The Sherwin-Williams Company v. JB Collision Services, Inc. et al

Filing 187

ORDER Granting 185 Ex Parte Application to File Motion for Reconsideration. Sherwin-Williams may file its motion for reconsideration no later than August 11, 2015. Defendants may file an opposition no later than August 17, 2015. No reply should be filed unless leave is obtained in advance. The motion and opposition shall not exceed seven pages, not counting any appended or lodged material. Signed by Judge Larry Alan Burns on 8/6/15. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE SHERWIN-WILLIAMS COMPANY,

CASE NO. 13cv1946-LAB (WVG)

Plaintiff,

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vs.
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ORDER GRANTING EX PARTE
APPLICATION TO FILE MOTION FOR
RECONSIDERATION

JB COLLISION SERVICES, INC. et al.,
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Defendants.
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Defendants filed a motion for sanctions, arguing Sherwin-Williams engaged in

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spoliation of evidence when it removed toner cans from Qualtech Auto Collision auto body

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shop. (Docket no. 126.) Defendants argued the removed toner is significant because (1)

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Sherwin-Williams provided the Qualtech toner at the same time it supplied paint products to

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Defendants and (2) Qualtech experienced the same product defects that underlie

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Defendants' counterclaims. The Court denied the motion but, based on the record before

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it, found that: the Qualtech toner is relevant to this case; Sherwin-Williams was obligated to

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maintain a representative sample of the product, whether obtained from Qualtech or another

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source; and Sherwin-Williams acted negligently in failing to preserve the toner. (Docket no.

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176.) Thus, the Court concluded that Sherwin-Williams can't rely on its analysis of paint or

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paint compounds if its destruction of evidence denied Defendants the opportunity to examine

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an identical compound. (Id. at 6.) The Court also concluded that Defendants' counsel will
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be permitted to present evidence that toner was destroyed after a request to preserve it had

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been made, and argue whatever reasonable inference may follow. (Id. at 7.)

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Sherwin-Williams has filed an ex parte application for leave to file a motion for

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reconsideration of the order denying Defendants' spoliation motion. (Docket no. 185.) It

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contends its motion for reconsideration will "provide clarifying evidence as to a few discrete

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issues." (Id. at 2.) Specifically, Sherwin-Williams contends it:

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[1] will demonstrate that it has preserved the evidence most directly related to
Defendants' paint quality claims—the paint peel samples obtained from the
vehicles submitted by Defendants as warranty claims[;]
[2] will submit evidence that it maintains samples of batches of toners including
samples from the toners during the time period at issue here[;]

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[3] will demonstrate that Defendants, by their own allegations, purchased
nearly $1 million of the very same paint products they allege are no longer
accessible over five years[; and]

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[4] will submit evidence that it initiated a litigation hold before this matter was
filed in August 2013.
(Id. at 2-3.)

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The Court finds that reconsideration may be appropriate in light of Sherwin-Williams'

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representation that it will present evidence clarifying the actions it took with respect to the

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toner. See, e.g. Quinones v. Chase Bank USA, NA, 2011 WL 5859066, at *3 (S.D. Cal.

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2011) (allowing reconsideration where defendant provided clarifying information). Thus, it

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will allow Sherwin-Williams to file its motion for reconsideration. But, the Court is concerned

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that the existence of vintage toner wasn't brought to its attention sooner, especially since

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Defendants' spoliation motion centered on Sherwin-Williams' alleged failure to maintain

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relevant products. (Docket no. 126 at 7-8.)

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The Court notes that, while discovery is closed, and Defendants didn't request the

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toners in a timely subpoena, a subpoena is only necessary to command production. Fed.

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R. Civ. P. 45. The Federal Rules of Civil Procedure don't prevent voluntary production of

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evidence after the close of discovery.

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Sherwin-Williams' actions, Defendants may have had access to Qualtech's toner if Qualtech

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agreed to produce it voluntarily. And, Defendants' failure to produce Qualtech's toner, or

Thus, the record suggests that, but for

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include analysis of it in an expert report, may be "substantially justified" by their late

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discovery of the toner's existence and Qualtech's alleged problems with it. Fed. R. Civ. P.

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37(c)(1); Fed. R. Civ. P. 26; Galen v. Ave. of the Stars Assocs., LLC, 2011 WL 837785, at

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*6 (C.D. Cal. Mar. 1, 2011) (finding late disclosure substantially justified where evidence

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wasn't known until after the close of discovery).

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representation that it "still can . . . produce 'vintage' toners to Defendants . . . ," (Docket no.

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185 at 2-3.), the parties should identify:

Thus, in light of Sherwin-Williams'

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(1)

the specific toner products Sherwin-Williams removed from Qualtech;

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(2)

why Defendants didn't maintain samples of those specific toners;

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(3)

how long it will take for Sherwin-Williams to produce the same toner products

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to Defendants;
(4)

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whether the toners were the missing piece that made Defendants' wet system
sample complete; and

(5)

how long it will take for Defendants' expert to analyze the replacement toners

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(and, if the toners are the missing piece, the complete wet system sample),

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and supplement his expert report.

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Sherwin-Williams may file its motion for reconsideration no later than August 11, 2015.

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Defendants may file an opposition no later than August 17, 2015. No reply should be filed

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unless leave is obtained in advance. The motion and opposition shall not exceed seven

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pages, not counting any appended or lodged material.

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IT IS SO ORDERED.
DATED: August 6, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge

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13cv1946