1 9CV346663

Santa Clara — Civil

R. Burciag la
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 951 10—1364 on 4/20/2023 3:45 PM
Telephone: (408) 279—5393 Reviewed By: R. Burciaga
Facsimile: (408) 279—5845 Case #1 9CV346663
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
1O 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 N0. 19CV346663

interest t0 WEI LUN HUANG, deceased; TRINITY )

16 HUANG, TRISTAN HUANG, a minor;

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 am.
100, ) Dept. 6
21 )

Defendants. ) Assigned for all purposes t0:

22 ) Hon. Evette Pennypacker; Dept. 6
)

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28 27900 1 09
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 .............................................................................................................. 1

Overview 0f the Contents of Plaintiffs’ Motion ................................................................. 1

Overview 0f Tesla’s Position .............................................................................................. 3

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY ..................................... 4

Activity Preceding the Court’s February Order .................................................................. 4

Tesla’s Actions After the Court’s February Order .............................................................. 5

III. ARGUMENT ...................................................................................................................... 7

1O Tesla Complied with the Court’s February Order and the Code ........................................ 7
1. Requests for Admission ............................................................................................... 7
11
2. . . Special Interrogatories and Requests for Production ................................................... 9
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 0f 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 .............................. 11
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IV. CONCLUSION ................................................................................................................. 1 3
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27900109 i

TABLE OF CONTENTS
 TABLE OF AUTHORITIES

Page(s)

Other Authorities

American Federation ofState, County & Municipal Employees v. Metropolitan Water Dist. ofSouthem Calif,
(2005) 126 Cal.App.4th 247 .................................................................................................................................. 8
Hammond Packing C0. 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. Berna],
(1988) 203 Ca1.App.3d 57 ............................................................................................................................. 11, 12
Newland v. Superior Court,
(1995), 40 Ca1.App.4th 608 ................................................................................................................................. 11
Rutledge Hewlett—Packard C0.,
v.
1O
(2015), 238 Cal.App.4th 1164 ............................................................................................................................. 12
Smith v. Circle P Ranch Ca, Ina,
11
(1978) 87 Ca1.App.3d 267 ............................................................................................................................... 8, 10
Soule v.General Motors Corp,
12
(1994), 8 Ca1.4th 548 ........................................................................................................................................... 12

13 Regulations

14 Cal. Code CiV. Proc. § 2023.030 .............................................................................................................................. 11

Cal. Code Civ. Proc. § 2033.060 ................................................................................................................................ 6
15 Cal. Code Civ. Proc. § 2033.220(c) ........................................................................................................................... 7
Cal. Code Civ. Proc. § 2033.290(e) ..................................................................................................................... 2, 10
16 Cal. Code Civ. Proc. § 2033.420 .............................................................................................................................. 10
Cal. Code Civ. Proc. § 2033.420(b)(4) .................................................................................................................... 11
17 Cal. Code Civ. Proc. §§ 2033.010-2033.420 ........................................................................................................... 11
Cal. Code Civ. Proc.§ 2033.220(a) ........................................................................................................................ 7, 8
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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 0n the road and their hands 0n the wheel. Mr.

Huang, 0f course, did neither.

1O Faced with these difficult facts, Plaintiffs seek, through their Motion, t0 avoid them entirely. They ask

11 the Court t0 issue an extreme sanction that would deem the Consumer Expectations Test (CET) applicable t0 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 0f certain recordings that appear t0 show its CEO, E1011 Musk, making various statements about

15 either Autopilot’s abilities 0r aspirations for the continued development of advanced driver assistance systems.

16 The relationship of the statements in the recordings t0 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 0f the Contents 0f Plaintiffs’ Motion

21
Plaintiffs’ Motion challenges Tesla’s responses and supplemental responses t0 119 different discovery

22
requests. (See Plaintiffs’ eight Separate Statements in Support of Motion t0 Compel.) Many 0f Plaintiffs’

23
challenges are simply one—sentence, conclusory statements. However, all of the 119 different discovery

24
challenges are offered, explicitly 0r implicitly, in support 0f Plaintiffs’ request for the following forms 0f extreme,

25
unwarranted relief: (1) an issue sanction that would have this Court order that the consumer expectations test

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(CET) is applicable in this dispute (ignoring the Court’s recent statement in its February 24, 2023, Order that the

