Preview
19CV346663
Santa Clara — Civil
R. Burciaga
Vincent Galvin #104448
Joel Smith (Pro Hac Vice)
Lauren O. Miller #279448 Electronically Filed
BOWMAN AND BROOKE LLP by Superior Court of CA,
1741 Technology Drive, Suite 200 County of Santa Clara,
San Jose, California 95110-1364 on 4/20/2023 3:45 PM
Telephone: (408) 279-5393 Reviewed By: R. Burciaga
Facsimile: (408) 279-5845 Case #19CV346663
vincent.galvin@bowmanandbrooke.com Envelope: 11767156
lauren.miller@bowmanandbrooke.com
Thomas Branigan (Pro Hac Vice)
BOWMAN AND BROOKE LLP
41000 Woodward Avenue, Suite 200 East
Bloomfield Hills, MI 48303
Telephone: (248) 205.3300
Facsimile: (248) 205.3399
10 Thomas.branigan@bowmanandbrooke.com
11 Attorneys for Defendant
Tesla, Inc.
12
13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 COUNTY OF SANTA CLARA
15 SZ HUA HUANG, Individually and as successor in ) Case No. 19CV346663
interest to WEI LUN HUANG, deceased; TRINITY )
16 HUANG, a minor; TRISTAN HUANG, a minor; ) DEFENDANT TESLA, INC.'S OPPOSITION TO
HSI KENG HUANG; and CHING FEN HUANG, PLAINTIFFS’ MOTION TO COMPEL RE TESLA
17 INC.’S SUPPLEMENTAL RESPONSES TO
Plaintiff, WRITTEN DISCOVERY; MOTION FOR THE
18 DEPOSITION OF ELON MUSK; AND MOTION
vs. FOR SANCTIONS
19
TESLA, INC. dba TESLA MOTORS INC. THE Date: April 27, 2023
20 STATE OF CALIFORNIA, and DOES 1| through Time: 9:00 a.m.
100, Dept. 6
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Defendants. Assigned for all purposes to:
22 Hon. Evette Pennypacker; Dept. 6
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DEFENDANT TESLA, INC.'S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
TABLE OF CONTENTS
INTRODUCTION
Overview of the Contents of Plaintiffs’ Motion
Overview of Tesla’s Position
IL FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Activity Preceding the Court’s February Order
Tesla’s Actions After the Court’s February Order.
TL ARGUMENT
10 Tesla Complied with the Court’s February Order and the Code
1 Requests for Admission.
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2...Special Interrogatories and Requests for Production
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The Requested Relief is Prohibited by Governing Authority 10
13 1 There is No Basis for Modifying the Court’s Order Prohibiting 10
Mr. Musk’s Deposition... 10
14 2. The Requested Relief Regarding Tesla’s RFA Responses is Not Permitted by the
California Code of Civil Procedure 10
15 i Deeming RFAs Admitted is an Improper Sanction Request 10
ii. Issue Sanctions Are Not Available for RFA Responses... 11
16 3 The Requested Issue Sanction Would Violate Both the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution and California Law. asl
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IV. CONCLUSION 13
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27900109
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Page(s)
Other Authorities
American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Cal
(2005) 126 Cal.App.4th 247
Hammond Packing Co. v. Arkansas,
(1909) 212 U.S. 322, 29 S.Ct. 370 11
Holguin v. Superior Court,
(1972) 22 Cal.App.3d 812 10
Midwife v. Bernal,
(1988) 203 Cal.App.3d 57 11, 12
Newland v. Superior Court,
(1995), 40 Cal. App.4th 608 11
Rutledge v. Hewlett-Packard Co.,
10 (2015), 238 Cal.App.4th 1164. eerste eereeatresse retest es erst estes ce retest ceceerer ete ceesr eee seeesrrest sees 12
Smith v. Circle P Ranch Co., In
11 (1978) 87 Cal.App.3d 267 8,10
Soule v. General Motors Corp.
12 (1994), 8 Cal.4th 548..... 12
13 Regulations
14 Cal. Code Civ. - Proc. § 2023.030.. 11
Cal. Code Civ. . Proc. § 2033.06
15 Cal. Code Civ. . Proc. § 2033.220(c)
Cal. Code Civ. . Proc. § 2033.290(e) . 10
16 Cal. Code Civ. Proc. § 2033.42 10
Cal. Code Civ. Proc. § 2033.420(b)( 11
17 Cal Code Civ. . Proc. §§ 2033.010-2033.420 11
Cal Code Civ. . Proc.§ 2033.220(a) 58
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27900109 ii
TABLE OF AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
After years of discovery and preparation, the trial of this case is finally in sight. The underlying facts are
clear: Mr. Huang crashed his vehicle because he was playing a video game instead of driving his car. Plaintiffs
contend it was perfectly appropriate for him to play a video game while he was behind the wheel because the
subject 2017 Tesla Model X was equipped with a driver assistance feature called Autopilot. They make this
contention despite the many clear warnings that explain drivers must maintain control and responsibility for their
vehicles when Autopilot is engaged, that they must keep their eyes on the road and their hands on the wheel. Mr.
Huang, of course, did neither.
10 Faced with these difficult facts, Plaintiffs seek, through their Motion, to avoid them entirely. They ask
11 the Court to issue an extreme sanction that would deem the Consumer Expectations Test (CET) applicable to this
12 case, despite the Court having already acknowledged it might not apply (Tesla contends it does not) and further
13 deem there is a defect under that test. Their hook for this ambitious strategy is Tesla’s inability to admit or deny
14 the authenticity of certain recordings that appear to show its CEO, Elon Musk, making various statements about
15 either Autopilot’s abilities or aspirations for the continued development of advanced driver assistance systems.
16 The relationship of the statements in the recordings to this case is unclear because none of them say, or even
17 suggest, that it is appropriate to play video game while driving.
18 Regardless, as will be shown, Tesla’s responses were truthful, complete, and in compliance with the
19 Court’s prior discovery order and the Civil Discovery Act. Plaintiffs’ Motion should be denied.
20 A Overview of the Contents of Plaintiffs’ Motion
21
Plaintiffs’ Motion challenges Tesla’s responses and supplemental responses to 119 different discovery
22
requests. (See Plaintiffs’ eight Separate Statements in Support of Motion to Compel.) Many of Plaintiffs’
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challenges are simply one-sentence, conclusory statements. However, all of the 119 different discovery
24 challenges are offered, explicitly or implicitly, in support of Plaintiffs’ request for the following forms of extreme,
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unwarranted relief: (1) an issue sanction that would have this Court order that the consumer expectations test
26
(CET) is applicable in this dispute (ignoring the Court’s recent statement in its February 24, 2023, Order that the
27
Court would have to contend with that question at a later, appropriate time) and that the Model X’s Autopilot
28 27900109 1
MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
feature is defective under the CET; (2) an order deeming Plaintiffs’ Requests for Admission admitted; and (3) an
order compelling the “apex” deposition of Tesla’s CEO, Elon Musk.
Again, this is a massive overreach. Before addressing why Plaintiffs are not entitled to any of these
remedies, it is important for the Court to recognize that, while Plaintiffs throw many arguments at the wall, they
fall into two categories: (1) those that arise directly from the Court’s February Order and concern alleged
violations of that Order, and (2) those that are ancillary to the Order. Plaintiffs’ blanket, conclusory arguments
reflect a deliberate attempt to blur this critical distinction.
The latter category concerns arguments Plaintiffs make in regard to responses and objections Tesla
provided either in response to interrogatories and corresponding requests for production that were served before
10 the Court’s February Order and that were not even arguably addressed by that Order, or requests for admission
11 and corresponding special interrogatories served under color of permission granted by that Order, but are not
12 actually within the limited scope of the additional discovery requests permitted by that Order!. None of these
13 responses have previously been before the Court, meaning they cannot have violated the Court’s Order and could
14 not form the basis of sanctions, even if they were somehow improper (they are not). See Cal. Code Civ. Proc. §
15 2033.290(e); 2033.300(e).
16 Plaintiffs’ efforts to obfuscate the ancillary nature of these arguments, the fact that the majority of
17 Plaintiffs’ Motion concerns the issues addressed by the February Order, and the fact that a violation of that Order
18 is the prerequisite for even the theoretical ability to obtain the relief sought, makes it clear that the entirety of the
19 Motion is intended to convince the Court that its Order has been violated. Again, if you throw enough mud on the
20 wall maybe the Court will see a muddy wall. But that is not the case.
21 For this reason, and in consideration of the Court’s Rules concerning page limits, this Opposition will
22 respond to the arguments arising directly from the Order in greater detail than the ancillary ones, whereas the
23 ancillary ones will be addressed in the separate statements concerning those requests.
