© 2018 The Texas Lawbook.
By Natalie Posgate
(March 2) – Lawyers for Toyota Motor Corp. fought hard in a Dallas district court Thursday to keep sealed a set of documents leaked years ago by a former in-house lawyer that are resurfacing in a defective product case. The Japanese automaker is arguing that the documents, though readily available on the Internet, are protected by an attorney-client privilege that the company has never waived.
Lawyers on the plaintiffs’ side from Frank Branson’s law firm fought equally hard to convince Dallas District Judge Dale Tillery to affirm open access as a matter of public concern.
“This is already on the Internet, you can’t put the genie back in the bottle,” Eric Stahl, one of the plaintiffs’ lawyers, told Judge Tillery during a one-hour hearing. “Even if you’re going to seal it, it will do nothing for no longer making it publicly available.”
Stahl, Branson and Chip Brooker represent a Dallas couple who allege their defective Lexus caused their children to sustain lifelong injuries after a rear-end collision. The plaintiffs allege Toyota is refusing to turn over basic documents from their safety design databases that they are legally entitled to have access to.
Thursday’s hearing occurred five days after the Japanese automaker announced recalls of nearly 65,000 of its 2018 Tundras and Sequoias, stating these models are at risk for having their electronic stability control systems shutting down unexpectedly. In the past 18 months, Toyota has announced 18 different recalls on its website.
To strengthen their argument, the plaintiffs, Benjamin and Kristi Reavis, are asking Judge Tillery to admit into evidence a series of internal Toyota documents that in-house lawyer-turned-whistleblower Dimitrios Biller leaked online. The plaintiffs say the documents reveal the existence of two safety and design databases called the MIK and “Books of Knowledge” – which Toyota has concealed in litigation – that the plaintiffs believe could help them with their case.
But the documents also reveal a culture of secrecy and fraud at Toyota, the plaintiffs say – one that executives are even willing to break the law for so they can protect the company from handing over documents during discovery that might hurt their defense in tort cases that are regularly filed against the automaker across the U.S.
In addition to the internal documents, the exhibits Toyota wants sealed include a wrongful termination lawsuit Biller filed against Toyota that includes privileged information, as well as a 2010 letter that U.S. Congressman Edolphus Towns sent to Toyota’s CEO when Congress was investigating the company’s sticky gas petal scandal. Towns posted the letter online shortly after sending it to Toyota.
One of Toyota’s lawyers, Morgan Lewis partner Winn Carter, pointed out at Thursday’s hearing that Toyota executives confronted Congressman Towns immediately after he posted his letter online, which included internal correspondence between Biller and other Toyota executives that the company said was privileged information. Carter said when the executives met with Towns in person, “he pulled the information off the Internet as a response.
“Towns made a mistake. It’s like whack-a-mole: once it’s on the Internet, there’s not much we can do about that,” Carter told Judge Tillery. “But we’re going to try to at least protect what we can under the circumstances here.”
Carter also called Biller a “disgruntled” ex-employee, asserting the documents he leaked “would not have been in possession of the plaintiffs but for Biller taking action on his own without our permission.”
Though he acknowledged Toyota as an important new employer in Texas, Branson argued to the court that the privileged “work product” revealed in the documents pertain more to a “culture of cover-up” at the company, in which they willingly deny public access to information concerning a legitimate access to serious public safety issues.
“Toyota is a responsible corporate citizen,” Carter shot back.
“We vehemently disagree with them. We’re willing to try [the case] to before a jury and try it to you,” Carter said to Judge Tillery.
Stahl pointed out that the Biller documents are still available on CBS News’ website, PACER, and even the Supreme Court of Texas’s website – plus, both the Texas Supreme Court and a federal California court (where Biller filed his lawsuit against Toyota) ruled to keep the documents unsealed.
The judge seemed taken by the idea that the documents, though ostensibly under seal, are currently available on the SCOTX website. Rule 76A, which governs the procedure for sealing records in Texas courts, “makes it very clear… that we seal things that aren’t out there,” Tillery said. “To say something’s out there and needs to be sealed is bizarre.”
Still, Toyota argued that the Texas Supreme Court recently recognized that “Toyota had a substantial interest in protecting its privilege” in a separate case in which the admission of these documents as evidence were disputed and that a federal court in Florida has ruled in a separate tort case against Toyota that no crime-fraud exception applied to bring the documents into the public domain.
“Plaintiffs have brought forth the crime-fraud exception, but there’s no evidence,” Carter said.
Stahl replied that the documents themselves are enough evidence to prove the crime-fraud exception which allows an attorney to breach his or her attorney-client privilege if concealing communications between attorney and client would assist the client to commit fraud or a crime.
“Our position is Texas law is very clear: the crime-fraud exception applies,” Stahl said. “It clearly shows fraud being concerted by Toyota. Toyota is talking internally of their culture, trying to narrow discovery – even fully concealing some.”
(Editor’s Note: After both sides were finished with their arguments, The Texas Lawbook presented a letter to Judge Tillery in support of the plaintiffs’ efforts to keep the documents unsealed.)
“Texas courts have a longstanding commitment to the general presumption that documents related to civil and criminal cases are open to the public,” the letter, signed by Texas Lawbook founder and senior editor Mark Curriden says. “Such openness is vital for fostering public trust in the fairness of our justice system, particularly when the proceedings involve a large, influential corporate citizen.
“Beyond the basic public interest and transparency, the records in question likely relate to the health and safety of the general public,” the letter continues. “The public has a specific interest in information regarding the design and safety of Toyota products.”
Judge Tillery did not rule at the hearing whether he would seal the documents but said it “won’t be long” before he gets back to the parties with his decision.
© 2018 The Texas Lawbook. Content of The Texas Lawbook is controlled and protected by specific licensing agreements with our subscribers and under federal copyright laws. Any distribution of this content without the consent of The Texas Lawbook is prohibited.
If you see any inaccuracy in any article in The Texas Lawbook, please contact us. Our goal is content that is 100% true and accurate. Thank you.