Judge rules Toyota can see whistleblower documents, but not plaintiffs' attorneys

Michelle Massey, East Texas Bureau Oct. 29, 2009, 6:00am


MARSHALL – In a litigation alleging Toyota committed acts of racketeering, fraud, discovery abuse and misrepresentation and shortly after a temporary restraining order was entered against Toyota, U.S. District Judge T. John Ward has issued an order placing four boxes of evidence under the supervision of a secured facility.

The judge ordered that Toyota may have supervised access to boxes to review their contents for privilege objections. The plaintiffs' attorneys are not allowed access.

Former Toyota attorney Dimitrios Biller provided the federal court in Marshall with four boxes of documents that is allegedly evidence that Toyota withheld in previous product liability litigations.

Biller, who was formerly Toyota's National Managing Counsel, filed a lawsuit on July 24 against the automaker that alleges that Toyota withheld and destroyed evidence in ongoing product liability litigations. The case is pending in the federal court in the Southern District of California.

Biller claims that Toyota concealed evidence, withheld damaging internal Toyota testing and design goals and lied to courts and the National Highway Traffic Safety Administration.

After learning of Biller's allegations that Toyota obstructed justice, E. Todd Tracy, a Dallas plaintiffs' attorney who specializes in motor vehicle product liability litigations, began reopening his former cases against Toyota.

In a press release, Tracy states, "The contents of those boxes turned East Texas into the epicenter of what may become a financial quake that rocks the Japanese automaker."

The "explosive" documents are being held in the reopened case of Raul Lopez and Diana Lopez, individually and as next friend of A.L., a minor. The plaintiffs had requested for the judge to enter a protective order and that the boxes not be removed from the court by anyone.

According to their motion, "Plaintiffs' reason is simple—Plaintiffs allege via Mr. Biller that Toyota has destroyed these documents rather than disclose them in litigation."

Tracy is afraid that Toyota might attempt to copy the documents in order to replace previously destroyed ones.

"If Toyota and its Counsel are allowed to take the four boxes of documents from the safe harbor of the Court, the documents can be scanned and then placed back into existence even if previously destroyed. These documents may be the very linchpin of proof for Plaintiffs to prevail on the fraud and RICO claims," the motion argues.

The four boxes of documents will be date stamped and watermarked by IKON Document Solutions. The company will also create a privilege log and will track those allowed to view the documents -- Toyota's in house counsel and counsel of record. When viewing the records, the individuals must be escorted by an IKON employee and are not allowed any form of recording device.

Within the boxes of documents is a 40-page memorandum written by Biller. Judge Ward ruled that the document must not be copied or allowed to be seen by anyone at this time.

The plaintiffs also have requested that Judge Ward expedite the sworn testimony of Biller. They claim that his court documents demonstrate that he is close to an emotional and mental breakdown and are seeking his testimony before "he lapses into an emotional state that is not conducive to sworn testimony."

Currently, Toyota has not responded to the allegations pending before the Marshall court. However, Toyota fervently denies the former attorney's allegations.

U.S. District Judge T. John Ward is assigned to the litigation.

Case No 2:09cv00292

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