Tracy refiles Toyota suit as whistleblower faces sanctions

Michelle Massey, East Texas Bureau Sep. 30, 2009, 7:46am


MARSHALL – A Texas attorney has started to re-file past lawsuits against Toyota after allegations that the company withheld potentially damaging information in more than 300 suits. Meanwhile, the whistleblower, one of Toyota's former in-house attorneys, is facing possible sanctions from the bar.

A California state judge has referred the lawyer who came forward with accusations against Toyota, Dimitrios Biller, to the State Bar of California for possible violations of the rules of professional conduct for disclosure of confidential attorney-client information.

The judge also granted Toyota's request to stop the attorney from publicizing privileged information about Toyota's lawsuits, settlements and litigation practices. However, the judge stated that the request is only applicable to the litigation consulting firm that Biller operates and will not affect ongoing federal litigation that involves both parties.

Biller filed a federal lawsuit against Toyota on July 24, accusing Toyota of obstruction of justice by intentionally withholding evidence in more than 300 cases.

In his lawsuit, Biller claims Toyota made every effort to "stop, prevent, and delay" his attempts and efforts to "search, collect, preserve, review and produce" evidence in motor vehicle product liability litigations.

After learning of allegations that Toyota withheld or destroyed safety data and other electronic documents, Dallas attorney Todd Tracy began reopening product liability cases against the vehicle manufacturer.

Tracy argues that if the allegations are true and Toyota withheld evidence and requested documents, then Toyota committed acts of racketeering, fraud, discovery abuse, misrepresentation and violated court orders.

The plaintiffs' attorney, who specializes in motor vehicle product liability litigations, maintains that by attempting to reopen settled cases, he is seeking to "end the conspiracy of illegal and obstructive discovery practices by the various defendants."

Recently, Tracy filed suit on behalf of Raul Lopez and Diana Lopez, individually and as next friend of A.L., a minor, against Toyota Motor Corp., Toyota Motor Sales USA Inc., and in-house attorneys Christopher Reynolds, Jane Howard Martin, Eric Taira and Dian Ogilvie.

The case was filed on Sept. 25 in the Marshall Division of the Eastern District of Texas.

The Lopezes settled their original lawsuit in 2004, which argued that their Toyota Corolla failed to protect them when it was rear ended by a Chevrolet Tahoe. According to the amended complaint, the Tahoe overrode the rear structure of the Toyota, compromising the rear occupant survival space and injuring a minor passenger. In addition to other injuries, the minor suffered permanent blindness. The details of the settlement were not disclosed.

The suit seeks trebles damages for each alleged act of racketeering, access to documents previously concealed, sanctions against Toyota, punitive damages and attorney's fees.

The whistleblower

Biller asserts that he attempted to tell his supervisors that Toyota was in violation of law by withholding evidence from lawsuit discovery, but says his efforts failed and some evidence was destroyed.

According to his lawsuit against Toyota, Biller states that because of his efforts to comply with the legal and ethical obligations to turn over "clearly discoverable material," he was "subjected to intimidation, harassment, and an uncertain future, both at TMS (Toyota Motor Sales), and elsewhere."

After taking a medical leave of absence for psychiatric problems, including a mental breakdown and depression, Biller left the company, eventually filing a wrongful termination lawsuit.

Biller accepted a $3.7 million severance package in 2007 but states his "forced resignation" was part of a "calculated conspiracy to prevent the disclosure of damaging evidence." In court documents, Toyota referred to Biller as a disgruntled employee trying to retaliate for having to resign his position.

Toyota has filed motions to prevent its former attorney from disclosures, arguing he is in violation of the attorney-client privilege and violating confidentiality agreements.
Los Angeles County Superior Court Judge John L. Segal denied the motions on Sept. 15, stating that complaint is "now irreversibly in the public domain and is readily available on the Internet. Therefore, sealing the complaint would be futile at this point."

Toyota states, "In our view, Mr. Biller has repeatedly breached his ethical and professional obligations, both as an attorney and in his commitments to us, by violating attorney-client privilege in defiance of a court restraining order that Toyota obtained against him."

In the order denying Toyota's request to seal the document, the judge wrote, "our decision not to seal the complaint does not prevent Defendants from later raising the attorney-client privilege, should Plaintiffs seek to discover or introduce into evidence any communications or information protected by the attorney-client privilege."

In the Texas lawsuit, Dallas attorney E. Todd Tracy of The Tracy firm is joined by Marshall attorney Melissa Smith and Tyler attorney Joe D. Clayton in representing the Lopezes.

U.S. District Judge T. John Ward will preside over the litigation.

Case No 2:09cv292

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