Dong v. BMW of North America, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIYU DONG, Case No.: 19CV02202-DMS (BGS) 12 Plaintiff, ORDER REGARDING DISCOVERY 13 v. DISPUTE 14 BMW OF NORTH AMERICA, LLC; [ECF 34-35] 15 Defendant. 16 17 I. INTRODUCTION 18 Pursuant to the Court’s order, (Doc. 33), the parties filed a Joint Statement 19 addressing their positions regarding the Plaintiff taking additional Rule 30(b)(6) 20 depositions. (See Doc. 34). As part of this briefing, the Court ordered the parties to meet 21 and confer to identify the topics Plaintiff sought to have the deponents address. (Doc. 33 22 at 1-2). From a review of the Joint Statement as well as the attached exhibits and 23 Declaration, the parties did not meet and confer in order to narrow the topics in dispute.1 24 According to the Defendants, the parties agreed that Defendants would produce 30(b)(6) 25 witnesses to testify about each Defendants’ general knowledge of the Subject Vehicle’s 26 27 1 As regards the topics identified, the Court refers to the deposition topics for which 28 1 service and repair history and the service bulletins (SIBs) that are applicable to the 2 Subject Vehicle. Further, Defendants claim that Plaintiff never raised any objections to 3 these limitations. (Doc. 35 at 2-3).2 Plaintiff has not identified the specific noticed 4 deposition topics that are the subject of this discovery dispute, nor has she addressed 5 Defendants’ contention about the agreed upon limitations. 6 Plaintiff contends that the deposed 30(b)(6) witnesses did not provide essential 7 information related to Defendants’ defense and to Defendants’ willful failure to 8 repurchase Plaintiff’s vehicle. (Doc. 34 at 2). The Court will therefore determine if the 9 Defendants’ 30(b)(6) witnesses could not provide adequate responses to Plaintiff’s 10 questions regarding relevant topics thereby necessitating additional 30(b)(6) witness 11 testimony. The Plaintiff’s dispute concerns only the adequacy of the 30(b)(6) witnesses’ 12 testimony given Plaintiff’s questions. It does not otherwise regard reopening fact 13 discovery to call fact witnesses.3 14 II. LEGAL STANDARDS 15 A. Relevance 16 The test for relevant evidence is defined in Federal Rule of Evidence 401 which 17 provides: “Evidence is relevant if (a) it has any tendency to make a fact more or less 18 probable than it would be without the evidence; and (b) the fact is of consequence in 19 determining the action.” 20 “A plaintiff pursuing an action under the Song–Beverly Act has the burden to 21 prove the following elements: (1) the product had a defect or nonconformity covered by 22 23 2 Defendants admit the parties did not meet and confer about these limitations. (Doc. 35 at 24 3). Defendants refer to meet and confer emails exchanged on 7/27/2020, which are two 25 days before the Court’s order. (Id. at 4). Further, they do not address the meet and confer requirements in the Court’s order. 26 3 The Plaintiff’s conclusion limits her requests to 30(b)(6) witnesses. (Doc. 34 at 10 27 (“Therefore it is Plaintiff’s position that Defendant could now provide their part and produce the above witnesses under this rule [30(b)(6)] regarding the topics covered 28 1 the express warranty; (2) the product was presented to an authorized representative of the 2 manufacturer for repair; and (3) the manufacturer or its representative did not repair the 3 defect or nonconformity after a reasonable number of repair attempts.” Gonzalez v. Drew 4 Indus. Inc., 750 F. Supp. 2d 1061, 1073 (C.D. Cal. 2007) (citing Robertson v. Fleetwood 5 Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 798 (2006)). “A consumer who 6 establishes a manufacturer’s failure to comply with the Song-Beverly Act may recover 7 damages and, if the buyer proves the violation was willful, the judgment may include a 8 civil penalty not to exceed two times the amount of actual damages.” Zargarian v. BMW 9 of N. Am., LLC, Case No. CV 18-4857-RSWL (PLAx), 2019 WL 6111732, at *2 (C.D. 10 Cal. Sept. 23, 2019) (citing Cal. Civ. Code § 1794(c) and Jensen v. BMW of N. Am., Inc., 11 35 Cal. App. 4th 112, 121 (1995)). “A failure to replace or refund the cost of the vehicle 12 is not willful if the manufacturer, distributor, or retailer reasonably and in good faith 13 believed the facts did not call for a refund or replacement.” Id. (citing Kwan v. Mercedes- 14 Benz of N. Am., Inc., 23 Cal. App. 4th 174, 185-86 (1994)). “Thus, an action is not 15 willful where the manufacturer reasonably believed the product conformed to the 16 warranty, or a reasonable number of repairs had not been made, or the buyer desired 17 further repair rather than replacement or refund.” Id. (citing Kwan, 23 Cal. App. 4th at 18 185). 19 “A plaintiff suing for fraudulent concealment under California law must show that 20 the defendant intentionally failed to disclose facts that were known only to it and which 21 the plaintiff could not have discovered; the defendant intended to deceive the plaintiff by 22 concealing the facts; had the omitted information been disclosed, the plaintiff reasonably 23 would have behaved differently; the plaintiff was harmed; and the defendant’s 24 concealment was a substantial factor in causing such harm.” Id. at *3 (citing Lazar v. 25 Super. Ct., 12 Cal. 4th 631, 638 (1996), Cal. Civ. Code § 1710, and Cal. Civil Jury 26 Instruction (CACI) 1901). 27 28 1 B. Proportionality 2 A party may obtain discovery “regarding any nonprivileged matter that is relevant 3 to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. 