24 For ease of reference, the following summarizes the various sets of discovery responses that Plaintiffs
25 challenge, with reference to their relationship (or lack thereof) to the Court’s Order:
26
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1 The Court’s Order recognized discovery is closed and the Court expressly refused to reopen discovery.
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MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
Supplemental Responses Ordered by the Court:
a) Supplemental Responses to Requests for Admission (RFA), Set 2, Nos. 16-31, 37-52 related to
purported Elon Musk statements identified in the Order.
b) Supplemental Responses to Special Interrogatories (SROG), Set 3, Nos. 46-48 related to factual
support for a purported Elon Musk statement to CBS reporter Gayle King.
c) Supplemental Responses to Request for Production (RFP), Set 6, No. 214 related to documents
supporting a purported Elon Musk statement to CBS reporter Gayle King.
qd) Form Interrogatory (FROG) No. 17.1 concerning the above-described RFAs.
Responses to Requests Served After the Court’s Order:
e) Responses to RFA Set 3, Nos. 53-70. Concerning RFAs that are inside and outside of the scope of the
Court’s Order permitting limited additional discovery requests concerning alleged quotes from Mr.
Musk that were quoted in the Order.
Responses to RFAs as to Genuineness of Documents, Set 3, Nos. 1-7. Containing RFAs that are
10 inside and outside of the scope of the Court’s Order permitting limited additional discovery requests
concerning alleged quotes from Mr. Musk that were quoted in the Order.
11
g) Responses to SROG Set 5, Nos. 72-105. Containing SROGs that are inside and outside of the scope
12 of the Court’s Order permitting limited additional discovery requests concerning alleged quotes from
Mr. Musk that were quoted in the Order.
13
Responses to Requests Served Before the Court’s Order that are Entirely Unrelated to Alleged
14 Statements by Elon Musk:
h) Responses to SROG Set 4, Nos. 49-69
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i) Responses to RFP Set 7, Nos. 216-229
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Out of the 119 discovery requests at issue, only the 31 RFAs challenged from Set 2, three SROGs (Nos.
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46-48) from set 3, one FROG, and one RFP (No. 214) were actually subject to a prior Court order compelling
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further responses. All of the remaining complaints that Plaintiffs have, regardless of merit, cannot support their
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request for issue sanctions.
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B Overview of Tesla’s Position
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Plaintiffs’ Motion should be denied for two overarching reasons. First, there is nothing wrong with
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Tesla’s discovery responses. The responses are truthful, complete, and comply with this Court’s February Order
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specifically and with the Code more generally. Second, even if Tesla’s responses were somehow improper and
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they are not, the requested relief is prohibited by governing authority.
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A close look at Plaintiffs’ requested relief reveals their true motivation. They have manufactured this
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dispute in an effort to accomplish what the evidence will not allow: a determination that the CET applies in this
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SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
complex automotive design defect case and then relief from their burden of actually proving a defect under that
test. But Tesla did not violate the Court’s Order, and the requested sanction would be impermissible even if it
had.
Tl. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A Activity Preceding the Court’s February Order
As the Court will recall, this dispute relates to Tesla’s responses to RFAs that seek to establish the
authenticity of a number of statements allegedly made by Elon Musk in various speeches and interviews over a
period of nearly ten years. (See Order pp. 3-4.) Tesla initially responded to the Requests at issue by stating that
after, a reasonable inquiry, it could not admit or deny them. (Declaration of Lauren O. Miller 3.)
10
While at first glance it might seem unusual that Tesla could not admit or deny the authenticity of video
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and audio recordings purportedly containing statements by Mr. Musk, the reality is he, like many public figures, is
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the subject of many “deepfake” videos and audio recordings that purport to show him saying and doing things he
13
never actually said or did. (Miller Decl. { 5.) In fact, a Google search of the phrase “Elon Musk deepfake
14 generator” immediately brings up websites that explain to people how they can create Elon Musk deepfake
15
videos. (Miller Decl. 4 5.) The internet contains examples of these deepfakes. Some are obviously fake, such as
16 one that Mr. Musk shared on his Twitter account, in a joking fashion, that purported to show him, and other
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public figures, having a conversation concerning their alleged moonlighting gigs as nude models. (Miller Decl. 4
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6.)? This one was clearly a joke. Others, however, are not so obvious. For instance, a purported TED Talk
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conversation appeared to show Mr. Musk discussing crypto-currency investments—a conversation that did not
20 happen—yet, it and others like it are freely available online and are nowhere near as easily identified as those
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made in jest.? (Miller Decl. 7.) Thus, the existence of an apparent recording does not by itself actually establish
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the reality or authenticity of its contents. And, if entire interviews can be faked, so, too, can portions—even
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certain words or phrases.
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? Warning: this video contains some very off-color language of a sexual nature.
27 3 While not the cited deepfake video, it should be noted that some of the purported statements from Mr. Musk that
are at issue allegedly were made in a TED Talk.
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MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
Plaintiffs moved to compel further responses to these RFAs (along with corresponding FROGs, SROGs
and a RFP that sought additional information regarding the bases for the content of a select few of the alleged
statements in the recording). (Miller Decl. { 3.) Separately, Plaintiffs noticed Mr. Musk’s deposition and, as this
Court knows, Tesla filed a motion for protective order regarding the deposition. (Miller Decl. § 4.) The Court
held a hearing on both motions and then issued an Order that granted both parties’ motions, overruled Tesla’s
objections (while expressly noting that it was not deciding at that time whether the CET applied, which had been
the basis of the objections), and ordered Tesla to provide supplemental responses that required Tesla to conduct
further inquiry into whether the RFAs could be admitted or denied. (Miller Decl. 4 8.)
The Order also permitted Plaintiffs to serve additional but “Jimited” (emphasis in original) discovery
10 requests—specifically RFAs and corresponding SROGs—about statements purportedly made by Mr. Musk that
11 had been previously identified by Plaintiffs (and that were quoted in the Order) about which Plaintiffs had not yet
12 served discovery requests.* See Order at pp. 3-4 and 10. The Order explained that Mr. Musk’s deposition was
13 not permissible at that time, but suggested it could become so if he was not consulted as a part of the further
14 inquiry required by the Order. Jd. at p. 9.
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B Tesla’s Actions After the Court’s February Order
16 Tesla heard the Court loud and clear. It provided the language of the purported statements to Mr. Musk
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and provided him with copies of the recordings Plaintiffs had produced. (Declaration of Ryan McCarthy {| 3.) In
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response, Mr. Musk confirmed that he did not independently record the discussions or maintain a copy of the
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original recordings, did not take notes, and cannot specifically recall the details about the discussions or
20 statements (all of which Tesla explained in its new responses). (McCarthy Decl. { 4.) Therefore, even after
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24 4 This was limited only to statements purported to have been made by Mr. Musk, not by Tesla. This is an
important distinction because several of the post-Order requests Plaintiffs now challenge concerned statements
25 Plaintiffs do not attribute to Mr. Musk. As such, Tesla objected to those requests because they exceeded the
Court’s Order. Thus, the requests were improper in the first instance, and it is especially improper for Plaintiffs to
26 now seek sanctions over them when the responses cannot even arguably be violative of the Court’s Order. And
there is simply no excuse for Plaintiffs’ attempt to obfuscate this distinction by burying these amongst the
27 hundreds of other responses they challenge. See RFA, Set 3, Nos. 61-68, SPROG, Set 5, Nos. 84-86; Plaintiffs’
Motion pp. 9:9-15.
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SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
consulting directly with Mr. Musk, Tesla remains unable to admit or deny whether the recordings are authentic.
This is not surprising considering Tesla did not generate the content, does not have a copy of the original, and
given the age of the statements. It is unrealistic to expect anyone to have total recall of everything they might
have said, and all the more so for someone like Mr. Musk who regularly discusses matters about the various large
companies with which he is involved along with his many other, non-business interests. However, Tesla also
stated in its post-Order responses that “while [it] does not expect the file has been altered or manipulated, it
cannot authenticate a non-Tesla document that it cannot independently validate.” (See Miller Decl. § 9; Tesla’s
Responses to RFA 3, and Supp. Responses to RFA 2). Plaintiffs’ accusations notwithstanding, there is no
gamesmanship here. Instead, neither Tesla nor Mr. Musk have the detailed knowledge or recollection of what
10 was said that is necessary to truthfully admit or deny authenticity.
