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Mary Lynn Arens, Bar No.: 282459
Mitchel Brim, Bar No.: 239341
ERSKINE LAW GROUP, PC
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3995 East
Anaheim,
La Palma
California
Avenue
92807 LED
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SUPERIOR COURT OF CALIFORNIA
Tel: (949) 777-6032 COUNTY OF PLACER
Fax: (714) 844-9035
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marens@erskinelaw.com
mbrim@erskinelaw.com
AUG27 2019"
MN
JAKE CHATTERS
Attorneys for Defendant EXECUTIVE OFF & CLERK
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By: E. Cava#og) Deputy
GENERAL MOTORS LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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10 FOR THE COUNTY OF PLACER
1
12 YESENIA LEYVA and JUAN C. LEYVA, Case No. SCV0041782
13 Plaintiffs,
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GENERAL MOTORS LLC’S SEPARATE
14 STATEMENT IN SUPPORT OF OPPOSITION
15 TO PLAINTIFFS’ MOTION TO COMPEL
XV4
THE DEPOSITION OF GENERAL MOTORS
16 LLC’S PERSON MOST KNOWLEDGEABLE
GENERAL MOTORS LLC; and DOES |
17 through 10, inclusive, Filed Concurrently With:
18 Defendants.
1) Declaration of Mitchel Brim
2) Memorandum of Points and Authorities
19
Hearing Date: September 12, 2019
20 Hearing Time: 8:30 am
21 Department: LM
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CATEGORIES FOR EXAMINATION
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CATEGORY NO. 1:
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Questions relating to the nature and extent of allof the service history and warranty history
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relating to the SUBJECT VEHICLE;
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OBJECTION TO CATEGORY NO. 1:
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GM objects to this category because itis overbroad, unduly burdensome, vague, ambiguous,
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oppressive and not reasonably calculated to lead to the discovery of admissible evidence. GM also
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objects to this category because it seeks information that may be protected by the attorney-client
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privilege and the attorney work-product doctrine. Further, GM objects to this category on the
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grounds that it seeks confidential, proprietary and trade secret information. GM agrees to make a
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witness available to discuss this topic at amutually agreeable time and place.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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This isa breach of warranty action involving Plaintiffs’ purchase of a used 2017 Chevrolet
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Traverse (“Subject Vehicle”). Plaintiffs seek an order compelling General Motors LLC’s (“GM”)
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Person Most Knowledgeable (“PMK”) to appear for deposition under Code of Civil Procedure
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(“CCP”) §§ 2025.450 and 2025.480 and to compel GM to produce documents related to alleged
suspension system defects in the Subject Vehicle. Despite having already received hundreds of
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pages of bates-stamped documents thatare directly responsive to Plaintiffs’ discovery requests; and
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despite the fact that GM has already agreed to produce a PMK on appropriate categories, Plaintiffs
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now seek further information by means of a deposition notice containing 19 separate Categories for
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Examination (“categories”) and 35 Requests for Production (“requests”).
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The majority of Plaintiffs’ categories and requests pertain to GM’s internal “policies and
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procedures” concerning other consumers or their vehicles; GM’s internal analysis and
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investigation of breach of warranty claims in general; the design of specific component systems or
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parts; or GM’s internal analysis and investigation of the alleged “defects” in other vehicles. Such
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information reveals nothing about Plaintiffs’ vehicle and is not relevant to this litigation.Plaintiffs
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should not have free reign to conduct open-ended discovery into issues that have no relevance to
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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proving the elements of their simple breach of warranty action. This is especially true in this case,
given that the prejudice to and burden on GM to produce these materials greatly outweighs any
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miniscule benefit that Plaintiffs might glean from the information. Additionally, much of the
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information sought isprivileged and/or proprietary, and is therefore protected from disclosure.
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Moreover, Plaintiffs have failed to substantively meet and confer in good faith, as required
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by CCP §§ 2025.450 and 2025.480; and have failed to file a Separate Statement as required by Cal.
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R. Court, rule 3.1345. Fortunately, this Court can put an end to Plaintiffs’ outrageous demands and
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abusive discovery practices. Therefore, GM respectfully requests that this Court deny Plaintiffs’
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request for a court-ordered fishing expedition by denying Plaintiffs’ motion to compel in its entirety.
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10 Both CCP § 2025.450 and § 2025.480 require good faithmeet and confer efforts to be made
1 prior to the filing of a Motion to Compel. As with all discovery motions, the burden ison the party
12 moving to compel a deposition to show a reasonable good faith effort to resolve the dispute without
13 the need for motion practice. (CCP § 2025.450). Counsel must “attempt to talk the matter over,
14 compare their views, consult and deliberate.” (Townsend v.Sup.Ct. (EMC Mortg. Co.) (1998) 61
15 Cal.App.4th 1431, 1433). An object of the meet and confer requirement isto avoid motion practice.
16 (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016-1017).
17 Furthermore, the purpose of discovery is to facilitate the trial process, narrow issues in
18 dispute, and change trialfrom a game of chance and surprise to an orderly process of uncovering
19 actual facts. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 781, 149 Cal.Rptr. 499). However,
20 litigants do not possess unfettered access to allinformation they seek. (Covell v. Superior Court
21 (1984) 159 Cal.App.3d 39, 42-43, 205 Cal.Rptr. 371). A key limitation on a litigant’s right to
22 discovery isthat the information sought must be relevant to the issues of the lawsuit. (National Steel
23 Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 492-93, 210 Cal.Rptr. 535). Where
24 information sought in discovery does not relate, in any way, to the issues involved in a lawsuit, the
25 relevance requirement is not met and a court must invoke its broad discretion in supervising the
26 course and scope of discovery to limit the requests at issue. (Covell, 159 Cal.App.3d at42-43). By
27 exercising this discretion, the courts prevent litigants from abusing the discovery process in hopes
28 GM’S SEPARATE STATEMENT IN
COMPEL
SUPPORT OF
DEPOSITION
OPPOSITION
OF GM’S
TO
PMK
PLAINTIFFS’ MOTION TO
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of uncovering supporting evidence that the party should have possessed prior to taking legal action
or in an attempt to extort a higher settlement. Jd.
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Plaintiffs seek an order compelling GM’s PMK to appear for deposition and produce
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documents under CCP §§ 2025.450 and 2025.480. Indeed, CCP § 2025.450 provides litigants
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standing to compel depositions. Yet, subsection (a) provides that standing exists only when the
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responding party has failed to serve a “valid objection” under CCP § 2025.410. (CCP §
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2025.450(a)). Here, GM served appropriate objections that satisfied CCP § 2025.410, which
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requires that the objections be served three or more days in advance of the deposition and specifies
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“error or irregularity” in the notice of deposition. (Jd). GM’s objections to Plaintiffs’ Notice of
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Deposition were properly based on the overbroad and vague nature of Plaintiffs’ requests; their
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relevance; the undue burden to GM; and the nature of the documents sought, as set forth below.
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GM’s objections were also proper because GM has already produced a substantial amount of
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documents that are directly responsive to Plaintiffs’ discovery requests, and also offered to produce
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a PMK for deposition on appropriate categories in this case. Still, Plaintiffs needlessly seek to
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compel GM to produce a PMK on topics that GM has properly objected to, and on topics related to
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documents already produced in this case. This Court should not reward Plaintiffs’ counsel’s
gamesmanship and lack of good faith. Accordingly, Plaintiffs’ Motion should be denied in its
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entirety.
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Plaintiffs’ analysis of the discoverability of the remaining categories and requests that GM
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has not agreed to is extremely broad-brushed and does not set forth — as isthe burden incumbent
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on the moving party — the discoverability under existing law of each of the categories or items at
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issue. Plaintiffs’ counsel’s discovery demands are merely unfounded assertions, with little(if any)
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analysis to the disputes and issues that are relevant to the pending case. Undoubtedly, Plaintiffs’
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counsel’s goal in these discovery disputes isnot to obtain relevant and discoverable information
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that may be helpful to the prosecution of the clients’ case. Rather, counsel’s primary goal is to
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create irrelevant and unnecessary discovery disputes todrive up attorney fees, while trying to obtain
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an order that will provide leverage for a higher settlement from GM.
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GM’S SEPARATE STATEMENT EN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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To begin with, the information sought in many of Plaintiffs’ categories and requests is not
inherently relevant to the reasonableness of repairs to Plaintiffs’ vehicle. Without an established
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link, such information does not have “any tendency inreason toprove or disprove any disputed fact
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that isof consequence to the determination of the action.” (Cal. Evid. Code § 210). Breach of
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warranty claims such as those asserted by Plaintiffs in this case are about the particular consumer,
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the particular vehicle, and the manufacturer’s particular response to the consumer’s vehicle
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concerns. There is nothing inthis framework that permits Plaintiffs to prove their case by pointing
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to GM’s internal analysis and investigations and/or policies and procedures involving other
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lawsuits, other consumers’ claims and repurchase requests, or generic design issues concerning an
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alleged defect. Yet that is the very material that Plaintiffs seek toelicit from GM with the remaining
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categories and requests at issue. (See Zhang Decl. Ex. B). Plaintiffs have yet to substantiate why
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they are entitled to this information — because undoubtedly, there isno means to support such an
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argument.
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CCP § 2017.020 is clear that a judge shall limit the scope of discovery: “(a) The court shall
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limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that
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discovery clearly outweighs the likelihood that the information sought will lead to the discovery of
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admissible evidence....(b) ...[the]cost, time, expense and disruption of normal business resulting
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from an order compelling the discovery [is weighed] against the probative value of the material
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which might be disclosed ifthe discovery is ordered." Similarly, CCP §§ 2031.310(g) (3) and (4)
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provide that the court may limit the extent of discovery if the party seeking discovery has had ample
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opportunity by discovery in the action to obtain the information sought, or the likely burden or
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expense of proposed discovery outweighs the likely benefit.
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Citing Mannino v. Superior Court (1983) 142 Cal.App.3d 776, the Calcor court also noted
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that “[w]e are also aware the discovery process issubject to frequent abuse and, like a cancerous
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growth, can destroy a meritorious cause or defense .... Our observations of the day-to-day practice
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of law lead us to conclude this cancer is spreading and judges must become more aggressive in
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curbing these abuses. Courts must insist discovery devices be used as tools to facilitate litigation
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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rather than as weapons to wage litigation. These tools should be well calibrated; the lancet isto be
preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53
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Cal.App.4th 216 (emphasis added). See also Obregon v. Superior Court (1998) 67 Cal.App.4th
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424, 431 (noting that “[a]ny discovery request, even an initialone, can be misused in an attempt to
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generate settlement leverage by creating burden, expense, embarrassment, distraction, etc.”’)).
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As in Calcor, Plaintiffs’ overly-broad categories and requests in this motion against GM are
an outrageous abuse of the discovery system. Plaintiffs’ entire motion fails to provide evidence or
facts from which the Court can determine that the categories or requests seek information that is
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within the permissible scope of discovery. Plaintiffs instead simply make broad, argumentative,
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10 general statements that aPMK should be compelled and documents produced. As Calcor points
il out, the tools of discovery should be well-calibrated and used to facilitate litigation. (/d. at 221).
12 Discovery should not be used as a weapon to wage a war and thereby inflate sham attorney’s fees
13 in case Plaintiffs are considered a “prevailing party” and may recoup them from GM at the end of
14 the day under California lemon law. (/d).
15 Clearly, Plaintiffs’ counsel is using the discovery process as a sledgehammer to wage war,
16 rather than like a lancet to facilitate litigation. This is not a class action or products liability suit,
17 though Plaintiffs’ counsel attempts to treat itas such with the irrelevant, improper, and harassing
18 discovery requests at issue. Further, these categories and requests seek information that has no
19 bearing on Plaintiffs’ individual complaints about their own vehicle or relate in any way to
20 documents produced in this case. In fact, some of Plaintiffs’ categories and requests are so broad
21 and vague that it is difficult for GM to even ascertain what Plaintiffs are seeking. Plaintiffs are
22 abusing the discovery process to conduct a court-sanctioned fishing expedition with no other
23 objective than to extort a higher settlement. In this case, GM has demonstrated that it fully
24 responded to or appropriately objected to any requests seeking materials specific to the Subject
25 Vehicle. Accordingly, Plaintiffs’ motion should be denied.
26 The breadth of Plaintiffs’ categories and requests invites production of trade secret material.
27 Under California law, “[t]rade secret" means information, including a formula, pattern, compilation,
28 GM’S SEPARATE STATEMENT IN
COMPEL
SUPPORT OF
DEPOSITION
OPPOSITION
OF GM’S
TO
PMK
PLAINTIFFS’ MOTION TO
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program, device, method, technique, or process that: (1) derives independent economic value, actual
or potential, from not being generally known to the public or to other persons who can obtain
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economic value from itsdisclosure or use; and (2) is the subject of efforts that are reasonable under
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the circumstances to maintain its secrecy.” (McGuan v. Endovascular Technologies, Inc. (2010)
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182 Cal.App.4th 974, 988-989; see also AFCS v. United Parcel Serv. Co. (S.D. Cal. July 27, 2012)
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2012 U.S. Dist. LEXIS 106925 *10 [holding that the trial court did not abuse its discretion in
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granting a medical device manufacturer’s motion to seal records where [1] the documents discussed
the details of defendant’s quality system procedures, complaint handling procedures, device
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tracking procedures, process validation procedures, and corrective action procedures; [2] the
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10 records contain business methods and processes defendant developed to comply with FDA
11 regulations; [3] the value and utilityof this information could have application across a range of
12 medical devices; and [4] the records were maintained as confidential and disseminated within
13 defendant’s organization on a limited basis}). Because wholesale disclosure of GM’s internal,
14 confidential materials would cause GM competitive harm as well as harm in the marketplace, GM
15 should not be compelled to produce these confidential, proprietary documents without a heightened
16 showing of the need for the documents to prove Plaintiffs’ case. Such a showing has not been made
17 here. !
18 GM respectfully requests that this Court deny Plaintiffs’ Motion to Compel the Deposition
19 of GM’s PMK and Demand to Produce Documents in its entirety, based on the foregoing points
20 and authorities demonstrating: (1) Plaintiffs’ failure to meet and confer in good faith; (2) Plaintiffs’
21 overbroad and unduly burdensome categories and requests — despite GM having already offered to
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24 ' If the Court is not persuaded by GM’s objections regarding the production of trade secret,
25 confidential, and proprietary information and/or ifthe parties are unable to agree on the form of a
suitable Protective Order, GM reserves itsright to file,and will file, a Motion for Protective Order
26 applicable to documents ordered compelled by this Court, if any. In said Motion for Protective
Order, GM will fully address the issue for the need to protect its trade secret, proprietary, and
27 confidential information pursuant to a suitable Protective Order.
28 GM’S SEPARATE STATEMENT IN
COMPEL
SUPPORT OF
DEPOSITION
OPPOSITION
OF GM’S
TO
PMK
PLAINTIFFS’ MOTION TO
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produce a PMK on appropriate categories and produced a plethora of responsive documents; and
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(3) Plaintiffs’ failure to file aseparate statement, as required by Cal. R. Court, rule 3.1345.
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In the alternative, GM has already agreed to produce itsPMK to appear for deposition under
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CCP §§ 2025.450 and 2025.480 to testify about the information that Plaintiffs have requested in
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Category No. 1.
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CATEGORY NO. 2:
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Questions relating to all COMMUNICATIONS between YOU and Plaintiff, or anyone on
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Plaintiffs behalf.
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OBJECTION TO CATEGORY NO. 2:
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GM objects to this category because itis overbroad, unduly burdensome, vague, ambiguous,
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oppressive and not reasonably calculated to lead to the discovery of admissible evidence. GM also
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objects to this category because it seeks information that may be protected by the attorney-client
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privilege and the attorney work-product doctrine. Further, GM objects to the category on the
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grounds that itseeks confidential, proprietary and trade secret information. No witness will be
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produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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CATEGORY NO. 3:
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Questions relating to all COMMUNICATIONS between YOU and any other PERSON
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regarding the SUBJECT VEHICLE.
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OBJECTION TO CATEGORY NO. 3:
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GM objects to this category because itis overbroad, unduly burdensome, vague, ambiguous,
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oppressive and not reasonably calculated to lead to the discovery of admissible evidence. GM also
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objects to this category because it seeks information that may be protected by the attorney-client
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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privilege and the attorney work-product doctrine. Further, GM objects to the category on the
grounds that it seeks confidential, proprietary and trade secret information. GM agrees to make a
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witness available to discuss this topic at amutually agreeable time and place.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs” Motion should be denied as set forth in response to Category No. 1.
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In the alternative, General Motors has already agreed to produce its PMK to appear for
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deposition under CCP §§ 2025.450 and 2025.480 to testify about the information that Plaintiffs
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have requested in Category No. 3.
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11 CATEGORY NO. 4:
12 Questions relating to all service advisory notices, technical service bulletins, recalls, defect
13 investigations, and other REPAIR DOCUMENTS relating to the SUBJECT VEHICLE;
14 OBJECTION TO CATEGORY NO. 4:
15 GM objects to this category because itis not reasonably calculated to lead to the discovery
16 of admissible evidence. Further, the category is compound, vague, irrelevant, irrelevant, overbroad,
17 ambiguous, unduly burdensome, and oppressive. The category also seeks information that may be
18 protected by attorney-client privilege and the attorney work-product doctrine. Finally, the category
19 seeks confidential, proprietary, and trade secret information. No witness will be produced.
20 FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
21 GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
22 Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
23
24 CATEGORY NO. 5:
25 Questions relating tothe process that is inplace and has been inplace for the last three years
26 relating to YOUR evaluations of requests by YOUR customers to have vehicles repurchased
27 pursuant to California Civil Code § 1793.2, including but not limited to any policies and procedures
28 GM’S SEPARATE STATEMENT IN
COMPEL
SUPPORT OF
DEPOSITION
OPPOSITION
OF GM’S
TO
PMK
PLAINTIFFS’ MOTION TO
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regarding the repurchasing of SUBJECT VEHICLE due to the SUSPENSION DEFECT;
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OBJECTION TO CATEGORY NO. 5:
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GM objects to this category because itis not reasonably calculated to lead to the discovery
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of admissible evidence. Further, the category isvague and ambiguous to the term “SUSPENSION
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DEFECT," as itis irrelevant, over broad, unduly burdensome, and oppressive. The category also
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seeks information that may be protected by attorney-client privilege and the attorney work-product
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doctrine. Finally, the category seeks confidential, proprietary, and trade secret information. No
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witness will be produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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CATEGORY NO. 6:
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Questions regarding the nature, extent, and substance of correspondence between YOU, and
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other persons or entities regarding the SUSPENSION DEFECT;
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OBJECTION TO CATEGORY NO. 6:
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GM objects to this category because itis not reasonably calculated to lead to the discovery
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of admissible evidence. Further, the category isvague and ambiguous to the term “SUSPENSION
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DEFECT," irrelevant, overbroad, unduly burdensome, and oppressive. The category also seeks
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information that may be protected by attorney-client privilege and the attorney work-product
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doctrine. Finally, the category seeks confidential, proprietary, and trade secret information. No
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witness will be produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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CATEGORY NO. 7:
Questions regarding YOUR refusal to promptly repurchase the SUBJECT VEHICLE;
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OBJECTION TO CATEGORY NO. 7:
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GM objects to this category because itis overbroad, unduly burdensome, irrelevant, vague,
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ambiguous, oppressive and not reasonably calculated to lead to the discovery of admissible
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evidence. GM also objects to this category because itseeks information that may be protected by
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the attorney-client privilege and the attorney work-product doctrine. Further, GM objects to the
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category on the grounds that it seeks confidential, proprietary and trade secret information. No
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witness will be produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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CATEGORY NO. 8:
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Questions regarding the nature of the SUSPENSION DEFECT, including the cause of the
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SUSPENSION DEFECT, all available fixes that have been made available to your authorized
dealers to date, and the subsequent results of such fixes;
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OBJECTION TO CATEGORY NO. 8:
GM objects to this category because itis not reasonably calculated to lead to the discovery
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of admissible evidence. Further, the category isvague and ambiguous to the term "SUSPENSION
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DEFECT," irrelevant, overbroad, unduly burdensome, and oppressive. The category also seeks
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information that may be protected by attorney-client privilege and the attorney work-product
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doctrine. Finally, the category seeks confidential, proprietary, and trade secret information. No
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witness will be produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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COMPEL DEPOSITION OF GM’S PMK
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CATEGORY NO. 9:
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Questions regarding YOUR ongoing efforts to repair or remedy the SUSPENSION
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DEFECT, including all internal tests, investigations and the number of modification made to YOUR
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vehicles with the braking system used in the SUBJECT VEHICLE, including the number of such
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modifications made to YOUR vehicles which are the same year, make and model as the SUBJECT
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VEHICLE;
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OBJECTION TO CATEGORY NO. 9:
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GM objects to this category because itis not reasonably calculated to lead to the discovery
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of admissible evidence. Further, the category isvague and ambiguous to the term “SUSPENSION
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DEFECT," irrelevant, overbroad, unduly burdensome, and oppressive. The category also seeks
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information that may be protected by attorney-client privilege and the attorney work-product
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doctrine. Finally, the category seeks confidential, proprietary, and trade secret information. No
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witness will be produced.
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FURTHER REASONS WHY A DEPONENT SHOULD NOT BE COMPELLED:
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GM hereby incorporates itsreasons why no deponent should be compelled and reasons why
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Plaintiffs’ Motion should be denied as set forth in response to Category No. 1.
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CATEGORY NO. 10:
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Questions regarding the terms of YOUR Owners manual, maintenance schedule, YOUR
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express warranty or any extended warranty that might be in effect, and as they relate to the
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SUSPENSION DEFECT;
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OBJECTION TO CATEGORY NO. 10:
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GM objects to this category because itis not reasonably calculated to lead to the discovery
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of admissible evidence. Further, the category isvague and ambiguous to the term “SUSPENSION
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DEFECT," irrelevant, overbroad, unduly burdensome, and oppressive. The category also seeks
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information that may be protected by attorney-client privilege and the attorney work-product
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doctrine. Finally, the category seeks confidential, proprietary, and trade secret information. No
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GM’S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION TO
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