4 P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the 5 action, the amount in controversy, the parties’ relative access to relevant information, the 6 parties’ resources, the importance of the discovery in resolving the issues, and whether 7 the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 8 Information need not be admissible in evidence to be discoverable. Id. However, a 9 court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] 10 rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be 11 obtained from some other source that is more convenient, less burdensome, or less 12 expensive; (ii) the party seeking discovery has had ample opportunity to obtain the 13 information by discovery in the action; or (iii) the proposed discovery is outside the scope 14 permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). 15 The Advisory Committee emphasized that in adding the proportionality language 16 to Rule 26(b)(1) “the objective is to guard against redundant or disproportionate 17 discovery” and “to encourage judges to be more aggressive in identifying and 18 discouraging discovery overuse.” Fed. R. Civ. P. 26, advisory committee note, 2015 19 amendments. 20 C. Rule 30(b)(6) 21 “Rule 30(b)(6) requires a party to describe with reasonable particularity the matters 22 for examination by a corporate representative.” NEPIA v. Tesoro Ref. & Mktg. Co., No. 23 CV 13-956 BRO (MRWx), 2014 WL 12567786, at *3 (C.D. Cal. Feb. 13, 2014) 24 (citations omitted). The corporation “must make a conscientious good-faith endeavor to 25 designate the persons having knowledge of the matters sought by [the requesting party] 26 and to prepare those persons in order that they can answer fully, completely, and 27 unevasively, the questions posed . . . as to the relevant subject matters.” Mitsui & Co. v. 28 Puerto Rico Water Res. Auth., 93 F.R.D. 62, 67 (D. P.R. 1981). “Simply because 1 [defendant’s] witness could not answer every question posed to him does not equate to 2 the fact that [defendant] did not satisfy its obligation to prepare its 30(b)(6) witness.” 3 Costa v. Cnty. of Burlington, 254 F.R.D. 187, 190 (D. N.J. 2008). 4 The Rule does not expressly require the designee to personally review all 5 information available to the corporation. So long as the designee is prepared to provide 6 binding answers under oath, then the corporation may prepare the designee in whatever 7 way it deems appropriate—as long as someone acting for the corporation reviews the 8 available documents and information. Reichhold, Inc. v. U.S. Metals Refin. Co., Civ. No. 9 03-453 (DRD), 2007 WL 1428559, at *8 (D. N.J. May 10, 2007) (the Rule “does not 10 require that the corporate designee personally conduct interviews,” but, instead, requires 11 him to testify to matters known or reasonably available to the corporation). 12 III. ANALYSIS 13 A. Sufficiency of Defendants’ 30(b)(6) Witnesses 14 1. Mr. Luker’s Testimony About the Subject Vehicle’s Repairs 15 According to the Plaintiff, Daniel Luker, assistant service manager for BMW of El 16 Cajon, did not have information about the repairs to the Subject Vehicle and did not have 17 personal knowledge of these repairs. Further, he could not answer specific questions 18 regarding the diagnosis of the problems with the vehicle. (Doc. 34 at 4). The Plaintiff 19 refers to selected pages of Mr. Luker’s deposition transcript which are highlighted in 20 yellow to support her argument. (Id. at 73-78). 21 The Court has reviewed the selected pages of his deposition transcript regarding 22 whether Mr. Luker was asked questions about these topics to which he could not give an 23 adequate response. For example, she asked Mr. Luker if he had spoken to Jose Diaz, to 24 which he responded in the negative. (Id. at 73). Although he also responded that he was 25 not personally involved in the repairs, there were no follow-up questions regarding those 26 repairs to which Mr. Luker was unable to respond. Lastly, Plaintiff, referring to an 27 exhibit, asked him who was corresponding with technical at BMW regarding the repairs 28 1 to the Subject Vehicle. Mr. Luker could not read the names on the exhibit because they 2 were redacted. 3 In sum, none of the selected parts of his deposition show questions about the above 4 cited topics to which Mr. Luker did not adequately respond. Plaintiff has presented no 5 portions of his deposition in which he could not answer questions about the repairs, nor 6 specific questions about the diagnosis. Plaintiff therefore fails to show Mr. Luker was an 7 inadequate 30(b)(6) witness. 8 The Defendants responded that Mr. Luker, the Assistant Service Manager who has 9 been with the company for 18 years, reviewed hundreds of records related to the Subject 10 Vehicle in preparation for the deposition. (Id. at 13). During his 6-hour deposition he 11 provided complete, knowledgeable and binding answers on behalf of the dealer about 12 multiple topics, including maintenance and repairs that the dealer performed. (Id.) The 13 Defendants also attached portions of his deposition in support of their contention. (See 14 Doc. 35-3 at 2-10). Having reviewed these portions of Mr. Luker’s deposition, the Court 15 finds he testified knowingly and completely about the Subject Vehicle repairs sufficient 16 to bind the corporation. (See id. (highlighted sentences)). 17 As noted, Rule 30(b)(6) does not expressly require the designee to personally 18 review all information available to the corporation. So long as the designee is prepared to 19 provide binding answers under oath, then the corporation may prepare the designee in 20 whatever way it deems appropriate “as long as someone acting for the corporation 21 reviews the available documents and information.” Reichhold, 2007 WL 1428559, at *9 22 (D. N.J. May 10, 2007) (the rule “does not require that the corporate designee personally 23 conduct interviews,” but, instead, requires him to testify to matters known or reasonably 24 available to the corporation). 