Reply Brief — In re Carvana Securities

Record facts

UNITED STATES DISTRICT COURT · No. 2:22-cv-02126-MTL · Doc. 293 · 2026-01-30 · Docket on CourtListener

Full text

4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ROBBINS GELLER RUDMAN 
 & DOWD LLP 
DANIEL S. DROSMAN (CA 200643) 
TOR GRONBORG (CA 179109) 
ERIKA L. OLIVER (CA 306614) 
RACHEL A. COCALIS (CA 312376) 
MATTHEW J. BALOTTA (CA 310303) 
SARAH A. FALLON (CA 345821) 
655 West Broadway, Suite 1900 
San Diego, CA  92101 
Telephone:  619/231-1058 
619/231-7423 (fax) 
ddrosman@rgrdlaw.com 
torg@rgrdlaw.com 
eoliver@rgrdlaw.com 
rcocalis@rgrdlaw.com 
mbalotta@rgrdlaw.com 
sfallon@rgrdlaw.com 
Lead Counsel for Lead Plaintiffs 
[Additional counsel appear on signature page.] 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF ARIZONA 
 
In re Carvana Co. Securities Litigation 
This Document Relates To: 
All Actions. 
) 
) 
) 
) 
) 
) 
) 
) 
No. CV-22-2126-PHX-MTL 
PLAINTIFFS’ REPLY IN SUPPORT OF 
MOTION TO COMPEL COMPLIANCE 
 
 
 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 1 of 6

 
- 1 - 
4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiffs submit this reply in further support of their Motion to Compel Compliance 
(ECF 253) (“Motion” or “Mot.”) with the Court’s Order granting the Parties’ Stipulated ESI 
Order.1 
I. 
PLAINTIFFS’ ARGUMENT 
Garcia Sr. violated the Court’s ESI Order by withholding attachments to responsive 
communications based on a unilateral “non-responsiveness” determination, in direct 
contravention of the ESI Order’s plain language.  DriveTime does not dispute this.  
Likewise, Garcia Sr. concedes that a portion of the communications are responsive and that 
the ESI Order mandates that “if any part of a communication or its attachments is 
responsive, the entire communication and attachments will be produced.”  ESI Order at 8.  
Unable to dispute the text of the ESI Order, Garcia Sr. and DriveTime instead advance a 
series of meritless post hoc rationalizations.  None are persuasive.  The Motion should 
therefore be granted.  Further, given the straightforward nature of the dispute and in the 
interest of expediency, Plaintiffs do not believe that oral argument on the Motion is 
necessary. 
First, Garcia Sr. and DriveTime claim that Plaintiffs must establish that each 
document is individually relevant even if it is a part of a singular, responsive communication.  
See G.Opp. at 1; D.Opp at 1-3.  That argument squarely contradicts the ESI Order.  ESI 
Order at 8.  Tellingly, DriveTime’s response does not even mention the ESI Order.  And 
Garcia Sr.’s citation to the ESI Order’s provision describing a “process for determining ‘an 
appropriate basis for withholding a family document’” (G.Opp. at 2) only underscores his 
noncompliance, as he did not follow that process, which requires the Parties to “meet and 
confer” prior to withholding any portion of the document family.  ESI Order at 8.  Instead, 
Garcia Sr. unilaterally withheld the documents, obscured that fact in a production letter, and 
                                              
1 
Capitalized terms not defined herein have the same meaning as in Plaintiffs’ Motion.  
“G.Opp.” refers to Defendant Ernest Garcia II’s Response to Plaintiffs’ Motion to Compel 
Compliance (ECF 270), “D.Opp.” refers to Nonparty DriveTime Automotive Group Inc.’s 
Response to Plaintiffs’ Motion to Compel Compliance (ECF 281), and “Ex. 2” refers to 
Exhibit 2 attached to the Motion (ECF 253-2).  Unless otherwise stated, all emphasis is 
added and citations are omitted. 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 2 of 6

 
- 2 - 
4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
then flatly refused to produce the attachments during Plaintiffs’ requested meet and confer.  
See Ex. 2 at 2-3. 
Even if the ESI Order did not unequivocally require the production of the withheld 
documents (it does), and even if Garcia Sr. and DriveTime’s unilateral, inappropriately 
narrow relevance determinations were correct (they are not), the documents must still be 
produced under well-settled law.  “Courts in this Circuit have long recognized that an email 
and its attachment comprise ‘one document or message unit,’” and must be produced 
together.  Symettrica Ent., Ltd. v. UMG Recordings, Inc., 2020 WL 13311682, at *5 (C.D. 
Cal. 2020); see also Mot. at 2 (citing additional cases); Leon v. Am. Honda Motor Co. Inc., 
2025 WL 3255005, at *5-*6 (C.D. Cal. 2025) (ordering party to “[p]roduc[e] the entire 
family, except for any portions that are privileged and properly designating confidential 
portions” because this “allows Plaintiffs – and the Court when appropriate – to review the 
document family as it was created and maintained” and “breaking up the document family is 
effectively a[n improper] ‘relevance redaction’”); Endo Fitness LL, LLC v. F19 Holdings, 
LLC, 2023 WL 12015974, at *6 (C.D. Cal. 2023) (ordering party to produce “all attachments 
to all emails”). 
Notably, DriveTime had no response whatsoever to this wealth of authority.  Nor did 
it cite any authority supporting its position that breaking up responsive families is 
permissible or consistent with the requirement that a party produce “documents as they are 
kept in the usual course of business.”  Fed. R. Civ. P. 34(b)(2)(E)(i).  Garcia Sr.’s attempt to 
distinguish just a single case also fails.  See G.Opp. at 2.  That the emails in Karnoski v. 
Trump, 2020 WL 2736961 (W.D. Wash. 2020) were purportedly responsive, as opposed to 
the attachments here, is a distinction without a difference.  The ESI Order is explicit: “[I]f 
any part of a communication or its attachments is responsive . . . .”  ESI Order at 8.2 
                                              
2  
Garcia Sr.’s limited authority is inapposite.  See G.P.P., Inc. v. Guardian Prot. Prods., 
Inc., 2016 U.S. Dist. LEXIS 88926, at *2-*3 (E.D. Cal. 2016) (unlike here, the parties in this 
decade-old case did not have an ESI order requiring production); see also Weidman v. Ford 
Motor Co., 2021 U.S. Dist. LEXIS 20095, at *8 (E.D. Mich. 2021) (same and relying on 
G.P.P. as its legal support); see also Ex. 2 at 2-3 nn.1-2. 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 3 of 6

 
- 3 - 
4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Second, Garcia Sr. and DriveTime are also wrong that the withheld documents are not 
individually relevant.  G.Opp. at 1.  Even setting aside that these documents are part of 
responsive families and must be produced, the attachments are plainly relevant.  Mot. at 1-2.  
Indeed, two of the withheld documents that DriveTime produced expressly reference 
Carvana and DriveTime’s sham pass-through agreement – an alleged artifice of the scheme 
and an undisclosed driver of Carvana’s reported sales growth.  See id. at 1-2.3  Garcia Sr.’s 
contention that documents discussing an alleged artifice and undisclosed material facts are 
irrelevant simply because they are not public (G.Opp. at 2) only illustrates why Defendants 
cannot be permitted to serve as the unilateral arbiters of relevance, particularly when the 
withheld attachments are part of a single, responsive communication.4 
Lastly, DriveTime makes unsupported assertions of harm.  See D.Opp. at 1-3.  It fails, 
however, to explain why the Parties’ Stipulated Protective Order (ECF 136 at 4) does not 
fully address those harms.  Further, DriveTime’s authorities – each considering a motion to 
quash under Federal Rule of Civil Procedure 45 – are inapposite.5  DriveTime has not moved 
                                              
3 
As such, Garcia Sr. is wrong to claim that he “produced all attachments . . . that were 
responsive to Plaintiffs’ requests.”  G.Opp. at 1.  That assertion is demonstrably false.  
Further, Garcia Sr.’s claim that “Plaintiffs already have the documents they seek” (id. at 2) is 
misleading at best as DriveTime produced only two of the 109 withheld documents.  Contra 
D.Opp. at 2.  Garcia Sr. and DriveTime’s authorities are likewise inapt.  They address the 
relevance of overbroad requests, rather than the propriety of withholding discrete 
attachments that are part of concededly responsive communications.  See In re Bard IVC 
Filters Prods. Liab. Litig., 317 F.R.D. 562, 565-66 (D. Ariz. 2016); Appel v. Bos. Nat’l Title 
Agency, LLC, 2019 WL 183504, at *2 (S.D. Cal. 2019).  Nor does In re Soc. Media 
Adolescent Addiction/Pers. Inj. Prods. Liab. Litig., 2025 WL 2405489 (N.D. Cal. 2025), 
assist Defendants.  There, counsel had “conceded” that the requests at issue “could be ‘set 
aside’ as irrelevant,” a circumstance entirely absent here, where the attachments are part of 
communications Defendants concede are responsive.  Id. at *13. 
4 
Judge Liburdi’s discussion of Stoneridge Inv. Partners, LLC v. Sci.-Atlanta, Inc., 552 
U.S. 148 (2008) (ECF 105 at 37-39) does not affect relevance here because he ultimately 
upheld Plaintiffs’ retail growth statements and scheme claim against the Carvana Defendants 
and Plaintiffs’ §20(a) claim against Garcia Sr. in full.  See ECF 105 at 40, 60; see also ECF 
173 at 3-5. 
5 
See Solow v. Conseco, Inc., 2008 WL 190340, at *4 (S.D.N.Y. 2008) (quashing 
subpoena “where the information is sought by a competitor,” unlike here); Grand River 
Enters. Six Nations, Ltd. v. King, 2009 WL 222160, at *3 (S.D.N.Y. 2009) (same); Trellian 
Pty, Ltd. v. adMarketplace, Inc., 2021 WL 363965, at *4 (S.D.N.Y. 2021) (finding non-party 
“has shown good cause for its redactions,” particularly given the “direct, ongoing 
competition” between the non-party and plaintiff); Gerawan Farming, Inc. v. Prima Bella 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 4 of 6

