*1 Pending before the Court are two discovery-related motions: (1) Plaintiff's Motion to compel further responses to his discovery requests (ECF 37); and (2) Plaintiff's Motion to compel the deposition of Defendant's Rule 30(b)(6) witness (ECF 38.) The parties each ask for sanctions against their opponent. (ECF 37, 37, 40, 41.)

For the reasons stated below, Plaintiff's Motions are granted in part and denied in part. The requests for sanctions are denied.

I. Factual Background

This action involves a claim under the Song-Beverly Act, California's lemon law. In February 2023, Plaintiff leased a new Hyundai Kona electric car. (ECF 1-1 at 6.) The leased car came with a warranty. Soon after the beginning of the lease, Plaintiff had issues with the car, which required him to return the vehicle to the dealer on several occasions. Plaintiff claims that each time he presented the car to the dealer, he demanded that Hyundai repurchase the car, and Hyundai refused. (ECF 1-1 at 10.)

Ultimately, the car was involved in an accident, in which Plaintiff claims that the car accelerated while the driver was pressing on the brakes. (ECF 1-1 at 8.) Hyundai claims there was no defect with respect to the car's brakes, and that the car's data recorder reflects that, in the moments before impact, the gas pedal was pressed and the brake pedal was not. (ECF 1-1 at 9.)

Plaintiff sues under the Song-Beverly Consumer Warranty Act (California's lemon law), along with related claims. Plaintiff seeks compensatory damages and a civil penalty, along with his costs and fees. (ECF 1-1 at 14.) Defendant denies liability. (ECF 8.)

Trial in this case is currently set for November 26, 2024. The discovery cutoff in this case is currently set for June 28, 2024.[1]

II. Analysis

A. Impact of Pending Motions

As an initial matter, the pending discovery Motions are litigated in the shadow of two other motions that are pending before the District Judge. The first is Plaintiff's Motion to amend his Complaint to convert it into a class action. (ECF 25.) The second is Defendant's Motion to compel arbitration. (ECF 23.) Both Motions, if granted, would affect the trajectory of the case going forward. Even so, the Court declines to consider the potential effect of either Motion here.

As to Plaintiff's Motion to amend the Complaint, the Court does not consider the allegations in the amended complaint when deciding what discovery is relevant and proportional to the needs of the case. Plaintiff's Motion has not yet been granted. Unless Plaintiff is authorized to proceed with a class action complaint, it would not be appropriate for this Court to treat the proposed amended complaint as the operative complaint.

*2 Defendant, for its part, moved to compel arbitration. But it did not request, let alone obtain, a stay of discovery in the interim. Unless and until the case is sent to arbitration, this Court and the parties must proceed with the existing deadlines, including the discovery cutoff, as set by the District Judge. Maharaj v. Charter Commc'ns, Inc., No. 20CV64-BAS-LL, 2021 WL 1428489, at *5 (S.D. Cal. Apr. 15, 2021) (“[T]here is no rule requiring the automatic stay of discovery while a motion to compel arbitration is pending.”).

B. Requests for Production

Plaintiff served Requests for Production of Documents on March 5, 2024. (ECF 37-2 at 10.) The document requests can be divided into two groups. RFP numbers 1-12 request documents and communications relating to Plaintiff's own vehicle—communications relating to Plaintiff and his car, documents relating to Hyundai's investigation of Plaintiff's car, the data from the vehicle's Event Data Recorder, and any information supporting Hyundai's claim that there was no defect in the car. (ECF 37-2 at 5-6.) RFP numbers 13-26 seek information about similar defects in other cars of the same make and model, and information about what Hyundai and government regulators have done to investigate this defect.

In response to the discovery requests, Defendant served Objections on April 4, 2024. (ECF 37-3.) Defendant objected to all 26 requests using boilerplate language: the requests are irrelevant, vague, ambiguous, overly inclusive, unduly burdensome, violates a list of privileges, and violates the third-party rights of others.