25 Any additional testimony from the technician(s) who did the repairs would be 26 duplicative and not proportional to the 30(b)(6) issues given not only the testimony given 27 by Mr. Luker, but also the extensive documentary discovery given to Plaintiff regarding 28 the Subject Vehicle. (See Doc. 34 at 12). Further, to the extent Plaintiff wants to depose 1 further witnesses about their personal knowledge of the repairs and diagnosis, Plaintiff 2 seeks their testimony as fact witnesses,4 for which she had ample opportunity during 3 discovery to depose them. See Fed. R. Civ. P. 26(b)(2)(C). 4 2. 30(b)(6) Witness Grijalva 5 a) SIB 01-14-17 6 Plaintiff alleges that the witness5 had no knowledge regarding: the technical 7 service bulletin regarding the fuel pump and its previous versions; when BMW became 8 aware of the recurrent fuel pump failure; or the effectiveness of the bulletin to repair the 9 vehicle. (Doc. 34 at 4). Plaintiff refers to that bulletin being SIB 01 14 17, (Id. at 5), but 10 fails to detail the contents of that SIB for which the witness had no knowledge. In 11 support of these allegations, Plaintiff refers to highlighted and selected portions of Mr. 12 Grijalva’s testimony. (Id. at 44-56). 13 According to the Defendants, they agreed to produce 30(b)(6) witnesses to testify 14 about SIBs that are applicable to the Subject Vehicle. (Id. at 12). Defendants describe the 15 SIB at issue as being the extended component warranty for the high-pressure fuel pump. 16 (Id. at 17). They also have attached selected portions of the witness’ deposition to 17 support their position that Mr. Grijalva, during his nearly 7-hour deposition, provided 18 complete, knowledgeable and binding answers regarding the Subject Vehicle’s 19 maintenance and repair presentations, the SIBs applicable to it, and BMW NA’s denial of 20 the repurchase request. (Id. at 13). 21 22 23 4 In Zargarian v. BMW, the plaintiff wanted to depose a senior product engineer about his 24 personal involvement and knowledge of BMW’s internal analysis, investigation, and 25 implementation of repairs to the defective N63 engine. 2019 WL 6111732, at *1. Plaintiff alleged the witness was a percipient fact witness, not a 30(b)(6) witness. Id. at 26 *3. The court agreed but limited the topics to the witness’ personal knowledge relating to 27 the defects in the N63 engine as reflected in Plaintiff’s exhibits. Id. at *3-4. 5 Although Plaintiff does not identify the witness by name, the Court concludes Plaintiff 28 1 The Court reviews the Plaintiff’s selected portions of Mr. Grijalva’s testimony to 2 determine if he was questioned about these three topics and whether he satisfactorily 3 answered the questions put to him.6 As regards his knowledge of the SIB and its 4 previous versions, Mr. Grijalva was questioned about the SIB and answered fully those 5 questions, even referring to the actual SIB which was an exhibit to the deposition. (Doc. 6 34 at 54-56).7 He was asked about the copies of the prior versions of the SIB, which 7 Plaintiff referred to as a document request. Both parties agreed it was a discovery issue 8 and moved on. (Id. at 56).8 9 Regarding when BMW became aware of the recurrent fuel pump failure, Plaintiff 10 never asked him this question. The only somewhat related question asked was whether 11 the January 14, 2017 SIB was the original issue of the SIB. Mr. Grijalva said he’d have 12 to research that. (Id.) The Plaintiff claims that the original issue date of the SIB is 13 relevant to the issue of willfulness. She alleges that the 2015 BMW x5 suffers from a 14 defect that is associated with other BMW x5s, and if BMW has known of this defect for a 15 long time and did not have a permanent repair for it, it tends to prove they failed to 16 promptly repurchase it. (Doc. 34 at 4-5). 17 Defendants’ portion of the transcript of Mr. Grijalva shows he testified that the SIB 18 was active on November 7, 2017 and updated in August 2018 and again in June 2019. 19 (Doc. 35-4 at 14). The Court finds the witness adequately answered the question. 20 21 22 6 Plaintiff, although providing selected portions his testimony, did not identify which 23 questions the witness did not have knowledge to answer as asserted by the Plaintiff. 7 Mr. Grijalva testified that he had reviewed the SIBs that were applicable to the Subject 24 Vehicle and understood what a SIB is. (Doc. 35-4 at 7). 25 8 Regarding copies of prior versions of the SIB, Defendants proffer that they apply to 2014 model year vehicles. They further point out that Plaintiff’s deposition topic 26 regarding SIBs pertains to those that relate to the Subject Vehicle. (Doc. 34 at 18). This 27 request for copies is a document request for which the Court ordered Plaintiff to address its compliance with Rule 34(b), which she did not. Notwithstanding her failure to 28 1 Further, since prior versions of this SIB are not relevant to the Subject Vehicle, the 2 question is not relevant to the extent “original date” referred to these prior versions. 3 Further, Plaintiff knows that the SIB was issued January 14, 2017, circulated in 2017 to 4 2019 with updates, and was applicable to the Subject Vehicle in March 2019. The Court 5 finds the issue of the original date of the 2015 SIB has minimal to no relevance and 6 would otherwise be available through the Plaintiff’s document requests. 