 
- 4 - 
4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to quash or for a protective order.  Where there is no motion to quash, no cognizable burden, 
and the ability to designate documents as “confidential” or “highly confidential,” there is no 
basis to withhold production.  Leon, 2025 WL 3255005, at *5-*6 (ordering production of 
entire families because “any concern about disclosure of irrelevant information is mitigated 
by the fact that there is a protective order”); see also Takata v. Hartford Comprehensive 
Emp. Benefit Serv. Co., 283 F.R.D. 617, 621 (E.D. Wash. 2012) (protective orders address 
confidentiality concerns). 
In sum, Garcia Sr. should comply with the ESI Order and produce the withheld 
attachments. 
DATED:  January 30, 2026 
Respectfully submitted, 
 
ROBBINS GELLER RUDMAN 
 & DOWD LLP 
DANIEL S. DROSMAN 
(Admitted pro hac vice) 
TOR GRONBORG 
(Admitted pro hac vice) 
ERIKA L. OLIVER 
(Admitted pro hac vice) 
RACHEL A. COCALIS 
(Admitted pro hac vice) 
MATTHEW J. BALOTTA 
(Admitted pro hac vice) 
SARAH A. FALLON 
(Admitted pro hac vice)
 
s/ Daniel S. Drosman 
DANIEL S. DROSMAN
 
655 West Broadway, Suite 1900 
San Diego, CA  92101 
Telephone:  619/231-1058 
619/231-7423 (fax) 
ddrosman@rgrdlaw.com 
torg@rgrdlaw.com 
eoliver@rgrdlaw.com 
rcocalis@rgrdlaw.com 
mbalotta@rgrdlaw.com 
sfallon@rgrdlaw.com
                                                                                                                                                  
Produce, Inc., 2011 WL 13242977, at *4 (E.D. Cal. 2011) (burden on non-party in 
producing certain documents was “readily apparent”). 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 5 of 6

 
- 5 - 
4926-3159-6939.v1 
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
 
ROBBINS GELLER RUDMAN 
 & DOWD LLP 
ROBERT M. ROTHMAN 
(Admitted pro hac vice) 
DAVID A. ROSENFELD  
(Admitted pro hac vice) 
58 South Service Road, Suite 200 
Melville, NY  11747 
Telephone:  631/367-7100 
631/367-1173 (fax) 
rrothman@rgrdlaw.com 
drosenfeld@rgrdlaw.com
 
Lead Counsel for Lead Plaintiffs
 
O’DONOGHUE & O’DONOGHUE LLP 
DINAH S. LEVENTHAL 
5301 Wisconsin Avenue, N.W., Suite 800 
Washington, D.C.  20015 
Telephone:  202/362-0041 
202/362-2640 (fax) 
dleventhal@odonoghuelaw.com
 
Additional Counsel for Lead Plaintiffs 
 
BONNETT FAIRBOURN FRIEDMAN 
 & BALINT PC 
ANDREW FRIEDMAN 
7301 N. 16th Street, Suite 102 
Phoenix, AZ  85020 
Telephone: 602/274-1100 
602/274-1199 (fax) 
afriedman@bffb.com
 
Local Counsel 
 
 
Case 2:22-cv-02126-MTL     Document 293     Filed 01/30/26     Page 6 of 6

File and source

File

gov.uscourts.azd.1319766.293.0.pdf

Size

205,283 bytes

SHA-256

6adf581d63a04be63590257688c701a23e67c8de35b782e4bed2eec44fca9d1c

Our copy

gov.uscourts.azd.1319766.293.0.pdf

Original

archive.org