Mount VS 3M Company

"[A] party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense."

Honda Japan's PMQ testified that he took notes of his interviews of 20 to 30, possibly more, people who worked for Honda Japan or subsidiaries (Honda R & D) and for outside parts suppliers, because Honda Japan has few documents from the relevant pre-1996 time period. However, he testified that he memorized the notes and then disposed of them by placing them in a receptable that Honda Japan uses for confidential or proprietary documents that should be destroyed. His testimony that he memorized the notes is somewhat undercut by the fact that he could not remember the names of all of the employees he interviewed. However, he testified that he could get the names if necessary.

Clearly, the PMQ should not have destroyed his notes, because they were unambiguously requested in the Notice of Deposition Requests for Production of Documents Nos. 1 and 3, and the PMQ testified that he read the deposition notice after it had been translated into Japanese. It is certain that the Notes contained information that is relevant to the topics of examination noticed, and it is possible that the Notes contained information that contradicted the sworn testimony the PMQ provided at deposition. The Court admonishes Defendant’s witness for improperly destroying his notes.

However, Plaintiffs present no evidence that the notes actually contained any evidence favorable to Plaintiffs' claims, nor do Plaintiffs present any evidence that the PMQ testified falsely or contrary to the notes at deposition.

In fact, the basis for the present motion – that Honda Japan will attempt to present evidence at trial to support the defense claims stated above – appears to be a red herring. The record indicates that Honda Japan’s PMQ has no personal knowledge of facts to support any of these claims and Honda Japan no longer has any documents to support any of these claims. It is possible that some of the employees that the PMQ interviewed would have personal knowledge of facts supporting these theories. However, Plaintiffs have certainly had time during the five years this action has been pending to discover the identifies of any such witnesses and to take their depositions to the extent that Honda Japan intends to present any of their testimony at trial in this action.

The Williams decision, supra, involved an attorney malpractice action where the plaintiff requested defendant former attorney to return his case files pursuant to State Bar rules. Counsel for defendant reviewed the 36 volumes of files and copied the correspondence therein but not the rest of the files before returning them to plaintiff former client. Plaintiff's counsel copied about eleven volumes worth of the files but not the rest. Plaintiff put the files in a storage space, which

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21100427: Mount VS 3M Company 06/16/2026 Hearing on Motion for Sanctions Against Honda Motor Co. Ltd. For Spoliation of Evidence Requested in Plaintiffs' Notice of Deposition; filed by Germaine Helena Mount (Plaintiff) + CRS# A-21100427-017 in Department 18 he then failed to pay the storage fees for and the files were destroyed. Contrary to Plaintiffs’ claims in the moving MPA, the Court of Appeal did not disturb the trial court’s finding that under the circumstances the Williams plaintiff's destruction of the case files was intentional. (167 Cal.App.4th at 1224.)

Further, defendant's counsel submitted a declaration declaring that, based on his review of the files before they were returned, the files either contained or would have contained documents relevant to plaintiff's claims and defendant's defenses thereto, particularly with respect to plaintiff's alleged lack of knowledge of things that had occurred during the representation. The trial court found that the Williams plaintiff was extremely knowledgeable about the underlying litigation, which finding the Court of Appeal again did not disturb on appeal. (Id. at 1222, 1225.)

The deposition preparation notes at issue here are qualitatively different than the files destroyed in Williams.

Defendant's Opposition largely cites to cases for the proposition that evidence and issue sanctions are extreme remedies that are rarely appropriate where no prior court order has been violated. However, Plaintiffs have a valid argument that any prior motion practice would have been futile, where the notes weren't due to be produced until the deposition commenced, and the PMQ unambiguously testified that he had destroyed them.

Many of Defendant's arguments lack merit. For example, Defendant claims that the notes are subject to attorney-client and attorney work product privileges because an attorney for Honda Japan attended some, but not all, of the PMQ's employee interviews. The presence of an attorney at some of the interviews does not in and of itself create these privileges where neither the PMQ nor the employees being questioned were attorneys, and where Honda Japan has provided no declaration from the relevant attorney(s), its PMQ or the interviewed employees declaring that the attorney was the one conducting the interviews or providing legal advice to the PMQ regarding what questions to ask. Further, portions of the notes regarding interviews at which the PMQ interviewed employees by himself would not be subject to either attorney-client or attorney work product privileges.

The Court finds that Plaintiff has not met its burden under Williams, supra, to show that the PMQ’s destruction of his notes had a substantial probability of damaging Plaintiff’s ability to establish essential elements of their claims in this action. As stated above, Plaintiffs present no evidence that the PMQ testified untruthfully at deposition or that the recently prepared notes contained information contradictory of the PMQ’s deposition testimony.

However, contrary to the suggestion made by Defendant in Opposition, New Albertsons, Inc. v. Sup.Ct. (2008) 168 Cal.App.4th 1403, 1434 states that while the sanctions the trial court imposed were too harsh and thus improper, the plaintiff may have been entitled to a jury instruction regarding the fact that defendant Albertsons had destroyed potentially relevant video tape evidence and the inferences the jury could make based on that destruction, even though Albertsons had objected to the relevant CCP § 2031.010 et seq. document requests seeking that evidence and plaintiff had not moved the trial court for an order compelling a further response

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG21100427: Mount VS 3M Company 06/16/2026 Hearing on Motion for Sanctions Against Honda Motor Co. Ltd. For Spoliation of Evidence Requested in Plaintiffs' Notice of Deposition; filed by Germaine Helena Mount (Plaintiff) + CRS# A-21100427-017 in Department 18 and production of responsive documents. Here, however, Plaintiffs do not seek such a jury instruction (see CACI No. 204) in their Notice of Motion.

Wherefore, Plaintiffs’ Motion for Issue and Evidentiary Sanctions is DENIED.

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