11 Additionally, though Plaintiffs make no mention of it, before Tesla provided its post-Order responses, it
12 requested detailed information about the origins of the recordings from Plaintiffs, as permitted by C.C.P. §
13 2033.060(g,) because such information might be helpful in determining whether they are authentic. (See Miller
14 Decl. § 11; Exhibit E.) Plaintiffs ignored Tesla’s request. (Miller Decl. § 11.) Plaintiffs’ refusal to provide this
15 information suggests the effort to obtain the requested sanction is their real motivation.
16 It should also be noted that there has been no showing by Plaintiffs that they tried and failed to obtain
17 original or authenticated copies of the recordings from the source of the recordings, or tried and failed to obtain
18 testimony from other percipient witnesses to the alleged comments. While Plaintiffs presumably prefer the
19 cheaper and easier means of authentication—downloading what they found on the web and asking Tesla to figure
20 out if it is legitimate or not—that is not the only way to obtain discovery. For instance, in this case Plaintiffs
21 found a YouTube video of a Tesla owner attempting to replicate Mr. Huang’s crash; they found the owner,
22 subpoenaed him, and deposed him. (Miller Decl. { 13.) They wanted that evidence and they did the leg work to
23 get it. Now, they want Tesla to either admit the accuracy of statements Tesla and Mr. Musk cannot say are
24 accurate, or hire some internet deepfake expert to analyze the content to try to figure out if it has been altered, or
25 just have the Court deem them admitted notwithstanding that Tesla complied with its obligations under the Code.
26 Vit
27 tit
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SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
In sum, Tesla made further reasonable and good faith efforts to attempt to authenticate the recordings,
including the precise action (consulting Mr. Musk) contemplated by the Court’s Order. Despite these efforts, it
remains unable to admit or deny the requests.
Til. ARGUMENT
A Tesla Complied with the Court’s February Order and the Code
1 Requests for Admission*
First, Plaintiffs argue that Tesla did not provide “meaningful responses” to the challenged RFAs; they do
not define “meaningful,” and instead simply assert that Tesla’s responses violate the Court’s February Order.
They then misrepresent Tesla’s responses, asserting that Tesla merely “refuse[d] to admit the requests on grounds
10
that the Court has already rejected, e.g. Tesla does not have the original recording; it does not have chain of
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custody knowledge; and Mr. Musk did not keep notes about his interviews.” Plaintiffs’ Motion at p. 4.
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Cal. Code Civ. Proc. § 2033.220(c) provides, “If a responding party gives lack of information or
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knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the
14 answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the
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information known or readily obtainable is insufficient to enable that party to admit the matter.” However,
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“[eJach answer in a response to requests for admission shall be as complete and straightforward as the information
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reasonably available to the responding party permits.” Cal. Code Civ. Proc.§ 2033.220(a).
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During the hearing that preceded the Court’s February Order and in the Order itself, the Court indicated
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that a reasonable inquiry seemed to require Tesla to consult with Mr. Musk about the purported recordings. See
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Order at p. 9 and Hearing Transcript at p. 13. Tesla did precisely that, and more. (McCarthy Decl. {{ 3-4.)
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Despite doing so, it remains unable to admit or deny the authenticity of the purported recordings. Plaintiffs ignore
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the very legitimate concern about deepfakes (though Tesla raised it in its response to their initial motion), and
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instead accuse Tesla of gamesmanship.
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Essentially, through their Motion, Plaintiffs are asking the Court to issue an extreme and unwarranted
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sanction against Tesla for not committing perjury. Having conducted a reasonable inquiry that involved Mr.
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5 This Section responds to Section III(A) of Plaintiffs’ Motion, excepting RFA, Set 3, Nos. 61-68.
28 7
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MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
Musk and knowing the risk of deepfakes, Tesla provided truthful answers: the authenticity of the purported
recordings cannot be admitted or denied. (McCarthy Decl. §§ 3-4; Miller Decl. § 5.) But Plaintiffs then go one
step further to attack Tesla for responding that it “does not expect the file has been altered or manipulated.” See
Plaintiffs’ Motion at p. 4. Though it was not strictly required to do so, Tesla provided that information because it
was consistent with the spirit of § 2033.220(a)’s requirement that responses be “as complete and straightforward
as the information reasonably available to the responding party permits. 796
Plaintiffs also complain about “deny as phrased” and “deny as worded” responses to Requests 60, 64, 65
(Motion p. 5).’ These complaints are unfounded for both factual and legal reasons. First, the Requests selectively
quote the purported recordings so as to omit important context. (Miller Decl. {| 12.) Second, the responses are
10 compliant with the Code’s requirement that denials of all or part of a request be unequivocal. See Smith v. Circle
11 P Ranch Co., Inc. (1978) 87 Cal.App.3d 267, 275 (explaining that the language, “As framed, denied” is a sworn
12 denial under the Code.”); see also American Federation of State, County & Municipal Employees v. Metropolitan
13 Water Dist. of Southern Calif. (2005) 126 Cal.App.4th 247, 268 (“It has been said that a denial of all or portion of
14 the request must be unequivocal.”). Tesla’s responses are truthful and indeed were necessary because the requests
15 at issue were about verbatim quotes, and Tesla’s inquiry determined that the purportedly quoted language was
16 inaccurate. (Miller Decl. 4] 12.) It is especially unfair for Plaintiffs to accuse Tesla of wrongdoing when they
17 could not be bothered even to accurately quote the statement for which they seek authenticity.
18 The responses and supplemental responses discussed in Section of III(A) of Plaintiffs’ Motion do
19 comply with the Court’s February Order, comply with the response form required by the Code, are truthful, and
20 actually assist Plaintiffs with their stated goal of establishing authenticity. Nothing sanctionable has occurred.
21 Plaintiffs’ Motion should be denied.
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6 The statement, while not sufficient to establish authenticity, can be used by Plaintiffs in support of an
27 argument for authenticity if there ever is need for one.
7 These were served after the Court’s Order.
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SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
2. Special Interrogatories and Requests for Production 8
Plaintiffs next attack Tesla’s responses and supplemental responses to the requests that seek “to determine
whether and what facts, if any, Tesla has in its possession, custody or control to back up” (See Court’s February
Order at p. 9) the statements Mr. Musk allegedly made in the various purported recordings that are the subject of
the above-discussed RFAs.
Tesla supplemented its responses to SROGs 46-48 and RFP 214 as required by this Court’s Order. These
supplements provide extensive information, including references to documents, that provide substantial additional
support for the general thrust of the statements purportedly made by Mr. Musk in the statements at issue.’ (See
Miller Decl. § 10.)
10 Plaintiffs, however, argue that these responses violate the Court’s Order because they are not strictly
11 limited to Tesla or Autopilot. (Plaintiffs’ Motion at pp. 7-8.) But Plaintiffs do not even attempt to explain why
12 statements about the benefits of advanced driver assistance systems from people and organizations that have
13 studied them do not apply to Tesla. Moreover, it is absurd for Plaintiffs to argue that Tesla should be sanctioned
14 for providing information in response to SROGs that is consistent with, and supportive of, the statements
15 referenced in the interrogatories when Tesla possesses knowledge of facts referenced in those statements. In other
16 words, they want Tesla sanctioned for answering the question. Plaintiffs’ unhappiness with these facts is not a
17 basis for sanctions.'°
18
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8 This Section responds to Sections II(B) and (C) of Plaintiffs’ Motion, excepting those that ancillary, SPROG,
20 Set 4, Nos. 49-51, 64-69, RFP, Set 7, Nos. 216-229, SPROG, Set 5, Nos. 84-86.
° This includes statements from NHTSA, the federal regulator, and the former Secretary of the U.S. Department
21 of Transportation that are consistent with Mr. Musk’s aspirational statements, as well several studies from
multiple organizations that research and collect data on highway safety that show a substantial positive effect in
22 regard to crash reduction that is associated with ADAS systems, including Autopilot. Plaintiffs argue that Tesla
somehow committed discovery abuse because it also provided this information in response to other, new requests.
23 This argument is meritless because the information was also responsive to those requests.
'0 There is another fundamental contradiction in Plaintiffs’ Motion that cannot be overlooked. All of the
24 information they assert they are entitled to but have not received is relevant only if the risk-utility test applies. It
is very telling—indeed it gives the game away—that they argue they are entitled to a sanction that applies the
25 consumer expectations test (and finds a defect under it) because they have not received information that has
nothing to do with that test. If they are right that Mr. Musk’s purported statements are relevant to the CET, then it
26 does not matter what the statements were based on. This, along with the fact that they apparently have not sought
to authenticate the recordings through other means known to them about the recordings’ origins, suggests
27 Plaintiffs know the consumer expectations test does not apply and that they could not establish a defect under it
by way of these purported statements even if it did.
