In the sudden acceleration cases against Toyota, there are confidential documents and highly confidential documents. And then there is what the judge overseeing most of the cases called the company’s "crown jewels"—the source software code behind the electronics of its vehicles, which almost no one has seen.

Toyota, facing hundreds of cases alleging defects that caused its vehicles to suddenly accelerate, has kept a tight lid on discovery during three years of litigation, primarily through protective orders requiring that certain documents be redacted, sealed or approved by its Japan headquarters before anyone can get access to them.

From Toyota’s perspective, the code represents a trade secret that it must keep out of the hands of its competitors. Plaintiffs’ lawyers insist it will provide evidence that defects in the electronic throttle control system caused sudden acceleration in Toyota vehicles.

Outside of Toyota’s counsel, access to the heavily guarded facility where the code is being stored has been restricted to a handful of lawyers with bellwether trials coming up this year—mostly members of the plaintiffs’ steering committee in the federal multidistrict litigation before U.S. District Judge James Selna in Santa Ana, Calif. Lawyers with cases against Toyota, primarily in state courts across the country, now want a peek.

"Disclosure of these materials will increase the knowledge and safety of the public and, to my knowledge, Toyota has not demonstrated compelling reasons for the sealing of these materials forever," Terrence McCartney, a partner at Rheingold, Valet, Rheingold, McCartney & Giuffra, plaintiffs’ liaison counsel in cases pending before a New York state trial court, wrote in a March 19 filing. "Toyota should not be able to control the entire country’s trial calendars by keeping the key evidence sealed."

Attorneys for Toyota have agreed to work with plaintiffs’ lawyers on revising protective orders, but they remain committed to limiting access to a handful of people. Selna ordered both sides to come back to resolve the growing tension over Toyota’s most confidential materials. That hearing was scheduled for Wednesday.

Toyota’s ‘baby’

The debate accelerated after the first bellwether case in the MDL abruptly settled in January, about a month before trial. The terms are confidential, but lawyers with pending personal injury and wrongful death cases against Toyota argue that key documents, particularly those related to the source code, were among the sealed material.

The case was brought by family members of Paul Van Alfen, who with a passenger was killed when his Camry crashed into a wall after accelerating down a Utah highway. Two other passengers were injured in the 2010 accident.

"Van Alfen settled, and everybody wanted to make sure they could get the information gathered in Van Alfen," said R. Graham Esdale, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala., who is preparing for an October 7 trial against Toyota in Oklahoma County, Okla., District Court.

In the past month, lawyers with cases against Toyota who aren’t on the plaintiffs’ steering committee began filing court papers requesting access to documents in the Van Alfen settlement.

Scott West of The West Law Firm in Sugar Land, Texas, said plaintiffs’ attorneys in Texas state courts, where cases have been coordinated before Harris County, Texas, District Judge Robert Schaffer in Houston, have been hampered by lack of access to the Van Alfen documents, including expert testimony and summary judgment motions, according to a March 28 court filing.

"The truth is the truth—it ain’t always pretty, but it’s always the truth. Said another way, ‘Sometimes the baby’s ugly, but it’s still your baby,’ " West wrote. "Toyota’s truth and baby are ugly. Toyota seeks to keep its baby out of the public’s eye—and the eyes, ears, lips and Court records of the hundreds of families affected by the defective Toyota vehicles. Why else would Toyota fight so hard to seal and sequester so many facts and so much information?"

West did not return a call for comment.

McCartney wrote that he and other lawyers had been "looking forward to the Van Alfen bellwether trial," which featured "key documents and testimony" about Toyota’s sudden acceleration problems.

"The public also has a compelling interest in being given access to the information," he wrote. "If Toyota is permitted to keep the key evidence sealed while quietly settling cases with the PSC lawyers, who are the only ones with access to the necessary information, those of us without access cannot zealously or fairly represent our clients."

McCartney did not return a call for comment.

