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19CV346663
Santa Clara — Civil
R, Burciaga
Vincent Galvin #104448
Lauren O. Miller #279448
BOWMAN AND BROOKE LLP. Electronically Filed
1741 Technology Drive, Suite 200 by Superior Court of CA,
San Jose, California 95110-1364 County of Santa Clara,
Telephone: (408) 279-5393 on 6/30/2020 4:14 PM
Facsimile: (408) 279-5845 Reviewed By: R. Burciaga
vincent.galvin@bowmanandbrooke.com Case #19CV346663
lauren.miller@bowmanandbrooke.com Envelope: 4533006
Attorneys for Defendant
Tesla, Inc.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10 SZ HUA HUANG, Individually and as successor ) Case No. 19CV346663
in interest to WE] LUN HUANG, deceased;
1 TRINITY HUANG, a minor; TRISTAN HUANG, TESLA, INC.’S OPPOSITION TO PLAINTIFFS’
aminor; HSI KENG HUANG; and CHING FEN MOTION TO COMPEL FURTHER RESPONSES
12 HUANG, TO REQUEST FOR PRODUCTION, SPECIAL
INTERROGATORIES, AND FORM
13 Plaintiff, INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY
14 vs. SANCTIONS
15 TESLA, INC. dba TESLA MOTORS INC. THE Date: July 14, 2020
STATE OF CALIFORNIA, and DOES 1 through Time: 9:00 a.m.
16 100, Dept.: 8
17 Defendants.
18
19 Defendant Tesla, Inc. (“Tesla”) opposes plaintiffs’ Motion to Compel Further Responses from
20 Tesla, Inc. re Request for Production, Special Interrogatories, and Form Interrogatories and Request for
21 Monetary Sanctions in the Amount of $11,200 against Tesla, Inc. in its entirety.
22 I INTRODUCTION
23 This lawsuit arises from a March 29, 2018 car accident in which Walter Huang was driving his
24 2017 Tesla Model X southbound on Highway 101 and allowed it to enter the gore point between the
25 fast lane of southbound 101 and the left-exiting lane heading towards westbound 85. After a few
26 seconds of travel in the gore point the vehicle impacted a previously deployed crash attenuator and
27
28 22718707 il
TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
concrete median at freeway speeds, pivoted around the median and was hit by two other cars. Mr.
Huang suffered fatal injuries in the crash.
Plaintiffs allege a defect in Tesla’s Autopilot driver assistance feature allowed the vehicle to
enter the gore point—irrespective of the driver’s failure to watch the road or intervene—and accordingly
the discovery at issue seeks information and documents relating to Autopilot, among other things. For
this crash where the driver was warned by Tesla to pay attention to the road and remain prepared to
take over driving at any time, plaintiffs have already propounded 45 interrogatories and 176 document
requests (plus a set of form interrogatories). Tesla has fully responded to the discovery with
substantive information and further reference to additional information that Tesla had identified as
10 confidential and proprietary requiring entry of an appropriate protective order. Nevertheless, plaintiffs
1 served this motion on March 27, 2020 (10 days after the shelter-in-place orders were issued) raising
12 three main issues:
13 (1) Tesla did not provide a privilege log,
14 (2) Tesla did not produce non-confidential documents, and
15 (3) Tesla’s overbreadth, unduly burdensome, and relevance objections are improper.
16 Despite the fact that significant discovery has taken place over the last three months while
17 plaintiffs’ motion was pending, including the recent entry of a protective order on June 12, 2020, and
18 despite the fact that Tesla has addressed all of the issues raised in the motion, plaintiffs refuse to
19 withdraw the motion. Tesla requests plaintiffs’ motion to compel be denied, including the request for
20 monetary sanctions.
21 I. FACTUAL BACKGROUND
22 Tesla provided timely responses to the discovery at issue (per extensions) on December 24,
23 2019. Declaration of Lauren O. Miller (“Miller Decl.”) ] 2. The First Set of Special Interrogatories
24 consisted of 35 Interrogatories concerning Autopilot design and development, vehicle data, human
25 machine interfacing, vehicle updates, technical information about Autopilot functionality and operation,
26 and Mr. Huang’s service visits. Tesla’s responses included appropriate objections and substantive
27 answers, including reference to additional forthcoming substantive information that would be provided
28 22718707 2
TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
by way of aconfidential exhibit to the responses following the Court’s entry of an appropriate protective
order. Of the 35 interrogatories, Tesla provided substantive responses to 30 of the interrogatories, Nos.
