Dallas attorney wants Toyota suits reopened in wake of fraud allegations

By Michelle Massey, East Texas Bureau | Sep 10, 2009


MARSHALL – After learning of allegations that Toyota withheld or destroyed safety data and other electronic documents, Dallas attorney Todd Tracy is seeking more money from the automaker by filing a lawsuit that will reopen 16 of his product liability cases.

Tracy argues that if Toyota withheld evidence and requested documents, it committed acts of racketeering, fraud, discovery abuse, misrepresentation and violated court orders.

The lawsuit names Toyota Motor Corp., Toyota Motor Sales U.S.A. Inc, and Toyota executives, Christopher Reynolds, Jane Howard Martin, Eric Taira and Dian Oglivie as defendants.

Tracy, who has based his entire legal practice on automobile product liability suits, is one of many attorneys revisiting closed cases.

Nationwide, plaintiffs' lawyers are reopening cases after Toyota's former in-house attorney, Dimitrios Biller, who filed a lawsuit against Toyota on July 24, alleged that Toyota obstructed justice by intentionally withholding evidence is more than 300 cases.

Biller worked as Toyota's national managing counsel in charge of Toyota's National Rollover Program from 2003 through 2007.

"During his four and half years at Toyota, Mr. Biller turned around the National Rollover program and saved Toyota very significant sums through numerous trials and successful settlement negotiations strategies," Biller's consulting Web site proclaims.

Biller states that while at Toyota he confronted E-discovery issues and developed polices to "satisfy E-discovery obligations."

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 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.

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

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.

Toyota states, "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.

"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."

Tracy states he learned of the "earth shattering news" in August. He says his clients settled their cases believing in good faith that Toyota had not destroyed or concealed any documents.

"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," court documents state.

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.

The lawsuit alleges, "Defendants have conspired to keep litigations victims' settlement values low by not furnishing discoverable information that would increase settlement value."

Tracy argues that Toyota violated the Golden rule -- do unto others, as you would have them do unto you.

He states that Toyota would not have desired for his clients to destroy or conceal evidence, so why would Toyota assume its actions are acceptable.

The plaintiffs are asking the court to relieve them from previous final judgments and orders due to Toyota's alleged fraud, misrepresentation or misconduct.

The plaintiffs are seeking a court order imposing litigation holds and prohibiting the destruction of all documents pertaining to product liability issues, crashworthiness issues, vehicles, vehicle evaluations, research projects, and all communications Toyota sent to outside counsel, experts, or contractors.

The plaintiffs are requesting extensive civil penalties, treble damages, the maximum allowable sanctions, exemplary damages, and attorneys' fees and costs.

Tracy and Tyler attorney Joe D. Clayton are representing the plaintiffs in the Texas litigation.

In a press release, Toyota states that it "takes its legal obligations seriously and works to uphold the highest professional and ethical standards. Mr. Biller continues to make inaccurate and misleading allegations about Toyota's conduct. Toyota believes it acted appropriately with respect to product liability litigation."

Toyota states it will defend against the claims vigorously.

The case was filed Sept. 8 in the Marshall Division of the Eastern District of Texas.

U.S. District Judge David Folsom will preside over the litigation.

Case No 2:09cv00268

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