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SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
B. The Requested Relief is Prohibited by Governing Authority
Although the Court’s Order has not been violated, it is important to recognize that Plaintiffs’ requested
relief would be prohibited even if Tesla had violated the Order.
1 There is No Basis for Modifying the Court’s Order Prohibiting
Mr. Musk’s Deposition
Through its Order, the Court prohibited Mr. Musk’s deposition but suggested it might become appropriate
on the limited question of the authenticity of the statements, and the basis for them, if less intrusive methods of
supplemental discovery did not adequately address those questions. See Court’s Order at pp. 9-10. As explained
above, Tesla’s post-Order discovery responses do answer both questions. Given these responses, and under the
legal authority presented in this Court’s February Order, there is no reason to compel Mr. Musk to re-state in a
10
deposition what Tesla has already said, which incorporated input from Mr. Musk and thus reflects what he would
11
say were he deposed. Plaintiffs’ Motion to Compel Mr. Musk’s deposition should therefore be denied.
12
13 2. The Requested Relief Regarding Tesla’s RFA Responses is Not Permitted by
the California Code of Civil Procedure
14
Deeming RFAs Admitted is an Improper Sanction Request
15
16 When a requesting party does not agree it was appropriate for a responding party to give a response that
17 was not an unequivocal admission, the remedy (if one is appropriate) is an order that, after trial, they be awarded
18 the costs incurred in proving the matter at trial. C.C.P. § 2033.420. A party cannot be compelled to admit an RFA
19 on the ground that the matter is claimed to be obviously true, even if it is obviously true. “In the event, however,
20 that the defendant denies a request for admission submitted by the plaintiff, he cannot be forced to admit the fact
21 prior to trial despite its obvious truth.” Smith v. Circle P Ranch (1978) 87 Cal.App.3d 267, 273 (citing Holguin v.
22 Superior Court (1972) 22 Cal.App.3d 812, 820). The sole basis for an order deeming an RFA to be admitted is
23 violation of an order compelling further response. CCP § 2033.290(e). A “deeming” order is unavailable here,
24 however, because Tesla did not violate the order compelling further response.
25 Thus, the only theoretically available remedy is a monetary sanction after trial if the statements are found
26 to be authentic at trial. But even this theoretical availability will not be available here under the facts here
27 because, not only did Tesla not violate the Order, but, at minimum, Tesla “has good reason for the failure to
28 27900109 10
MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
admit.” See CCP § 2033.420(b)(4). Tesla cannot admit the genuineness of recordings that it does not possess,
that were furnished by a third party from some other third party, and that Tesla does not affirmatively know to be
genuine after reasonable inquiry that, among other things, involved consultation with Mr. Musk (see McCarthy
Decl. {f{ 3-4), simply because Tesla also does not have reason to believe they have been altered. Thus, the
practical effect of a monetary sanction would be to punish Tesla for telling the truth in its responses.
ii. Issue Sanctions Are Not Available for RFA Responses
A response to an RFA, a failure to respond to an RFA, or a failure to comply with an order compelling
further response to an RFA cannot, under any circumstance, be the basis for an issue sanction. Substantive (as
opposed to monetary) sanctions for discovery misuse are permitted only to the extent authorized by the chapter
10 governing any particular discovery method or any other provision of the Civil Discovery Act. CCP § 2023.030.
11 While the statutes governing other discovery procedures clearly authorize evidence, issue, and terminating
12 sanctions, the chapter governing RF As just as clearly does not. see CCP §§ 2033.010-2033.420.
13 Plaintiffs do not seem to disagree, but by blurring the lines of their arguments and sanction requests, they
14 improperly attempt to use all of Tesla’s responses, including RFA responses, as fodder for their sanctions request.
15 The Court should not consider the RFA responses in ruling on Plaintiffs’ issue sanction request.
16 3. The Requested Issue Sanction Would Violate Both the Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution and California Law
17
“Constitutional Due Process imposes limitations on the power of courts, even in aid of their own valid
18
processes, to order discovery sanctions that deprive a party of his opportunity for a hearing on the merits of his
19
claims.” Newland v. Superior Court (1995), 40 Cal.App.4th 608, 614 (internal quotations omitted). As the
20
Second District Court of Appeal has explained, in a case that analyzed a host of U.S. Supreme Court decisions,
21
sanctions can be permissible when the failure to comply amounts to an admission that the party’s case lacks merit,
22
but such sanctions violate Due Process when they are issued as a punishment. Midwife v. Bernal (1988) 203
23
Cal.App.3d 57, 64-65 (discussing Hammond Packing Co. v. Arkansas (1909) 212 U.S. 322, 29 S.Ct. 370).
24
“Following [Supreme Court authority], California courts have held that the sanctions a court may impose
25
are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery
26
he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the
27
28 27900109 ll
MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
discovery but to impose punishment.” /d. at 64 (internal quotations omitted). “[T]he sanction chosen should not
provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had
obtained the discovery sought and it had been favorable.” Rutledge vy. Hewlett-Packard Co. (2015), 238
Cal.App.4th 1164, 1193.
The sanction Plaintiffs seek—application of the CET along with a finding that a defect is present under
that test—would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution
and California law because it would punish Tesla by imposing a test of liability that the Court has already
acknowledged very well may not apply in this case (Tesla contends it does not) and a finding that Autopilot is
defective pursuant to that test.'! See Court’s Order at p. 8. Additionally, the Court has also already
10 acknowledged that the discovery at issue—whether Mr. Musk made these statements and, if so, identification of
11 their bases—might not even be relevant to the consumer expectations test (indeed, it would seem they are not).
12 Id. at p. 7. Thus, the sanction is not fairly tethered to nor flows from the discovery at issue.
13 Under these circumstances, application of the CET as a sanction would serve only to punish Tesla. This
14 sanction, if it was imposed, would, at a minimum, risk imposing the wrong liability test despite controlling legal
15 authority requiring a case-by-case determination about the appropriate liability test to be applied. See Soule, 8
16 Cal.4th at 568. This alone would be punitive, and thereby violate Due Process. Plaintiffs go farther, however,
17 requesting a sanction that applies the CET and finds the subject vehicle to be defective under that test. Clearly,
18 such a sanction would punish Tesla.
19 Moreover, the requested sanction would have no relationship to the requested discovery because the CET
20 because does not contemplate public statements, no matter how prominent the speaker, as relevant to what
21 customers actually expect. See Soule, 8 Cal.4th at 567 (“As we have seen, the consumer expectations test is
22 //1
23
24
25
1! Tesla is mindful of the Court’s admonition that a discovery dispute is not the proper forum for the
26 determination of which test of liability applies to any given design defect case. Tesla simply notes that, as the
Court has recognized, Soule v. General Motors Corp. (1994), 8 Cal.4th 548, provides an in-depth discussion of
27 the circumstances when the consumer expectations test should be found to apply and those where the risk-benefit
test applies.
28 27900109 12
MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S
SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK;
AND MOTION FOR SANCTIONS
reserved for cases in which everyday experience of the product’s users permits a conclusion that the product’s
design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits
of its design.” (emphasis in original)).
There can be no question a sanction that has the effect of determining the CET applies (when Soule and
its line of case make clear the test does not) and then finds a defect under that test would punish Tesla. Clearly it
would leave Plaintiffs far better off than if they had received favorable answers to the requested discovery
because Mr. Musk’s public statements, even assuming they are authentic, simply have nothing to do with the
CET. This only underscores the punitive nature of the requested sanction.
As such, Plaintiffs’ requested sanction would violate the Due Process Clause of the 14th Amendment to
10 the United States Constitution and California law.
11
Iv. CONCLUSION
12
Tesla did not violate the Court’s Order. It has complied with its discovery obligations in regard to that
13
Order and more generally. Despite this, Plaintiffs have sought to put Tesla’s discovery responses on trial in hopes
14 of obtaining a sanction that would be impermissible even if there had been discovery misconduct. But the Court
15
should not be misled. Plaintiffs’ Motion should be denied in full.
16
Dated: April 20, 2023 BOWMAN AND BROOKE LLP
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1 )
th
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a
pu} —_—
19 \ Vauren/O. Miller
Attorneys for Defendant
20
Tesla, Inc.