There were meager attempts to meet-and-confer, initially stymied by defense counsel's apparent refusal to discuss discovery while the arbitration motion was pending. On April 25, 2024, this Court held an informal discovery conference, and instructed Defendant to meet and confer with respect to the RFPs. The Court reminded Defendant that, in the absence of a stay of discovery, the pending arbitration motion provided no basis for Defendant to refuse to participate in the discovery process. The Court instructed the parties to report back no later than May 3, 2024. On that date, Plaintiff reported that Defendant had indicated its intent to supplement its responses by May 15, 2024.

On June 3, 2024, Plaintiff filed the instant Motion to compel. In his Motion, Plaintiff's counsel provided a declaration representing that Defendant, notwithstanding its agreement to supplement its responses by May 15, 2024, had not provided any supplemental discovery, nor had defense counsel been willing to engage in any meet-and-confer attempts since May 15th. (ECF 37.)

Defendant does not appear to dispute Plaintiff's characterization. Even so, it argues that the Motion should be denied (a) for violations of the Local Rules, including font size, pagination issues, and timeliness; and (b) because the requested documents are not relevant, are not proportional to the needs of the case, and their production would impose an undue burden.

Defendant first argues that the Motion should be struck because it does not comply with the Local Rules. Its argument is maddening, given Defendant's failure to comply with this Court's instructions, and far more substantive provisions of the Rules than the ones Plaintiff is alleged to have violated. This Court instructed Defendant to meet and confer regarding its good faith objections to Plaintiff's requests. It appears that there was some attempt to do so; the record contains an email in which Defendant briefly noted its objections to particular RFPs, and indicated its intent to supplement some of its responses. But Defendant failed to follow through, after stringing Plaintiff along for weeks. Plaintiff claims that when he attempted to engage Defendant to discuss the matter during that time frame, he was stonewalled, even as he received discovery requests from the same email address to which he was sending his requests to meet and confer. The Court does not read Defendant's Opposition to contradict those facts—nor did it meaningfully dispute Plaintiff's similar claims about refusals to meet and confer during the IDC held in April. (See ECF 41 at 3.) Defendant's failure to meaningfully meet and confer has led to a Motion that is far less focused than it should have been.[2]

*3 In any event, the Court has considered Defendant's argument about Plaintiff's rule violations. The Court has discretion to deny a motion for failure to comply with the rules, but declines to do so in this instance.

As to the font size, it does appear that Plaintiff's font is smaller than 14-point, as required by Local Rule 11-3.1.1. The Court is not inclined to deny the Motion for that violation. Plaintiff's brief was just under 10 pages. The first two pages are the Notice of Motion, which the Court would not normally count toward the page limit; under the Local Rules, a memorandum of points and authorities in support of a Motion is separate from the Notice of Motion and is subject to separate page limits. Local Rule 7-5. The last page and a half of the document is a request for sanctions, which could have been filed as a separate pleading. What remains may be more than ten pages in the required font, but barely so. And nitpicking aside, had Plaintiff requested a slightly oversized Motion and noted the 26 outstanding RFPs as to which Defendant had provided no supplemental discovery despite promising to do so, the Court would have likely granted such a request. For these reasons, the Court declines to dismiss the Motion based on improper font size. Plaintiff is reminded, however, that it must not only comply with the Local Rules regarding font, but must also certify that its filings comply with the type and word or page limits—a certification that, in fact, both parties failed to provide. Local Rule 11-6.2.

As to the timeliness of the Motion, Defendant is correct that the Motion was scheduled on less than 28 days' notice. Any prejudice Defendant might have suffered from that violation was cured by the fact that the Court sua sponte reset the hearing for a period that did comply with the 28-day requirement. Defendant does not make any serious argument otherwise. As such, the Court will not strike Plaintiff's Motion on this basis.

