1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT AVILA, Case No. 22-cv-00542-EJD (SVK)

8 Plaintiff, ORDER ON JOINT DISCOVERY 9 v. SUBMISSION

10 FORD MOTOR COMPANY, KELLER Re: Dkt. No. 38 FORD LINCOLN; AND DOES 1-10, 11 INCLUSIVE

12 Defendants.1

13 Before the Court is the Parties’ Joint Discovery Submission (“Submission”) pursuant to 14 which Plaintiff seeks an order compelling further responses to fourteen requests for production. 15 The Court has reviewed the Submission, the relevant law and the litigation history in this action 16 and determines that 1) the Court’s rulings below on general disputes are likely to inform resolution 17 of individual RFPs; and 2) therefore this action may be resolved without oral argument. 18 Civ. L.R. 7-1(b). To the extent the Court orders production of documents or supplemental 19 responses, such production and responses are to be completed no later than July 21, 2023. I. Procedural Issues 20 1. Case Caption 21 The captions used by the Parties in this action are not consistent. Compare Dkt. 1-3; Dkt. 22 38; Dkt. 38-1; Dkt. 38-2. This must be corrected immediately. The Parties are to meet and confer 23 and file a stipulation to amend the case caption to reflect the proper Parties to this action no later 24 than July 21, 2023. The disputed discovery in this action is directed to Defendant Ford Motor 25 Company, in this Order referred to “Defendant.” 26 27 1 2. Non-compliance with Standing Order 2 The Submission fails to comply with this Court’s Standing Order on Civil and Discovery 3 Referral Matters (“Standing Order”) in three key respects. First, the Parties use improperly 4 footnotes for additional factual assertions and argument. See Standing Order, section 9. The 5 Court has not considered any footnotes that violate section 9. Second, the Parties misuse the joint 6 chart (section 8) to set forth innumerable additional pages of argument in blatant violation of page 7 limits for the joint submission. The Court has not considered any argument set forth in the chart 8 which is not addressed in the Submission and declines to address any specific interrogatory. 9 Third, the chart is to set forth the Parties’ requests, responses and proposed compromises. Here, 10 compromises, if any, are hopelessly lost in the morass of improper argument. As a result of these 11 failings, the joint chart is rendered unusable, requiring the Court to draft this Order. The Parties 12 are admonished that any future submission that fails to conform with the Standing Order will be 13 stricken in its entirety.

14 II. Substantive Issues 15 The Court has identified the following issues from the properly formatted portions of the 16 Submission: 17 1. The definition of the “Transmission Defect”; 18 2. Whether production of documents responsive to Plaintiff’s requests which were also 19 collected and produced in a related class action is appropriate in this case; 20 3. Whether production of Defendant emails is appropriate in this case; 21 4. Whether production of certain deposition transcripts and organizational charts from the 22 related class action is appropriate in this case; and 23 5. Whether Defendants should provide supplemental written responses that clarify the status 24 of their production. 25 26 1. Definition of “Transmission Defect” 27 The Complaint identifies a number of defects with the subject vehicle. Dkt. 1 at ¶ 12. In 1 can result in various problems, including, but not limited to slipping of the transmission, hesitation 2 on acceleration, improper transmission engagement and/or harsh and/or hard shifts (“Transmission 3 Defects”).” Dkt. 1 ¶ 42. This definition is supplemented in the discovery requests to include 4 “jerking, shuddering and/or juddering.” Dkt. 38-1 at 4. Up to this point, Transmission Defect is 5 sufficiently defined by symptoms to give Defendant adequate notice and to establish discovery 6 parameters. However, in both the Complaint and the discovery requests, Plaintiff goes on to 7 describe Transmission Defect more vaguely as “requiring reprogramming of the transmission 8 control module (TCM) and/or powertrain control module (PCM); failure and/or replacement the 9 transmission as reflected in SUBJECT VEHICLE’s repair history.” Id. This latter language is too 10 vague and is stricken from the definition. With this guidance, to the extent Defendant has not 11 searched for or has withheld documents based on an objection to the definition of Transmission 12 Defect, it is to supplement its production and provide supplemental responses in accordance with 13 this Order. 14 15 2. Production of documents from a related class action 16 This action is not merely “a consumer warranty case involving a single F-150 pickup 17 truck” as described repeatedly by Defendant. It is also a fraud case, with specific allegations that 18 Defendant “concealed and failed to disclose” known defects to Plaintiff. Complaint (Dkt. 1) 19 ¶¶ 38-53. Plaintiff asserts, and Defendant does not dispute, that there is a related class action, 20 O'Connor v. Ford Motor Co. class action (Case No. 19-CV-5045) (N.D. Ill.), which addresses the 21 same defective 10R80 transmission in 2017-2020 Ford F-150 trucks. Dkt. 38 at 2. However, as 22 Defendant argues and Plaintiff must concede, this case comprises the breach of warranty and fraud 23 allegations of a single plaintiff, not a putative class. Defendant further points to its voluminous 24 production to date in this action. 25 Plaintiff cites two cases which appear to support the request of a single plaintiff for 26 production of responsive documents from related class actions. Scherer v. FCA US, LLC,

Supp. 3d 1002, 1008 (S.D. Cal. 2021); Jensen v. BMW of N. Am., LLC,

, 563 (S.D. 1 the opposite result. The relevance and proportionality requirements of Rule 26 are necessarily 2 very fact specific. In this case, the scope of relevance is fairly neatly defined by a specific 3 transmission, in a specific vehicle model, sold in a specific time period. Similarly, O’Connor is 4 described as addressing alleged defects in the same transmission, in the same vehicle model, in the 5 same, or slightly broader, time frame as this case. The O’Connor documents have already been 6 collected and produced, and it is reasonable to assume could be easily produced in this action. In 7 sum, there is a set of documents, at least some of which will be responsive to the requests here, 8 ready for production. Although Defendant has made a substantial production in this case, that 9 production does not render production of a second set of relevant documents readied for 10 production disproportional to the needs of this case. Accordingly, the Court finds that production 11 of documents from the O’Connor action which are responsive to requests in this action are 12 proportional to the needs of this litigation and must be produced. The Court appreciates that 13 culling an existing production for responsive documents in another action may be unduly 14 burdensome. Therefore, Defendant may elect whether to simply turn over the entire O’Connor 15 production or only those portions responsive to requests in this action. Defendant may also elect 16 whether to remove duplicate documents from the O’Connor production that it has already 17 produced in this action. To the extent Plaintiff objects to Defendant selecting responsive 18 documents from the O’Connor production, that objection is overruled. 19 20 3. Production of emails 21 This issue is largely dealt with in the ruling above: To the extent emails produced in the 22 O’Connor action are responsive to document requests in this action, they are proportional to the 23 needs of this action and are to be produced. Also, at the time of production, Defendant is to 24 identify the custodians and search terms used in identifying relevant emails in the O’Connor 25 action. Plaintiff may, having first evaluated the production and engaged in the requisite meet and 26 confer, make a good faith request to the Court for additional custodians or search terms. Any such 27 request will be subject to a rigorous proportionality analysis in light of the production ordered thus 1 2 4. Requests 49 and 55 3 RFP 49 is for the organizational charts of Defendant. Organizational charts of a large 4 || corporate defendant are relevant and proportional, even in a single plaintiff case such as this one. 5 || Accordingly, the Court orders the charts to be produced. 6 RFP 55 is for deposition transcripts of Defendant pursuant to Rule 30(b)(6) and the 7 attendant state provision. Plaintiff's request is premature. By the production date set forth above, 8 Defendant is ordered to identify the agreed-upon topics on which its corporate representatives 9 gave deposition testimony in the O’Conner action. The Parties are to meet and confer thereafter 10 || on production of relevant, proportional transcripts. 11 12 5. Supplemental responses 13 Defendant is to provide supplemental responses that reflect the status of its production as 14 || to RFPs 1-3 by the production date set forth above. 3 15 SO ORDERED. a 16 Dated: June 30, 2023

Sess SUSAN VAN KEULEN 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28