Case Name: Wojnowski v. Ford Motor Company, et al.
Case No.: 16-CV-293783
Defendant Ford Motor Company (?Ford?) moves for a protective order to restrict access to documents it intends to produce in response to plaintiff Kellie Wojnowski?s (?Plaintiff?s?) requests for production of documents, while Plaintiff moves to compel further responses from Ford to the document requests.
- Background
According to the allegations of the complaint, on or around April 24, 2015, Plaintiff purchased a 2015 Ford Focus. The purchase included a warranty pursuant to which Ford would repair any defects. During that warranty period, several defects covered by the warranty arose, including issues with the vehicle?s transmission, defects causing the vehicle to shudder, and issues with pieces of the vehicle coming off. When Plaintiff took the vehicle in for service, Ford was unable to repair it. Ford also refused to replace the vehicle.
Plaintiff filed a complaint against Ford seeking damages for violations of Civil Code section 1793.2, part of the Song-Beverly Consumer Warranty Act, which regulates manufacturers and distributors who sell goods under an express warranty. Plaintiff also seeks damages for breach of express warranty, breach of the implied warranty of merchantability, and violation of the Magnuson-Moss Warranty Act (15 U.S.C. ? 2301, et seq.).
On June 14, 2016, Plaintiff propounded Requests for Production, Set One (?RPD?) on Ford. On or around July 19, 2016, Ford served unverified responses. Ford subsequently served verifications to its responses on or around August 12, 2016.? Between June 14, 2016 and the date of filing the motion to compel, counsel for the parties exchanged correspondence in an effort to resolve their dispute as to the adequacy of Ford?s responses.
On August 29, 2016 Ford filed a motion for a protective order to prevent Plaintiff from disclosing confidential business information, which was originally set for hearing on October 13, 2016. Plaintiff filed an opposition, including a request for judicial notice and objections to evidence. On October 6, 2016, Ford filed its reply.
On September 26, 2016, Plaintiff filed a motion to compel further responses to the RPD. Ford filed an opposition and accompanying request for judicial notice, and Plaintiff in turn filed a reply.
On October 13, 2016, the Court continued Ford?s motion for a protective order to October 25, 2016 to be heard with Plaintiff?s motion to compel.
- Plaintiff?s Requests for Judicial Notice
Plaintiff seeks judicial notice of various court records from other cases where Ford is identified as a defendant, as well as reports obtained from third-party websites to support its motion to compel and opposition to Ford?s motion for a protective order.
A precondition to taking judicial notice of any matter is its relevance to a material issue under review.? (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) ?Plaintiff fails to demonstrate how court documents from unrelated cases are relevant to the motions before the Court. ?Moreover, the Court is not bound by the rulings of other trial court judges. Plaintiff further fails to demonstrate how documents obtained from third party websites constitute facts that are not reasonably subject to dispute. (See Evid. Code, ? 452, subd. (h)). The requests for judicial notice are therefore DENIED.
III.?????? Ford?s Motion for Protective Order
Ford seeks an order to protect certain proprietary and commercially sensitive information from dissemination to third parties. In particular, Ford is concerned about the dissemination of information related to DPS6 transmissions, the same type of transmission used in Plaintiff?s vehicle, because this information would give Ford?s competitors a competitive advantage. Ford further seeks protection of communications between Ford and its trade partners for the seame reason. The protective order sought would cover both the current production of documents, as well as any future production from Ford.
Upon receiving a demand to produce documents, a responding party may promptly move for a protective order. (Code Civ. Proc., ? 2031.060, subd. (a).) The Court, upon a showing of good cause, ?may make any order that justice requires? to protect to the moving party ?from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.? (Code Civ. Proc., ? 2031.060 subd. (b).)
- Preliminary Issues
- Timeliness of Motion
Plaintiff contends that Ford?s motion is untimely because it was not filed before the 30-day deadline to respond to the request for production of documents.
A party seeking a protective order must move ?promptly? for such an order. (Code Civ. Proc., ? 2031.060, subd. (a).) Plaintiff construes ?promptly? to mean before the expiration of the 30-day deadline to respond to any related document demand because, according to the California Practice Guide for Civil Procedure Before Trial, relief must be sought ?before expiration of the 30-day period within which to respond to the interrogatories, because otherwise the grounds for objection may be waived (citations omitted, italics removed).? (See Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2016) at ? 8:1013 (?Weil & Brown?).)