7 As regards the effectiveness of the SIB to repair the vehicle, Plaintiff did not ask 8 Mr. Grijalva any questions the Court can discern from Plaintiff’s deposition exhibit. The 9 SIB dealt with notice of an extended warranty on the high-pressure fuel pump. Even if 10 she had asked such a question, it would be ambiguous. And the Plaintiff has failed to 11 explain how this extended warranty can be effective to the repair to her vehicle. 12 Therefore, the Court also finds that Plaintiff has not met her burden of establishing 13 relevance of this inquiry nor how it would be proportional to this case. Further, whether 14 the repair was effective is more appropriately directed to expert testimony and otherwise 15 does not involve the extended warranty. 16 Plaintiff requests another 30(b)(6) witness to testify about SIB 01-14-17 because 17 Mr. Grijalva could not answer specific questions regarding the SIB. (See Doc. 34 at 9- 18 10). Plaintiff refers to Exhibits 1 and 3, which are the deposition notices. However, 19 Plaintiff does not identify in Mr. Grijalva’s deposition what other specific questions he 20 could not answer. The Court has already ruled on the portions of the deposition Plaintiff 21 raised as a “no knowledge” issue. Therefore, the Court denies this request because 22 Plaintiff has failed to identify any relevant questions concerning the SIB Mr. Grijalva 23 could not answer.9 24 25 26 9 Plaintiff was ordered to address the topics in dispute after a meet and confer with 27 Defendants. She did neither. The Court reviewed the transcripts presented and has addressed the responses to questions by the Plaintiff. To the Court, her request appears to 28 1 b) Michael Piatkowski Email 2 Plaintiff claims that Mr. Grijalva was not able to testify regarding the 3 circumstances of a statement made by Michael Piatkowski in the TSARA report. (Doc. 4 34 at 4). She refers to his deposition at page 6 in support of her contention. 5 According to this page of the deposition transcript, referring to an email written by 6 Mike Piatkowski, Mr. Grijalva was asked why Mike Piatkowski was collecting more 7 information on these repeat fuel system failure vehicles. (Doc. 34 at 49). Mr. Grijalva 8 responded that he was asking about fuel stations, what kind of fuels are being used. (Id.) 9 The Plaintiff repeated the question asking what he is talking about when he says he’s 10 collecting more information on these repeat fuel system failure vehicles. (Id. at 50). Mr. 11 Grijalva responds based on his reading of the email that he is collecting data to find out 12 what type of fuel is being used. (Id.) Plaintiff followed up asking whether fuel was 13 causing the failure of the fuel pump in these vehicles. (Id.) 14 From the Court’s reading of this colloquy, the witness adequately answered the 15 questions about Mr. Piatkowski’s email. The Court deduces that Plaintiff is claiming Mr. 16 Grijalva was not able to adequately answer regarding whether the fuel-type data Mr. 17 Piatkowski was collecting lead him to conclude that the fuel type used in the Subject 18 Vehicle caused the repeat failures in the subject vehicle. Such testimony from Mr. 19 Piatkowski would necessarily involve his personal knowledge stemming from his 20 involvement in collecting fuel-type data. The Plaintiff’s request to depose him on this 21 subject would involve him as a percipient witness, not as a 30(b)(6) witness. Zargarian, 22 2019 WL 6111732, at *4. 23 The Court also notes Plaintiff never asked Mr. Grijalva whether Mr. Piatkowski’s 24 data lead him to conclude that Plaintiff’s use of fuel caused the malfunction of the fuel 25 pump. In any event, Mr. Grijalva was questioned about Plaintiff using the wrong fuel as a 26 27 she wants to re-open the questioning. The Plaintiff only gets one bite of the apple. Any 28 1 cause of the defect. He was asked whether BMW of El Cajon informed him of any kind 2 of customer abuse or neglect. For example, was she using improper gasoline? He stated 3 no analysis of the fuel was performed. (Id. at 12). Further, Mr. Grijalva indicated abuse 4 or neglect would be found on the repair orders. He responded there was nothing 5 documented as regards the 2017 repair. (Doc. 35-4 at 8). The Court finds Mr. Grijalva 6 adequately answered questions about this topic to bind the corporation. As to the more 7 general question about whether fuel was causing the failure of the fuel pump in the 8 Subject Vehicle, that is the subject of an expert opinion. 9 B. Additional 30(b)(6) Witnesses 10 1. Jose Diaz 11 Plaintiff wants to call Jose Diaz as a 30(b)(6) witness to testify because he was 12 personally involved in the first fuel pump replacement in November 2017. (Doc 34 at 6). 13 She reasserts her previous allegation (Id. at 4) that Mr. Luker was not personally involved 14 in these repairs, was not able to answer specific questions regarding the fuel pump 15 repairs, the reasons the repairs were performed and specific correspondence with the 16 manufacturer, BMW of NA, regarding the fuel-pump repair. (Id. at 6). Plaintiff does not 17 identify in the deposition transcript of Mr. Luker where she asked him these sorts of 18 questions and how he was unable to answer them. Notwithstanding, the Court adopts its 19 ruling in Section III.A above on this point since the issues are the same. 20 From her Joint Statement, Plaintiff appears to want to call Mr. Diaz to testify about 21 topics that were not raised by Plaintiff during the depositions of Defendants’ two 30(b)(6) 22 witnesses. Specifically, she wants to ask Mr. Diaz questions such as whether or not 23 Defendant had knowledge of the fuel pump failures in vehicles of the same year, make 24 and model. (Doc. 34 at 6). Plaintiff has not identified which deposition topics cover this 25 area of inquiry, which the Court ordered Plaintiff to do as part of this discovery dispute. 