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28 27900109 13
MEMO OF P&A’S IN SUPPORT OF OPPOSITION
Preview
19CV346663 Santa Clara — Civil R. Burciaga Vincent Galvin #104448 Joel Smith (Pro Hac Vice) Lauren O. Miller #279448 Electronically Filed BOWMAN AND BROOKE LLP by Superior Court of CA, 1741 Technology Drive, Suite 200 County of Santa Clara, San Jose, California 95110-1364 on 4/20/2023 3:45 PM Telephone: (408) 279-5393 Reviewed By: R. Burciaga Facsimile: (408) 279-5845 Case #19CV346663 vincent.galvin@bowmanandbrooke.com Envelope: 11767156 lauren.miller@bowmanandbrooke.com Thomas Branigan (Pro Hac Vice) BOWMAN AND BROOKE LLP 41000 Woodward Avenue, Suite 200 East Bloomfield Hills, MI 48303 Telephone: (248) 205.3300 Facsimile: (248) 205.3399 10 Thomas.branigan@bowmanandbrooke.com 11 Attorneys for Defendant Tesla, Inc. 12 13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SANTA CLARA 15 SZ HUA HUANG, Individually and as successor in ) Case No. 19CV346663 interest to WEI LUN HUANG, deceased; TRINITY ) 16 HUANG, a minor; TRISTAN HUANG, a minor; ) DEFENDANT TESLA, INC.'S OPPOSITION TO HSI KENG HUANG; and CHING FEN HUANG, PLAINTIFFS’ MOTION TO COMPEL RE TESLA 17 INC.’S SUPPLEMENTAL RESPONSES TO Plaintiff, WRITTEN DISCOVERY; MOTION FOR THE 18 DEPOSITION OF ELON MUSK; AND MOTION vs. FOR SANCTIONS 19 TESLA, INC. dba TESLA MOTORS INC. THE Date: April 27, 2023 20 STATE OF CALIFORNIA, and DOES 1| through Time: 9:00 a.m. 100, Dept. 6 21 Defendants. Assigned for all purposes to: 22 Hon. Evette Pennypacker; Dept. 6 23 24 25 26 27 28 27900109 DEFENDANT TESLA, INC.'S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS TABLE OF CONTENTS INTRODUCTION Overview of the Contents of Plaintiffs’ Motion Overview of Tesla’s Position IL FACTUAL BACKGROUND AND PROCEDURAL HISTORY Activity Preceding the Court’s February Order Tesla’s Actions After the Court’s February Order. TL ARGUMENT 10 Tesla Complied with the Court’s February Order and the Code 1 Requests for Admission. 11 2...Special Interrogatories and Requests for Production 12 The Requested Relief is Prohibited by Governing Authority 10 13 1 There is No Basis for Modifying the Court’s Order Prohibiting 10 Mr. Musk’s Deposition... 10 14 2. The Requested Relief Regarding Tesla’s RFA Responses is Not Permitted by the California Code of Civil Procedure 10 15 i Deeming RFAs Admitted is an Improper Sanction Request 10 ii. Issue Sanctions Are Not Available for RFA Responses... 11 16 3 The Requested Issue Sanction Would Violate Both the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and California Law. asl 17 IV. CONCLUSION 13 18 19 20 21 22 23 24 25 26 27 28 27900109 TABLE OF CONTENTS TABLE OF AUTHORITIES Page(s) Other Authorities American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Cal (2005) 126 Cal.App.4th 247 Hammond Packing Co. v. Arkansas, (1909) 212 U.S. 322, 29 S.Ct. 370 11 Holguin v. Superior Court, (1972) 22 Cal.App.3d 812 10 Midwife v. Bernal, (1988) 203 Cal.App.3d 57 11, 12 Newland v. Superior Court, (1995), 40 Cal. App.4th 608 11 Rutledge v. Hewlett-Packard Co., 10 (2015), 238 Cal.App.4th 1164. eerste eereeatresse retest es erst estes ce retest ceceerer ete ceesr eee seeesrrest sees 12 Smith v. Circle P Ranch Co., In 11 (1978) 87 Cal.App.3d 267 8,10 Soule v. General Motors Corp. 12 (1994), 8 Cal.4th 548..... 12 13 Regulations 14 Cal. Code Civ. - Proc. § 2023.030.. 11 Cal. Code Civ. . Proc. § 2033.06 15 Cal. Code Civ. . Proc. § 2033.220(c) Cal. Code Civ. . Proc. § 2033.290(e) . 10 16 Cal. Code Civ. Proc. § 2033.42 10 Cal. Code Civ. Proc. § 2033.420(b)( 11 17 Cal Code Civ. . Proc. §§ 2033.010-2033.420 11 Cal Code Civ. . Proc.§ 2033.220(a) 58 18 19 20 21 22 23 24 25 26 27 28 27900109 ii TABLE OF AUTHORITIES MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION After years of discovery and preparation, the trial of this case is finally in sight. The underlying facts are clear: Mr. Huang crashed his vehicle because he was playing a video game instead of driving his car. Plaintiffs contend it was perfectly appropriate for him to play a video game while he was behind the wheel because the subject 2017 Tesla Model X was equipped with a driver assistance feature called Autopilot. They make this contention despite the many clear warnings that explain drivers must maintain control and responsibility for their vehicles when Autopilot is engaged, that they must keep their eyes on the road and their hands on the wheel. Mr. Huang, of course, did neither. 10 Faced with these difficult facts, Plaintiffs seek, through their Motion, to avoid them entirely. They ask 11 the Court to issue an extreme sanction that would deem the Consumer Expectations Test (CET) applicable to this 12 case, despite the Court having already acknowledged it might not apply (Tesla contends it does not) and further 13 deem there is a defect under that test. Their hook for this ambitious strategy is Tesla’s inability to admit or deny 14 the authenticity of certain recordings that appear to show its CEO, Elon Musk, making various statements about 15 either Autopilot’s abilities or aspirations for the continued development of advanced driver assistance systems. 16 The relationship of the statements in the recordings to this case is unclear because none of them say, or even 17 suggest, that it is appropriate to play video game while driving. 18 Regardless, as will be shown, Tesla’s responses were truthful, complete, and in compliance with the 19 Court’s prior discovery order and the Civil Discovery Act. Plaintiffs’ Motion should be denied. 20 A Overview of the Contents of Plaintiffs’ Motion 21 Plaintiffs’ Motion challenges Tesla’s responses and supplemental responses to 119 different discovery 22 requests. (See Plaintiffs’ eight Separate Statements in Support of Motion to Compel.) Many of Plaintiffs’ 23 challenges are simply one-sentence, conclusory statements. However, all of the 119 different discovery 24 challenges are offered, explicitly or implicitly, in support of Plaintiffs’ request for the following forms of extreme, 25 unwarranted relief: (1) an issue sanction that would have this Court order that the consumer expectations test 26 (CET) is applicable in this dispute (ignoring the Court’s recent statement in its February 24, 2023, Order that the 27 Court would have to contend with that question at a later, appropriate time) and that the Model X’s Autopilot 28 27900109 1 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS feature is defective under the CET; (2) an order deeming Plaintiffs’ Requests for Admission admitted; and (3) an order compelling the “apex” deposition of Tesla’s CEO, Elon Musk. Again, this is a massive overreach. Before addressing why Plaintiffs are not entitled to any of these remedies, it is important for the Court to recognize that, while Plaintiffs throw many arguments at the wall, they fall into two categories: (1) those that arise directly from the Court’s February Order and concern alleged violations of that Order, and (2) those that are ancillary to the Order. Plaintiffs’ blanket, conclusory arguments reflect a deliberate attempt to blur this critical distinction. The latter category concerns arguments Plaintiffs make in regard to responses and objections Tesla provided either in response to interrogatories and corresponding requests for production that were served before 10 the Court’s February Order and that were not even arguably addressed by that Order, or requests for admission 11 and corresponding special interrogatories served under color of permission granted by that Order, but are not 12 actually within the limited scope of the additional discovery requests permitted by that Order!. None of these 13 responses have previously been before the Court, meaning they cannot have violated the Court’s Order and could 14 not form the basis of sanctions, even if they were somehow improper (they are not). See Cal. Code Civ. Proc. § 15 2033.290(e); 2033.300(e). 16 Plaintiffs’ efforts to obfuscate the ancillary nature of these arguments, the fact that the majority of 17 Plaintiffs’ Motion concerns the issues addressed by the February Order, and the fact that a violation of that Order 18 is the prerequisite for even the theoretical ability to obtain the relief sought, makes it clear that the entirety of the 19 Motion is intended to convince the Court that its Order has been violated. Again, if you throw enough mud on the 20 wall maybe the Court will see a muddy wall. But that is not the case. 21 For this reason, and in consideration of the Court’s Rules concerning page limits, this Opposition will 22 respond to the arguments arising directly from the Order in greater detail than the ancillary ones, whereas the 23 ancillary ones will be addressed in the separate statements concerning those requests. 24 For ease of reference, the following summarizes the various sets of discovery responses that Plaintiffs 25 challenge, with reference to their relationship (or lack thereof) to the Court’s Order: 26 27 1 The Court’s Order recognized discovery is closed and the Court expressly refused to reopen discovery. 28 27900109 2 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS Supplemental Responses Ordered by the Court: a) Supplemental Responses to Requests for Admission (RFA), Set 2, Nos. 16-31, 37-52 related to purported Elon Musk statements identified in the Order. b) Supplemental Responses to Special Interrogatories (SROG), Set 3, Nos. 46-48 related to factual support for a purported Elon Musk statement to CBS reporter Gayle King. c) Supplemental Responses to Request for Production (RFP), Set 6, No. 214 related to documents supporting a purported Elon Musk statement to CBS reporter Gayle King. qd) Form Interrogatory (FROG) No. 17.1 concerning the above-described RFAs. Responses to Requests Served After the Court’s Order: e) Responses to RFA Set 3, Nos. 53-70. Concerning RFAs that are inside and outside of the scope of the Court’s Order permitting limited additional discovery requests concerning alleged quotes from Mr. Musk that were quoted in the Order. Responses to RFAs as to Genuineness of Documents, Set 3, Nos. 1-7. Containing RFAs that are 10 inside and outside of the scope of the Court’s Order permitting limited additional discovery requests concerning alleged quotes from Mr. Musk that were quoted in the Order. 11 g) Responses to SROG Set 5, Nos. 72-105. Containing SROGs that are inside and outside of the scope 12 of the Court’s Order permitting limited additional discovery requests concerning alleged quotes from Mr. Musk that were quoted in the Order. 13 Responses to Requests Served Before the Court’s Order that are Entirely Unrelated to Alleged 14 Statements by Elon Musk: h) Responses to SROG Set 4, Nos. 49-69 15 i) Responses to RFP Set 7, Nos. 216-229 16 Out of the 119 discovery requests at issue, only the 31 RFAs challenged from Set 2, three SROGs (Nos. 17 46-48) from set 3, one FROG, and one RFP (No. 214) were actually subject to a prior Court order compelling 18 further responses. All of the remaining complaints that Plaintiffs have, regardless of merit, cannot support their 19 request for issue sanctions. 20 B Overview of Tesla’s Position 21 22 Plaintiffs’ Motion should be denied for two overarching reasons. First, there is nothing wrong with 23 Tesla’s discovery responses. The responses are truthful, complete, and comply with this Court’s February Order 24 specifically and with the Code more generally. Second, even if Tesla’s responses were somehow improper and 25 they are not, the requested relief is prohibited by governing authority. 26 A close look at Plaintiffs’ requested relief reveals their true motivation. They have manufactured this 27 dispute in an effort to accomplish what the evidence will not allow: a determination that the CET applies in this 28 27900109 3 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS complex automotive design defect case and then relief from their burden of actually proving a defect under that test. But Tesla did not violate the Court’s Order, and the requested sanction would be impermissible even if it had. Tl. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A Activity Preceding the Court’s February Order As the Court will recall, this dispute relates to Tesla’s responses to RFAs that seek to establish the authenticity of a number of statements allegedly made by Elon Musk in various speeches and interviews over a period of nearly ten years. (See Order pp. 3-4.) Tesla initially responded to the Requests at issue by stating that after, a reasonable inquiry, it could not admit or deny them. (Declaration of Lauren O. Miller 3.) 10 While at first glance it might seem unusual that Tesla could not admit or deny the authenticity of video 11 and audio recordings purportedly containing statements by Mr. Musk, the reality is he, like many public figures, is 12 the subject of many “deepfake” videos and audio recordings that purport to show him saying and doing things he 13 never actually said or did. (Miller Decl. { 5.) In fact, a Google search of the phrase “Elon Musk deepfake 14 generator” immediately brings up websites that explain to people how they can create Elon Musk deepfake 15 videos. (Miller Decl. 4 5.) The internet contains examples of these deepfakes. Some are obviously fake, such as 16 one that Mr. Musk shared on his Twitter account, in a joking fashion, that purported to show him, and other 17 public figures, having a conversation concerning their alleged moonlighting gigs as nude models. (Miller Decl. 4 18 6.)? This one was clearly a joke. Others, however, are not so obvious. For instance, a purported TED Talk 19 conversation appeared to show Mr. Musk discussing crypto-currency investments—a conversation that did not 20 happen—yet, it and others like it are freely available online and are nowhere near as easily identified as those 21 made in jest.? (Miller Decl. 7.) Thus, the existence of an apparent recording does not by itself actually establish 22 the reality or authenticity of its contents. And, if entire interviews can be faked, so, too, can portions—even 23 certain words or phrases. 24 25 26 ? Warning: this video contains some very off-color language of a sexual nature. 27 3 While not the cited deepfake video, it should be noted that some of the purported statements from Mr. Musk that are at issue allegedly were made in a TED Talk. 28 27900109 4 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS Plaintiffs moved to compel further responses to these RFAs (along with corresponding FROGs, SROGs and a RFP that sought additional information regarding the bases for the content of a select few of the alleged statements in the recording). (Miller Decl. { 3.) Separately, Plaintiffs noticed Mr. Musk’s deposition and, as this Court knows, Tesla filed a motion for protective order regarding the deposition. (Miller Decl. § 4.) The Court held a hearing on both motions and then issued an Order that granted both parties’ motions, overruled Tesla’s objections (while expressly noting that it was not deciding at that time whether the CET applied, which had been the basis of the objections), and ordered Tesla to provide supplemental responses that required Tesla to conduct further inquiry into whether the RFAs could be admitted or denied. (Miller Decl. 4 8.) The Order also permitted Plaintiffs to serve additional but “Jimited” (emphasis in original) discovery 10 requests—specifically RFAs and corresponding SROGs—about statements purportedly made by Mr. Musk that 11 had been previously identified by Plaintiffs (and that were quoted in the Order) about which Plaintiffs had not yet 12 served discovery requests.* See Order at pp. 3-4 and 10. The Order explained that Mr. Musk’s deposition was 13 not permissible at that time, but suggested it could become so if he was not consulted as a part of the further 14 inquiry required by the Order. Jd. at p. 9. 15 B Tesla’s Actions After the Court’s February Order 16 Tesla heard the Court loud and clear. It provided the language of the purported statements to Mr. Musk 17 and provided him with copies of the recordings Plaintiffs had produced. (Declaration of Ryan McCarthy {| 3.) In 18 response, Mr. Musk confirmed that he did not independently record the discussions or maintain a copy of the 19 original recordings, did not take notes, and cannot specifically recall the details about the discussions or 20 statements (all of which Tesla explained in its new responses). (McCarthy Decl. { 4.) Therefore, even after 21 22 23 24 4 This was limited only to statements purported to have been made by Mr. Musk, not by Tesla. This is an important distinction because several of the post-Order requests Plaintiffs now challenge concerned statements 25 Plaintiffs do not attribute to Mr. Musk. As such, Tesla objected to those requests because they exceeded the Court’s Order. Thus, the requests were improper in the first instance, and it is especially improper for Plaintiffs to 26 now seek sanctions over them when the responses cannot even arguably be violative of the Court’s Order. And there is simply no excuse for Plaintiffs’ attempt to obfuscate this distinction by burying these amongst the 27 hundreds of other responses they challenge. See RFA, Set 3, Nos. 61-68, SPROG, Set 5, Nos. 84-86; Plaintiffs’ Motion pp. 9:9-15. 28 27900109 5 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS consulting directly with Mr. Musk, Tesla remains unable to admit or deny whether the recordings are authentic. This is not surprising considering Tesla did not generate the content, does not have a copy of the original, and given the age of the statements. It is unrealistic to expect anyone to have total recall of everything they might have said, and all the more so for someone like Mr. Musk who regularly discusses matters about the various large companies with which he is involved along with his many other, non-business interests. However, Tesla also stated in its post-Order responses that “while [it] does not expect the file has been altered or manipulated, it cannot authenticate a non-Tesla document that it cannot independently validate.” (See Miller Decl. § 9; Tesla’s Responses to RFA 3, and Supp. Responses to RFA 2). Plaintiffs’ accusations notwithstanding, there is no gamesmanship here. Instead, neither Tesla nor Mr. Musk have the detailed knowledge or recollection of what 10 was said that is necessary to truthfully admit or deny authenticity. 11 Additionally, though Plaintiffs make no mention of it, before Tesla provided its post-Order responses, it 12 requested detailed information about the origins of the recordings from Plaintiffs, as permitted by C.C.P. § 13 2033.060(g,) because such information might be helpful in determining whether they are authentic. (See Miller 14 Decl. § 11; Exhibit E.) Plaintiffs ignored Tesla’s request. (Miller Decl. § 11.) Plaintiffs’ refusal to provide this 15 information suggests the effort to obtain the requested sanction is their real motivation. 16 It should also be noted that there has been no showing by Plaintiffs that they tried and failed to obtain 17 original or authenticated copies of the recordings from the source of the recordings, or tried and failed to obtain 18 testimony from other percipient witnesses to the alleged comments. While Plaintiffs presumably prefer the 19 cheaper and easier means of authentication—downloading what they found on the web and asking Tesla to figure 20 out if it is legitimate or not—that is not the only way to obtain discovery. For instance, in this case Plaintiffs 21 found a YouTube video of a Tesla owner attempting to replicate Mr. Huang’s crash; they found the owner, 22 subpoenaed him, and deposed him. (Miller Decl. { 13.) They wanted that evidence and they did the leg work to 23 get it. Now, they want Tesla to either admit the accuracy of statements Tesla and Mr. Musk cannot say are 24 accurate, or hire some internet deepfake expert to analyze the content to try to figure out if it has been altered, or 25 just have the Court deem them admitted notwithstanding that Tesla complied with its obligations under the Code. 26 Vit 27 tit 28 27900109 6 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS In sum, Tesla made further reasonable and good faith efforts to attempt to authenticate the recordings, including the precise action (consulting Mr. Musk) contemplated by the Court’s Order. Despite these efforts, it remains unable to admit or deny the requests. Til. ARGUMENT A Tesla Complied with the Court’s February Order and the Code 1 Requests for Admission* First, Plaintiffs argue that Tesla did not provide “meaningful responses” to the challenged RFAs; they do not define “meaningful,” and instead simply assert that Tesla’s responses violate the Court’s February Order. They then misrepresent Tesla’s responses, asserting that Tesla merely “refuse[d] to admit the requests on grounds 10 that the Court has already rejected, e.g. Tesla does not have the original recording; it does not have chain of 11 custody knowledge; and Mr. Musk did not keep notes about his interviews.” Plaintiffs’ Motion at p. 4. 12 Cal. Code Civ. Proc. § 2033.220(c) provides, “If a responding party gives lack of information or 13 knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the 14 answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the 15 information known or readily obtainable is insufficient to enable that party to admit the matter.” However, 16 “[eJach answer in a response to requests for admission shall be as complete and straightforward as the information 17 reasonably available to the responding party permits.” Cal. Code Civ. Proc.§ 2033.220(a). 18 During the hearing that preceded the Court’s February Order and in the Order itself, the Court indicated 19 that a reasonable inquiry seemed to require Tesla to consult with Mr. Musk about the purported recordings. See 20 Order at p. 9 and Hearing Transcript at p. 13. Tesla did precisely that, and more. (McCarthy Decl. {{ 3-4.) 21 Despite doing so, it remains unable to admit or deny the authenticity of the purported recordings. Plaintiffs ignore 22 the very legitimate concern about deepfakes (though Tesla raised it in its response to their initial motion), and 23 instead accuse Tesla of gamesmanship. 24 Essentially, through their Motion, Plaintiffs are asking the Court to issue an extreme and unwarranted 25 sanction against Tesla for not committing perjury. Having conducted a reasonable inquiry that involved Mr. 26 27 5 This Section responds to Section III(A) of Plaintiffs’ Motion, excepting RFA, Set 3, Nos. 61-68. 28 7 27900109 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS Musk and knowing the risk of deepfakes, Tesla provided truthful answers: the authenticity of the purported recordings cannot be admitted or denied. (McCarthy Decl. §§ 3-4; Miller Decl. § 5.) But Plaintiffs then go one step further to attack Tesla for responding that it “does not expect the file has been altered or manipulated.” See Plaintiffs’ Motion at p. 4. Though it was not strictly required to do so, Tesla provided that information because it was consistent with the spirit of § 2033.220(a)’s requirement that responses be “as complete and straightforward as the information reasonably available to the responding party permits. 796 Plaintiffs also complain about “deny as phrased” and “deny as worded” responses to Requests 60, 64, 65 (Motion p. 5).’ These complaints are unfounded for both factual and legal reasons. First, the Requests selectively quote the purported recordings so as to omit important context. (Miller Decl. {| 12.) Second, the responses are 10 compliant with the Code’s requirement that denials of all or part of a request be unequivocal. See Smith v. Circle 11 P Ranch Co., Inc. (1978) 87 Cal.App.3d 267, 275 (explaining that the language, “As framed, denied” is a sworn 12 denial under the Code.”); see also American Federation of State, County & Municipal Employees v. Metropolitan 13 Water Dist. of Southern Calif. (2005) 126 Cal.App.4th 247, 268 (“It has been said that a denial of all or portion of 14 the request must be unequivocal.”). Tesla’s responses are truthful and indeed were necessary because the requests 15 at issue were about verbatim quotes, and Tesla’s inquiry determined that the purportedly quoted language was 16 inaccurate. (Miller Decl. 4] 12.) It is especially unfair for Plaintiffs to accuse Tesla of wrongdoing when they 17 could not be bothered even to accurately quote the statement for which they seek authenticity. 18 The responses and supplemental responses discussed in Section of III(A) of Plaintiffs’ Motion do 19 comply with the Court’s February Order, comply with the response form required by the Code, are truthful, and 20 actually assist Plaintiffs with their stated goal of establishing authenticity. Nothing sanctionable has occurred. 21 Plaintiffs’ Motion should be denied. 22 23 24 25 26 6 The statement, while not sufficient to establish authenticity, can be used by Plaintiffs in support of an 27 argument for authenticity if there ever is need for one. 7 These were served after the Court’s Order. 27900109 8 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS 2. Special Interrogatories and Requests for Production 8 Plaintiffs next attack Tesla’s responses and supplemental responses to the requests that seek “to determine whether and what facts, if any, Tesla has in its possession, custody or control to back up” (See Court’s February Order at p. 9) the statements Mr. Musk allegedly made in the various purported recordings that are the subject of the above-discussed RFAs. Tesla supplemented its responses to SROGs 46-48 and RFP 214 as required by this Court’s Order. These supplements provide extensive information, including references to documents, that provide substantial additional support for the general thrust of the statements purportedly made by Mr. Musk in the statements at issue.’ (See Miller Decl. § 10.) 10 Plaintiffs, however, argue that these responses violate the Court’s Order because they are not strictly 11 limited to Tesla or Autopilot. (Plaintiffs’ Motion at pp. 7-8.) But Plaintiffs do not even attempt to explain why 12 statements about the benefits of advanced driver assistance systems from people and organizations that have 13 studied them do not apply to Tesla. Moreover, it is absurd for Plaintiffs to argue that Tesla should be sanctioned 14 for providing information in response to SROGs that is consistent with, and supportive of, the statements 15 referenced in the interrogatories when Tesla possesses knowledge of facts referenced in those statements. In other 16 words, they want Tesla sanctioned for answering the question. Plaintiffs’ unhappiness with these facts is not a 17 basis for sanctions.'° 18 19 8 This Section responds to Sections II(B) and (C) of Plaintiffs’ Motion, excepting those that ancillary, SPROG, 20 Set 4, Nos. 49-51, 64-69, RFP, Set 7, Nos. 216-229, SPROG, Set 5, Nos. 84-86. ° This includes statements from NHTSA, the federal regulator, and the former Secretary of the U.S. Department 21 of Transportation that are consistent with Mr. Musk’s aspirational statements, as well several studies from multiple organizations that research and collect data on highway safety that show a substantial positive effect in 22 regard to crash reduction that is associated with ADAS systems, including Autopilot. Plaintiffs argue that Tesla somehow committed discovery abuse because it also provided this information in response to other, new requests. 23 This argument is meritless because the information was also responsive to those requests. '0 There is another fundamental contradiction in Plaintiffs’ Motion that cannot be overlooked. All of the 24 information they assert they are entitled to but have not received is relevant only if the risk-utility test applies. It is very telling—indeed it gives the game away—that they argue they are entitled to a sanction that applies the 25 consumer expectations test (and finds a defect under it) because they have not received information that has nothing to do with that test. If they are right that Mr. Musk’s purported statements are relevant to the CET, then it 26 does not matter what the statements were based on. This, along with the fact that they apparently have not sought to authenticate the recordings through other means known to them about the recordings’ origins, suggests 27 Plaintiffs know the consumer expectations test does not apply and that they could not establish a defect under it by way of these purported statements even if it did. 28 27900109 9 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS B. The Requested Relief is Prohibited by Governing Authority Although the Court’s Order has not been violated, it is important to recognize that Plaintiffs’ requested relief would be prohibited even if Tesla had violated the Order. 1 There is No Basis for Modifying the Court’s Order Prohibiting Mr. Musk’s Deposition Through its Order, the Court prohibited Mr. Musk’s deposition but suggested it might become appropriate on the limited question of the authenticity of the statements, and the basis for them, if less intrusive methods of supplemental discovery did not adequately address those questions. See Court’s Order at pp. 9-10. As explained above, Tesla’s post-Order discovery responses do answer both questions. Given these responses, and under the legal authority presented in this Court’s February Order, there is no reason to compel Mr. Musk to re-state in a 10 deposition what Tesla has already said, which incorporated input from Mr. Musk and thus reflects what he would 11 say were he deposed. Plaintiffs’ Motion to Compel Mr. Musk’s deposition should therefore be denied. 12 13 2. The Requested Relief Regarding Tesla’s RFA Responses is Not Permitted by the California Code of Civil Procedure 14 Deeming RFAs Admitted is an Improper Sanction Request 15 16 When a requesting party does not agree it was appropriate for a responding party to give a response that 17 was not an unequivocal admission, the remedy (if one is appropriate) is an order that, after trial, they be awarded 18 the costs incurred in proving the matter at trial. C.C.P. § 2033.420. A party cannot be compelled to admit an RFA 19 on the ground that the matter is claimed to be obviously true, even if it is obviously true. “In the event, however, 20 that the defendant denies a request for admission submitted by the plaintiff, he cannot be forced to admit the fact 21 prior to trial despite its obvious truth.” Smith v. Circle P Ranch (1978) 87 Cal.App.3d 267, 273 (citing Holguin v. 22 Superior Court (1972) 22 Cal.App.3d 812, 820). The sole basis for an order deeming an RFA to be admitted is 23 violation of an order compelling further response. CCP § 2033.290(e). A “deeming” order is unavailable here, 24 however, because Tesla did not violate the order compelling further response. 25 Thus, the only theoretically available remedy is a monetary sanction after trial if the statements are found 26 to be authentic at trial. But even this theoretical availability will not be available here under the facts here 27 because, not only did Tesla not violate the Order, but, at minimum, Tesla “has good reason for the failure to 28 27900109 10 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS admit.” See CCP § 2033.420(b)(4). Tesla cannot admit the genuineness of recordings that it does not possess, that were furnished by a third party from some other third party, and that Tesla does not affirmatively know to be genuine after reasonable inquiry that, among other things, involved consultation with Mr. Musk (see McCarthy Decl. {f{ 3-4), simply because Tesla also does not have reason to believe they have been altered. Thus, the practical effect of a monetary sanction would be to punish Tesla for telling the truth in its responses. ii. Issue Sanctions Are Not Available for RFA Responses A response to an RFA, a failure to respond to an RFA, or a failure to comply with an order compelling further response to an RFA cannot, under any circumstance, be the basis for an issue sanction. Substantive (as opposed to monetary) sanctions for discovery misuse are permitted only to the extent authorized by the chapter 10 governing any particular discovery method or any other provision of the Civil Discovery Act. CCP § 2023.030. 11 While the statutes governing other discovery procedures clearly authorize evidence, issue, and terminating 12 sanctions, the chapter governing RF As just as clearly does not. see CCP §§ 2033.010-2033.420. 13 Plaintiffs do not seem to disagree, but by blurring the lines of their arguments and sanction requests, they 14 improperly attempt to use all of Tesla’s responses, including RFA responses, as fodder for their sanctions request. 15 The Court should not consider the RFA responses in ruling on Plaintiffs’ issue sanction request. 16 3. The Requested Issue Sanction Would Violate Both the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and California Law 17 “Constitutional Due Process imposes limitations on the power of courts, even in aid of their own valid 18 processes, to order discovery sanctions that deprive a party of his opportunity for a hearing on the merits of his 19 claims.” Newland v. Superior Court (1995), 40 Cal.App.4th 608, 614 (internal quotations omitted). As the 20 Second District Court of Appeal has explained, in a case that analyzed a host of U.S. Supreme Court decisions, 21 sanctions can be permissible when the failure to comply amounts to an admission that the party’s case lacks merit, 22 but such sanctions violate Due Process when they are issued as a punishment. Midwife v. Bernal (1988) 203 23 Cal.App.3d 57, 64-65 (discussing Hammond Packing Co. v. Arkansas (1909) 212 U.S. 322, 29 S.Ct. 370). 24 “Following [Supreme Court authority], California courts have held that the sanctions a court may impose 25 are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery 26 he seeks but the court may not impose sanctions which are designed not to accomplish the objects of the 27 28 27900109 ll MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS discovery but to impose punishment.” /d. at 64 (internal quotations omitted). “[T]he sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.” Rutledge vy. Hewlett-Packard Co. (2015), 238 Cal.App.4th 1164, 1193. The sanction Plaintiffs seek—application of the CET along with a finding that a defect is present under that test—would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution and California law because it would punish Tesla by imposing a test of liability that the Court has already acknowledged very well may not apply in this case (Tesla contends it does not) and a finding that Autopilot is defective pursuant to that test.'! See Court’s Order at p. 8. Additionally, the Court has also already 10 acknowledged that the discovery at issue—whether Mr. Musk made these statements and, if so, identification of 11 their bases—might not even be relevant to the consumer expectations test (indeed, it would seem they are not). 12 Id. at p. 7. Thus, the sanction is not fairly tethered to nor flows from the discovery at issue. 13 Under these circumstances, application of the CET as a sanction would serve only to punish Tesla. This 14 sanction, if it was imposed, would, at a minimum, risk imposing the wrong liability test despite controlling legal 15 authority requiring a case-by-case determination about the appropriate liability test to be applied. See Soule, 8 16 Cal.4th at 568. This alone would be punitive, and thereby violate Due Process. Plaintiffs go farther, however, 17 requesting a sanction that applies the CET and finds the subject vehicle to be defective under that test. Clearly, 18 such a sanction would punish Tesla. 19 Moreover, the requested sanction would have no relationship to the requested discovery because the CET 20 because does not contemplate public statements, no matter how prominent the speaker, as relevant to what 21 customers actually expect. See Soule, 8 Cal.4th at 567 (“As we have seen, the consumer expectations test is 22 //1 23 24 25 1! Tesla is mindful of the Court’s admonition that a discovery dispute is not the proper forum for the 26 determination of which test of liability applies to any given design defect case. Tesla simply notes that, as the Court has recognized, Soule v. General Motors Corp. (1994), 8 Cal.4th 548, provides an in-depth discussion of 27 the circumstances when the consumer expectations test should be found to apply and those where the risk-benefit test applies. 28 27900109 12 MEMO OF P&A’S IN SUPPORT OF OPPOSITION PLAINTIFFS’ MOTION TO COMPEL RE TESLA INC.’S SUPPLEMENTAL RESPONSES TO WRITTEN DISCOVERY; MOTION FOR THE DEPOSITION OF ELON MUSK; AND MOTION FOR SANCTIONS reserved for cases in which everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of its design.” (emphasis in original)). There can be no question a sanction that has the effect of determining the CET applies (when Soule and its line of case make clear the test does not) and then finds a defect under that test would punish Tesla. Clearly it would leave Plaintiffs far better off than if they had received favorable answers to the requested discovery because Mr. Musk’s public statements, even assuming they are authentic, simply have nothing to do with the CET. This only underscores the punitive nature of the requested sanction. As such, Plaintiffs’ requested sanction would violate the Due Process Clause of the 14th Amendment to 10 the United States Constitution and California law. 11 Iv. CONCLUSION 12 Tesla did not violate the Court’s Order. It has complied with its discovery obligations in regard to that 13 Order and more generally. Despite this, Plaintiffs have sought to put Tesla’s discovery responses on trial in hopes 14 of obtaining a sanction that would be impermissible even if there had been discovery misconduct. But the Court 15 should not be misled. Plaintiffs’ Motion should be denied in full. 16 Dated: April 20, 2023 BOWMAN AND BROOKE LLP 17 1 ) th 18 a pu} —_— 19 \ Vauren/O. Miller Attorneys for Defendant 20 Tesla, Inc. 21 22 23 24 25 26 27 28 27900109 13 MEMO OF P&A’S IN SUPPORT OF OPPOSITION