In acting sua sponte, though, the Court inadvertently created a different problem: Plaintiff noticed his Motion for three days before the discovery cutoff. The Court moved the hearing to four days after the discovery cutoff. The Court did so without seeking input from either party, and without noting the significance of the dates. And neither party brought this fact to the Court's attention in their briefing. In moving the hearing, the Court may have lulled Plaintiff into believing the Motion was adequate under the District Judge's order for discovery when it was not. Plaintiff therefore did not take steps it otherwise may have taken—including requesting an Order to shorten the 28-day period set under Local Rule 6-1. Given Plaintiff's credible assertions of Defendant's foot-dragging, the Court probably would have authorized such a request. To cure any prejudice caused by the Court's mistake, the Court will order Defendant to comply with any discovery ordered to be produced on a date beyond the discovery cutoff, as described below.[3]

*4 In sum, the Motion will not be denied based on Plaintiff's violations of the Local Rules.

As for Defendant's substantive objections, the Court first notes that, while Defendant objected to each of Plaintiff's RFPs in its initial responses, Defendant's Opposition in this Court appears to be limited to Plaintiff's requests about defects in other cars—RFP numbers 13-26. Defendant's Opposition does not argue that the Motion should be denied as to RFP numbers 1-12 because those requests seek irrelevant documents or because the burden of responding to those requests would be overly burdensome. The Court concludes that the lack of any such argument in the Opposition, coupled with Defendant's previous agreement to produce responsive documents to these RFPs (see ECF 41-3 at 4-5), serves to forfeit any opposition to Plaintiff's Motion to compel a response to RFP # 1-12.

The Court will therefore grant Plaintiff's Motion to compel responses to RFP numbers 1-12. Defendants must produce responsive documents no later than July 10, 2024.

During the hearing, Defendant voiced concerns about whether RFP numbers 1-12 might include within their scope attorney-client privileged information. The Court will not treat the failure to oppose the Motion as a waiver of attorney-client privilege. As such, in its responses to Plaintiff's RFP numbers 1-12, Defendant may assert attorney-client privilege as to specific documents that it intends to withhold on attorney-client privilege grounds. As a reminder, the party asserting the attorney-client privilege has the burden of proving that the privilege applies to a specific communication or document. In re Grand Jury Subpoenas (Hirsch), 803 F.2d 493, 496 (9th Cir. 1986). Accordingly, when a party withholds otherwise discoverable information by claiming that the information is privileged, the party must describe the nature of the communications or documents in a way that will enable other parties to assess the claim. According to the Ninth Circuit, a party may meet this burden by producing a log that identifies “(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3 (9th Cir. 1989)). Defendants must strictly follow these rules concerning any document withheld on attorney-client privilege grounds.

RFP numbers 13-26 relate to documents concerning other Hyundai vehicles that have similar self-acceleration defects. Defendant's substantive objections to RFP numbers 13-26 are that the discovery sought is not relevant as the requests seek information beyond the subject vehicle, are overbroad, and the requested documents would be burdensome to produce.

Rule 26 of the Federal Rules of Civil Procedure provides that a party may obtain discovery “regarding 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). Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Even so, the scope of discovery is not without limits; the discovery sought must be relevant and the request must be proportional to the needs of the case. The party seeking to compel discovery “has the initial burden of demonstrating relevance” under Rule 26. See Integon Preferred Ins. Co. v. Saavedra, No. CV 18-06689-GW (RAO), 2019 WL 4228372, at *2 (C.D. Cal. July 12, 2019) (citations omitted). Thereafter, “[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005)).

*5 Defendant's primary argument is that discovery relating to cars other than Plaintiff's own vehicle is irrelevant. Defendant goes so far as to say there is “no authority which permits Plaintiff's request for documents regarding other vehicles and owners.” (ECF 41 at 10.) That is not correct. Discovery relating to similar defects in other vehicles has been found relevant in Song-Beverly cases. For one thing, “whether the same defects were reported to [Defendant] in other cars of the same make, model, and year as Plaintiff's subject vehicle could conceivably be relevant to whether [Defendant] acted reasonably in denying Plaintiff's warranty claim.” See Jensen v. BMW of N. Am., LLC, 328 F.R.D. 557, 562 (S.D. Cal. 2019)

