From National Law Journal
Four more plaintiffs’ attorneys will lead the personal injury and wrongful death cases against Toyota Motor Corp., while a handful of others may gain access to the coveted source code software at the heart of the litigation over alleged sudden acceleration defects.
U.S. District Judge James Selna, in an order memorialized on Thursday, granted the plaintiffs’ steering committee’s request to add four attorneys to its existing seven. The judge added that he was inclined to grant additional plaintiffs’ lawyers access to Toyota’s source code, thus far limited to 13 plaintiffs’ attorneys in the multidistrict litigation.
Most of those attorneys are members of the steering committee or have bellwether trials coming up, according to lawyers who attended the hearing. The steering committee had asked that 10 additional plaintiffs’ attorneys have access to the software; Toyota objected to six of them.
Selna rejected a request from the committee that W. Mark Lanier of The Lanier Law Firm in Houston, who is handling the first bellwether trial in the litigation, be allowed to bring a secured iPad containing confidential expert reports onto his personal plane so that he could prepare for depositions and trial while traveling, according to lawyers at the hearing.
“The court indicated that we could add a couple of attorneys,” co-lead plaintiffs’ counsel Elizabeth Cabraser said of the list of those with source code access. The steering committee, now expanded, is working with Toyota to identify them by name. “It’s a gradual process, but the court is trying to ensure the confidentiality of the information while enabling lawyers involved in preparing for multiple trials to have access,” she said.
Toyota spokeswoman Celeste Migliore declined to comment.
On June 14, Selna declined to approve a settlement with consumers for economic damages that plaintiffs’ lawyers have estimated to be worth nearly $1.6 billion. He has scheduled another hearing for July 19.
The settlement would limit the remaining cases in the multidistrict litigation to those that involve injuries or deaths from accidents. In light of that shifting focus, the committee asked to add four attorneys to its membership: Lanier, whose case is scheduled for a November 4 trial; Eric Snyder, a partner at Bailey & Glasser, who has a trial scheduled for November 5 against Toyota in Michigan state court; S. Scott West of The West Law Firm in Sugar Land, Texas, who serves on the plaintiffs’ steering committee in the coordinated state court cases against Toyota in Texas; and Dawn Barrios of Barrios, Kingsdorf & Casteix in New Orleans, who has been serving as co-liaison counsel between the state court cases and federal MDL against Toyota.
“While many MDLs feature larger steering committees, this is, we respectfully submit, an appropriate and effective size at this juncture: large enough to be effective as [personal injury and wrongful death] cases become the sole focus of this MDL, while lean enough to be efficient,” wrote Cabraser, a partner at San Francisco’s Lieff Cabraser Heimann & Bernstein, in a June 13 filing.
The steering committee had also sought to expand access to Toyota’s source code. Housed in a heavily guarded facility in Columbus, Md., the code represents a trade secret that Toyota must keep out of the hands of its competitors, according to its lawyers. Plaintiffs’ lawyers insist that the software would provide evidence that defects in the electronic throttle control system caused sudden acceleration by its vehicles.
Initially, the committee requested access for seven firms. On May 8, Selna allowed an attorney at each of those firms to submit requests for access but limited his order to those individuals, and not entire law firms, to maintain personal accountability.
“Given the new focus of this MDL on the personal injury and wrongful death cases, and the large number of bellwether cases that are being activated for discovery and set for trial, it is no longer fair or reasonable that only a handful of individual attorneys…have access to the broad and crucial body of information self-defined by Toyota as Source Code Material,”Lieff Cabraser partner Todd Walburg wrote. “Expanding access to these attorneys will allow them to properly participate in expert discovery and the trial of their cases.”
Toyota agreed to give access to Lewis “Mike” Eidson of Colson Hicks Eidson in Coral Gables, Fla.; Benjamin Bailey of Bailey & Glasser; Terrence McCartney of New York’s Rheingold, Valet, Rheingold, McCartney & Giuffra;and Benjamin Baker, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. Toyota rejected six additional attorneys, some of whom are “young associates” and “seconds” in cases set for trial, attorney Joel Smith, managing partner of the Columbia, S.C., office of Bowman and Brooke, wrote in a filing on Tuesday.
As for Lanier’s request regarding his personal plane, Toyota had agreed to give him the iPad as long as it remained in his Houston office. The iPad has “no communications capability and is protected by multiple layers of passwords and security, including a tracking device which allows Toyota to monitor the location of the iPad at all times,” Walburg wrote.
Expert discovery and depositions in the first bellwether trial are scheduled to be complete next month, but Lanier, he wrote, expects to be away from his office traveling for work during that time.
“The judge is in a hard position regulating all the interests in this litigation, and I appreciated him hearing my arguments,” Lanier wrote in an email to The National Law Journal.
“Simply put, this is not a sufficient ground for creating the risks to Toyota associated with compromising the security of its source code,” Smith wrote in opposing Lanier’s request. “All of the lawyers in this case have busy schedules, and all have agreed to be bound by a process that protects the security of the source code.”
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