Toyota wants Texas, California cases combined for discovery

Michelle Massey, East Texas Bureau Nov. 19, 2009, 2:58am


MARSHALL – Citing concerns over public disclosure of confidential business information, Toyota Motor Sales is attempting to transfer pending Texas cases to California in an effort to coordinate pretrial proceedings.

But the player at the center of the allegations, former Toyota in-house attorney Dimitrios Biller, is fighting to prevent Toyota's move to combine the cases.

Biller argues that "Toyota's Motion is a clear attempt to avoid litigating claims properly filed in the District Court for the Eastern District of Texas, Marshall Division, and is not based on the convenience of the parties and witnesses, or the promotion of the just and efficient conduct of the four cases."

Toyota argues that the cases are "factually-identical" and that "centralization will promote the just and efficient conduct of the actions."

Toyota believes that centralizing the cases will promote judicial efficiency and are especially necessary to prevent the disclosure of attorney-client privileged information.

In the motion Toyota argues, "inconsistent rulings concerning that issue would not be merely unseemly or inefficient; rather, because the privilege is a privilege against disclosure, if the privilege is vitiated in one action, it cannot be protected or restored in other actions."

In a wrongful termination lawsuit filed in the Central District of California in early 2009, Biller alleges that the Toyota has continually and continues to conspire to "unlawfully" withhold and conceal evidence and obstruct justice.

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

As an example, Biller contends that Toyota failed to disclose crash test data, including a report involving roof-crush data, to the National Highway Traffic Safety Administration.

The lawsuit also asserts that Biller attempted to tell his supervisors that Toyota was in violation of law by withholding the requested evidence, but his efforts failed and some evidence destroyed.

As a result of his efforts to comply with the legal and ethical obligations to turn over "clearly discoverable material," Biller states that he was "subjected to intimidation, harassment, and an uncertain future, both at TMS, and elsewhere."

Biller states that he was forced to resign and sign a severance agreement and now has compromised mental and physical condition due to harassment, intimidation, and retaliation by Toyota.

After taking a medical leave of absence for psychiatric problems including a mental breakdown and depression, Biller left the company and accepted a $3.7 million severance package in 2007. However, Biller now 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 attempting to retaliate for losing his job.

Shortly after the former lawyer's allegations became public, several lawsuits were filed attempting to reopen previous product liability cases.

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

Describing the "earth shattering news," Tracy states that "plaintiffs have now learned that defendants have been engaged in a pattern of discovery abuse that is tailor made for a Hollywood movie. Defendants conduct is more like a horror movie script to the victims of Toyota's products."

He claims his clients settled their cases believing in good faith that Toyota had not destroyed or concealed any documents.

The plaintiffs' attorney 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."

"The days of defendants destroying, concealing and hiding discovery must be abolished. This type of conduct by defendants is illegal, immoral, and unprofessional and deprives litigations of equal access," Tracy argues.

The lawsuit wants the same information that Toyota has at its disposal so that the plaintiffs' "constitutionally guaranteed right to trial can be achieved."

The plaintiffs argue that Toyota knows its conduct violates federal and states laws and rules of civil procedure, but has conspired to prevent the truth from being discovered to prevent the plaintiffs from making informed decisions.

Attempting to consolidate the pre-trial proceedings with identical litigations pending in the Northern District of Texas and a California class action, Toyota filed the motion with the Judicial Panel on Multidistrict litigation in October.

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.

"We are disappointed that Mr. Biller has elected to file this lawsuit in an attempt to avoid what we believe are his obligations as an attorney formerly employed by Toyota," the company 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."

Biller claims his initial litigation did not "spawn" other cases but that the original Biller litigation alerted plaintiffs to "past improprieties committed by Toyota."

"Toyota simply ignores the glaring factual differences between Biller/TMS and the cases it seeks to consolidate through the Motion, as well as the interests and convenience of the parties," Biller argues in its reply.

Also arguing against the combining of pretrial proceedings, Biller states that many of the documents supporting his allegations are located in the Marshall.

In October, Biller hand-delivered four boxes of allegedly "explosive" documents to U.S. District Judge T. John Ward that are being held as evidence in the reopened case of Raul Lopez and Diana Lopez.

The Lopez plaintiffs requested a protective order, declaring that their reasoning is simple, "Plaintiffs allege via Mr. Biller that Toyota has destroyed these documents rather than disclose them in litigation."

Recently Judge Ward granted the protective order.

The four boxes of documents will be date stamped and watermarked. The company holding the documents will 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 and are not allowed any form of recording device.

U.S. District Judge T. John Ward is presiding over the litigations pending in the Marshall district.

Case No 2:09cv00292

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