Braun v. Toyota Motor Sales

























Filed 2/13/13
Braun v. Toyota Motor Sales CA2/4













>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FOUR




>

STEVEN BRAUN, Plaintiff, Appellant and Cross- Respondent, v. TOYOTA MOTOR SALES, U.S.A., INC. et al., Defendants, Respondents and Cross-Appellants.

B234212 (Los Angeles County Super. Ct. No. BC398650)

APPEAL from a judgment of the Superior
Court of Los
Angeles County,

Yvette
Palazuelos, Judge. Reversed and
Remanded.

The Cifarelli Law Firm and Thomas A.
Cifarelli; Steven B. Stevens for Plaintiff, Appellant, and Cross-Respondent.

Morgan, Lewis & Bockius, Larry M.
Lawrence and Robert Jon Hendricks for Defendant, Respondent, and
Cross-Appellant Toyota Motor Sales, U.S.A., Inc.

Ballard Rosenberg Golper & Savitt,
Linda Miller Savitt, Gordon N. Kojima and John J. Manier for Defendant and
Respondent Randall W. Bauer.

The Arkin Law Firm and Sharon J. Arkin
for Amicus Curiae Consumer Attorneys of California on behalf of Plaintiff,
Appellant and Cross-Respondent.



Appellant Steven Braun, a former
manager for Toyota Motor Sales, U.S.A., Inc. (Toyota), sued respondents Toyota
and Randall Bauer (Bauer), his supervisor at Toyota, for href="http://www.fearnotlaw.com/">sexual harassment and wrongful termination. The trial court granted Toyota’s motion to
compel production of any data storage files containing either photographs
appellant might have taken of Bauer’s office or photographs of appellant from
2000 through 2010. Because appellant had
downloaded photographs covered by the order onto his home computer, in order to
comply with the order, he had to produce his computer for inspection and
copying. Before doing so, he deleted
more than 42,000 files which he claimed were privileged under the right of
privacy. He left on the computer more
than 13,000 photographs covered by the order.
Based on appellant’s violation of the order compelling discovery, the
trial court granted Toyota’s motion for a terminating sanction. In this appeal, we conclude that the court
did not abuse its discretion by ordering discovery of the data storage files in
the first place, but that the court did abuse its discretion in terminating the
action. We therefore reverse the
judgment of dismissal and remand the case for the court to consider appropriate
sanctions short of termination.



FACTUAL AND PROCEDURAL
BACKGROUND

Appellant ‘s First Amended Complaint

The operative pleading is the href="http://www.mcmillanlaw.com/">first amended complaint. In it, appellant alleges the following facts. He began working for Toyota as a call center
representative in 1994 and was promoted to manager around 2000, receiving
outstanding performance appraisals every year until 2007. Appellant, who is married and has three
children, began receiving unwanted sexual attention from Bauer around 2000 or
2001. Bauer began staring and leering at
appellant during meetings. Appellant
ignored him.

After a promotion in 2000, appellant
was supervised by Bauer, who began “engaging in a pattern of licentious
staring, humiliating sexual innuendos in front of others, and a pervasive
pattern of other actions” which included offers to give a massage and sexual
advances. Appellant reported the
harassment to the Toyota, but nothing was done.
Appellant sought a transfer, but was unsuccessful.

After appellant rebuffed Bauer’s
sexual advances during a business trip in November 2007, Bauer gave appellant a
“dismal” performance appraisal, appellant’s first in his 15 years at
Toyota. Appellant filed a complaint with
the Department of Fair Employment and
Housing, but an investigator hired by Toyota found no indication of
discrimination or harassment.
Ultimately, appellant left Toyota in June 2009.

