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In the latest outbreak of a fight between the plaintiff bar and the auto industry, a Palm Beach Gardens, Fla., attorney is pressing Ford Motor Co. and one of its suppliers to reveal the contents of the black box data recorder contained in his client’s wrecked Jaguar. Edward Ricci on April 20 filed a petition for a pure bill of discovery against Ford and the Swedish company Autoliv ASP, which manufactures the airbag system contained in Ford-made Jaguars. Ricci asked Palm Beach Circuit Judge Timothy McCarthy to order the companies to provide his client, Deborah Coppola of Tequesta, Fla., with the black box data and the software to interpret it. Ricci wants the data to determine whether his client has a product liability case against the two companies on the grounds that the side airbag allegedly did not deploy properly. He also wants to determine whether the other driver in the accident was speeding. Black box recorders have become an increasingly common element in litigation over auto accidents and in product liability cases against automakers and/or auto parts makers. They promise to become even more important as they continue to grow in sophistication and record ever more data. “We get these claims all the time,” one Ford attorney said. Ricci contends that automakers are obligated to provide their customers access to data contained in the cars they own, but that they routinely deny such access. Automakers say they agree that auto owners are entitled to the data. “They sell you something with the car so you can analyze accidents,” Ricci said in an interview. “But then they tell you it contains proprietary information and they won’t let you use it.” Coppola was driving her leased 2003 Jaguar S-type through an intersection in Jupiter, Fla., last November, when it was allegedly struck on the driver’s side by a 1998 Lexus driven by Renee Rosales, 23, of Jupiter. Coppola suffered multiple pelvic fractures. Police cited Coppola for failure to yield the right of way at a stop sign. Ricci claims that Ford and Autoliv have failed to assist in his efforts to retrieve and interpret the data. He said that Autoliv has offered to download the data and turn it over to Coppola. But Ricci wants his own crash experts to do the retrieval and interpret the data independently. “They told me the software is proprietary,” Ricci said. “No problem. I don’t want to keep it. I just want to use it.” Kathleen Vokes, a staff attorney for Dearborn, Mich.-based Ford, said it is Ford’s position that the black boxes and their data are the property of each vehicle’s owner. Ford is able and willing to download the black box data from most of the company’s vehicles. But for Jaguar, only Autoliv can do it, she said. An attorney at Autoliv’s U.S. headquarters in Ogden, Utah, declined to comment on the litigation. Vokes said Ricci and Autoliv have been negotiating over access to the black box data in Coppola’s Jaguar. She criticized Ricci’s decision to sue rather than accept an interpretation of the data provided by Autoliv. “We get those claims all the time,” she said. “People say they don’t trust us to do it. Then they file suit and go running to the press.” The black box is an event data recorder that is a component of the airbag system of a vehicle. It monitors and records speed, deceleration and other data in order to decide whether to deploy the airbag. Virtually all late-model passenger vehicles have at least some data recording capability, and about half have the most sophisticated boxes. The data recorded by an auto black box are not as extensive and sophisticated as that on airplanes, which are designed to allow aviation investigators to reconstruct accidents. The data can serve as a significant aid to auto accident reconstruction. The federal government has not required their installation in all autos. Ricci, a partner at Ricci Leopold, said the injuries Coppola suffered in the November accident may have been exacerbated by the failure of the Jaguar’s side airbag to deploy as intended. He contends that Ford and Autoliv have stymied his efforts to determine that by denying him access to the black box data. Public debate about automobile event data recorders has focused largely on the devices’ potential to violate the constitutional protection against self-incrimination. Systems that can download and interpret the black box data are commercially available to police departments, insurance agencies and rental car companies that could use the information in civil suits and criminal actions against drivers. Federal and state privacy laws provide some protection. But privacy advocates and government and auto industry safety researchers — who want access to the data while reassuring the public on the privacy issue — have called for stronger privacy safeguards. Ricci’s lawsuit runs in the opposite direction. His client wants to download the data rather than shield it from exposure. NO GOVERNMENT MANDATE The federal government, automakers, consumer advocates and attorneys have wrestled with the question of regulating black boxes since they first came into wide use in the mid-1990s. In 1998, the National Highway Traffic Safety Administration, an arm of U.S. Department of Transportation, decided against requiring automakers to design the black boxes so their data can be easily collected by crash investigators. The agency argued that the auto industry was “voluntarily” moving in that direction. But an August 2001 report by an agency working group noted that European suppliers “essentially control access to the data by utilizing proprietary protocols that prevent anyone else from accessing the data.” Auto industry policy on event data recorders is that “the boxes and their data belong to the customers,” said Eron Schosteck, a spokesman for the Alliance of Automobile Manufacturers, a Washington, D.C.-based lobbying group. But the group’s legislative proposals regarding black boxes have so far only addressed only privacy issues, not the question of access. NHTSA spokesman Rae Tyson said in an interview that his agency’s position is that the black box data are the property of the vehicle owner. He said the agency has recently had discussions about “more aggressive” regulation of access to the data, including “moves to institute a degree of uniformity” among the different manufacturers’ systems. Still, the NHTSA is “not about to mandate” owner access to the data, he said. Because the software to download the data is “readily available,” he said, “most crash investigators already have the ability to download the data.” That’s not entirely true, said William Rosenbluth, a Reston, Va.-based crash reconstruction specialist who works with Ricci. He said commercially available event data retrieval software systems provide only partial interpretations of the data. “It’s like reading the first paragraph of a news story and stopping there,” he said. Rosenbluth said he has devised methods of his own to crack black box codes and retrieve their data without the assistance of the manufacturer. But he said it requires “a combination of cryptography, detective work, and reverse engineering.” Even then, he said, data are only retrievable from some cars, including most General Motors vehicles and some Ford vehicles. Data are not retrievable from Japanese and European cars, he said. Clarence Ditlow, a staff member at the nonprofit Center for Auto Safety, a Washington, D.C., consumer advocacy group, accused the auto industry of foot-dragging on data access. That’s despite the fact that black box data could be used for defense purposes by an automaker in a product liability lawsuit. “In theory, [the black boxes] could be for everyone’s benefit,” he said. “But if one party controls them, the result is a stacked deck.” The Ford staff attorney, Kathleen Vokes, said her company provides customers with black box data when authorized to do so by the customer. And the laws of various states sometimes require Ford to provide the data to law enforcement authorities doing accident investigations. In those instances, she said Ford “makes every effort to balance privacy rights with state law.” Ricci said he hopes the bill of pure discovery he filed last month will shine a spotlight on the auto industry’s balkiness about providing vehicle owners with unfettered access to crash data. He contends that federal legislation is needed to mandate access. “Just like a jack and a spare tire come with every car, [automakers] should include a pen drive you can insert to download the data,” he said. “It’s outrageous that you have to hire a lawyer to find out what’s under your hood.”

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