26 Additionally, she does not establish where, in either of the two 30(b)(6) witnesses’ 27 depositions, they were asked questions on the topic of other like vehicles. She also fails 28 to establish how Mr. Diaz, the technician who repaired the subject vehicle in 2017, would 1 possess such knowledge. In this regard the Court can only assume that she wants to call 2 Mr. Diaz to question him about his personal knowledge, which would be as a fact 3 witness, not a 30(b)(6) witness. (See Section III.A). Plaintiff’s own argument supports 4 this conclusion, “Jose Diaz, as the technician that performed the material repairs on the 5 vehicle, will have this personal knowledge, and can attest to the best of his recollection if 6 he believes it was repaired.” (Id. at 6). 7 Plaintiff also contends that Defendants’ 30(b)(6) witnesses lacked information 8 about the correspondence Mr. Diaz had regarding repairs to the Subject Vehicle and 9 BMW of NA. (Id. at 7). The Plaintiff fails to show where she asked either witness about 10 such correspondence, which is her burden in this discovery dispute. The Court has 11 reviewed Plaintiff’s selected portions of the depositions of both 30(b)(6) witnesses and 12 concludes that Plaintiff never questioned either witness about such correspondence. 13 Therefore, she fails to show how “Defendant witness was not able to provide evidence on 14 these matters.” (Doc. 34 at 7).10 For these reasons, Plaintiff’s request to have Mr. Diaz 15 testify as a 30(b)(6) witness is denied. 16 2. Same Defect in Other Like Vehicles 17 Notwithstanding the Court’s above ruling, the Cour t will address the issue raised 18 by Plaintiff in her Joint Statement. The Plaintiff is seeking further 30(b)(6) witness(es) to 19 address whether the same alleged high-pressure fuel pump defect existed in the same 20 year, make and model as Plaintiff’s vehicle. She claims that the 2015 BMW x5 suffers 21 from a defect associated with other BMW x5s. (Doc. 34 at 5). She further states that 22 from her own research, it seems BMW had knowledge of the fuel pump failure defect in 23 vehicles of the same year, make and model as the Subject Vehicle. (Id. at 6). The 24 relevance of this information, according to Plaintiff, is it will help her determine whether 25 there was knowledge of a wide-spread problem with the fuel pump. This in turn will help 26 27 10 In any event, her wish to call Mr. Diaz about the correspondence he received from 28 1 show BMW’s willful failure to repurchase the vehicle because it knew there were not 2 permanent repairs for the vehicle. (Id.)11 3 The Defendants object to this discovery, arguing other-vehicle discovery is not 4 relevant. They argue Plaintiff’s Song-Beverly Act claim is entirely unrelated to issues 5 with other vehicles and instead relates to whether the alleged nonconformities in the 6 Subject Vehicle were covered under warranty and repaired within a reasonable number of 7 repair attempts. See Gonzalez, 750 F. Supp. 2d at 1073. (Doc. 34 at 19).12 8 The Court reviewed Plaintiff’s noticed deposition topics for the 30(b)(6) 9 witness(es) to determine whether such area of inquiry was properly noticed. Topic 6 10 appears to be applicable to this issue. 11 6. Questions regarding the nature of the DEFECTS, including the cause of the DEFECTS in BMW VEHICLES, all available fixes that have 12 been made available to your authorized dealers to date, and the subsequent 13 results of such fixes; 14 (Doc. 34 at 29). 15 Plaintiff narrowed BMW VEHICLES to include only those of the same make, 16 model and year as the subject vehicle. (Id. at 27). She defines “DEFECTS” as follows: 17 18 19 11 Plaintiff has not provided this research to support her discovery request. Further, since Plaintiff has such discovery already, her request may be cumulative. 20 12 Defendants also contend that BMW NA denied her repurchase request because the fuel 21 pump-related repairs occurred after the expiration of the New Vehicle Limited Warranty (“NVLW”). Therefore, since the rationale for the denial is unrelated to the nature of the 22 fuel pump repairs, fuel issues related to other vehicles have no bearing on BMW NA’s 23 decision to deny Plaintiff’s repurchase request. (Doc. 34 at 20). The Court has reviewed the selected portions of the deposition transcript of Mr. Grijalva, 24 the customer support engineer whose job is to evaluate warranty claims. (Doc. 35-4 at 4). 25 Mr. Grijalva provided extensive testimony that the fuel pump replacements were not covered under the NVLW, rather it was covered under Plaintiff’s 7/70 emissions 26 warranty. (Id. at 8-12, 16-17). Neither party has addressed whether coverage under this 27 7/70 emissions warranty satisfies the express warranty requirement of the Song-Beverly Act. This issue is not before this Court and will not be addressed. 