The California Court of Appeal, Fourth District, recently reversed a defense verdict in Higginson v. Kia Motors America, Inc., No. D082322, 2026 WL 82098 (Cal. Ct. App. Feb. 3, 2026), ordering a new trial and monetary sanctions due to the defendant’s discovery misconduct. The decision highlights the critical importance of proper search term methodology, good-faith participation in meet and confer processes, and accurate verification of discovery responses.
Background
Higginson sued Kia over engine defects in his 2013 Kia Soul. During discovery, Higginson requested documents related to engine defects, including communications with government agencies. Kia asserted boilerplate objections and refused to engage in meet-and-confer efforts on search terms. Higginson filed a motion to compel, pointing to a National Highway Traffic Safety Administration (NHTSA) letter requesting documents from Kia regarding investigations into engine defects and argued that Kia must have responded with documents that would also be responsive to his requests. After the court ordered Kia to respond “without objection” using a narrowed definition of “engine defects” (listing multiple symptoms), Kia’s paralegal, Avalos, signed a verified response stating that responsive documents “have never existed.” When deposed, Avalos testified that Kia normally searches using both a “conjunctive” (all terms together) and “disjunctive” (individual terms) approach, and that this case was “not any different.”
However, mid-trial, Higginson’s counsel moved for terminating sanctions, claiming they had recently found Kia’s response letter to the NHTSA, which proved that Kia’s discovery response that responsive documents never existed was false. Kia eventually revealed to the court that its search was based on a “conjunctive” approach to the definition of “engine defects.” The trial court described this methodology as a “conjunctive block search narrative,” which would result in responsive discovery only if the “entire narrative block” was found in a particular record. In other words, a document would be identified only if it related to every single term in the phrase used to search for responsive records.
The trial court instructed the jury that Kia had incorrectly stated that no responsive discovery documents existed, and that if the jury found Kia’s responses were intentionally false, the jury may decide that production of the documents would have been unfavorable to Kia. The trial court, however, excluded the NHTSA Letter and Kia’s response letter on evidentiary grounds. Left without any evidence explaining why Kia’s responses were false, the jury expressed confusion and asked the court what was false about Kia’s discovery responses. The trial court responded that it could not answer the question, and the jury ultimately returned a defense verdict.
The trial court denied Higginson’s subsequent motion for a new trial, finding that the law firm representing Higginson had possessed the NHTSA correspondence through other cases long before trial and could have addressed Kia’s discovery violations during the discovery phase but failed to do so.
Appellate Analysis
The Court of Appeal reversed the trial court’s denial of Higginson’s motion, holding that Kia’s discovery misuse constituted an “irregularity in the proceedings” preventing the plaintiff from having a fair trial under California Code of Civil Procedure section 657(1), the provision which entitled plaintiff to a new trial. To remedy the injustice Kia’s conduct caused, the court directed the trial court to grant a new trial, and impose monetary sanctions on Kia sufficient to compensate Higginson for the costs and attorneys’ fees incurred in both the first trial and this appeal. The court grounded this relief based on the following findings:
- Consequences for Misconduct: The appellate court emphasized that discovery violations must have consequences, which in this case meant a new trial and monetary sanctions. After noting Kia’s refusal to engage in meet and confer on search terms, its unreasonable conjunctive search methodology, false testimony during deposition regarding the search methodology, and how Kia’s counsel consistently dodged the trial court’s attempts to pin down Kia on the search terms it used, the appellate court cited Sherman v. Kinetic Concepts, Inc., 67 Cal. App. 4th 1152 (1998), declaring that it is the obligation of the court “to ensure that any victory achieved by such methods and challenged in this court will be short-lived and costly.”
- Ineffective Remedy: The appellate court found the jury instruction of the trial court inadequate because, without the excluded NHTSA letters, the jury had no context to assess and adequately remedy Kia’s discovery violation.
- Diligence: Crucially, the court held that diligence is not a statutory requirement for “irregularity” claims under section 657(1), unlike “newly discovered evidence” claims under section 657(4). The trial court erred by focusing on Higginson’s alleged lack of diligence rather than Kia’s affirmative misconduct. The court also noted Higginson was entitled to rely on Kia’s verified statement that documents “never existed.”
- The Evidentiary Vacuum: The court rejected the argument that the withheld documents might not have changed the outcome. Because Kia created this “evidentiary vacuum” through its own misconduct, the law permits an inference that the withheld evidence would have been damaging to Kia. Also, the court found that “the withheld discovery could have disclosed that the vehicle had a more serious and more irremediable defect than the jury believed it did.”
Dissenting Opinion
Justice O’Rourke dissented, arguing that an “irregularity in the proceedings” under section 657(1) refers to “matters which appellant cannot fully present by exceptions taken during the progress of the trial.” Because Higginson’s counsel knew about the discovery deficiencies well before trial concluded, the irregularity was a matter he could have fully presented earlier, making the new trial motion unavailable.
Practical Takeaways
By holding that “irregularity in the proceedings” under section 657(1) does not require the same diligence showing as “newly discovered evidence” under section 657(4), the Court of Appeal’s decision has broadened the availability of new trial motions based on discovery misconduct. Even where there are questions about the requesting party’s diligence on failing to address disputes on discovery in a timely manner before trial, a new trial may be warranted if the misconduct deprived the party of a fair trial. This outcome of the appellate decision was likely influenced by Kia’s particularly unreasonable search methodology, falsely verified response, and refusal to meet and confer on search terms.
While this decision incentivizes parties to engage in discovery honestly and diligently, overly broad application could create opportunities for strategic manipulation. Because the appellate court broadly accepted the potential impact of discovery violations on the verdict, a party anticipating that proper discovery would yield little favorable evidence might exploit this dynamic. To mitigate potential risks, responding parties to discovery should continue to work diligently to ensure their search terms are appropriate. As such, the following practice pointers may be helpful:
- Use reasonable search methodologies: Employ pragmatic search strategies that are reasonably calculated to locate responsive documents, specifically avoiding the use of long definitions as single, conjunctive search strings.
- Verify discovery responses accurately: Exercise caution and ensure strict accuracy when verifying responses. Rather than making sweeping, absolute assertions that documents “do not exist” where it is possible that documents could exist, counsel should incorporate reasonable limitations to clearly define the scope of the search.
- Transparent Meet-and-Confer: Proactively negotiate and agree upon search terms during the meet-and-confer process to preclude subsequent challenges. Securing a clear consensus on the methodology early on effectively eliminates the possibility of opponents later claiming the search was “rigged” or insufficient.
On the other hand, a responding party holding damaging documents might still attempt to sustain a lie throughout discovery, calculating that, unlike in this case, they will not be caught. Of course, this type of behavior should be strictly avoided. Requesting parties may actively use various measures to uncover the truth, among others, through depositions on search methods, targeted discovery, and motions to compel. A responding party who engages in improper search term gamesmanship risks severe sanctions or a reversed verdict.
In a case where the opposing party is operating in bad faith, detecting discovery violations or any causes that might constitute irregularity in the proceedings under section 657(1) early are important. If necessary, a party who is on the receiving end of such misconduct can raise the issues early and where the party seeking to evade discovery continues, the party on the receiving end can address the violation with adverse jury instructions and terminating sanctions.
As this decision makes clear, California courts continue to place emphasis on the accuracy and integrity of discovery responses. To mitigate the significant risks of sanctions and reversal, litigants must ensure their discovery compliance is both rigorous and precise and without gamesmanship in the process.
* * *
If you have questions or comments on the content of this post, please email Mike Kibler at [email protected], Dominique Caamano at [email protected], or Bo Sung Jin at [email protected].
