September 30, 2019 Practice Points

Discovery Order Violations Do Not Support Terminating Sanctions for Unrelated Claims

Courts tend to disfavor a shotgun approach in motions for sanctions.

By Andrew M. Toft

The magistrate judge in Jensen v. BMW of North America, LLC, et al, 331 F.R.D. 384 (S.D. Cal. 2019) twice found that BMW did not fully comply with previous discovery orders. But when determining an appropriate sanction, the court focused on the fact that the plaintiff did not ask for a terminating sanction for the claim at issue in the previous discovery orders, but rather another claim, and imposed a far less onerous contingent sanction.

After his 2011 BMW 550i failed to perform to expectations, Jensen sued BMW and other defendants for violations of the Song-Beverly Consumer Warranty Act (California Civil Code § 1793.2 et seq.), for breach of warranty, and for fraud. As litigation progressed, the parties filed a joint discovery motion that resulted in a discovery order requiring BMW to produce certain documents by a certain date. When BMW allegedly failed to comply with this first discovery order, however, Jensen filed a first motion for sanctions that prompted the court to issue a second discovery order directing BMW to produce additional documents by a new deadline or face monetary sanctions. Fourteen days later, BMW responded by filing two declarations stating that it was in compliance and providing further information. Still unconvinced, Jensen filed a second motion to compel in which he challenged BMW’s declarations and production of documents.

In his second motion to compel, Jensen sought terminating sanctions for his Song-Beverly claim, the breach-of-implied-warranty-of-merchantability claim, and the fraud claim. But despite finding that BMW had not complied with its prior discovery orders for two of the three categories of documents at issue, the court declined to grant Jensen’s request for terminating sanctions. The underlying discovery related to other vehicles in BMW’s database for which the owners had reported problems similar to the problems Jensen experienced with his 2011 BMW 550i. And though the court had held in an earlier order that this discovery “may be relevant to the question of willfulness, as it pertains to the civil penalty under California Civil Code § 1794(c),” the court had also held that, “generally, the Court agrees with BMW that the evidence required to prove liability under Song-Beverly focuses on records concerning the specific vehicle at issue.” Jensen, 331 F.R.D. at 390. (emphasis in original). The court thus held that terminating sanctions were not appropriate because the “discovery sought in the first place does not sufficiently relate to the claims for which [Jensen] seeks terminating sanctions.” The court also rejected Jensen’s alternative request for issue and/or evidentiary sanctions on these causes of action for the same reasons. Finally, the court rejected a request for a stay pending production of the documents because BMW had already had enough time to produce the documents and had forfeited the opportunity to do so.

The magistrate judge did, however, propose a jury instruction for the trial court to use subject to modification. The instruction was a limited adverse-inference instruction, very narrowly tailored to the documents in dispute and the Song-Beverly Consumer Warranty Act issues. And even this sanction was subject to four caveats outlined in the opinion. There was no sanction as to the breach-of-warranty or fraud causes of action.

Jensen warrants close reading for how the court tied the subject matter of the discovery in dispute to the appropriateness of sanctions, particularly as it suggests courts disfavor a shotgun approach in motions for sanctions. In appropriate circumstances drafting discovery pertinent to specific claims for relief, as opposed to the often seen “produce all documents relevant to . . .,” may help a court see specific harm and a greater need for sanctions on a specific issue.

Andrew M. Toft is an attorney in Denver, Colorado.


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