28 1 “The term ‘DEFECT(S)’ shall refer to problems that manifest in the vehicle becoming 2 non-operational while driving on public roads; broken and failing fuel system; defective 3 fuel pump, fuel delivery unit, fuel injectors, fuel lines and fuel tank requiring 4 replacement; fuel pump failure, or any other similar concern identified in the repair 5 history for the SUBJECT VEHICLE.” (Id.) 6 Rule 30(b)(6) requires the Plaintiff to “describe with reasonable particularity the 7 matters for examination” by a corporate representative. NEPIA, 2014 WL 12567786, at 8 *3. First, the Court finds Plaintiff’s topic request 6 is facially overbroad. The alleged 9 defect at issue has to be a qualifying one under the Song-Beverly Act. Plaintiff fails to 10 specify which is the qualifying defect under the Song-Beverly Act. See e.g. Koeper v. 11 BMW of N. Am., LLC, Case No. CV 17-6154-VAP (JPRx), 2018 WL 6016915, at *2 12 (C.D. Cal. May 21, 2018) (“‘engine defects’ . . . is hopelessly broad and would cover 13 nearly any engine problem”); Putman v BMW of N. Am., Case No. CV-17-3485-JAK 14 (KSx), 2018 WL 6137160, at *4 (finding “‘engine defect’ . . . vastly overbroad and 15 fail[s][s to meet Rule 34’s requirement of particularity”); Jensen v. BMW of N. Am., 328 16 F.R.D. 557, 563-65 (S.D. Cal. 2019) (topics and RFPs are too broad). 17 Second, the relevance of same defects in other same BMW vehicles goes to the 18 issue of willfulness under the Song-Beverly Act. The relevancy of the same 19 nonconformities in other like vehicles goes to notice to the defendant that, given a 20 fundamental defect in the same model vehicles as the subject vehicle, the repairs did not 21 fix the vehicle. Kooner v. BMW of N. Am., LLC, Case No. 17CV1940 W (BGS), 2018 22 WL 3956021, at *3 (S.D. Cal. Aug. 17, 2018). The cause of the defect is not relevant to 23 this issue. See e.g., Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1102, n.8 24 (2001) (a consumer does not have to identify, for example, “the source of the leak”); 25 Donlen v. Ford Motor Co., 217 Cal. App. 4th 138, 149-152 (2013) (“the plaintiff is not 26 obligated to identify or prove the cause of the car’s defect. Rather, he is required only to 27 prove the car did not conform to the express warranty.”); CACI No. 3201. Further, Topic 28 No. 6’s request regarding the cause and all available fixes is overly burdensome and not 1 proportional to the needs of the case. For these reasons Topic 6 does not satisfy the 2 particularity requirement for a 30(b)(6) and is otherwise facially overbroad. 3 Notwithstanding, the Court sua sponte narrows Topic 6 to include 30(b)(6) 4 testimony about other BMW vehicles of the same make, model and year that suffered 5 from repairs to the high-pressure fuel pump described in SIB 01-14-17. (Doc. 35-5 at 2). 6 The basic relevancy premise for a civil penalty is whether there was information 7 known to the defendant regarding the existence of the same fundamental defect(s) which 8 were present in other like vehicles such that a jury could reasonably infer that the 9 defendant’s repairs did not resolve the defect, and therefore it was unreasonable for a 10 defendant to have not repurchased the vehicle. Kooner, 2018 WL 6137160, at *3 (S.D. 11 Cal. Aug. 17, 2018). 12 Plaintiff wants to depose additional 30(b)(6) witnesses about their knowledge of a 13 widespread problem with the fuel pump. However, she does not specify from where such 14 knowledge would derive. For example, Mr. Grijalva was asked at his deposition whether 15 or not 2015 BMW x5s are suffering from repeat fuel system failures. He responded that 16 he did not have any data to rely on as far as numbers or anything. (Doc. 34 at 51).13 17 Although Plaintiff has not raised any dispute about her Demand to Produce 18 Documents at the Deposition, the Court has reviewed the same. In Paragraph 19 Plaintiff 19 requested, 20 Please produce all documents, records and data, including electronically stored information (including electronic data and e- 21 mails), concerning customer complaints, claims, reported failures, and 22 warranty claims related to the DEFECTS, including any databases in YOUR possession with information from dealers, service 23 departments, parts departments, or warranty departments, and all 24 documents concerning YOUR response to each complaint, claim, or reported failure. 25 26 27 13 Plaintiff never followed up with additional question(s). The Court finds Mr. Grijalva 28 1 (Doc. 34 at 39). 2 From this document request it is clear the Plaintiff expects an additional 30(b)(6) 3 witness to have knowledge derived from such databases, which in effect would result in 4 her seeking the discovery requested in RFP 19. In that she never moved the Court to 5 address any dispute concerning RFP 19, any attempt to obtain such information from the 6 30(b)(6) witness is denied. Plaintiff has ample opportunity to obtain this discovery but 7 chose not to. See Fed. R. Civ. P. 26(b)(2)(C)(ii). 8 Assuming RFP 19 was properly raised in this discovery dispute, she has not 9 identified the databases, nor addressed the relevance of the data contained therein and 10 whether it meets Rule 26’s proportionality factors. (Doc. 33 at 2, n.2). Nonetheless, this 11 Court and other courts have addressed similar if not the exact requests for production at 12 issue in Plaintiff’s No. 19 requests. In Jurosky v. BMW of North America, the plaintiff 13 sought such discovery from BMW’s databases. Case No. 19CV706 JM (BGS), No. 48 at 14 7-15 (S.D. Cal. April 9, 2020). These databases were described as follows: 15 For purposes of establishing relevance of other vehicle data, it is important to note what the various databases and email accounts show. 16 Information from the Warranty database represents information 17 provided by BMW dealers, to BMW, every time a consumer makes a claim or is otherwise granted service under a BMW warranty, i.e., the 18 same type of information typically found on customer repair orders. 19 Information from the CR database represents information that is collected by BMW when consumers report complaints about their 20 vehicles directly to BMW and BMW’s response to those complaints. 21 Information from the PuMA database represents information provided by dealers, to BMW, when BMW dealers are encountering “difficult- 22 to-diagnose technical problems,” (Tabesh Decl. Ex. F) so that BMW 23 may document the problem, investigate further, and/or provide assistance 24 25 Id. at 7. 26 In Jurosky this Court initially found the requested information as narrowed by the 27 Court could be relevant under Rule 401 to prove defendant’s knowledge that the repairs 28 did not resolve defect. Id. at 9-10. The Court then applied the proportionality factors 1 listed in the 2015 Amendments to Rule 26(b)(1) and (b)(2)(C) and denied Plaintiff’s 2 discovery requests as being overburdensome, duplicative, disproportionate to the needs of 3 the case. Id. at 11-15. See e.g. Putman, 2018 WL 6137160, at *4 (Court denied the 4 requests based on facial overbreadth and lack of proportionality); Koeper, 2018 WL 5 6016915, at *1-2 (Denying overbroad requests as not being proportional). 6 Since Request for Documents No. 19 is not part of this discovery dispute, for the 7 30(b)(6) witness to address questions about customer complaints, warranty claims, 8 information from dealers and service departments etc., the witness would have to access 9 these databases to be responsive to the question about whether 2015 BMW x5s are 10 suffering from repeat fuel system failures. This in effect would be an end run around her 11 failure to move this Court to enforce RFP No. 19. In addition, the Court finds calling an 12 additional 30(b)(6) witness to testify about this data to be disproportionate to the needs of 13 the case and overly burdensome. 14 For these reasons Plaintiff’s request to call additional 30(b)(6) witness(es) to 15 provide testimony about fuel pump defects in other like vehicles is denied. 16 3. Gary Hartman 17 Plaintiff wants to depose Gary Hartman, a BMW of El Cajon technician, who was 18 involved in the second replacement of the fuel pump in May 2019. (Doc. 34 at 7). 19 Specifically, she wants to question him about a repair in which he was involved. This 20 repair notes that there was “metal in the fuel system due to high pressure fuel pump 21 failure.” (Id.) She claims further information regarding this repair finding could help 22 clarify the cause of the defect. (Id.) 23 Plaintiff fails to identify the repair she is referring to or where her quote came 24 from. She also has not directed the Court to where she questioned the witness about this 25 repair and whether the witness was able to respond adequately to bind the corporation. 26 None of the deposition transcripts speak to this repair issue. 27 Besides failing to establish that the Defendants’ witness did not answer questions 28 on this topic, Plaintiff’s desire to depose the witness regarding his personal knowledge 1 about a repair is a topic for Mr. Hartman as a fact and quasi expert witness. (See III.A). 2 As such this request is denied. 3 She also wants to depose Mr. Hartman about the TSARA case which she claims 4 was made by Mr. Hartman and dealt with the fuel system failure in the subject vehicle. 5 (Doc. 34 at 8). She claims the TSARA case report addresses possible causes of the 6 defect, such as gasoline that Plaintiff used. (Id.). Again, she fails to address where 7 Plaintiff questioned the 30(b)(6) witnesses about this topic in that report or how those 8 witnesses were unable to give complete answers to bind the corporation. The Court, on 9 its own, reviewed both witnesses’ testimony to determine if Plaintiff preserved this issue, 10 and whether the Defendants’ witness(es) fully answered her questions. 11 Mr. Luker was asked what is a TSARA report, to which he responded, “It’s the 12 same principle or same thing as PuMA. They call it TSARA now. ….” (Id. at 77). The 13 witness was able to satisfactorily answer Plaintiff’s question. She has not offered other 14 parts of his deposition in which he was not able to respond to questions about that report. 15 As regards Mr. Grijalva, the Plaintiff identifies an email from Mike Piatkowsi 16 which is included in the TSARA report. (Doc. 34 at 49-50). The Defendants’ portions of 17 Mr. Grijalva’s testimony show that Plaintiff questioned him extensively about the 18 TSARA report. The witness was asked how BMW was contacted about the high- 19 pressure fuel pump repair. He responded that a TSARA case was submitted. (Doc. 35-4 20 at 11). From the transcript the witness was questioned by the Plaintiff thoroughly about 21 various portions of the TSARA report. (Id. at 11-12). The transcript shows that Mr. 22 Grijalva answered all the questions completely and to the satisfaction of Plaintiff. The 23 only question the Court identifies wherein the Plaintiff asked Mr. Grijalva about Gary 24 Hartman was whether he contacted Mr. Hartman regarding Plaintiff’s repurchase request, 25 to which he responded in the negative. (Id. at 11). 26 Plaintiff claims Mr. Hartman’s testimony is relevant to counter the defense that 27 Plaintiff’s lack of maintenance, i.e., putting in the wrong fuel, caused the fuel system 28 failure. (Doc. 34 at 8). As previously noted in Section III.A.2.b), Mr. Grijalva was 1 questioned about Plaintiff using the wrong fuel as a cause of the defect. He was asked 2 whether BMW of El Cajon informed him of any kind of customer abuse or neglect. For 3 example, was she using improper gasoline? He stated no analysis of the fuel was 4 performed. (Doc. 35-4 at 12). Further, Mr. Grijalva indicated abuse or neglect would be 5 found on the repair orders. He responded there was nothing documented as to the 2017 6 repair. (Id. at 8).14 The Court finds that Mr. Grijalva has adequately bound BMW on this 7 issue. Notwithstanding, Mr. Hartman’s testimony about the possible causes of the defect 8 in the Subject Vehicle relates to fact and expert witness testimony. 9 The Plaintiff also states that the TSARA report also mentioned repeated fuel 10 system failures in vehicles of the same model as the subject vehicle. (Id.) She does not 11 specify where in the report this is mentioned. Nor does she specify where she questioned 12 Mr. Grijalva about this topic, and whether or not he was able to answer her questions. 13 The Court, having reviewed Mr. Grijalva’s testimony about the TSARA report, notes that 14 he was asked about a statement made by Mike (Piatkowski) that “we are collecting more 15 information on these repeat fuel system failures.” (Doc. 35-4 at 12). Mr. Grijalva was 16 then asked why was Piatkowski collecting this information. He responded that they were 17 collecting data to find out what type of fuel was being used. (Id.) Plaintiff then asked 18 him if fuel was causing the failure of the fuel pumps in these vehicles. The Defendants 19 objected in that it called for an expert opinion. Mr. Grijalva did not have an answer for 20 that question. (Id.) 21 The Court finds Mr. Grijalva answered completely Plaintiff’s questions above. 22 The question about fuel being the cause of fuel system failures in other vehicles calls for 23 an expert opinion.15 Additional testimony from Mr. Hartman is not warranted. 24 25 14 Plaintiff has received this discovery so any further testimony would be cumulative. In 26 any event, Mr. Grijalva satisfactorily answered Plaintiff’s questions. 27 15 Plaintiff contends that repeated fuel system failures in vehicles of the same model as the Subject Vehicle is salient to her civil penalty and fraud claims. (Doc. 34 at 8). This 28 1 4. Mike Piatkowski 2 Plaintiff wants to depose Mr. Piatkowski about a statement he made in the TSARA 3 report regarding Plaintiff’s vehicle. This statement was an email attributed to Mr. 4 Piatkowski which has already been addressed in Section III.A.2.b). 5 Plaintiff further claims that his involvement in the TSARA report included the 6 second repair to the fuel pump. She alleges Mr. Piatkowski also was involved with 7 advising the repair facility, BMW of El Cajon, regarding the repairs to the fuel pump 8 defect. She claims his expertise can help show BMW of NA’s alleged knowledge of the 9 defect, and the steps taken to repair the defect. (Doc. 34 at 9). 10 Plaintiff has again failed to establish that she questioned the 30(b)(6) witnesses on 11 these topics and has not shown how those witnesses were unable to answer those 12 questions fully as required under Rule 30(b)(6). A review of the deposition transcripts 13 submitted reveals that she either did not question the witnesses, and if she did, they 14 answered her questions fully. Finally, Mr. Piatkowski’s involvement in the second repair 15 of the fuel pump involves his testifying as a fact witness. The Court denies this basis for 16 the same reasons the Court denied the testimony of Jose Diaz. (See Section III.A.) His 17 knowledge of the defect from his involvement in the repairs to the Subject Vehicle either 18 involves him being called as a fact witness or to give his expert opinion as to the cause of 19 the defect. As such the Court denies additional testimony on this basis.16 20 21 22 23 the differences between the first repair and the second repair, why the first repair failed, 24 and the prevalence of the defect. (Id.). This inquiry involves Mr. Hartman as a fact and 25 expert witness and is thusly outside the scope of this discovery dispute. 26 16 Plaintiff also asserts that in the TSARA report BMW of NA undertook to diagnose 27 Plaintiff’s defects regarding the fuel pump failure and provided possible causes such as the gas stations used by the Plaintiff. This topic was addressed by the Court in this 28 1 C. Fraud Claims 2 “A plaintiff suing for fraudulent concealment under California law must show that 3 || the defendant intentionally failed to disclose facts that were known only to it and which 4 || the plaintiff could not have discovered; the defendant intended to deceive the plaintiff by 5 || concealing the facts; had the omitted information been disclosed, the plaintiff reasonably 6 || would have behaved differently; the plaintiff was harmed; and the defendant’s 7 ||concealment was a substantial factor in causing such harm.” Zargarian, 2019 WL 8 |/6111732, at *3 (citing Lazar, 12 Cal. 4th at 638, Cal. Civ. Code § 1710, and CACI 1901). 9 In the Joint Statement, the Plaintiff has not addressed how the requested 30(b)(6) 10 || witnesses are relevant and proportional to her fraud claims. She intertwines her 11 |/relevancy arguments under the Song-Beverly Act with fraud claims. (See Doc. 34 at 5, 9, 12 || 10). Yet she fails to differentiate how the requested discovery is relevant to the elements 13 her fraud claims. (See Doc. 34 at 21). Nor has she shown that she questioned the 14 || witnesses about her fraud claims and they could not answer her questions. Therefore, the 15 ||Court denies her discovery requests for the same reasons articulated herein. See e.g. 16 || Jurosky, Case No. 19CV706 JM (BGS), No. 48 at 13 n.9. 17 CONCLUSION 18 For the reasons stated herein, the Plaintiff’s motion for additional 30(b)(6) 19 || witnesses is DENIED. 20 IT IS SO ORDERED. 21 ||Dated: October 5, 2020 : p / / 22 on. Bernard G. Skomal 23 United States Magistrate Judge 24 25 26 27 28 21