ABTL Spring 2026 Report: The Case of the Allegedly Defective Kia Engine

Have you lost faith in discovery? Constantly annoyed that opposing counsel seems to get away with nonsense? If you've ever wondered whether Courts take discovery misconduct seriously, beyond issuing sanctions, the answer is yes. Let's take a look at a recently published decision where the Court of Appeal reversed a defense verdict for just that reason—Higginson v. Kia Motors America, Inc. (2026) 341 Cal.Rptr.3d 732. The decision is over 30 pages and chalk full of detailed analysis; I distill a few key findings here.

The Higginson opinion is an excellent reminder that basic discovery rules matter. No matter how seasoned the practitioner, whether in-house or outside counsel, an attorney and their staff must know:

• How to properly frame and conduct electronic discovery searches.

• How to meet and confer in good faith.

• Why accurate verifications are critical.

Seven Years Later: How Improper E-Searching & Obfuscation Led to a Verdict Reversal

Plaintiff's law firm knew, from other cases it had prosecuted, that Kia was in the government's crosshairs for alleged engine defects. The National Highway Traffic Safety Administration (NHTSA) had written Kia a letter demanding documents related to the NHTSA's investigations into potential engine defects. Surely Kia had responded in some fashion?

So, when plaintiff Higginson sued defendant Kia for engine defects in his 2013 Kia Soul, a simple discovery request for communications with government agencies regarding engine defects naturally followed. Kia's counsel responded with objections only. Kia refused to meet and confer and explain how it conducted its e-searches. Plaintiff filed a motion to compel and told the trial court about the NHTSA letter arguing that Kia must have responded with documents that would also be responsive to his requests.

In response to the motion, the court adopted its own specific definition of "engine defects" that listed multiple symptoms that may constitute a defect. The Court ordered Kia to respond to discovery, without objection, using the Court's definition. Kia did so claiming responsive documents "never existed." Kia's counsel had its paralegal sign the requisite verification and when asked about the response at deposition, the paralegal testified Kia conducted a routine search in this case which included using both "conjunctive" (all terms together) and "disjunctive" (individual terms) approaches.

Fast forward. In preparing for trial, plaintiff's counsel found Kia's response letter to the NHTSA, which proved that Kia's discovery response (that responsive documents never existed) was false. Plaintiff moved for terminating sanctions for this discovery abuse. Kia "finally admitted midtrial" to the court that its e-search was based on a "conjunctive" approach to the definition of "engine defects." In other words, a document would be identified as responsive only "if it related to every symptom listed in the court-adopted definition" of engine defects. Id. at 738.

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 right away during deliberations as evidenced by one of their first notes to the judge asking the Court what was false about Kia's discovery responses. The trial court responded that it could not answer the question. Id. at 750.

A defense verdict followed.

The trial court denied Plaintiff's subsequent motion for a new trial on the grounds that Plaintiff's counsel had prior knowledge of the NHTSA correspondence and should have brought the issue forward during discovery instead of during trial.

The Court of Appeal Calls Out Kia's Discovery Misconduct & Orders a New Trial

The Court of Appeal reversed the trial court's denial of Plaintiff's motion for new trial, holding that Kia's discovery misuse constituted an "irregularity in the proceedings" preventing Plaintiff from having a fair trial under CCP Section 657(1).

The Court of Appeal excoriated Kia's underlying conduct as follows:

Kia effectuated its nonproduction by giving an unduly narrow and unreasonable "conjunctive" reading to the court-adopted definition of "engine defects." At best, this misreading was negligent. And the record suggests it was worse than that. Kia ignored Higginson's repeated efforts to meet and confer regarding search terms. Kia's verifier testified falsely in her deposition that Kia usually searches both conjunctively and disjunctively and that the search here was done diligently and in accordance with Kia's usual practice. Kia's counsel consistently dodged the trial court's attempts to pin down Kia on the search terms it used; Kia only finally admitted midtrial that it searched conjunctively for records that included the entire list of symptoms. Although the trial court did not find Kia's conduct regarding search terms was "willful," the court characterized it unfavorably, calling it "criminally stupid"; a "garbage argument"; "not a fair" or "reasonable reading"; "destined to discover no responsive documents"; "'dead on arrival'"; and an approach that "make[s] no sense" and which "no judge would have" intended.

Id. at 758. The consequence of Kia's conduct? The Court of Appeal directed the trial court to grant a new trial, held that the trial court focused too much on Plaintiff's delay in raising the issue and not enough on Kia's dilatory conduct, and ordered the trial court to impose monetary sanctions on Kia.

Importantly, the court held that diligence is not a statutory requirement for "irregularity" claims under CCP Section 657(1), unlike "newly discovered evidence" claims under Section 657(4). The trial court erred by focusing on Plaintiff's alleged lack of diligence rather than Kia's affirmative misconduct. The court also noted Plaintiff was entitled to rely on Kia's verified statement that documents "never existed."

What Are the Key Takeaways for All Lawyers Practicing in CA?

Strategic discovery can be a powerful tool when wielded properly. Discovery abuse, which is rampant, can and should be reined in as soon as possible using a discovery referee (if it is a large enough case and the parties can afford it) and/or sanctions motions before the Court.

The simple way to prevent a drastic result? Pay close attention to and routinely review your electronic search protocols as in-house counsel and with outside counsel. Verifications are governed by specific statutes for each kind of discovery response; read those statutes well to ensure compliance before discovery responses are issued. And finally, the bane of any Law & Motion judge's calendar, engage in the meet and confer process with integrity and clarity.

To put it bluntly, this decision is a warning to all practitioners: stop with the discovery gamesmanship. At the end of the day, and it literally may take years (the plaintiff here filed his case in February 2020), you could be stripped an expensive trial victory. This decision can and will be used to argue many a new trial motion based on discovery abuse.

The Honorable Vedica Puri (Ret.) serves as a neutral for ADR Services, Inc. Previously, she served as a judge for the San Francisco County Superior Court.