Weil & Brown does not stand for the proposition put forth. First, the excerpt cited by Plaintiff refers to interrogatories, not requests for production, which are at issue here. Plaintiff also ignores that her cited authority speaks about seeking protective orders to prevent harassment or undue burden. (See Weil & Brown, supra, ?? 8:1011-8:1012.)
A request for protective order may be prompt even after the deadline to respond to requests for production. (See, e.g., Stadish v. Superior Ct. (1999) 71 Cal.App.4th 1130, 1144 [a protective order properly granted to restrict dissemination of trade secrets despite defendant?s failure to object on trade secret grounds in its original response to request for production].)
Here, Ford timely responded to Plaintiff?s discovery request, avoiding a waiver of objections. Ford?s responses included statements that it would seek a protective order, and Ford filed for its motion for the same only two months later. The declarations before this Court demonstrate that Plaintiff and Ford were conferring about the terms of a protective order and that only after it was clear that an agreement could not be reached, did Ford file its motion. Under these circumstances, the motion for protective order is timely.
- Objections to Evidence
Plaintiff makes several objections to evidence presented by Ford in support of its motion for protective order.
Plaintiff has not identified, and the Court is unaware of, any authority for the proposition that a court must rule on objections made in connection with a discovery motion. ?Therefore, the Court declines to rule on Plaintiff?s objections.
- Merits of Motion
Ford carries the burden to demonstrate the existence of a trade secret or confidential information warranting protection. (Stadish, supra, 71 Cal.App.4th at p. 1145.) To demonstrate this, the party must include a declaration: (1) showing the declarant?s qualifications to give an opinion; (2) identifying the alleged trade secret or confidential information; (3) specifying the documents disclosing the confidential information; and (4) presenting evidence demonstrating that the information qualifies as a trade secret or confidential information. (Id. at p. 1144-45 [stating that the procedures to identify trade secrets in Evidence Code section 1061, which applies to criminal matters, should also apply in civil proceedings].)
Plaintiff argues that in order to warrant a protective order, Ford must demonstrate the six factors outlined in Uribe v. Howie (1971) 19 Cal.App.3d 194, 208.[1] Contrary to Plaintiff?s position, Uribe was limited to the protection of only trade secrets and did not discuss the protection of confidential information. (See Ibid.) The grounds for a protective order are not as narrow as Plaintiff asserts, as a protective order can also protect confidential information. (Code Civ. Proc., ? 2031.060, subd. (b)(5); Stadish, supra, 71 Cal.App.4th at p. 1145.)
Here, Ford submits the declaration and supplemental declaration of Matthew Fyie, who states that he is, or at least as of 2015 was, a Design Analysis Engineer and has been employed by Ford for over 22 years. Both declarations were signed in 2015, months before the complaint in this matter was even filed. Ford offers these declarations to demonstrate good cause for the protective order by establishing a foundation for Ford?s claim that the information Plaintiff seeks is confidential.
- Good Cause
As an initial matter, Plaintiff claims the declarations do not state the declarants name and proceeding that the declarations support. (See Cal. Rules of Court, rule 3.1115.) Both declarations of Matthew Fyie include caption pages identifying the instant case and that they are submitted in support of Ford?s motion for a protective order. As such, Plaintiff?s argument as to a violation of rule 3.1115 is without merit.
Plaintiff next argues, without authority, that Mr. Fyie?s declarations are defective on their face because they were signed months prior to the instant action. Mr. Fyie?s declarations do contain some statements that are factually impossible, e.g., ?It is my understanding that Plaintiff in the instant litigation seeks broad categories of documents pertaining to the DPS6 transmission.? (emphasis added). Nevertheless, Mr. Fyie makes statements that, provided they were true at the time that he signed them, would remain true today and would support a finding of good cause for a protective order.
The declarations are not facially defective as they technically meet the requirements for a declaration. The Court does have concerns about the fact that Mr. Fyie did not execute a more current declaration and weighed Mr. Fyie?s facts based on the length of time since the declaration.