2-8, 11-30, and 33-35. Tesla objected to two interrogatories, Nos. 1 and 17, because the questions
were unclear and require clarification. Tesla provided substantive responses and objections to thirteen
interrogatories, Nos. 8-10, 18-21, 26-30, and 32, because the responses included trade secret
information and required entry of a protective order. Miller Decl. {| 3.
The Second Set of Special Interrogatories consisted of 10 Interrogatories concerning Mr.
Huang’s service visits, Autopilot driver engagement, and other alleged incidents involving claims of
Autopilot malfunction. Tesla responded with appropriate objections, properreferences to documents,
10 and substantive answers. Tesla provided substantive responses to all ten interrogatories. Of the ten
1 interrogatories, eight interrogatories, Nos. 36, 38, 10-45, covered topics addressed by prior
12 interrogatories and Tesla referred to those responses. Tesla referred to documents pursuant to C.C.P.
13 § 2030.230 in response to Special Interrogatory No. 36. Miller Decl. {| 4.
14 The First Set of Form Interrogatories consisted of 29 Form Interrogatories conceming business
15 entity background, insurance, investigation, and the crash. Tesla responded with appropriate
16 objections, proper references to documents and substantive answers. Tesla provided substantive
17 responses to all Form Interrogatories. Tesla provided substantive responses and objected to ten
18 interrogatories, Nos. 3.7, 12.2-12.4, 12.6-12.7, 20.5-20.7, because these interrogatories call for
19 protected attorney work product or premature disclosure of expert witness information. Tesla referred to
20 documents pursuant
to C.C.P. § 230.230 in response to four interrogatories, Nos. 20.2 and 20.5-20.7.
21 Miller Decl. 5.
22 Finally, the First Set of Request for Production of Documents consisted of 176 Document
23 Requests concerning design and development of Autopilot, testing, subject vehicle documents and
24 data, other incidents, NHTSA/NTSB testing and analysis and human factors. Tesla responded with
25 appropriate objections and substantive answers. Of the 176 requests, Tesla produced documents
26 responsive to 27 requests, Nos. 1-10, 13-14, 18-23, 26-28, 31, 46-50. Tesla responded to 38 requests
27 that no documents were located, Nos. 15-17, 25, 34-41, 43, 45, 62, 69, 70-71, 73-74, 93, 102, 104-105,
28 22718707 3
TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
1
123-126, 134-136, 138, 150, 165, 168-169 and 172-173. Tesla agreed to search for and produce if
located documents responsive to 105 requests, Nos. 11-12, 24, 29, 42, 44, 51-61, 63-68, 72, 75-92, 94-
101, 103, 106-121, 128-133, 137, 139-149, 151-164, 166-167, 170-171, and 174-175. Tesla provided
substantive/narrative responses to 4 requests, Nos. 30, 33, 122 and 127 in light of the nature of the
requests which lent to such aresponse. Miller Decl. 6.
On November 7, 2019—before even responding to the discovery requests—Tesla served 261
pages of documents responsive to plaintiffs’ Request for Production of Documents. Miller Decl. | 7. On
May 6, 2020, Tesla served supplemental responses to plaintiffs’ Request for Production of Documents
and served nearly 2000 additional documents with an index that identified the category the documents
10 responded to by request number. Miller Decl. | 8. Similarly, on June 15, 2020, Tesla served additional
1 supplemental responses and over 20,000 additional pages of documents with an index. Miller Decl. J] 9.
12 And on June 19, 2020, Tesla produced a privilege log. Miller Decl. | 10.
13 The parties negotiated a Stipulated Protective Order which was submitted to the Court on June
14 11, 2020 for signature. Miller Decl. {| 11. The documents collected and to be produced pursuant to the
15 Stipulated Protective Order are not limited to the Model X with hardware 2.5 running firmware 2018.10,
16 notwithstanding Tesla’s initial written responses. When produced under the protective order, the
17 materials will include Autopilot documents relevant to vehicles equipped with hardware 2.0 or 2.5
18 without limitation on firmware. Miller Decl. J 11.
19 Ml. ARGUMENT
20 Tesla's responses to interrogatories were as complete and straightforward as the information
21 reasonably available to Tesla permitted. Code Civ. Proc. § 2030.220(a). Additionally, Tesla’s responses
22 to the requests for production reflected Tesla’s agreement to comply with the request, Tesla’s
23 representation of the inability to comply despite a reasonable search, and limited objections tailored to
24 the specific requests. Code Civ. Proc. § 2031.210(a). Plaintiffs’ Motion to Compel filed in March raised
25 the following issues: (1) Tesla did not provide a privilege log, (2) Tesla did not produce non-confidential
26 documents, (3) Tesla’s overbreadth, unduly burdensome, and relevance objections are improper. Each
27
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TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
of these issues has been addressed and the issues are moot, but plaintiffs refuse to withdraw the
motion, therefore Tesla respectfully requests the Court deny plaintiffs’ motion.
A. Plaintiffs’ Issues Raised in the Motion to Compel are Moot
I. Tesla Produced a Privilege Log
Plaintiffs moved to compel further responses to Special Interrogatories, Set 1, Nos. 8-10 and
18-21, Special Interrogatories, Set 2, Nos. 37-45, Form Interrogatory Nos. 12.6-12.7, and Request for
Production of Documents Nos. 7-18, 24-30, 32-44, 46-67, 69-110, 113-118, and 120-175 on the
grounds that Tesla did not produce a privilege log. On June 19, 2020, Tesla produced aprivilege log.
Miller Decl. { 10. As such, this issue is moot.
10 ii. Tesla Produced Non-Confidential Documents
1 Plaintiffs complain that Tesla did not produce non-confidential documents and did not comply
12 with its responses which agreed to produce non-privileged documents when located. However, this
13 issue is again moot due to the discovery which occurred while plaintiffs’ motion was pending. First,
14 even before serving responses, on November
7, 2019, Tesla produced documents responsive to 27 out
15 of the 176 requests, Nos. 1-10, 13-14, 18-23, 26-28, 31, 46-50 (HUANG_00000001 to
16 HUANG_00000261).
17 Tesla responded to 38 requests indicating that no documents were located, Nos. 15-17, 25, 34-
18 41, 43, 45, 62, 69, 70-71, 73-74, 93, 102, 104-105, 123-126, 134-136, 138, 150, 165, 168-169 and 172-
19 173. Tesla made a diligent search and reasonable inquiry in an effort to comply with these demands,
20 but was unable to locate responsive documents. C.C.P. § 2031.230.
21 Tesla provided substantive/narrative responses to 4 requests, Nos. 30, 33, 122 and 127. Tesla
22 responded to one request that documents were equally available, No. 32, but Tesla subsequently
23 supplemented and served responsive documents (HUANG _00000262 - HUANG_00001583,
24 HUANG_00001601—HUANG_00001756, HUANG_00001766— HUANG _00002290). Teslaagreed to
25 search for and produce if located documents responsive to 105 requests, Nos. 11-12, 24, 29, 42, 44,
26 51-61, 63-68, 72, 75-92, 94-101, 103, 106-121, 128-133, 137, 139-149, 151-164, 166-167, 170-171,
27 and 174-175. Thereafter, Tesla served two additional sets of non-confidential documents
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TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
(HUANG_00000262 — HUANG_00028400) and served two supplemental responses with attached
indexes.
Tesla’s supplemental responses and production have addressed plaintiffs’ concern with
production of non-confidential materials and indexing. Tesla additionally produced protected
confidential materials pursuant to the entered protective order on June 26, 2020.
iti. Tesla’s Objections are Valid, and its Production will be Broad
Finally, plaintiffs’ motion raises issues with Tesla’s overbroad, burden and relevance objections
and Tesla limiting its responses to the hardware and firmware running on Mr. Huang’s vehicle at the
time of the crash. Tesla’s written responses were code compliant and its objections valid and Tesla
10 stands by those objections. Different vehicles with different hardware running different firmware have
1 different capabilities, features, and crash performance, and are not relevant to this crash or plaintiffs’
12 allegations of adefect causing Mr. Huang’s crash. For example, vehicles with hardware version 1.0 do
13 not have the same cameras, radar, or ultrasonic sensors as vehicles with hardware 2.5 and therefore
14 the vehicles’ capabilities are very different. The Autopilot system is continuously monitored by Tesla
15 through over-the-air data and feedback from vehicles in the field and, based on this user data, the
16 system is continuously improved to the benefit of Tesla drivers and other vehicles on the road.
17 However, those improvements require certain hardware and software capabilities that are not available
18 on prior versions of Tesla vehicles. Likewise, newer hardware (i.e., hardware 3.0) has capabilities that
19 are not available to vehicle that have hardware 2.0 or 2.5 and thus discovery relating to technology that
20 Mr. Huang’s car did not have and could not have had is irrelevant and not reasonably calculated to lead
21 to the discovery of admissible evidence. Additionally, the availability of features and capabilities
22 depends on firmware version. A firmware change can mean over 1,000 software files being changed
23 with tens of thousands of insertions of code and similar deletions, and this does not include the
24 hundreds of thousands of changes to code that continue throughout inter-release cycles. Plaintiffs’
25 requests seeking essentially anything and everything Autopilot is a tall order, over-reaching, and far
26 more burdensome than the demands of this single accident, single vehicle, single injury case, product
27 liability case.
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TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
Mr. Huang’s vehicle's performance was hardware and firmware dependent and plaintiffs did not
limit their requests or interrogatories to any hardware or firmware version. Nevertheless, Tesla’s
production is broader than the scope indicated in the responses. The parties recently reached an
agreement on the Stipulated Protective Order, and it was recently entered by the Court. Although Tesla
preserved its objections
in its responses, its ultimate production is not limited to the 2017 Model X, nor
is it limited to the specific hardware and firmware configuration Mr. Huang’s vehicle was operating on
the day of the crash. As produced under the protective order, the materials include Autopilot documents
relevant to Model S, X and 3 vehicles equipped with hardware 2.0 or 2.5 and without limitation on
firmware version. Plaintiffs’ motion is mooted on this issue as well.
10 B. Sanctions are Unwarranted
1 As discussed, plaintiffs’ motion was filed and served in March as the parties were having
12 ongoing discussions about the discovery and document production. In the interim, despite the
13 pressures placed on everyone—including Tesla—by the pandemic, Teslahas been working to collect
14 documents for production and has satisfied its production obligations. Accordingly, this motion should
15 be denied. Plaintiffs may argue that their request for sanctions should be granted because Tesla’s
16 production followed service of this motion, however, that argument misses its mark. First, sanctions are
17 not available unless plaintiffs’ motion is granted. Second, even if the motion is granted—which it should
18 not be as there is nothing to compel further response to—sanctions are not allowed unless the Court
19 finds specifically that Tesla acted without substantial justification with respect to the discovery in
20 dispute. Code Civ. Proc. §§ 2030.300(d); 2031.310(h). Plaintiffs have offered no evidence that Tesla
21 has acted without substantial justification in responding to plaintiffs’ written discovery. Rather, Tesla’s
22 objections were valid and responses were adequate. Tesla has been diligent and cooperative in
23 discovery. Any delay in production of documents was not unreasonable and plaintiffs have not been
24 prejudiced by the brief delay in production. Indeed, agreement was not reached on the protective order
25 until early June, the order was entered by the Court on June 12, and Tesla produced the protected
26 material on June 26. There is no trial date set and the case, like most cases, has been largely held in
27 abeyance during COVID-19 shelter in place restrictions. Prior to plaintiffs filing the motion, the parties
28 22718707 ile
TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
had been conferring in good faith, and Tesla continued to meet and confer in good faith after the motion
was filed. Teslarequests that the Court deny the sanctions.
IV. CONCLUSION
The relief requested by plaintiffs in their proposed order is moot because allissues have been
addressed. Tesla has produced all responsive non-confidential documents
in its possession, custody,
and control and produced additional documents pursuant
to the protective order. Tesla has identified
the particular documents produced in response to each category of request in the indexes produced
with its supplemental responses. Tesla has produced a privilege log as requested. Therefore, because
all issues have been addressed, the Court should deny the motion. As to plaintiffs’ request for
10 sanctions, Tesla respectfully requests deny the request because there is no evidence to suggest that
11 Tesla acted without substantial justification in connection with plaintiffs’ discovery or this motion. Tesla
12 made every effort to not only respond in good faith to the discovery, but to assuage plaintiffs of any
13 residual concerns about Tesla’s discovery and document production, and implore plaintiffs to withdraw
14 the motion but plaintiffs refused. Awarding sanctions on this record would not do justice to the
15 discovery process where Tesla has acted in good faith.
16 Dated: June 30, 2020 BOWMAN AND BROOKE LLP.
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Lauren O. Miller
19 Attorneys for Defendant
Tesla, Inc.
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TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST
FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO
PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS
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19CV346663 Santa Clara — Civil R, Burciaga Vincent Galvin #104448 Lauren O. Miller #279448 BOWMAN AND BROOKE LLP. Electronically Filed 1741 Technology Drive, Suite 200 by Superior Court of CA, San Jose, California 95110-1364 County of Santa Clara, Telephone: (408) 279-5393 on 6/30/2020 4:14 PM Facsimile: (408) 279-5845 Reviewed By: R. Burciaga vincent.galvin@bowmanandbrooke.com Case #19CV346663 lauren.miller@bowmanandbrooke.com Envelope: 4533006 Attorneys for Defendant Tesla, Inc. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 SZ HUA HUANG, Individually and as successor ) Case No. 19CV346663 in interest to WE] LUN HUANG, deceased; 1 TRINITY HUANG, a minor; TRISTAN HUANG, TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ aminor; HSI KENG HUANG; and CHING FEN MOTION TO COMPEL FURTHER RESPONSES 12 HUANG, TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM 13 Plaintiff, INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY 14 vs. SANCTIONS 15 TESLA, INC. dba TESLA MOTORS INC. THE Date: July 14, 2020 STATE OF CALIFORNIA, and DOES 1 through Time: 9:00 a.m. 16 100, Dept.: 8 17 Defendants. 18 19 Defendant Tesla, Inc. (“Tesla”) opposes plaintiffs’ Motion to Compel Further Responses from 20 Tesla, Inc. re Request for Production, Special Interrogatories, and Form Interrogatories and Request for 21 Monetary Sanctions in the Amount of $11,200 against Tesla, Inc. in its entirety. 22 I INTRODUCTION 23 This lawsuit arises from a March 29, 2018 car accident in which Walter Huang was driving his 24 2017 Tesla Model X southbound on Highway 101 and allowed it to enter the gore point between the 25 fast lane of southbound 101 and the left-exiting lane heading towards westbound 85. After a few 26 seconds of travel in the gore point the vehicle impacted a previously deployed crash attenuator and 27 28 22718707 il TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS concrete median at freeway speeds, pivoted around the median and was hit by two other cars. Mr. Huang suffered fatal injuries in the crash. Plaintiffs allege a defect in Tesla’s Autopilot driver assistance feature allowed the vehicle to enter the gore point—irrespective of the driver’s failure to watch the road or intervene—and accordingly the discovery at issue seeks information and documents relating to Autopilot, among other things. For this crash where the driver was warned by Tesla to pay attention to the road and remain prepared to take over driving at any time, plaintiffs have already propounded 45 interrogatories and 176 document requests (plus a set of form interrogatories). Tesla has fully responded to the discovery with substantive information and further reference to additional information that Tesla had identified as 10 confidential and proprietary requiring entry of an appropriate protective order. Nevertheless, plaintiffs 1 served this motion on March 27, 2020 (10 days after the shelter-in-place orders were issued) raising 12 three main issues: 13 (1) Tesla did not provide a privilege log, 14 (2) Tesla did not produce non-confidential documents, and 15 (3) Tesla’s overbreadth, unduly burdensome, and relevance objections are improper. 16 Despite the fact that significant discovery has taken place over the last three months while 17 plaintiffs’ motion was pending, including the recent entry of a protective order on June 12, 2020, and 18 despite the fact that Tesla has addressed all of the issues raised in the motion, plaintiffs refuse to 19 withdraw the motion. Tesla requests plaintiffs’ motion to compel be denied, including the request for 20 monetary sanctions. 21 I. FACTUAL BACKGROUND 22 Tesla provided timely responses to the discovery at issue (per extensions) on December 24, 23 2019. Declaration of Lauren O. Miller (“Miller Decl.”) ] 2. The First Set of Special Interrogatories 24 consisted of 35 Interrogatories concerning Autopilot design and development, vehicle data, human 25 machine interfacing, vehicle updates, technical information about Autopilot functionality and operation, 26 and Mr. Huang’s service visits. Tesla’s responses included appropriate objections and substantive 27 answers, including reference to additional forthcoming substantive information that would be provided 28 22718707 2 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS by way of aconfidential exhibit to the responses following the Court’s entry of an appropriate protective order. Of the 35 interrogatories, Tesla provided substantive responses to 30 of the interrogatories, Nos. 2-8, 11-30, and 33-35. Tesla objected to two interrogatories, Nos. 1 and 17, because the questions were unclear and require clarification. Tesla provided substantive responses and objections to thirteen interrogatories, Nos. 8-10, 18-21, 26-30, and 32, because the responses included trade secret information and required entry of a protective order. Miller Decl. {| 3. The Second Set of Special Interrogatories consisted of 10 Interrogatories concerning Mr. Huang’s service visits, Autopilot driver engagement, and other alleged incidents involving claims of Autopilot malfunction. Tesla responded with appropriate objections, properreferences to documents, 10 and substantive answers. Tesla provided substantive responses to all ten interrogatories. Of the ten 1 interrogatories, eight interrogatories, Nos. 36, 38, 10-45, covered topics addressed by prior 12 interrogatories and Tesla referred to those responses. Tesla referred to documents pursuant to C.C.P. 13 § 2030.230 in response to Special Interrogatory No. 36. Miller Decl. {| 4. 14 The First Set of Form Interrogatories consisted of 29 Form Interrogatories conceming business 15 entity background, insurance, investigation, and the crash. Tesla responded with appropriate 16 objections, proper references to documents and substantive answers. Tesla provided substantive 17 responses to all Form Interrogatories. Tesla provided substantive responses and objected to ten 18 interrogatories, Nos. 3.7, 12.2-12.4, 12.6-12.7, 20.5-20.7, because these interrogatories call for 19 protected attorney work product or premature disclosure of expert witness information. Tesla referred to 20 documents pursuant to C.C.P. § 230.230 in response to four interrogatories, Nos. 20.2 and 20.5-20.7. 21 Miller Decl. 5. 22 Finally, the First Set of Request for Production of Documents consisted of 176 Document 23 Requests concerning design and development of Autopilot, testing, subject vehicle documents and 24 data, other incidents, NHTSA/NTSB testing and analysis and human factors. Tesla responded with 25 appropriate objections and substantive answers. Of the 176 requests, Tesla produced documents 26 responsive to 27 requests, Nos. 1-10, 13-14, 18-23, 26-28, 31, 46-50. Tesla responded to 38 requests 27 that no documents were located, Nos. 15-17, 25, 34-41, 43, 45, 62, 69, 70-71, 73-74, 93, 102, 104-105, 28 22718707 3 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS 1 123-126, 134-136, 138, 150, 165, 168-169 and 172-173. Tesla agreed to search for and produce if located documents responsive to 105 requests, Nos. 11-12, 24, 29, 42, 44, 51-61, 63-68, 72, 75-92, 94- 101, 103, 106-121, 128-133, 137, 139-149, 151-164, 166-167, 170-171, and 174-175. Tesla provided substantive/narrative responses to 4 requests, Nos. 30, 33, 122 and 127 in light of the nature of the requests which lent to such aresponse. Miller Decl. 6. On November 7, 2019—before even responding to the discovery requests—Tesla served 261 pages of documents responsive to plaintiffs’ Request for Production of Documents. Miller Decl. | 7. On May 6, 2020, Tesla served supplemental responses to plaintiffs’ Request for Production of Documents and served nearly 2000 additional documents with an index that identified the category the documents 10 responded to by request number. Miller Decl. | 8. Similarly, on June 15, 2020, Tesla served additional 1 supplemental responses and over 20,000 additional pages of documents with an index. Miller Decl. J] 9. 12 And on June 19, 2020, Tesla produced a privilege log. Miller Decl. | 10. 13 The parties negotiated a Stipulated Protective Order which was submitted to the Court on June 14 11, 2020 for signature. Miller Decl. {| 11. The documents collected and to be produced pursuant to the 15 Stipulated Protective Order are not limited to the Model X with hardware 2.5 running firmware 2018.10, 16 notwithstanding Tesla’s initial written responses. When produced under the protective order, the 17 materials will include Autopilot documents relevant to vehicles equipped with hardware 2.0 or 2.5 18 without limitation on firmware. Miller Decl. J 11. 19 Ml. ARGUMENT 20 Tesla's responses to interrogatories were as complete and straightforward as the information 21 reasonably available to Tesla permitted. Code Civ. Proc. § 2030.220(a). Additionally, Tesla’s responses 22 to the requests for production reflected Tesla’s agreement to comply with the request, Tesla’s 23 representation of the inability to comply despite a reasonable search, and limited objections tailored to 24 the specific requests. Code Civ. Proc. § 2031.210(a). Plaintiffs’ Motion to Compel filed in March raised 25 the following issues: (1) Tesla did not provide a privilege log, (2) Tesla did not produce non-confidential 26 documents, (3) Tesla’s overbreadth, unduly burdensome, and relevance objections are improper. Each 27 28 22718707 4 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS of these issues has been addressed and the issues are moot, but plaintiffs refuse to withdraw the motion, therefore Tesla respectfully requests the Court deny plaintiffs’ motion. A. Plaintiffs’ Issues Raised in the Motion to Compel are Moot I. Tesla Produced a Privilege Log Plaintiffs moved to compel further responses to Special Interrogatories, Set 1, Nos. 8-10 and 18-21, Special Interrogatories, Set 2, Nos. 37-45, Form Interrogatory Nos. 12.6-12.7, and Request for Production of Documents Nos. 7-18, 24-30, 32-44, 46-67, 69-110, 113-118, and 120-175 on the grounds that Tesla did not produce a privilege log. On June 19, 2020, Tesla produced aprivilege log. Miller Decl. { 10. As such, this issue is moot. 10 ii. Tesla Produced Non-Confidential Documents 1 Plaintiffs complain that Tesla did not produce non-confidential documents and did not comply 12 with its responses which agreed to produce non-privileged documents when located. However, this 13 issue is again moot due to the discovery which occurred while plaintiffs’ motion was pending. First, 14 even before serving responses, on November 7, 2019, Tesla produced documents responsive to 27 out 15 of the 176 requests, Nos. 1-10, 13-14, 18-23, 26-28, 31, 46-50 (HUANG_00000001 to 16 HUANG_00000261). 17 Tesla responded to 38 requests indicating that no documents were located, Nos. 15-17, 25, 34- 18 41, 43, 45, 62, 69, 70-71, 73-74, 93, 102, 104-105, 123-126, 134-136, 138, 150, 165, 168-169 and 172- 19 173. Tesla made a diligent search and reasonable inquiry in an effort to comply with these demands, 20 but was unable to locate responsive documents. C.C.P. § 2031.230. 21 Tesla provided substantive/narrative responses to 4 requests, Nos. 30, 33, 122 and 127. Tesla 22 responded to one request that documents were equally available, No. 32, but Tesla subsequently 23 supplemented and served responsive documents (HUANG _00000262 - HUANG_00001583, 24 HUANG_00001601—HUANG_00001756, HUANG_00001766— HUANG _00002290). Teslaagreed to 25 search for and produce if located documents responsive to 105 requests, Nos. 11-12, 24, 29, 42, 44, 26 51-61, 63-68, 72, 75-92, 94-101, 103, 106-121, 128-133, 137, 139-149, 151-164, 166-167, 170-171, 27 and 174-175. Thereafter, Tesla served two additional sets of non-confidential documents 28 22718707 5 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS (HUANG_00000262 — HUANG_00028400) and served two supplemental responses with attached indexes. Tesla’s supplemental responses and production have addressed plaintiffs’ concern with production of non-confidential materials and indexing. Tesla additionally produced protected confidential materials pursuant to the entered protective order on June 26, 2020. iti. Tesla’s Objections are Valid, and its Production will be Broad Finally, plaintiffs’ motion raises issues with Tesla’s overbroad, burden and relevance objections and Tesla limiting its responses to the hardware and firmware running on Mr. Huang’s vehicle at the time of the crash. Tesla’s written responses were code compliant and its objections valid and Tesla 10 stands by those objections. Different vehicles with different hardware running different firmware have 1 different capabilities, features, and crash performance, and are not relevant to this crash or plaintiffs’ 12 allegations of adefect causing Mr. Huang’s crash. For example, vehicles with hardware version 1.0 do 13 not have the same cameras, radar, or ultrasonic sensors as vehicles with hardware 2.5 and therefore 14 the vehicles’ capabilities are very different. The Autopilot system is continuously monitored by Tesla 15 through over-the-air data and feedback from vehicles in the field and, based on this user data, the 16 system is continuously improved to the benefit of Tesla drivers and other vehicles on the road. 17 However, those improvements require certain hardware and software capabilities that are not available 18 on prior versions of Tesla vehicles. Likewise, newer hardware (i.e., hardware 3.0) has capabilities that 19 are not available to vehicle that have hardware 2.0 or 2.5 and thus discovery relating to technology that 20 Mr. Huang’s car did not have and could not have had is irrelevant and not reasonably calculated to lead 21 to the discovery of admissible evidence. Additionally, the availability of features and capabilities 22 depends on firmware version. A firmware change can mean over 1,000 software files being changed 23 with tens of thousands of insertions of code and similar deletions, and this does not include the 24 hundreds of thousands of changes to code that continue throughout inter-release cycles. Plaintiffs’ 25 requests seeking essentially anything and everything Autopilot is a tall order, over-reaching, and far 26 more burdensome than the demands of this single accident, single vehicle, single injury case, product 27 liability case. 28 22718707 6 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS Mr. Huang’s vehicle's performance was hardware and firmware dependent and plaintiffs did not limit their requests or interrogatories to any hardware or firmware version. Nevertheless, Tesla’s production is broader than the scope indicated in the responses. The parties recently reached an agreement on the Stipulated Protective Order, and it was recently entered by the Court. Although Tesla preserved its objections in its responses, its ultimate production is not limited to the 2017 Model X, nor is it limited to the specific hardware and firmware configuration Mr. Huang’s vehicle was operating on the day of the crash. As produced under the protective order, the materials include Autopilot documents relevant to Model S, X and 3 vehicles equipped with hardware 2.0 or 2.5 and without limitation on firmware version. Plaintiffs’ motion is mooted on this issue as well. 10 B. Sanctions are Unwarranted 1 As discussed, plaintiffs’ motion was filed and served in March as the parties were having 12 ongoing discussions about the discovery and document production. In the interim, despite the 13 pressures placed on everyone—including Tesla—by the pandemic, Teslahas been working to collect 14 documents for production and has satisfied its production obligations. Accordingly, this motion should 15 be denied. Plaintiffs may argue that their request for sanctions should be granted because Tesla’s 16 production followed service of this motion, however, that argument misses its mark. First, sanctions are 17 not available unless plaintiffs’ motion is granted. Second, even if the motion is granted—which it should 18 not be as there is nothing to compel further response to—sanctions are not allowed unless the Court 19 finds specifically that Tesla acted without substantial justification with respect to the discovery in 20 dispute. Code Civ. Proc. §§ 2030.300(d); 2031.310(h). Plaintiffs have offered no evidence that Tesla 21 has acted without substantial justification in responding to plaintiffs’ written discovery. Rather, Tesla’s 22 objections were valid and responses were adequate. Tesla has been diligent and cooperative in 23 discovery. Any delay in production of documents was not unreasonable and plaintiffs have not been 24 prejudiced by the brief delay in production. Indeed, agreement was not reached on the protective order 25 until early June, the order was entered by the Court on June 12, and Tesla produced the protected 26 material on June 26. There is no trial date set and the case, like most cases, has been largely held in 27 abeyance during COVID-19 shelter in place restrictions. Prior to plaintiffs filing the motion, the parties 28 22718707 ile TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS had been conferring in good faith, and Tesla continued to meet and confer in good faith after the motion was filed. Teslarequests that the Court deny the sanctions. IV. CONCLUSION The relief requested by plaintiffs in their proposed order is moot because allissues have been addressed. Tesla has produced all responsive non-confidential documents in its possession, custody, and control and produced additional documents pursuant to the protective order. Tesla has identified the particular documents produced in response to each category of request in the indexes produced with its supplemental responses. Tesla has produced a privilege log as requested. Therefore, because all issues have been addressed, the Court should deny the motion. As to plaintiffs’ request for 10 sanctions, Tesla respectfully requests deny the request because there is no evidence to suggest that 11 Tesla acted without substantial justification in connection with plaintiffs’ discovery or this motion. Tesla 12 made every effort to not only respond in good faith to the discovery, but to assuage plaintiffs of any 13 residual concerns about Tesla’s discovery and document production, and implore plaintiffs to withdraw 14 the motion but plaintiffs refused. Awarding sanctions on this record would not do justice to the 15 discovery process where Tesla has acted in good faith. 16 Dated: June 30, 2020 BOWMAN AND BROOKE LLP. f\ 17 < fom }/ r l | 18 <— L. Lauren O. Miller 19 Attorneys for Defendant Tesla, Inc. 20 21 22 23 24 25 26 27 28 22718707 8 TESLA, INC.’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SPECIAL INTERROGATORIES, AND FORM INTERROGATORIES; OPPOSITION TO PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS