THIS CAUSE came before the undersigned Senior Resident Superior Court Judge on Plaintiff's Second Motion to Compel and Motion for Sanctions Against Defendants Toyota Motor Sales, U.S.A., Inc, and Subaru Corporation (hereinafter sometimes collectively referred to as "the subject Defendants") at a duly scheduled session of Robeson County Superior Court on November 27, 2023. This Court, having read the pleadings, motions, depositions, and submissions of the Parties, and having heard the oral and written arguments of Counsel, and having concluded that Plaintiff's Motion should be granted, hereby issues the following Order pursuant to Rule 37(b) of the North Carolina Rules of Civil Procedure:

1. On January 10, 2022, Plaintiff filed an Amended Complaint in this Action, adding Defendants Toyota Motor Sales, U.S.A., Inc., and Subaru Corporation, among other affiliated entities.

2. Plaintiff served her First Interrogatories, First Requests for Production of Documents, and First Requests for Admissions on Defendant Toyota Motor Sales, U.S.A., Inc., on January 28, 2022, and on Defendant Subaru Corporation on March 16, 2022.

3. Defendant Toyota Motor Sales, Inc., served its answers to Plaintiffs discovery requests on May 12, 2022.

4. Defendant Subaru Corporation served its answers to Plaintiff's discovery requests on June 27, 2022.

5. Said Defendants responses to these written discovery requests contained improper objections and refusals to produce relevant documents and were otherwise unresponsive, as found and concluded in the Court's August 10, 2023 Order, which is incorporated into this Order by reference.

6. Plaintiff served a Notice of Deposition on Defendant Toyota Motor Sales, U.S.A., Inc., on April 18, 2023, with the deposition set for June 1, 2023 in Plano, Texas, which included additional requests for production of documents.

7. Defendant Toyota Motor Sales, U.S.A., Inc. willfully failed to comply with its obligations under Rule 30(b)(6), as found and concluded in the Court's August 10, 2023 Order, which is incorporated into this Order by reference,

8. Plaintiff served a Notice of Deposition on Defendant Subaru Corporation, on May 16, 2023, with the deposition set for June 22, 2023 in Torrance, California, which included additional requests for production of documents.

9. Defendant Subaru Corporation willfully failed to comply with its obligations under Rule 30(b)(6), as found and concluded in the Court's August 10, 2023 Order, which is incorporated into this Order by reference.

10. Neither Defendant Toyota Motor Sales, U.S.A., Inc, or Subaru Corporation served timely objections to the document requests contained in the Rule 30(b)(6) notices.

11. Neither Defendant Toyota Motor Sales, U.S.A., Inc., or Defendant Subaru Corporation filed motions for protective orders to limit the scope of the deposition or the accompanying document requests prior to the taking of the Rule 30(b)(6) depositions.

12. Plaintiff filed a Motion to Compel on July 6, 2023, which was heard on August 7, 2023, at a regularly scheduled session of Robeson County Superior Court.

13. On August 101 2023, this Court entered an Order granting Plaintiff's Motion to Compel, overruling the subject Defendants' objections, and ordering full and complete supplementation, including the production of English versions of materials produced in Japanese, within thirty (30) days of the Order.

14. The Order further included specific requirements regarding the identification of documents for which claims of attorney-client or work product privilege were asserted, and for any documents which Defendants contend are not in their possession or control.

15. Neither of the subject Defendants filed a motion for extension of time or otherwise requested additional time for compliance with the Court's August 10, 2023 Order prior to the expiration of the thirty-day time period specified under the August 10, 2023 Order for production.

16. On September 10, 2023, after 8:00 p.m., Defendants served supplemental responses to discovery. These responses violated the Court's August 10, 2023, Order by, inter alia, failing to provide a full and complete supplementation of. all responsive documents including the required English translations, a privilege log, or a log of the documents Defendants contended had been destroyed or were otherwise not in their possession or control. The responses also violated the Court's Order in that they were past due.

17. On September 16, 2023, Plaintiff filed her Second Motion to Compel and First Motion for Sanctions against the Toyota and Subaru Defendants.

18. Defendants served second supplemental productions on October 23, 2023, These included translations of three documents originally produced in Japanese.

19. Defendants violated the August 10, 2023 Order by willfully withholding or otherwise failing to produce English translations of 130 out of the 133 documents that were produced only in Japanese, and which were the subject of the August 101 2023 Order.

20. Defendants violated the August 10, 2023 Order by continuing to produce documents in Japanese without English translations, including in the supplementations following the Court's August 10, 2023 Order.

21. Defendants violated the August 10, 2023 Order by withholding or otherwise failing to produce any additional materials related to the development and design of the subject vehicle including, inter alia:

a. Testing materials;

b. CATIA (CAD) files;

c. CAE (Computer Aided Engineering) files;

d. Compliance reports;

e. Validation testing and materials; and

f. Documents, communications, materials, or computer files related to the change to the design of the side structure of the vehicle model resulting from the preliminary results of the 111-IS crash testing in overlap collisions such as the collision that is the subject of this litigation.

22. Although Defendant Subaru Corporation produced a "Document Retention Policy from the SUBARU Engineering Division", this Court finds and concludes that this Document Retention Policy does not exculpate the subject Defendants from the consequences of withholding relevant, responsive documents that this Court ordered produced.

a. A defendant's unilateral imposition of a Document Retention Policy does not, in and of itself, allow for the destruction or withholding of relevant, discoverable documents.

b. Even if it did, the Retention period under the Policy prescribes a minimum time period for the retention of documents. For example, the retention period for "Preserved Area Data" CAD files is "At least 15 years".

c. Other portions of the Document Retention Policy do not specify any time period whatsoever for the retention of responsive materials, including "CAE data", "Personnel management and education related" files, "Development vehicle related information", "Working area data" CAD files, "TS (Technical standard)" materials, "Development Plan Sheets", "E-mail", and "General and miscellaneous information".

d. The retention period for many requested documents, including CATIA (CAD) files, is 15 years, and that time period has not run as of the time of (1) the spoliation letters sent to the subject Defendants prior to the filing of the Amended Complaint; (2) service of the discovery requests to either Defendant; (3) the subject Defendants' service of their initial discovery responses; (4) the August 10, 2023 Order; or (5) the date of this Order.

e. The affidavits from employees in the respective legal departments simply state that other, unnamed, individuals told them they were unable to find responsive materials during undescribed searches of unidentified file locations. The affidavits did not identify whether the documents were in fact destroyed, who destroyed the documents, or when they were destroyed, nor did the subject Defendants otherwise provide this information. Even if compliance with a unilateral, internal "Document Retention Policy" was a viable justification for the withholding of critical documents that the Court ordered to be produced, this Court finds that the subject Defendants have not shown the Court that they, in fact, complied with their own Policy.

a. The Toyota Policy requires "Long period retention" for many responsive documents, which states that "Document should be kept for Twenty (20) years or more." The Court finds and concludes that this time period has not expired, and would not have expired at the time of the discovery requests.

b. Other documents, such as FMEA materials, design review documents, "IC evaluation related documents", "HV/FC/engine/electronic system evaluation related" documents, and "Test data/video/photo for prototype stage" must be maintained for at least 10 years. The Court finds and concludes that the time period would not have passed from production of either the 2013 vehicle or the 2014 design change at the time of the discovery requests, and Defendants have not shown that the time period would have expired prior to the Court's August 10, 2023 Order.

c. Even if the time period had expired prior to the Court's August 10, 2023 Order, and even if this Policy would otherwise excuse or justify the destruction of relevant, responsive documents — which it does not — the Policy specifically states: "Notwithstanding the above, in case of the certain .situation occurs, such as litigation purpose or governmental investigation purpose, documents which could be relevant to those matters should not be discarded until the situation is resolved." Thus, any destruction would have violated the Policy.

a. The following facts shall be designated as established as against Defendants Toyota Motor Sales, U.S.A., Inc. and Subaru Corporation:

i. The Subaru and Toyota Defendants jointly designed and developed the subject Scion FR-S;

ii. The Subaru and Toyota Defendants had a joint obligation to ensure that the subject Scion FR-S was reasonably safe and free of design and manufacturing defects;

iii. The engine compartment and firewall of the subject Solon FR-S were defectively designed and manufactured;

iv. The side structure of the subject Scion FR-S was defectively designed and manufactured;

v. The Subaru and Toyota Defendants had actual and/or constructive knowledge that the engine compartment, firewall, and side structure of the subject Scion FR-S were defectively designed and manufactured at the time of sale;

vi. The Subaru and Toyota Defendants had actual and/or constructive knowledge that the engine compartment, firewall, and side structure of the subject Scion FR-S were defectively designed and manufactured at the time of the crash that is the subject of this litigation;

vii. At the time that the subject Scion FR-S was designed and manufactured, a safer, practical, feasible, and otherwise reasonable alternative design to the side structure of the subject Scion FR-S could have been reasonably adopted and would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the subject Scion FR-S; and

viii. At the time that the vehicle was designed and manufactured, a safer, practical, feasible, and otherwise reasonable alternative design to the engine compartment and firewall of the, subject Scion FR-S could have been reasonably adopted and would have prevented or substantially reduced the risk of harm without substantially impairing the usefulness, practicality, or desirability of the subject Scion FR-S.

b. The following Paragraphs of Plaintiff's Amended Complaint shall be deemed as established as against Defendant Toyota Motor Sales, U.S.A., Inc.:

i. Paragraphs 71-73 and Subparagraphs 74(a)-(g) and (i);

ii. Paragraphs 79-82 and 86; and

iii. Paragraphs 89-93, 95-96, and 102.

c. The following Paragraphs of Plaintiff's Amended Complaint shall be deemed as established as against Defendant Subaru Corporation:

i. Paragraphs 104-16 and Subparagraphs 107(a)-(g) and (i);

ii. Paragraphs 112-115 and 119; and

iii. Paragraphs 122-126, 128-129, and 135.