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Court would have to contend with that question at a later, appropriate time) m 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 t0 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 t0 responses and objections Tesla

provided either in response to interrogatories and corresponding requests for production that were served before

1O the Court’s February Order and that were not even arguably addressed by that Order, 0r 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 Orderl. None 0f 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 0f 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 t0 obfuscate the ancillary nature of these arguments, the fact that the majority 0f

17 Plaintiffs’ Motion concerns the issues addressed by the February Order, and the fact that a Violation 0f 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 t0 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 t0 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 (0r lack thereof) to the Court’s Order:

26

27
1
The Court’s Order recognized discovery closed and the Court expressly refused t0 reopen discovery.
is
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 t0 Special Interrogatories (SROG), Set 3, Nos. 46-48 related to factual
support for a purported Elon Musk statement t0 CBS reporter Gayle King.

c) Supplemental Responses to Request for Production (RFP), Set 6, No. 214 related to documents
Musk statement to CBS reporter Gayle King.
supporting a purported Elon

d) Form Interrogatory (FROG) N0. 17.1 concerning the above-described RFAS.

Responses t0 Requests Served After the Court’s Order:

e) Responses t0 RFA Set 3, Nos. 53-70. Concerning RFAs that are inside and outside 0f the scope 0f the
Court’s Order permitting limited additional discovery requests concerning alleged quotes from Mr.
Musk that were quoted in the Order.

f) Responses to RFAs as to Genuineness 0f Documents, Set 3, Nos. 1-7. Containing RFAs that are
1O inside and outside of the scope 0f the Court’s Order permitting limited additional discovery requests
concerning alleged quotes from Mr. Musk that were quoted in the Order.
11
g) Responses t0 SROG Set 5, Nos. 72-105. Containing SROGS that are inside and outside 0f the scope
12 0f 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 t0 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.
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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. A11 0f the remaining complaints that Plaintiffs have, regardless 0f 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 100k 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

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 0f 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.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Activity Preceding the Court’s February Order

As the Court will recall, this dispute relates t0 Tesla’s responses t0 RFAs that seek to establish the

authenticity 0f a number 0f statements allegedly made by Elon Musk in various speeches and interviews over a

period 0f 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 0r deny them. (Declaration 0f Lauren O. Miller 1] 3.)

1O
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

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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. fl 5.) In fact, a Google search 0f the phrase “Elon Musk deepfake

14
generator” immediately brings up websites that explain t0 people how they can create Elon Musk deepfake

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Videos. (Miller Decl. 1] 5.) The internet contains examples of these deepfakes. Some are obviously fake, such as

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one that Mr. Musk shared 0n his Twitter account, in a joking fashion, that purported t0 show him, and other

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public figures, having a conversation concerning their alleged moonlighting gigs as nude models. (Miller Decl. 11

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6.)2 This one was clearly a joke. Others, however, are not s0 obvious. For instance, a purported TED Talk

19
conversation appeared to show Mr. Musk discussing crypto-currency investments—a conversation that did not

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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.3 (Miller Decl. 1] 7.) Thus, the existence 0f an apparent recording does not by itself actually establish

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the reality or authenticity 0f its contents. And, if entire interviews can be faked, s0, too, can portions—even

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certain words or phrases.

24

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2
Warning: this Video contains some very off-color language 0f a sexual nature.
27 3
While not the cited deepfake Video, it should be noted that some 0f 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 t0 compel further responses t0 these RFAS (along With corresponding FROGS, SROGs

and a RFP that sought additional information regarding the bases for the content 0f a select few of the alleged

statements in the recording). (Miller Decl. 1] 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. 1] 4.) The Court

held a hearing 0n both motions and then issued an Order that granted both parties’ motions, overruled Tesla’s

obj ections (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 0r denied. (Miller Decl. fl 8.)

The Order also permitted Plaintiffs to serve additional but “limited” (emphasis in original) discovery

1O 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.4 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 0f the further

14 inquiry required by the Order. Id. at p. 9.

