Breaking Barriers to Justice
Step Two: Think Outside the Box
Commission (CPSC), Food and Drug Administration (FDA), Occupational Safety and Health Administration (OSHA), and Environmental Protection Agency (EPA)—maintain searchable databases of manufacturer submissions, recalls, and enforcement correspondence. Consider issuing Freedom of Information Act (FOIA) and California Public Records Act (CPRA) requests. Subpoena third parties. Consult colleagues at your firm and in your network who have litigated against the same defendant who could know what was, and what wasn’t, produced in other cases. A responding party or company that claims no documents exist, while simultaneously corresponding with a federal agency about the same documents, or that has previously produced responsive documents in other litigation, has just laid the foundation for you to file a motion for sanctions, a new trial, or both. In fact, in Higginson , another attorney at the plaintiff’s law firm had knowledge from a separate, prior case against Kia that Kia had responsive documents related to the engine defects at issue. Had that information been shared sooner, Kia’s discovery misconduct would have surfaced earlier. Collaboration is king. If those streams run dry, expose the search itself. Consider taking the deposition of the person who performed the search for responsive documents or verified the discovery responses. In Higginson , Kia’s verifier testified at deposition that a search for responsive documents was electronically conducted and was run with search terms consisting of various engine defects that would appear “both conjunctively and disjunctively.”
When the responding party swears no documents exist, ask yourself: if they don’t have them, then who does? Consider Higginson v. Kia Motors America, Inc. ((2026) 118 Cal.App.5th 316). The plaintiff sued Kia Motors America because his 2013 Kia Soul had serious engine defects. Plaintiff requested Kia to produce internal documents for any investigations it conducted into such defects. Kia’s verified responses complied with § 2031.230 in stating that it could not produce such documents because they “never existed.” Plaintiff’s counsel searched the National Highway Traffic Safety Administration (NHTSA) database and found a letter from Kia itself agreeing to produce documents on the same engine defects. The records Kia swore did not exist were found on a federal agency’s public website. Similarly, in Vallbona v. Springer , the defendant physician, Dr. Springer, operated a clinic specializing in laser cellulite removal. The clinic solicited patients by falsely representing that it was close to obtaining FDA approval for the procedure. The plaintiffs there requested documents relevant to Dr. Springer’s FDA applications, but they were told no such documents existed. At his deposition, Dr. Springer testified he never searched for the documents and then later testified that they were “stolen” in a burglary. On the second day of trial, Dr. Springer found responsive documents and brought them to court. Specifically, he brought correspondence with a federal employee from the Health and Human Services Department.
The lesson: look elsewhere. Federal regulators and agencies—NHTSA, the Consumer Product Safety
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Consumer Attorneys of California
FORUM July/August 2026
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