In McLaughlin v. Tesla, Inc., No. 22-cv-07849-SVK (N.D. Cal. Nov. 2, 2023), California Magistrate Judge Susan van Keulen granted the plaintiff’s order compelling the defendant to produce certain data regarding the subject vehicle underlying the action, stating: “Tesla shall provide Plaintiff access to the remote computer setup by November 10, 2023” for both Carlog Data and Snapshot Data And APViz Software.
Case Background
In this case involving a dispute over the manufacturing of an automobile, the plaintiff sought an order compelling the defendant to produce certain data regarding the subject vehicle underlying the action. The Parties appeared for an in-person hearing before the Court on November 1, 2023. At that hearing, the Court issued several rulings regarding the instant discovery dispute.
Judge’s Ruling
Judge van Keulen issued the following order:
“1. For the reasons stated during the November 1, 2023 hearing, the Court rules on Plaintiff’s at-issue discovery requests as set forth in Attachment A hereto.
2. The Court sets the following schedule and parameters regarding compliance with the rulings set forth in Attachment A:
With Respect To RFP No. 1 (Access To Carlog Data):
- Tesla shall provide Plaintiff access to the remote computer setup by November 10, 2023.
- Plaintiff may access the data and software provided in response to RFP No. 1 for the duration of this action.
- Plaintiff shall provide Tesla with its list, screenshots or video captures identifying the categories of Carlog data it seeks in connection with RFP No. 1 by November 17, 2023.
- Tesla shall produce the requested categories of data by November 30, 2023, as directed in Attachment A.
- The Parties may modestly modify this schedule without Court intervention by filing a joint stipulation.
With Respect To RFP No. 2 (Access To Snapshot Data And APViz Software):
- Tesla shall provide Plaintiff access to the remote computer setup by November 10, 2023.
- Plaintiff may access the data and software provided in response to RFP No. 2 for the duration of this action.
- Any screenshots or video captures Plaintiff creates memorializing his review of the Snapshot data and APViz software shall constitute attorney work product and be subject to the terms of the Protective Order entered in this action as indicated below. Plaintiff shall create a log of these screenshots and video captures as indicated below. Plaintiff need not produce to Defendant these screenshots or video captures except as required under Federal Rule of Civil Procedure 26.
- The Parties may modestly modify this schedule without Court intervention by filing a joint stipulation.
3. The Court AMENDS the Protective Order in this action (Dkt. 16) as follows:
- The Parties shall treat any screenshots or video captures created by Plaintiff in connection with his use of the remote computer setup prepared by Tesla pursuant to this Order, whether work product or evidence, as if designated “Highly Confidential – Attorneys Eyes Only Information” under the Protective Order. See id. ¶ I.2.b.
- Plaintiff shall not use these screenshots or video captures for any purpose unrelated to this action.
- Plaintiff must maintain a log identifying all of these screenshots and video captures.
- Within 60 days after the conclusion of this action, Plaintiff must file a certification stating, under penalty of perjury, that he has destroyed and deleted from any computers, hard drives, servers or cloud storage all the screenshots and video captures identified in the log.”
So, what do you think? Are you surprised that the Court granted the plaintiff access to the defendant’s systems? Please share any comments you might have or if you’d like to know more about a particular topic.
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Readers who fail to go back and look at the Court’s ruling may miss that, despite the language you include in the post, the Court’s order speaks to giving access to “a computer” holding data leading up to the crash,” not “the computer.” Not a trivial distinction.
The upshot is that this opinion does NOT grant the requesting party direct access to the defendant’s systems (a big ‘no no’ most of the time). Instead, it seeks to solve a form/means of production problem for proprietary ESI: how do you allow a requesting party access to data that needs to be hosted in proprietary software to be intelligible? So, the “a computer” versus “the computer” distinction is crucial to avoid going ballistic and harrumphing about courts granting direct access. I don’t read this order as being one of those unduly intrusive instances.