On the basis of these allegations,
appellant sued Toyota and Bauer alleging, inter alia, sexual harassment,
constructive termination, retaliation, and discrimination.href="#_ftn1" name="_ftnref1" title="">>[1]



Plaintiff’s Photographs of Bauer’s
Office

During discovery, appellant produced
photographs he had taken of Bauer’s office and objects in the office that he
believed constituted evidence of sexual harassment, including a photograph of
“the Palito de Pan,” a Toyota marketing doll.
When deposed in July 2009, he admitted that he touched a few items on
Bauer’s desk when he took the photographs.
He could not recall the specific date he took the photographs and no
longer had the memory card that contained them.
However, he had downloaded the photographs from his camera to his home
desktop computer. He had not altered
them or any of their metadata, which he described as “[d]ata about data.”href="#_ftn2" name="_ftnref2" title="">[2]



Demand For Inspection

On June 30, 2010, Toyota served on
appellant a demand for inspection of the camera he used to take the photographs
of Bauer’s office. Toyota also demanded
that he produce for inspection and copying “ANY data cards, flash drives,
memory cards, or other data storage media” containing “photographs depicting
Randall Bauer’s office [including objects in the office].” Finally, for a ten year period, January 1,
2000 through December 31, 2010 (which included the period during which Bauer
allegedly harassed appellant), Toyota demanded that plaintiff produce for
inspection and copying “ANY data cards, flash drives, memory cards, or other
data storage media containing ANY or ALL electronic versions of or electronic
data constituting the photographs, videos, or digital films depicting
[appellant].”

On July 30, 2010, appellant served
objections to the demands on the grounds of attorney-client privilege and
invasion of privacy. He also asserted
that the information sought was irrelevant, not reasonably calculated to lead
to the discovery of admissible evidence, and that the requests were vague,
ambiguous and overly broad.



Toyota’s Motion to Compel

On August 18, 2010, Toyota moved to
compel further responses. As here
relevant, Toyota explained that it was requesting “the camera and data storage
media used to take and store photographs showing Defendant Bauer[’s] office,
including photographs previously produced by Plaintiff in this case,” because
“Plaintiff has submitted photographs he took of [Bauer’s] office and objects
contained within that office as evidence of the harassment he allegedly
suffered. [Toyota] is entitled to
inspect the camera(s) used to take those photographs and the data cards.”

With respect to the request for
production of all data storage containing photographs or videos of plaintiff
from 2000 through 2010 (the period of alleged harassment), Toyota
explained: “[Toyota] alleges that Plaintiff
engaged in, and sometimes initiated, much of the conduct which he now claims
offended him and that Plaintiff was not offended by the alleged conduct. Thus, discovery of the photographs, videos
and digital films of Plaintiff during the relevant period are reasonably calculated
to lead to the discovery of admissible evidence regarding whether Plaintiff was
offended as he alleges.” According to
Toyota, “[d]epictions of Plaintiff engaging in the same or similar conduct
which purportedly offended him are relevant to test Plaintiff’s claim.”

As for plaintiff’s objections that the
requested discovery violated his right to privacy, Toyota contended that
appellant could not “rely upon privacy objections to prohibit [Toyota] from
conducting discovery into matters that he has put at issue in this litigation,”
and that the information sought “[does] not fall under any of the traditionally
and typically protected categories of information, such as financial
information or trade secrets.”

In his opposition to the motion to compel,
appellant argued that the requests for all photographs, videos, and films from
the past ten years were not reasonably calculated to lead to the discovery of
admissible evidence and were “harassing.”
He further argued that Toyota had failed to present any facts to support
its argument that the requested material would yield evidence regarding whether
appellant was offended by certain conduct.
Finally, he argued that the requested material would violate the privacy
rights of third parties, including family members and friends, who were neither
parties nor witnesses in the lawsuit.



The Trial Court’s Ruling on the
Motion to Compel

At the January 5, 2011 hearing on
Toyota’s motion to compel, the court issued a tentative ruling. In relevant part, the tentative ruling
granted Toyota’s request for production of the camera and its storage, and for
production of every storage device containing any photographs, videos or films
of appellant for the last ten years. The
court reasoned that the requests were reasonably calculated to lead to
admissible evidence because appellant could not remember the date he took the
pictures of Bauer’s office, and because the discovery would allow Toyota to
determine “whether certain photographs were deleted or altered.”

Responding to the tentative decision
at the hearing, appellant’s counsel objected to the requests for every storage
device containing images of appellant from 2000 to 2010, because the requests
were not simply for images but for every storage device that might contain
those images (e.g., cameras, computers, and flash drives). Compliance with the request for storage
devices would involve disclosing “very invasive information about his entire
family for ten years.” According to
counsel, the court’s tentative ruling would require appellant to give Toyota
his computer for “unlimited access to everything that’s on that computer.” Counsel offered to produce photographs of
appellant alone, or with his family members’ faces blacked out, in order to
protect privacy interests.

In response, counsel for Toyota raised
an additional rationale for its need for the data at the hearing, asserting
that the photographs were relevant to appellant’s emotional distress claim in
order to see whether appellant had lost weight over time and to examine his
demeanor in the photographs to see if he appeared “psychologically affected by
the alleged harassment.”

Appellant’s counsel offered to examine
the computer and move for a protective order, but she reiterated her position
that Toyota’s discovery request ostensibly was based on appellant’s inability
to remember the date of the photographs he took of Bauer’s office and that
production of all the data on the computer was not justified by that fact.

The court stated that appellant should
have explained earlier why he did not want to produce his entire computer –
that is, he should have gone through the computer and submitted a declaration
explaining exactly what was on the computer that he did not want to produce or
request a protective order against producing it. Appellant’s counsel asked if appellant could
produce the photographs instead of the entire computer in order to protect his
privacy interests, but the court adopted its tentative order requiring
production of the camera and its storage, and for production of every storage
device containing any photographs, videos or films of appellant for the last
ten years, which included appellant’s computer.
The court gave appellant 30 days to comply.



Appellant’s Ex Parte Motion

On January 11, 2011, appellant applied
ex parte for an order modifying the
court’s order compelling discovery. He
stated that he was “willing to produce all photographs, in electronic format,
depicting [himself] from January 2000 to the present,” but asked that the court
not require him to allow Toyota “full and unlimited access to his home computer
for inspection and copying.” He again
argued that allowing Toyota “unfettered access to all information on his computer
is a severe invasion of [his] privacy rights, as well as the privacy rights of
his wife, his three daughters (ages 7, 10 and 13), and third parties not
related to this action.” He further
contended that it would lead to the disclosure of privileged attorney-client
communications and documents constituting attorney work product. Appellant explained that his family did not
have another computer for personal use and used the home computer to pay bills,
prepare tax documents, maintain medical records, conduct volunteer activities
with the children’s school, do homework, and to conduct a private business with
numerous clients. The computer thus
contained appellant’s clients’ personal information, including bank account
numbers, account passwords, social security numbers, home addresses and phone
numbers, and private information of children and teachers at the school.

The court denied the ex parte motion,
stating that appellant should have examined the computer earlier to determine
“what private information [is] in there.”
The court stated that, at the previous hearing, appellant was unable to
explain what private information was on the computer “except to speculate
because you hadn’t done a review, and you couldn’t tell me with any
specificity.”href="#_ftn3" name="_ftnref3"
title="">[3]



Toyota’s Motion for Terminating
Sanctions

On February 7, 2011, appellant
purported to comply with the court’s order by delivering to Toyota’s counsel
his camera and his computer, which contained over 13,000 photographs, including
the photographs of Bauer’s office and photographs depicting himself from 2000
through 2010. However, he also served
objections which suggested that he was withholding certain evidence. He did not inform Toyota that he had deleted
any files.