15
B. Tesla’s Actions After the Court’s February Order

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Tesla heard the Court loud and clear. It provided the language of the purported statements t0 Mr. Musk
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and provided him With copies 0f the recordings Plaintiffs had produced. (Declaration 0f Ryan McCarthy 11 3.) In

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response, Mr. Musk confirmed that he did not independently record the discussions 0r 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

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statements (all of which Tesla explained in its new responses). (McCarthy Decl. 11 4.) Therefore, even after

21

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24 4
This was limited only t0 statements purported t0 have been made by Mr. Musk, not by Tesla. This is an
important distinction because several 0f the post-Order requests Plaintiffs now challenge concerned statements
25 Plaintiffs d0 not attribute t0 Mr. Musk. As such, Tesla objected t0 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 t0
26 now seek sanctions over them when the responses cannot even arguably be Violative of the Court’s Order. And
there simply no excuse for Plaintiffs’ attempt t0 obfuscate this distinction by burying these amongst the
is
27 hundreds 0f 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 t0 admit 0r deny Whether the recordings are authentic.

This is not surprising considering Tesla did not generate the content, does not have a copy 0f 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 0r manipulated, it

cannot authenticate a non—Tesla document that it cannot independently validate.” (See Miller Decl. 11 9; Tesla’s

Responses t0 RFA 3, and Supp. Responses t0 RFA 2). Plaintiffs’ accusations notwithstanding, there is n0

gamesmanship here. Instead, neither Tesla nor Mr. Musk have the detailed knowledge or recollection of What

1O was said that is necessary t0 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 0f 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 11; Exhibit E.) Plaintiffs ignored Tesla’s request. (Miller Decl. 1] 11.) Plaintiffs’ refilsal t0 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 n0 showing by Plaintiffs that they tried and failed t0 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 t0 the alleged cements. 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 0r not—that is not the only way to obtain discovery. For instance, in this case Plaintiffs

21 found a YouTube Video 0f a Tesla owner attempting t0 replicate Mr. Huang’s crash; they found the owner,

22 subpoenaed him, and deposed him. (Miller Decl. 1] 13.) They wanted that evidence and they did the leg work to

23 get it. Now, they want Tesla to either admit the accuracy 0f statements Tesla and Mr. Musk cannot say are

24 accurate, or hire some internet deepfake expert t0 analyze the content to try to figure out if it has been altered, 0r

25 just have the Court deem them admitted notwithstanding that Tesla complied With its obligations under the Code.

26 / / /

27 ///

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 t0 attempt t0 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.

III. ARGUMENT
A. Tesla Complied with the Court’s February Order and the Code

1. Requests for Admissions

First, Plaintiffs argue that Tesla did not provide “meaningful responses” t0 the challenged RFAs; they d0

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

1O
that the Court has already rejected, e.g. Tesla does not have the original recording; it does not have chain 0f

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 t0 admit all 0r part 0f 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 0r readily obtainable is insufficient to enable that party to admit the matter.” However,

16
“[e]ach 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 t0 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. 1H] 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 0f gamesmanship.

24
Essentially, through their Motion, Plaintiffs are asking the Court t0 issue an extreme and unwarranted

25
sanction against Tesla for n_0t committing perjury. Having conducted a reasonable inquiry that involved Mr.

26

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5
This Section responds to Section IH(A) of Plaintiffs’ Motion, excepting RFA, Set 3, Nos. 61-68.
28 27900109 7
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 0f deepfakes, Tesla provided truthful answers: the authenticity of the purported

recordings cannot be admitted 0r denied. (McCarthy Decl. W 3-4; Miller Decl. fl 5.) But Plaintiffs then g0 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 t0 do so, Tesla provided that information because it

was consistent With the spirit 0f § 2033.220(a)’s requirement that responses be “as complete and straightforward

as the information reasonably available to the responding party permits.”6

Plaintiffs also complain about “deny as phrased” and “deny as worded” responses t0 Requests 60, 64, 65

(Motion p. 5).7 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. 1] 12.) Second, the responses are

1O compliant With the Code’s requirement that denials of all 0r part of a request be unequivocal. See Smith v. Circle

11 P Ranch Ca, Inc. (1978) 87 Ca1.App.3d 267, 275 (explaining that the language, “As framed, denied” is a sworn

12 denial under the Code.”); see also American Federation ofState, County & Municipal Employees v. Metropolitan

13 Water Dist. ofSouthem Calif (2005) 126 Cal.App.4th 247, 268 (“It has been said that a denial 0f all 0r 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. 11 12.) It is especially unfair for Plaintiffs t0 accuse Tesla 0f wrongdoing when they

17 could not be bothered even t0 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 t0 establish authenticity, can be used by Plaintiffs in support 0f an
27 argument for authenticity if there ever is need for one.
7
These were served after the Court’s Order.
28 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 “t0 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 subj ect 0f

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 0f the statements purportedly made by Mr. Musk in the statements at issue.9 (See

Miller Decl. fl 10.)

1O Plaintiffs, however, argue that these responses Violate the Court’s Order because they are not strictly

11 limited to Tesla 0r Autopilot. (Plaintiffs’ Motion at pp. 7—8.) But Plaintiffs do not even attempt to explain why

12 statements about the benefits 0f advanced driver assistance systems from people and organizations that have

13 studied them do not apply t0 Tesla. Moreover, it is absurd for Plaintiffs t0 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 0f 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 t0 Sections III(B) and (C) 0f 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.
9
This includes statements from NHTSA, the federal regulator, and the former Secretary of the U.S. Department
21 0f Transportation that are consistent With Mr. Musk’s aspirational statements, as well several studies from
multiple organizations that research and collect data 0n highway safety that show a substantial positive effect in
22 regard t0 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 t0 other, new requests.
23 This argument is meritless because the information was also responsive t0 those requests.
10
There is another fundamental contradiction in Plaintiffs’ Motion that cannot be overlooked. A11 0f the
24 information they assert they are entitled t0 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 t0 a sanction that applies the
25 consumer expectations test (and finds a defect under it) because they have not received information that has
nothing t0 d0 with that test. If they are right that Mr. Musk’s purported statements are relevant t0 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 t0 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 N0 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

0n the limited question 0f the authenticity 0f the statements, and the basis for them, if less intrusive methods 0f

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 d0 answer both questions. Given these responses, and under the

legal authority presented in this Court’s February Order, there is n0 reason t0 compel Mr. Musk t0 re-state in a
1O

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 t0 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
i. 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 0n 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 t0 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 ifthe statements are found

26 t0 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 t0

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 0f 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 t0 be

genuine after reasonable inquiry that, among other things, involved consultation With Mr. Musk (see McCarthy

Decl. 1W 3-4), simply because Tesla also does not have reason t0 believe they have been altered. Thus, the

practical effect 0f a monetary sanction would be t0 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 t0 respond to an RFA, 0r a failure to comply with an order compelling

further response t0 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 t0 the extent authorized by the chapter

1O governing any particular discovery method or any other provision 0f 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 RFAs 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 0n Plaintiffs’ issue sanction request.

16
3. The Requested Issue Sanction Would Violate Both the Due Process Clause of the
Fourteenth Amendment t0 the U.S. Constitution and California Law
17

“Constitutional Due Process imposes limitations 0n the power 0f 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 Ca1.App.4th 608, 614 (internal quotations omitted). As the
20
Second District Court 0f 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. Berna] (1988) 203
23
Cal.App.3d 57, 64-65 (discussing Hammond Packing C0. 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 t0 obtain the objects 0f 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 1 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
 discovery but t0 impose punishment.” Id. 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 0r she had

obtained the discovery sought and it had been favorable.” Rutledge v. Hewlett—Packard C0. (2015), 238

Cal.App.4th 1164, 1193.

The sanction Plaintiffs seek—application 0f the CET along With a finding that a defect is present under

that test—would Violate the Due Process Clause 0f the Fourteenth Amendment t0 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

1O acknowledged that the discovery at issue—Whether Mr. Musk made these statements and, if s0, identification 0f

11 their bases—might not even be relevant t0 the consumer expectations test (indeed, it would seem they are not).

12 Id. at p. 7. Thus, the sanction is not fairly tethered t0 nor flows from the discovery at issue.

13 Under these circumstances, application 0f the CET as a sanction would serve only t0 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 Ca1.4th at 568. This alone would be punitive, and thereby Violate Due Process. Plaintiffs g0 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, n0 matter how prominent the speaker, as relevant t0 What

21 customers actually expect. See Soule, 8 Cal.4th at 567 (“As we have seen, the consumer expectations test is

22 ///

23

24

25
11
Tesla is mindful 0f the Court’s admonition that a discovery dispute is not the proper forum for the
26 determination of Which test 0f liability applies t0 any given design defect case.
Tesla simply notes that, as the
Court has recognized, Soule General Motors Corp. (1994), 8 Ca1.4th 548, provides an in—depth discussion of
v.
27 the circumstances When the consumer expectations test should be found t0 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 0f the product’s users permits a conclusion that the product’s

design violated minimum safety assumptions, and is thus defective regardless 0f expert opinion about the merits

ofits 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 t0 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 0f the requested sanction.

