7–10; Chinery Decl. ¶¶ 8–9. However, Plaintiff also sought documents related to Defendant's general supply chain, or “logistics model,” in an attempt to rebut Defendant's anticipated argument that they are not responsible for any delay in repairs to supply chain issues. Dkt. 70 at 7. Defendant's declarations do not address these documents at all. Defendant's construction of these requests as limited only to documents specific to Plaintiff's individual vehicle is contrary to the undersigned's prior orders, which found that Plaintiff's requests regarding Defendant's supply chain were relevant to Defendant's affirmative defenses.

Third, Defendant has not sufficiently explained their search methodology or sufficiently rebutted Plaintiff's showing that further responsive documents are in Defendant's control—even after the most recent production. Here, though Defendants have indicated that no further “vehicle data” or “parts-handling” documents exist for Plaintiff's vehicle, Plaintiff has articulated his basis for believing the production provided thus far is incomplete. While a simple certification that “after a search and reasonable inquiry...[Defendant] is informed and believes” that no further responsive documents exist[4] may be sufficient in some cases, here Plaintiff has explained multiple times why both the surrounding circumstances and the documents themselves indicate that further responsive documents should exist in Defendant's control. As the undersigned explained in the August 22, 2023 order, under these circumstances, Defendants must offer an explanation for the missing documents, or at least describe the steps taken to search for the missing documents. Though Holguin's and Chinery's declarations do provide some context about what has already been provided and how it was located, the declarations do not explain why documents or portions of documents have apparently been omitted, nor do they explain the basis for their belief that no further responsive documents exist—i.e., what steps were taken to locate the missing documents. See Holguin Decl.; Chinery Decl. Indeed, Defendant's representations that all responsive discovery has been provided are belied by the fact that, after they filed these declarations with the Court, Defendant provided additional discovery that the declarations indicated had already been provided in full. Dkt. 77 at 2–3. Defendant even incorporated these additional documents into a revised expert report. Id.

Ultimately, though Defendant did provide some further production, and Holguin and Chinery's declarations attempt to engage with Plaintiff's requests more meaningfully than previous briefing on this dispute, the undersigned finds that it is too little too late. Through the declarations, Defendant appears to maintain that Plaintiff's requests, as written, seek irrelevant or disproportionate information. Defendant also maintains that it is not clear what Plaintiff is seeking, despite the fact that Plaintiff has described it in detail in documented meet and confer correspondences and filings before this Court. Even putting aside Defendant's implicit resistance to Plaintiff's requests and the resulting court orders, Plaintiff has pointed to missing pages and gaps in data within the production already provided. Finally, since filing their status report, Defendant has provided additional discovery that appears to contradict representations made in their declarations. Considering all these factors, the declarations provided by Defendant are not sufficiently detailed or responsive such that the undersigned can confidently conclude that Defendant has fully complied with their obligation to conduct a reasonably diligent search for all responsive documents within their control. Accordingly, the undersigned concludes that Defendant has not complied with the August 22, 2023 order, and remains in violation of the Court's prior discovery orders.[5]

*4 For the reasons stated above and those stated in the August 22, 2023 order, the undersigned RECOMMENDS that the district court issue an order: