There is a universal truth in discovery: perfection is not the standard for discovery responses. This does not mean producing parties can throw caution to the wind for their Rule 26(g) obligations that a discovery response is complete and correct after a reasonable inquiry. However, one missing email is not evidence of the intent to deprive or a claim of perjury.
Mendis v. BMW of N. Am. LLC, is a tale of a responding party countering 6 out of 7 claimed discovery disputes by a requesting party seeking a motion to compel and default judgment.
Special interrogatories, requests for production, and requests for admission can be interrelated. Deposition testimony can be related to all written discovery. The Mendis discovery dispute highlights it is normal for discovery requests to be related by subject matter.
In the case at bar, the Plaintiff sued BMW North American alleging defective product claims because his iPhone overheated while using the car’s wireless charging device. Mendis v. BMW of N. Am. LLC, No. C22-922-MLP, 2025 U.S. Dist. LEXIS 112096, at *2 (W.D. Wash. June 12, 2025).
The plaintiff sought discovery on advertisements for the vehicle in the lawsuit in its third interrogatory and first request for production. The Court limited the discovery to the ads about the wireless charging features of the vehicle and denied the motion to compel for the respective written discovery requests. Mendis, at *4.
Analysis of the disputed written discovery continued about the wireless charger, including FCC certification for the charger and testing reports. The Court denied the motions to compel additional discovery on these requests.
The discovery dispute heated up with a single missing email that was between a BMW Seattle shop foreman and a BMW NA engineer. This was unusual, because it was uncommon for an engineer to communicate with a dealership without copying customer relations, thus the email was not in the customer relations database when the email was collected. The Plaintiff learned of this email after a subpoena to BMW Seattle. Mendis, at *6-7. After the Defendant learned of the email exchange, it conducted an additional search and produced the email chain to the plaintiff. Mendis, at *7.
The Plaintiff (understandably) thought this was evidence of an inadequate search. The Court held that the plaintiff had not demonstrated the Defendant was withholding responsive records, because a single example of an unproduced email is not evidence of an inadequate search. Mendis, at *7-8, citing Dichter-Mad Fam. Partners, LLP v. United States, 709 F.3d 749, 751 (9th Cir. 2013).
The Plaintiff attempted to use the unproduced email as a reason to compel production of the Defendant’s document retention policy. The Court denied the motion, citing there was no evidence that the Defendant had done any intentional destruction of evidence. Mendis, at *8.
In the sanctions analysis, the Court further explained the facts over the missing email. The Plaintiff shared a photo showing part of the unproduced message that did not include the name of the recipient. After a full copy had been provided to them, the Defendant identified and produced the missing email. Mendis, at *11-12.
The Plaintiff argued that sanctions were justified, because the person who inspected the Plaintiff’s car, should have been part of the initial inquiry for collecting data. The Court held that having an imperfect ESI search was not evidence of bad faith for sanctions. Mendis, at *12.
The Plaintiff argued that the Defendant’s representative at an arbitration hearing committed perjury because when questioned on the partial photo of the email, that he 1) did not think he had seen it before and 2) he was not sure where the partial email came from. Mendis, at *12-13.
The Court held that the witness had not “unequivocally denied any knowledge” about the email. Furthermore, the Court held it was not implausible that a person would not remember an email from nearly two years before. Mendis, at *12-13.
None of the facts showed any willfulness or bad faith on the Defendant’s part to justify sanctions, let alone a default judgment. Id.
Bow Tie Thoughts
It has been a long time since my last post. I look forward to blogging more on eDiscovery cases.
There are multiple steps of “search” for ESI. The first step is for the preservation of ESI. The following steps range from identifying records for Rule 26(a) initial disclosures, to responding to discovery responses, finding documents for deposition exhibits, and records for motion practice. Each requires nuance on how to accomplish each goal.
Collection of ESI
The above case missed one email. That is preferable situation to having missed entire custodians and hundreds of messages. The reason for the oversight was the email was not copied to the customer records database. Many companies have specific databases for sales and customer management. Solely searching a customer management database would require everyone following protocol for retaining communications about customers in that database. That can carry risk, because not everyone is 100% accurate in following such protocols for every email message they send.
There are multiple strategies to try for collecting data about parties. In a case where an individual sues a large company, the collection strategy can include:
- The plaintiff’s name in the body of email messages
- Person’s name in the customer relations database
- All emails to, from, cc-ed, or bcc-ed, to the plaintiff’s email address
- Search for the plaintiff’s email address in the body of email messages
Those are just a few options for email. It is critical to know how a party communicates, so messaging applications for collaboration can also be preserved to avoid missing responsive data sources.
The “Go Find Me an Email” from a Message Fragment Situation
Finding an email from partial information can be an exercise in character building. The situation presumes the message at issue was collected. The preferred search method is to know who sent the email and who it was sent to, with date, and subject. That information can be used to search metadata. However, not having that basic information is like having half of a puzzle piece. Such situations require getting creative.
One option is to construct a content search for a phrase in the email fragment. This could be a quote from a sentence that is unique. For example, the phrase “customer complained about” likely would have false positives, since that phrase could be stated as a course of business. That phrase and the customer’s last name might identify the missing message. There are a variety of searches that can be tried, but the point is, the person searching will need to get creative with finding an email from a message fragment.