As such, Plaintiffs’ requested sanction would Violate the Due Process Clause of the 14th Amendment t0

1O 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 t0 put Tesla’s discovery responses 0n 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

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er
LaurenlO Miller
Attorneys for Defendant
20
Tesla, Inc.

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28 27900109 13
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
 Sz Hua Huang, et a1. V. Tesla, Inc., et a1.
Case N0. 19CV346663

PROOF OF SERVICE

I am over 18 years 0f age, not a patty to this action and employed in San Jose, California at 1741

Technology Drive, Suite 200, San Jose, California 951 10-1355.

On the date indicated below, I served the foregoing documents 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 on all interested parties, or through their attorneys of record, in the
manner noted, addressed as follows:

Attorneys for Plaintiffs

B.Mark Fong
10 Seema Bhatt
Minami Tamaki LLP
101 Montgomery Street, 8th Floor
11
San Francisco, CA 94104
12 mfong@minamitamaki.com
sbhatt@minamitamaki.c0m
13 e0 arowski minamitamaki.com
Erica Sullivan: ESullivan@MinamiTamaki.com
14 Elise Everett: EEverefl@MinamiTamaki.com

15 Michael A. Kelly
Doris Cheng
16 Andrew P. McDeVitt
Walkup, Melodia, Kelly & Schoenberger
17 650 California Street, 26th Floor
San Francisco, CA 94108
18 mkellv@walkuplawoffice.com
dcheng@walkuplawoffice.com
19 amcdevitt@walkuplaw0ffice.com
Ashley Freeman afreeman@walkuplawoffice.com
20 Marlena White mwhite@walkuplawoffice.com
Mahul Patel: mpatel@walkuplawoffice.com
21 eserve@WalkupLawOffice.com

22 Attorneys for State 0f California

Landa Low
23 California Dept of Transportation-Legal Div.
P.O. Box 24325
24 Oakland, CA 94623-1325
Landa.10w@dot.ca.g0v
25 Rosemary Love: rosemafl.love@d0t.ca.gov
Mafia Cordonero: maria.cord0nero@dot.ca.gov
26 Skitch Crosby: skitch.crosby@dot.ca.gov

27 _ VIA FIRST CLASS MAIL. I caused such envelope to be deposited in the mail
sealed envelope with postage fully prepaid thereof. I
at San Jose, California,
am readily familiar with the firms business practice for
in a

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2 1 025562v1
 collection and processing of correspondence for mailing with the United States Postal Service. The mail is

deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on
motion 0f the party served, service is presumed invalid if the postal cancellation date or postage meter date is

more than one day after the date of deposit for mailing in affidavit.

_ VIA OVERNIGHT DELIVERY SERVICE.

labeled, and caused
The documents were enveloped, properly
be deposited into an overnight delivery (Federal Express, United Parcel Service, etc.)
to
receptacle or delivered to an authorized courier 0r driver authorized by the express service carrier t0 receive
documents, in an envelope or a package designated by the express service carrier with delivery fees paid or
provided for, addressed to the person 0n Whom it is to be served, at the office address as last given by that
person on any document filed in the case and served on that person; otherwise, at that person's place of
residence.

ixi BY ELECTRONIC SERVICE. The document was served electronically and the transmission was
reported as complete and without error. The document was served 0n the above parties in this action by causing
a true copy of said document to be transmitted by email pursuant to Emergency Rule 12 of Appendix I of the
California Rules of Court.

1O _ VIA FACSIMILE TRANSMISSION. The document was served on the above party in this action by
causing a true copy 0f said document t0 be transmitted by facsimile t0 the number listed adjacent t0 the name on
11 this Proof of Service. The transmission was reported as complete and without error.

12 VIA PERSONAL SERVICE. I caused such envelope(s) t0 be delivered by hand this date to the offices of
the addressee(s).

13
I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and
14
correct, and that this declaration was executed 0n April 20, 2023, at San Jose, California.
15

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17 An “1‘

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