Case Number: 21STCV40909    Hearing Date: September 1, 2022    Dept: 31

MOTION TO COMPEL DEPOSITION OF PMK WITH PRODUCTION IS GRANTED, IN PART

Background 

On November 05, 2021, Plaintiff Ana Jimenez filed a Complaint against General Motors, LLC (“GM”) and Does 1 to 20 for violations of the Song-Beverly Act.

On August 08, 2022, Plaintiff moved to Compel the Deposition of Defendant General Motors LL’s Person(s) Most Knowledgeable, with Production of Documents.

Defendant GM filed an Opposition on August 17, 2022.

Plaintiff filed a Reply on August 25, 2022. 

Legal Standard 

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)  

Discussion

  1. Deposition of Person(s) Most Knowledgeable (PMK) 

On December 13, 2021, Plaintiff noticed the deposition of GM’s PMK, with a production of documents request. (Kim Decl. Ex. 1.) Plaintiff admits that the deposition was unilaterally set for December 27, 2021, but states they enclosed a meet and confer letter notifying GM of their willingness to accommodate GM at a date convenient for GM. (Id. Ex. 2.) Plaintiff asserts that GM did not object to the deposition and did not appear at the December 27, 2021, deposition. (Id. Ex. 3.)

On January 4, 2022, GM served untimely objections to the deposition with boilerplate objections. On January 25, 2022, Plaintiff tried to meet and confer with GM regarding GM’s objections. On February 2, 2022, GM agreed to produce its PMK as to certain categories.  (Kim Decl. Ex. 5.) On April 22, 2022, the Parties participated in an informal discovery conference (IDC) but the issues relating to the PMK remained unresolved.

Plaintiff’s Notice of Deposition enumerates 20 categories for which she requests GM’s PMK. GM represents it would offer a PMK as categories 1-2, 5, 7, and 10-12. Accordingly, the motion is moot as to those categories.

Plaintiff seeks information pertaining to the repair history, technical service bulletins, recalls, repairs and diagnostic procedure involving the Subject Vehicle and whether Defendant’s failure to comply with the Song-Beverly act was “willful” for purposes of Civil Code Section 1794(c). 

Category 3 

Category 3 asks: “Why these Technical Service Bulletins were issued;”

The Court agrees with GM’s assertion that the request is overly broad and unduly burdensome and should be limited to vehicles of the same year, make, model, and based on the same alleged defects as the Subject Vehicle. 

Category 4 

Category 4 asks: “The process by which a Technical Service Bulletin is issued including but not limited to all criteria, data, or information relied upon;” 

The request is to be limited to TSBs for vehicles of the same year, make, model, and based on the same alleged defects as the Subject Vehicle. 

Category 6 

Category 6 asks: “All recalls applicable to the Subject Vehicle, including those superseded;”

The Court finds that Plaintiff is entitled to a witness confirming that no recalls have been issued for vehicles of the same year, make, and model, if that is the case here.  

Category 8 

Category 8 asks: “Defendant’s policies and procedures for evaluating whether a vehicle qualifies for repurchase or replacement under California Lemon Law in place at the time of Plaintiff’s contact, as well as current ones;”

The Court agrees the request is overly broad in that it seeks information not limited to the Subject Vehicle. Accordingly, the category is limited to policies and procedures for evaluating a repurchase or replacement request for vehicles of the same year, make, and model as the subject vehicle.  GM has failed to provide evidence that the category seeks privileged information or trade secrets and there is no reason why GM cannot object at the deposition to any such of those questions that purport to do so. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220 [the responding party has the burden of establishing a valid objection, including any claim of privilege.].) 

Category 9 

Category 9 seeks: “Defendant’s warranty policies and procedures in place at the time from Plaintiff’s purchase of the Subject Vehicle to the filing of this lawsuit governing or pertaining to the Subject Vehicle, repairs, and warranty repairs reimbursement;”

The Court finds Defendant’s objections to category 9 is invalid given that GM has failed to articulate why the information sought is overly broad, burdensome, or irrelevant. The information sought is  relevant. 

Category 12 

Category 12 seeks: “All information regarding diagnostic procedures consulted and followed while diagnosing Plaintiff’s concerns for the Subject Vehicle;”

This category seeks information uniquely within the knowledge of the GM authorized dealership. Plaintiff must first seek that information from the dealership.

Category 13 and 14

. Category 13 seeks: “The full names and addresses of anyone involved with the investigation and/or subsequent denial to repurchase the Subject Vehicle;” Category 14 seeks: “The name of those individuals’ employer;”

The names of any such individuals shall be disclosed. The other information shall not be disclosed as such disclosure would violate the privacy rights of third parties.

Category 15

Category 15 seeks: “The identity of all individuals responsible for ensuring that vehicles are repurchased under the California Lemon Law at the time of Plaintiff’s contact and currently with General Motors LLC, including all managers and supervisors;”

The Court agrees that the request is overly broad and burdensome to the extent that the information is not limited to the Subject Vehicle and is broad in scope. In that regard this category overlaps with Category 13 and will be disallowed. The Court will note that GM has failed to provide evidence that the category seeks privileged information or trade secrets.

Category 16 

Category 16 seeks: “All agreements in place, including but not limited to indemnity agreements, service agreements, and operating agreements for the production of these individuals at deposition;”

The request is overbroad and burdensome, as well as unintelligible. Plaintiff may ask the PMK witness(s) if his/her appearance at the deposition is subject to any such agreement.

Category 17 

Category 17 seeks: “Your ability to produce any of these individuals for deposition;”

This category seeks information that is not relevant to any issues in this case and not likely to lead to the discovery of admissible evidence.

Category 18 

Category 18 seeks: “Your ability to produce Alicia, the customer service representative associated with Case #6884655526, for deposition;”

This category seeks information that is not relevant to any issues in this case and not likely to lead to the discovery of admissible evidence.

Category 19 

Category 19 seeks: “The full name and address of Alicia;”

GM must supply the full name of Alicia. If it is GM’s position that lawyers for GM will represent Alicia, no further contact information need be supplied.

Category 20 

Category 20 seeks: “The full name and address of Alicia’s employer.”

GM must supply the full name of Alicia. Plaintiff is not entitled to information the disclosure of which will violate a third party’s privacy rights.

Conclusion

Plaintiff’s deposition was properly noticed although the Court frowns up any unilaterally set deposition, especially during the Xmas holidays. However, GM failed to provide alternate dates for the deposition.  Accordingly, Plaintiff’s motion to compel deposition of GM’s PMK is GRANTED, in part subject to the limitations noted above.

  1. Requests for Documents 

Plaintiff’s Notice of Deposition sets forth 16 requests for production of documents.

Request 1 and 2

1)     “All documents related to the Subject Vehicle, including but not limited to the entire warranty history and all warranties that accompanied Plaintiff’s Vehicle at the time of purchase;”

2)     “All documents regarding repairs made to the Subject Vehicle, including but not limited to the cost of these repairs, the time spent completing these repairs and what was actually done to the Subject Vehicle to diagnose and repair Plaintiff’s concerns;”

To the extent that Plaintiff has tried to obtain these documents from the dealership and has been unsuccessful, GM must produce the documents if it has them in their possession.

Request 3 

3)     “All Technical Service Bulletins applicable to the Subject Vehicle, including those superseded;”

To the extent there are TSB’s that address the defects alleged to be found in the Subject Vehicle, these must be produced. Any other TSB’s are not relevant nor likely to lead to the discovery of admissible evidence.

Request 4 

4)     “All recalls applicable to the Subject Vehicle, including those superseded;”

GM asserts that the Subject Vehicle has no current record of any required field actions, including recalls. To the extent that any past field actions exist regarding the defects alleged to be found in the Subject Vehicle, GM must produce those documents.

Request 5 

5)     “All documents reflecting Defendant’s investigation into whether Plaintiff’s Vehicle should be repurchased;”

On a motion to compel, the responding party has the burden of establishing a valid objection, including any claim of privilege. (Coy v. Superior Court¿(1962) 58 Cal.2d 210, 220.) GM has provided no information to permit the Court to assess whether the information sought is privileged. Accordingly, Plaintiff’s request is granted.

Request 6

6)     “All documents reflecting Defendant’s policies and procedures for evaluating, and/or investigating whether a vehicle qualifies for repurchase or replacement in place at the time of Plaintiff’s contact, as well as current ones;”

The category is overly broad and shall be limited policies and procedures regarding vehicles of the same year, make, and model. Subject to said limitation, the request is granted.

Request 7 and 8

7)     “All documents regarding Defendant’s repair procedures consulted and/or followed during the diagnosis and repairs for the Subject Vehicle;”

8)     “All documents regarding diagnostic procedures consulted and followed while diagnosing Plaintiff’s concerns for the Subject Vehicle”;

This category seeks information uniquely within the knowledge of the GM authorized dealership. Plaintiff must first seek that information from the dealership. If Plaintiff has been unsuccessful in obtaining these documents from the leadership, GM must produce these documents if it has or obtained the information sought from the GM-authorized dealerships.

Request 9 and 10

9)     “All documents identifying anyone involved with the investigation and/or subsequent denial to repurchase the Subject Vehicle, including their names and addresses.”

10) “All documents identifying those individuals’ employer;”

On a motion to compel, the responding party has the burden of establishing a valid objection, including any claim of privilege. (Coy v. Superior Court¿(1962) 58 Cal.2d 210, 220.) GM has provided no information to permit the Court to assess whether the information sought is privileged. Accordingly, Plaintiff’s request is granted.

Request 11

11) “All documents identifying any and all individuals responsible for ensuring that vehicles are repurchased under California Lemon Law at the time of Plaintiff’s contact and currently with General Motors LLC, including all managers and supervisors;”

The Court finds the information is overly broad and should be limited to the Subject Vehicle. Since GM has failed to show why such information would be privileged, to the extent that the information is relates to the Subject Vehicle, the request is granted.

Request 12

12) “All documents regarding agreements in place, including but not limited to indemnity agreements, service agreements, and operating agreements for the production of these individuals at deposition;”

See above regarding the same PMK category. Request is denied.

Request 13

13) “All documents regarding your ability to produce any of these individuals for deposition;”

See above regarding the same PMK category. Request is denied.

Requests 14-16

14) All documents regarding your ability to produce Alicia, the customer service representative associated with Case #6884655526, for deposition;

15) All documents reflecting the full name and address of Alicia;

16) All documents reflecting the full name and address of Alicia’s employer.

See above regarding the same PMK category. Request is denied.

  1. Sanctions

Plaintiff has not requested sanctions. None will be awarded.

Conclusion

Plaintiff’s request to Compel Deposition of GM’s PMK and production of documents is GRANTED, in part subject to the limitations outlined above.

Plaintiff to give notice.