Second, discovery relating to vehicles of the same make, model, and year, with the same defect is relevant to Plaintiff's willfulness claim. See Zargarian v. BMW of N. Am., LLC, No. CV 18-4857-RSWL (PLAx), 2019 WL 6111732, at *8 (“The Court finds that in light of the willfulness analysis that will be required pursuant to the Song-Beverly Act,” discovery “limited to plaintiff's vehicle and vehicles of the same make, model, and year as plaintiff's vehicle with the N63 engine, and with the same “engine defects” or symptoms experienced by plaintiff as reflected in his vehicle's repair history, are relevant and proportional to the needs of this case.”); Siyu Dong v. BMW of N. Am., LLC, No. 19CV02202-DMS (BGS), 2020 WL 5891525, at *7 (S.D. Cal. Oct. 5, 2020) (finding that “the relevance of same defects in other same BMW vehicles goes to the issue of willfulness under the Song-Beverly Act” and narrowing 30(b)(6) discovery to testimony “about other BMW vehicles of the same make, model and year that suffered from repairs to the high-pressure fuel pump described in SIB 01-14-17”)).

Thus, the Court disagrees with Defendant's assertion that discovery relating to cars other than Plaintiff's is not relevant in this case.

Defendant argues that Plaintiff “does not identify any specific request” or “make a single argument anywhere in the Motion as to why any specific request is appropriate.” (ECF 41 at 5.) The Court might be more sympathetic to that point had Defendant taken any of the numerous opportunities to crystallize its objections to the RFPs, so that Plaintiff could address them more directly. Instead, Defendant served boilerplate objections, refused to meet and confer in advance of the IDC, did not describe its specific objections in the meet and confer order to take place after the IDC, and then stalled up to the drop-dead date for filing this Motion.

Defendant also argues, however, that Plaintiff's RFP numbers 13-26 are overbroad. In this respect, Defendant's argument has some purchase. Plaintiff makes no attempt to limit his requests to issues with cars in California, or to complaints from a certain time period, or even to Hyundai Konas from a particular year. Compare Dzavayardzhyan v. BMW of N. Am., LLC, No. CV229259FMOPVCX, 2023 WL 9319038, at *8 (C.D. Cal. Aug. 24, 2023) (granting the motion and limiting the requests to a reasonable 18-month time frame, where Plaintiffs “specif[ied] the year of the vehicle (2022) and the make and model (BMW 740i), ... and the type of defect at issue (defects in the sunroof system, head unit system, etc.) ... [and] limit[ed] the complaints to those brought by ‘California customers.’ ”

Instead, the RFPs as written here are limited only to the “same make and model” and the same or similar self-acceleration and braking problems. Plaintiff has not made a showing that such a broad request is warranted or proportional to the needs of the case. Koeper v. BMW of N. Am., LLC, No. CV 17-6154-VAP (JPRx), 2018 WL 6016915, at *1-2 (C.D. Cal. May 21, 2018) (requesting all documents relating to cars nationwide of same make, model, and year as plaintiff's vehicle was overburdensome given limited relevance).[4]

*6 It is not the Court's role to rewrite discovery requests that are overbroad. Kilby v. CVS Pharmacy, Inc., No. 09-cv-2051, 2017 WL 1424322, at *4 n.3 (S.D. Cal. Apr. 19, 2017) (“Particularly when a party stands on an overly broad request and does not make a reasonable attempt to narrow it or to explain the need for such a broad range of documents and/or information, the Court will not rewrite a party's discovery request to obtain the optimum result for that party. That is counsel's job.”). In this case, the Court could not do so even if were inclined, because it has no way to gauge the burden it would impose by selecting any geographic or date limitation. In this respect, the Court declines to rely on Plaintiff's counsel's off-the-cuff approximations of the number of cars involved—numbers offered for the first time, orally, during the hearing, and not supported with a declaration or other evidence.

The Court therefore declines to reach Defendant's other objections and denies Plaintiff's motion to compel further responses with respect to RFP numbers 13-26 as written.

That said, as to RFP numbers 13 and 14, Defendant indicated in its meet and confer email that it would supplement its responses to these requests “and produce any recalls or technical service bulletins that exist relating to ‘self-acceleration’ that apply to the subject vehicle.” (ECF 41-3 at 6.) The Court expects that Defendant will follow through on its representation to produce these documents. It also reminds Defendant of its continuing obligation to supplement its discovery responses in a timely manner. Fed. R. Civ. P. 26(e)(1).

C. Motion to Compel Deposition

Plaintiff's second Motion asks the Court to compel attendance at deposition of a Rule 30(b)(6) witness for Defendant Hyundai Motors America.

As background, on March 14, 2024, Plaintiff noticed the deposition of Defendant's person most knowledgeable, to be conducted on April 8, 2024. (ECF 38-2.) On March 29, 2024, Defendant served objections to the deposition notice—both to the proposed date and to individual areas of inquiry. (ECF 38-3.) Thereafter, Plaintiff wrote a letter responding to the objections and offering to consider alternative dates. (ECF 38-4 at 3.) Plaintiff's Motion describes thwarted attempts thereafter to discuss the scheduling of the deposition with Defendant. (ECF 38 at 5-6.)

Defendant's Opposition does not dispute the facts Plaintiff alleges. Instead, Defendant again raises the same font, pagination, and timeliness objections discussed above. Those arguments fare no better with respect to this Motion than they did with respect to the Motion to compel production. Beyond that, Defendant's Opposition raised no objection to Plaintiff's Motion and represented that Defendant will propose a date immediately.

Given that the discovery deadline has passed and the history of the parties' meet and confer efforts, Defendant's promise is appreciated, but insufficient. The Court grants the Motion to compel the deposition of Defendant's 30(b)(6) witness. The deposition must occur no later than July 17, 2024.

While Defendant served objections to Plaintiff's deposition notice, it did not object in its Opposition to any item identified in Plaintiff's notice of deposition. Nor did it respond to the portion of Plaintiff's Motion in which he discussed why Defendant's objections were not well taken. (ECF 38 at 8-11.) It has therefore forfeited any such grounds for opposing this Motion. MarketLinx, Inc. v. Indus. Access Inc., 2013 WL 12133884, at *2 (C.D. Cal. Jan. 2, 2013) (noting “objections that were raised in response to a particular discovery request, but were not argued in the [j]oint [s]tipulation, are deemed waived”) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (“When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion. It generally deems objections initially raised but not relied upon in response to the motion as abandoned.”)). Defendant should prepare its witness to discuss the grounds identified in Plaintiff's Notice. As above, however, any witness may interpose an objection on grounds of privilege, where appropriate.

III. The Parties' Requests for Sanctions

*7 Plaintiff contends that he is entitled to an Order sanctioning Defendant for failing to properly respond to Plaintiff's RFPs and to meet and confer with Plaintiff's counsel in good faith. (ECF 37 at 9 (citing Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure).) He contends he is entitled to sanctions in the amount of $5,934, the amount of the attorneys' fees incurred in bringing the Motion.

Defendant responds that Plaintiff's Motions should be denied and that Defendant should be awarded $1,400 in sanctions for Plaintiff's failure to comply with “essential local and procedural standards.” (ECF 40 at 2, 6 (citing Local Rules 11-3.1.1, 11-3.2, 37).)

Considering the circumstances described herein, and the Court's resolution of the Motions, both parties' requests for sanctions are denied. Going forward, the Court expects the parties to work together in a good faith effort to resolve any further disputes, discovery or otherwise, that may arise, without Court intervention whenever possible, and will not hesitate to award sanctions in this matter should it be presented with reason to do so.

IV. Summary

(1) Plaintiff's' Motion to compel further responses to RFP numbers 1-12 is granted. Defendant shall produce responsive documents to these RFPs no later than July 10, 2024.

(2) Plaintiff's Motion to compel further responses to RFP numbers 13-26 is granted in part as to RFP numbers 13 and 14, and otherwise denied. No later than July 10, 2024, Defendant shall produce “any recalls or technical service bulletins that exist relating to ‘self-acceleration’ that apply to the subject vehicle.”

(3) Plaintiff's Motion to compel the deposition of Defendant's Rule 30(b)(6) witness is granted and the deposition shall be completed no later than July 17, 2024.

(4) The parties' competing requests for sanctions are denied.

IT IS SO ORDERED.