In his declarations, Mr. Fyie discusses the DPS6 transmission and Ford?s practices relating to vehicles created up to 2015, which would include Plaintiff?s vehicle. The facts adduced in Mr. Fyie?s declarations demonstrate that the information that Ford seeks to protect is not available to the general public. Further, Mr. Fyie?s declarations demonstrate disclosure of this information would cause Ford competitive harm.
By themselves, Mr. Fyie?s declarations would demonstrate good cause. However, in opposition, Plaintiff offers the declaration of Neil Gieleghem, co-counsel for Plaintiff. Ford did not raise any challenge to Mr. Gieleghem?s statements in its reply.
Mr. Gieleghem?s declarations state that the facts he presents are based on a combination of his own personal knowledge and review of the file, court records and communications with Plaintiff?s counsel. Mr. Gieleghem?s statements cross between personal knowledge, apparent expert opinion, and argument without specifically distinguishing which statements come from which perspective.[2] These statements do not alter or disprove Mr. Fyie?s statements. Accordingly, Ford has met its burden to show good cause as to those categories that Mr. Fyie identifies in his declaration. See Fyie Decl., ? 10.
- Public Interest
Plaintiff next argues that the public interest in Ford?s documents supersedes any interest in Ford?s confidentiality, citing multiple Federal cases in support of the proposition. While the public has an interest in judicial proceedings and the evidence adduced in them, that interest is not absolute. Manufacturers have a legitimate interest in protecting both trade secrets and confidential proprietary information. (Westinghouse Elec. Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1209.) Conversely, the public?s right to discovery materials is limited to those materials that are submitted to the court for adjudication. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Ct. (1999) 20 Cal.4th 1178, 1208, fn. 25.)
Because this case is not yet at trial, the documents Ford seeks to protect are not presently before the court for adjudication purposes. Therefore, the public?s interest is not presently significant enough to deny a protective order on these grounds.
- Degree of Protection
Ford seeks to have the Court enter a protective order with both ?confidential? and ?highly confidential? designations. Ford argues that the ?highly confidential? designation is required for certain documents to protect its competitive interests. This ?highly confidential? designation would permit disclosure only to: 1) trial counsel, specifically defined as outside counsel and not in-house counsel for the parties; 2) outside experts or consultants; 3) those individuals who authored, received, saw, or was otherwise familiar with the documents in question; 4) court reporters in the relevant proceeding; and 5) the Court.
Plaintiff argues that the restrictions placed on the ?highly confidential? designation will necessarily impair her ability to litigate her case. These difficulties would arise from the inability to present certain materials to percipient witnesses, potentially including Ford?s persons most qualified to answer in depositions, or technicians who worked on Plaintiff?s vehicles. Plaintiff also raises concerns about tactical accusations of incidental violations of the protective order because of the draconian restrictions.
A highly confidential protective order of the nature Ford proposes is typically only appropriate when dealing with direct competitors. (See GT, Inc. v. Superior Ct. (1984) 151 Cal.App.3d 748, 751-52.) Ford fails to adequately explain why the ?confidential? designation as outlined in its proposed order is insufficient to protect Ford?s competitive interests for the documents it seeks to protect. Plaintiff is a consumer of Ford?s, not a competitor. As such, there is insufficient good cause to grant Ford the level of the order it seeks. However, Ford has demonstrated good cause by a preponderance of the evidence that a protective order limited to the confidential designation and restrictions would be appropriate.
- Conclusion
For the reasons discussed above, Ford?s motion for a protective order is GRANTED IN PART and DENIED IN PART. The Court finds that the ?highly confidential? designation is unnecessary and both the definition and restrictions imposed by the ?highly confidential? designation should be removed from the order. However, Ford has sufficiently established that the information it seeks to protect should have some level of protection. Thus, the protective order shall be limited to having only the ?confidential? designation. Ford shall prepare and submit the protective order for the Court?s signature.
- Plaintiff?s Motion to Compel Further Responses
Plaintiff seeks an order compelling Ford to provide further responses to RPD Nos. 8, 50, 51, 53-57, 59-61, 67, 69, 75-79, 82, and 90 pursuant to Code of Civil Procedure section 2031.310.
Section 2031.310 authorizes a party propounding a request for production of documents to move to compel a further response if an objection is without merit or too general, a statement of compliance is incomplete, or a representation of inability to comply is inadequate or evasive.? (Code Civ. Proc., ? 2031.310, subd. (a).)? The moving party is required to show compliance with the meet and confer requirement prior to bringing such a motion, and additionally must demonstrate good cause for the discovery sought.? (Code Civ. Proc., ? 2031.310, subds. (b).)
- Meet and Confer
Ford argues that Plaintiff did not make the necessary efforts to meet and confer. A party seeking to file a motion to compel must make a reasonable and good faith attempt to informally resolve the discovery issue. (Code Civ. Proc., ?? 2016.040, 2031.310, subd. (b)(2).) The standard of what satisfies the good faith requirement differs depending on the circumstances of the case. (See Obregon v. Superior Ct. (1998) 67 Cal.App.4th 424, 431.) These factors can include the history of the case, the nature of the interaction between counsel, the nature of the issues, the type and scope of the discovery requested and the prospects for success. (Ibid.)
Plaintiff offers several communications between counsel to demonstrate an attempt to bring the matter to resolution. (Haw Decl. ?? 27-31, Exh. 19-23.) There appears to be an undercurrent of hostility between counsel, reflected both in their communications with each other as well as in their motion papers. It is clear from the correspondence that further communications would serve no additional purpose toward coming to a resolution. A review of the communications leads the Court to believe the communications were sufficient to establish a good faith attempt to meet and confer.
- Separate Statement
A party seeking to compel further responses to a request for documents must file a separate statement. (Cal. Rules of Court, rule 3.1345, subd. (a)(3).) A separate statement must contain, among other items, a statement of the factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345, subd. (c)(3).) Failure to comply with the requirements for a separate statement may lead to the denial of the motion. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [affirming a trial court?s denial of motion on the grounds the separate statement was insufficient].)
Here, Plaintiff submitted a lengthy separate statement in conjunction with her motion to compel further responses. For each item that Plaintiff seeks further responses to, she gives a lengthy 4-9 page basis for compelling. These bases to compel further responses are not always relevant to the particular item in question. For example, for RPD No. 8, Plaintiff seeks the Warranty Policy and Procedure Manual published by Ford from 2015 to the present. Ford objects on the ground that the request is overbroad and not reasonably calculated to lead to admissible evidence and further objects that it is confidential and trade secret information. In discussing the reason why Ford should be compelled to give further responses, Plaintiff argues about Ford?s ?Unduly Burdensome? and ?Oppressive? objections and Ford?s ?Vague? and ?Ambiguous? objections, none of which Ford raises.
The purpose of a separate statement is to assist the Court in determining the validity of a particular request and the validity of the response to that request. The document before the Court fails to do that because it addresses objections or argument that Ford never raised, requiring the Court to expend time to ensure it understood the matter. Counsel are hereby admonished to restrain themselves and avoid such a boilerplate approach to these kinds of matters in the future.
- Good Cause
The burden lies on the moving to establish good cause for the discovery she seeks. (Code Civ. Proc., ? 2031.310, subd. (b)(1).) The moving party establishes good cause when it identifies a disputed fact that is of consequence to the action and explains how the sought discovery will tend to prove or disprove that fact, or lead to other evidence that will tend to prove or disprove it. (Digital Music News LLC v. Superior Ct. (2014) 226 Cal.App.4th 216, 224.)
Plaintiff?s complaint seeks damages for violations of the Song Beverly Consumer Act, Civil Code sections 1790, et seq. To obtain recovery under the Song Beverly Consumer Act, a Plaintiff must prove that the vehicle was covered by an express warranty, the vehicle had a nonconformity covered by that warranty, the vehicle was presented to the manufacturer or authorized representative, and the manufacturer or representative failed to repair the nonconformity. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 152.) Further, if the failure to repair was willful, the judgment amount can include a civil penalty up to two times the amount of actual damages. (Luthaker v. General Motors, LLC (2010) 181 Cal.App.4th 1041, 1051.)
Plaintiff?s discovery requests (8, 50-51, 53-57, 59-61, 67, 69, 75-79, 82, 90) can broadly be divided into two general categories. The first category is that of Ford?s internal investigation process. This category is addressed by RPD Nos. 8, 50, 51, 53, 54, 55, 56, 57, 59, 60, 61, 67, 69, 77, 78, and 82. The second category relates to Ford?s vehicle repurchase procedure and practice. This category is addressed by RPD Nos. 53, 55, 75, 76, 77, 78, 79, and 90. Both categories are relevant to the causes of action in Plaintiff?s complaint. Therefore, she has good cause for the discovery she seeks.
- Objections
Ford raised several objections in each of the subject discovery responses. In its opposition to the instant motion to compel, except for RPD Nos. 67 and 69, Ford does not defend its objections and instead merely states that it already agreed to produce responsive documents pursuant to the requests.
Objections to discovery requests imply a refusal to produce the items sought. (Standon Co. v. Superior Ct. (1990) 225 Cal.App.3d 989, 901.) A party?s failure to defend its objections waives them. (See Kirkland v. Superior Ct. (2002) 95 Cal.App.4th 92, 98.)
With respect to RPD No. 67, Ford attempts to justify its objection on the ground of relevance. Plaintiff uses RPD No. 67 to seek Ford?s document retention policy from 2014 to the present. Plaintiff argues that Ford?s policies are relevant to show Ford?s good faith compliance with the Song-Beverly Act and that the sought document could demonstrate Ford?s willfulness to avoid compliance with the Act. This document is both relevant and may lead to other admissible evidence. As such, Ford?s relevance objection is OVERRULED.
As for RPD No. 69, Ford raises objections on the grounds that the request is burdensome, overbroad, and oppressive to track down any proceeding in 50 states. RPD No. 69 requests all documents concerning expert witness opinions or reports that Ford has used in any proceeding in the State of California. Ford?s justification for its objection is that Plaintiff ?has not demonstrated that their request for Ford?s document retention policies meets the relevancy requirement.? This justification is nonsensical as the request had nothing to do with document retention policies. As such, Ford?s objections on the grounds of burden, overbreadth, and oppression is OVERRULED.
Here, Ford has chosen not to defend any of its objections, except as to RPD Nos. 67 and 69. As such, those objections, except as to attorney-client privilege and attorney work product, are waived. As for objections on the basis of attorney-client privilege and work product, Ford raised these in RPD Nos. 50, 51, 53, 54, 56, 57, 59-61, 69, 75-79, and 90. While Ford did not defend these objections, they are preserved. (See Best Products, Inc. v. Superior Ct. (2004) 119 Cal.App.4th 1181, 1189 [no waiver of attorney-client privilege for failure to defend objection].) Nevertheless, to the extent that Ford has withheld documents based on the claims of privilege or work product, it must prepare and serve a privilege log with sufficient identifying information to allow the Court to determine whether privilege exists. (Code Civ. Proc. ? 2031.240, subd. (c)(1).)
Ford has not justified any of its objections, and as such a motion to compel should be granted. The Court gives particular note to, however, that in Ford?s responses to RPD Nos. 55, 75-79, 82, and 90, Ford identified specific documents it agreed to produce without stating whether these documents constitute full compliance with the request. These responses are not code-compliant. (See Code Civ. Proc., ? 2031.220.) In its further responses to these document requests, Ford must state whether production of these documents would comply with the request in full or in part. (See ibid.)
- Conclusion
In consideration of the foregoing, Plaintiff?s motion to compel further responses to RPD Nos. 8, 50, 51, 53-57, 59-61, 67, 69, 75-79, 82, and 90 is GRANTED.
Ford shall serve verified, code-compliant further responses to RPD Nos. 8, 50, 51, 53-57, 59-61, 67, 69, 75-79, 82, and 90, without objections (except for the attorney-client privilege and attorney work product doctrine which are preserved as to RPD Nos. 50, 51, 53, 54, 56, 57, 59, 60, 61, 69, 75, 76, 77, 78, 79, and 90), within 20 calendar days of the date of this order.
If Ford withholds any documents on the basis of attorney-client privilege or attorney work product, it shall prepare and serve a privilege log in compliance with Code of Civil Procedure section 2031.240, subdivision (c)(1).
[1] These factors are: (1) The extent to which the information is known outside the business; (2) the extent to which it is known by the business? employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and to the business? competitors; (5) the amount of effort or money expended by the business to develop the information; and (6) the ease or difficulty with which the information could be properly acquired by others. (Uribe, supra, 19 Cal.App.3d at p. 208.)
[2] The Court makes no determination whether Mr. Gieleghem qualifies as an expert, nor considers the propriety of counsel acting as an expert.