In late March 2011, Toyota filed a
motion for terminating sanctions, contending that appellant destroyed evidence
in violation of the court’s discovery order.
Included with the motion was the declaration of Eric Lundberg, a
computer forensic engineer. He stated
that more than 42,000 files on appellant’s computer were intentionally
overwritten on February 6, 2011, using CCleaner, a program designed to
permanently delete and overwrite files.
Lundberg was unable to restore or retrieve the content of the overwritten
files. In addition, certain files one
would expect to find (such as “Recent Folder Activity, Link Files, Recycle Bin
Info Files, Temp Folders, and Internet Cache Folders”) were missing and could
not be restored or retrieved. Lundberg
found remnants of other files, including fragments of appellant’s resume, an
interview schedule dated November 17, 2006, with IndymacBank, and documents
related to “the creation and management of an apparent money management firm of
[appellant’s],” as well as emails that appeared to have been sent from a “Toyota.com”
email address.

Lundberg did
not mention whether photographs or video files had been deleted, or whether he
was unable to determine if such files had been deleted. href="#_ftn4"
name="_ftnref4" title="">[4]

Summarizing the contents of Lundberg’s
declaration, Toyota argued in its motion that appellant’s intentional
destruction of more than 42,000 computer files in violation of the court’s
order justified terminating sanctions.
According to Toyota, although “we will never know exactly what those
documents were, there is some remnant information that . . . makes clear that
documents that were likely responsive to various prior discovery requests were
at some point deleted from the computer” or not timely disclosed.href="#_ftn5" name="_ftnref5" title="">[5] Toyota also argued that appellant had not
been candid with the court in his ex parte application, when he stated that he
did not use his home computer for work purposes.

As to why a terminating sanction was
required, Toyota contended: “Any lesser
sanction would permit Plaintiff to obtain a benefit by forcing Defendants to
proceed to trial without the benefit
of discoverable evidence that may have exonerated Defendants of Plaintiff’s
claims entirely. [Citations.] [¶]
For example, an issue sanction finding that Plaintiff has not suffered
any emotional distress, and/or that he staged the placement of the Palito de
Pan in pictures to help his case would in some respects be appropriate. Some of the reasons for compelling the
production of Plaintiff’s computer included obtaining information to challenge
Plaintiff’s claims of emotional distress and weight loss and to establish that
Plaintiff staged various photographs regarding the Palito de Pan doll. But these sanctions would be inadequate
because they would not address the fundamental issue of liability, and the fact
that some of the files Plaintiff destroyed (such as emails or notes) may have
undercut liability by establishing – as Defendants have previously claimed –
that Plaintiff has manufactured his claims with the assistance of a few
disgruntled former employees.

“Issue and/or evidentiary sanctions
would not, for example, return Defendants to ‘equal footing’ with Plaintiff
with respect to what other emails involving his witnesses were deleted by
Plaintiff – documents which could affirmatively establish that this case has
been manufactured by Plaintiff.
Defendant will never know what notes, emails, records, pictures or other
files Plaintiff deleted that would have allowed them to impeach not only
Plaintiff but also his witnesses. There
is no sanction other than the termination of this case that can remedy that
harm, which was entirely caused by Plaintiff’s intentional destruction of
evidence and violation of this Court’s Order.”


In his written opposition, appellant
argued, inter alia, that he complied with Toyota’s discovery request in that he
provided all the photographs Toyota sought, and that a terminating sanction
would be inappropriate because no evidence directly relevant to his claims or
Toyota’s defenses case was destroyed. In
a supporting declaration, appellant stated that he removed from his computer
the following confidential information, using a program he regularly used to
clean his computer: attorney-client
communications; attorney work product from the instant case; his family’s
monthly bills, bank account and tax information; medical and health information
of his wife and daughters; confidential information pertaining to his business,
including his bank account numbers, passwords, and intellectual property;
confidential information of his business clients, such as social security
numbers and bank account numbers; information related to his wife’s Parent
Teacher Association activities, including information regarding children and
teachers; confidential communications with his wife regarding their children. He did not delete or alter the over 13,000
photographs that were the subject of Toyota’s discovery request, but he placed
all of them in an account for Toyota to access.


In its reply, Toyota again argued that
only a terminating sanction was appropriate:
“We will . . . never know what photos or other discoverable information
existed on the hard drive. This lack of
knowledge is the exact prejudice caused by [appellant’s] willful destruction of
evidence. And it is a prejudice that
cannot be cured. That is why terminating
sanctions must be granted.”

At the hearing, the court issued a
tentative ruling denying the motion for terminating sanctions, but giving
Toyota its choice between two lesser sanctions:
(1) striking appellant’s claim for emotional distress and excluding
evidence that Bauer displayed the Palito de Pan doll, or (2) monetary sanctions
of $79,595 to reimburse Toyota for the costs of the forensic analysis of the
computer and attorney fees. The court’s
tentative reasoning was that the focus of Toyota’s discovery requests was the
production of the digital media storage of the digital pictures, not “the
production of the computer to discover any and all admissible evidence that may
be contained therein.” The court noted
that the aim of the discovery requests and its discovery order was “to compel
production of the computer that has been unaltered to determine when certain
pictures were taken or whether certain pictures were altered.”

At the hearing on Toyota’s motion,
counsel for Toyota argued that a terminating sanction was required, because
there was no way of knowing what had been deleted and whether evidence that
vindicated Toyota was destroyed.
Moreover, although Toyota’s discovery request focused on photographs of
Bauer’s office and of appellant, the court’s order compelling discovery
entitled Toyota to examine all of appellant’s computer files. Thus, according to Toyota, any sanction must
take into account the prejudice to Toyota caused by not knowing whether key
evidence that would undercut appellant’s claims was destroyed.

In reply, appellant’s counsel argued
Toyota’s speculation that evidence harmful to plaintiff’s case had been
destroyed did not justify a terminating sanction, and that terminating the case
on that basis would be a windfall to Toyota.


After a lengthy colloquy with all
counsel concerning the appropriate sanction, the court stated: “Okay.
I’m going to terminate the case. I
think . . . it isn’t a punishment [and] I agree with the defendants that
there’s just no way I can put them back into the same position that they were
in before . . . . [T]hey were entitled
to look at the whole thing [referring to the computer and its files]. Whether ultimately they would be able to use
it at trial is another question, but we can’t even get there.”href="#_ftn6" name="_ftnref6" title="">[6] The court entered judgment in favor of
respondents and dismissed the action with prejudice. Appellant filed a timely notice of
appeal.



DISCUSSION

>I. >The Order Compelling Discovery

Appellant contends that the trial
court erred in its January 5, 2011 ruling overruling his privacy objections and
granting Toyota’s motion to compel discovery, and in not modifying that order
upon appellant’s ex parte application on January 11, 2011. We find no abuse of discretion.

A trial court’s ruling on a motion to
compel discovery is reviewed for abuse of discretion. (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) “‘“Where there is a basis for the trial
court’s ruling and the evidence supports it, a reviewing court will not
substitute its opinion for that of the trial court. [Citation.]”
[Citation.] “The trial court’s
determination will be set aside only when it has been demonstrated that there
was ‘no legal justification’ for the order granting or denying the discovery in
question.” [Citation.]’ [Citation.]”
(Ombudsman Services of Northern
California v. Superior Court (2007) 154 Cal.App.4th 1233, 1241 (>Ombudsman).)

“While it is very broad, the right to
discovery is not absolute, particularly where issues of privacy are
involved. The right of privacy in the
California Constitution (art. I, § 1), ‘protects the individual’s >reasonable expectation of privacy
against a serious invasion.’ [Citation.]
While there are many different phrasings of the analysis that is performed
when a discovery request seeks arguably private information, the constant theme
among the decisions is that in deciding whether to permit discovery that
touches upon privacy, ‘California courts balance the public need against the
weight of the right.’ [Citation.] Drawing this ultimate balance requires a
careful evaluation of the privacy right asserted, the magnitude of the
imposition on that right, and the interests militating for and against any
intrusion on privacy. [Citation.]” (Puerto
v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.)

As here relevant, appellant objected
to the discovery request and the motion to compel on privacy grounds. However, other than noting that compliance
with the request would compel him to produce all files of his home computer for
inspection and copying, he failed to make an appropriate showing to
substantiate his privacy objection. (See
Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2012) ¶ 8:317, p. 8C-103
[explaining that, to assert a privacy objection to a discovery request, the
most practical procedure is simply to object, but further stating, “Of course,
at the hearing on the motion, you will have to justify the privacy
claim.”].) Thus, although the trial
court is required to weigh the privacy rights asserted against the need for
discovery, appellant gave the court no information to weigh against Toyota’s
stated need for discovery, which set forth reasonable grounds for
disclosure. (See id. ¶ 8:322.1, p. 8C-106 [explaining that a party opposing the
discovery of financial records on privacy grounds should provide declarations
explaining the details of the records so the court need not sift through
them].)

Toyota’s discovery request was made on
June 30, 2010, and the motion to compel was filed on August 18, 2010. Appellant filed his opposition to the motion
to compel more than four months later, on December 21, 2010. The hearing was not held until January 5,
2011. Yet, despite more than adequate
time to inspect the computer, prepare
appropriate objections, and move for a protective order, appellant failed to do
so. Not until the date of the hearing
did appellant’s counsel offer to examine the computer.

The trial court’s ruling is reviewed
for abuse of discretion and it “‘“will be set aside only when it has been
demonstrated that there was ‘no legal justification’ for the order granting or
denying the discovery in question.”
[Citation.]’ [Citation.]” (Ombudsman,
supra, 154 Cal.App.4th at p.
1241.) Here, appellant failed to set
forth any justification for his privacy objection, despite the passage of time
between Toyota’s initial discovery request and the hearing on the motion to
compel production. The trial court did
not abuse its discretion in finding that appellant had failed to justify his
objection at the January 5, 2011 hearing, and in finding that the attempt to
remedy the deficiency on an ex parte basis on January 11, 2011 was far too
late.



II. Terminating
Sanctions

Appellant contends that the court erred
in granting a terminating sanction.
Although appellant’s conduct in destroying files on his home computer in
violation of the court’s discovery order was willful and inexcusable, and
although that conduct unquestionably deserves serious sanction, we conclude
that imposition of a terminating sanction was an abuse of discretion.

“We review an order imposing discovery
sanctions under the abuse of discretion standard. [Citation.]
An abuse of discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the court’s decision exceeds the bounds of
reason and results in a miscarriage of
justice. [Citations.]” (New
Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.)

“‘A court, after notice and an opportunity for a hearing, may
impose sanctions on a party, person, or attorney for misuse of the discovery
process. (§ 2023.030.) Section 2023.030 describes the types of
sanctions that a court may impose, including monetary, issue, evidence,
terminating, and contempt sanctions. (>Id., subds. (a)-(e).)’ [Citation.]”
(Kayne v. The Grande Holdings
Limited (2011) 198 Cal.App.4th 1470, 1475.)
“It is well established ‘the purpose of discovery sanctions “is not ‘to
provide a weapon for punishment, forfeiture and the avoidance of a trial on the
merits,’” . . . but to prevent abuse of the discovery process and correct the
problem presented.’” (>Parker v. Wolters Kluwer United States, Inc.
(2007) 149 Cal.App.4th 285, 301.) “The
trial court should consider both the conduct being sanctioned and its effect on
the party seeking discovery and, in choosing a sanction, should ‘“attempt[] to
tailor the sanction to the harm caused by the withheld discovery.”’ [Citation.]
The trial court cannot impose sanctions for misuse of the discovery
process as a punishment.
[Citation.] [¶] The discovery statutes evince an incremental
approach to discovery sanctions, starting with monetary sanctions and ending
with the ultimate sanction of termination.
‘Discovery sanctions “should be appropriate to the dereliction, and
should not exceed that which is required to protect the interests of the party
entitled to but denied discovery.”’
[Citation.]” (>Doppes v. Bentley Motors, Inc. (2009)
174 Cal.App.4th 967, 992; see also 2 Witkin, Cal. Evidence (5th ed. 2012)
Discovery, § 255, p. 1232 [stating that the least drastic sanction is
preferred, citing cases].) “A discovery
sanction may not place the party seeking discovery in a better position than it
would have been in if the desired discovery had been provided and had been
favorable. [Citation.]” (Rail
Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323,
332.)

Here, appellant’s conduct in
destroying computer files that were subject to the court’s order compelling
discovery is appalling. His excuse –
that he believed disclosing photographic files alone complied with the order –
is disingenuous. Such willful
disobedience of the court’s order deserves serious sanction. However, a terminating sanction is not
commensurate to the harm, and is not necessary to vindicate the purposes of
discovery.

The trial court reasoned that pursuant
to its order compelling discovery, Toyota was entitled to inspect all
appellant’s computer files. Because
appellant had destroyed all the files except the photographs he produced, no
lesser sanction could restore Toyota to the position of obtaining all the
computer files. Therefore, a terminating
sanction was necessary, because no lesser sanction could cure the harm.

We recognize that fashioning an
appropriate discovery sanction is no easy task.
But this reasoning does not justify a terminating sanction. In essence, the court accepted Toyota’s
argument that “we will never know” what was destroyed, that there might have
been evidence favorable to Toyota, and that therefore Toyota was incurably
prejudiced. On this record, however,
Toyota’s reasoning elevates speculation into justification for terminating
sanctions. There may well be cases in
which the uncertainty over whether a party has destroyed evidence favorable to
the other side results in prejudice that can only be cured by a terminating
sanction, but this is not one of them.

In its discovery request, Toyota
requested the data storage media containing photographs and videos of appellant
from the previous 10 years to determine whether appellant was offended or
distressed by Bauer’s alleged harassment.
Appellant produced more than 13,000 photographs responsive to this
request. It is difficult to believe that
the 13,000 photographs appellant produced were insufficient to satisfy the
articulated purpose for the discovery.
Certainly Toyota made no such showing.
In any event, accepting the notion that appellant may have deleted some
photographs that were responsive, terminating the action gave Toyota far more
than was necessary to protect its interest in the discovery it was denied. Sanctions less than terminating the action,
such as issue, evidentiary, and/or monetary sanctions tailored to the discovery
violation, would suffice to cure any harm from destruction of photographs
designed to provide evidence to defeat the claim for emotional distress. Of course, which sanction or sanctions to impose
and the nature of their severity lies within the trial court’s broad
discretion.

Similarly, Toyota wished to determine
whether appellant altered objects in Bauer’s office before taking photographs,
on the theory that appellant may have manufactured evidence suggesting
harassment where none existed. But the
harm from depriving Toyota of some such photographs can be cured short of
terminating the action, such as by precluding appellant from introducing any
evidence concerning allegedly offensive items in Bauer’s office.

Toyota argues that appellant may have
destroyed documents that were the subject of prior discovery requests and that
such documents may have been damaging to appellant’s case. But such empty speculation simply cannot
support an order terminating the action.
On this record, no reasonable inference exists that appellant href="http://www.mcmillanlaw.com/">destroyed evidence that cannot be cured
by strong sanctions short of terminating the action.

In arguing to uphold the trial court’s
order, Toyota asserts that appellant engaged in a history of willful discovery
abuse. However, the court sustained
appellant’s objections to the bulk of the evidence on which Toyota makes the
assertion (see fn. 5, ante), and the
court did not purport to rely on a history of discovery abuse to justify the
terminating sanction.

The proper resolution of this case is
to remand to the trial court to consider imposition of sanctions short of
terminating the action. By mentioning
certain possible sanctions short of terminating the action, we do not mean to
restrict the trial court’s discretion, but rather to make clear that the trial
court retains broad discretion to fashion the appropriate remedy.



DISPOSITION

The judgment is reversed, and
the case is remanded for the trial court to consider sanctions short of
terminating the action. The parties
shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
J.





We concur:







EPSTEIN, P. J. MANELLA, J.