Breaking Barriers to Justice
That kind of search would have been acceptable because it would have flagged documents in which any one or more of the search terms appeared, either alone or together with others. But that is not what happened. Midtrial, Kia admitted it searched only for records referencing the search terms simultaneously, meaning all the search terms had to appear together in the document for it to be identified as a search result. The trial court called this methodology “criminally stupid” and “dead on arrival.” The Court of Appeal added that “any victory achieved by such methods” in this court would be “short-lived and costly” ( Higginson , supra , 118 Cal.App.5th at p. 347). When the response is “no documents,” do your own research. Collaborate. Challenge the responding party’s methodology, not just the result. Depose the verifier on search terms, conjunctive vs. disjunctive logic, who ran the queries, and what instructions they were given, and when. The gap between how the search was described and how it was actually run is often where the truth lives. If any of these sources prove that either the response is false or the methodology a farce, immediately file a motion to compel and/or motion for sanctions.
Keep looking for the inconsistency. If you find it after discovery has closed, file a motion for sanctions. Evidentiary sanctions would prevent the responding party from trying to use the “newly found” forbidden fruit, and issue sanctions would utilize the false verified response as evidence of consciousness of guilt, willful concealment, or knowledge of a defect. To file a motion for sanctions, violation of a prior discovery order is not required so long as the facts support willful discovery abuse. In Vallbona , Dr. Springer argued plaintiffs waived their discovery demand by not bringing an earlier motion to compel. The Court of Appeal rejected this, holding that requiring a formal order to compel would have been "futile" where the defendant had falsely claimed the documents were stolen ( Vallbona, supra, 43 Cal.App.4th at pp. 1545-1546). The court called Dr. Springer's conduct "a total reprehensible violation of this court's rules, practices, and policies for a litigant to withhold documentation that is the subject of discovery and then surprisingly and unexplainedly find them during the trial." It imposed an evidence sanction barring Dr. Springer from now introducing the previously withheld documents, and an issue sanction, instructing the jury to take certain facts as established against the defense. A violation of a prior discovery order was also not required for issue and evidentiary sanctions in Karlsson v. Ford Motor Co. ((2006) 140 Cal.App.4th 1202). There, a five-year-old boy sitting in the rear center seat of a 1996 Windstar was rendered paraplegic after his spine was severed when his body jack-knifed over the lap belt seatbelt. There was no shoulder harness in the U.S. model, although Ford had been installing three-point harnesses in the same seat position in vehicles sold overseas. Ford
Step Three: Persist To, Through, & After Trial
If discovery closes and you are still stuck with a “no documents exist” discovery response, you are not out of options—even though you cannot compel production of documents sworn not to exist ( Sherman v. Kinetic Concepts (1998) 67 Cal.App.4th 1152, 1163; Higginson , supra , at p. 349 (trial court stated that if the response is no documents exist, the motion to compel must be denied)).
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Consumer Attorneys of California
FORUM July/August 2026
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