To be sure, some lawyers have obtained access to source code materials. On March 18, Selna granted access to Esdale and Eric Snyder, a partner at Bailey & Glasser in Charleston, W.Va., who is preparing for an August 27 trial in state court in Flint, Mich., against Toyota. Snyder did not return a call for comment.

Esdale said he needed access to the source code to gain a better understanding of what some of the experts in the Van Alfen case were looking at. Soon after being granted access, Esdale said, he spent a day at a highly secured facility in Columbia, Md., that contains the source code. "There are actual security personnel there to make sure you are who you’re supposed to be and everything’s done in accordance," he said. "Those documents are very, very confidential. You don’t just walk around with them in your briefcase."

Elizabeth Cabraser, co-lead counsel in the personal injury and wrongful death cases in the MDL and a member of the plaintiffs committee, acknowledged the concerns.

"This blocking of access to common discovery and dispositive motions is antithetical to the efficiency that both the MDL and state coordinated proceedings originally intended," Cabraser, of San Francisco’s Lieff Cabraser Heimann & Bernstein, wrote in a March 28 filing. "Plaintiffs are informed that this situation is causing mounting concern to state court plaintiffs, whose claims have been pending in some cases for over three years."

‘A lot of information’

Cabraser and other members of the committee were working on revisions to the existing protective orders in the case. "Plaintiffs have received Toyota’s suggested revisions and are working on their own edits for Toyota’s consideration," she wrote in a May 1 filing.

She also suggested that the seven law firms whose cases are identified for potential bellwether trials—her own firm, Lieff Cabraser; Bailey & Glasser; Beasley Allen; and Rheingold, Valet, Rheingold, McCartney & Giuffra—be granted access to the source code and related materials "so that these firms can properly participate in expert discovery and trial of their cases. The system of only allowing one individual attorney from a handful of law firms to access the broad and crucial body of information self-defined by Toyota as ‘source code-related material’ is no longer fair or reasonable."

Additionally, she asked Selna to add four more lawyers—McCartney, Snyder and Cale Conley and W. Mark Lanier—to the committee. Conley, of Conley Griggs Partin in Atlanta, and Lanier, of The Lanier Law Firm in Houston, are handling the first bellwether trial in the MDL, scheduled for November 4.

As for the Van Alfen materials, she said, lawyers have agreed on many redactions "but they are awaiting responses from the Toyota Japanese parent corporation on a number of points that are still outstanding." About a dozen of the 245 exhibits in the case are still being worked on, she added.

Mark Robinson, senior partner of Robinson Calcagnie Robinson Shapiro Davis in Newport Beach, Calif., who represents Van Alfen’s family members, told Selna during an April 4 hearing that Toyota’s lawyers "did a good job of forcing us to put to paper basically everything we can think of about Toyota unintended acceleration."

Robinson, who is co-lead counsel on the personal injury and wrongful death cases, told the judge that his team combed through its expert reports for certain source code materials. "As the Court knows, those documents and those briefs will really inform the lawyers that are handling these cases about this case," he said. "There is a lot of information there for these lawyers."

‘Extremely limited’

Asked to address the debate, Toyota spokeswoman Carly Schaffner wrote in an email to The National Law Journal: "Counsel need only sign the Court’s protective order to access discovery and sealed pleadings containing highly confidential material, which has been the established protocol for nearly three years," she wrote. "Access to Toyota’s source code, including certain sealed filings that contain source code or source code-related material, requires separate consideration by the Court, pursuant to its orders, given the highly sensitive nature of this proprietary asset. Bottom line, all individuals who are entitled to have access to materials covered by the Court’s orders will have access."

During the recent hearing, Selna acknowledged Toyota’s concerns.

"I think what people need to understand is that dissemination of material under the source code protective order is extremely limited," he said.

Toyota attorney Vincent Galvin, managing partner of the San Jose, Calif., office of Bowman and Brooke, disputed that Toyota was holding up access to those materials. "It’s a process that both sides have been engaged in," he said during the hearing.

He noted that Robinson’s court filing responding to Toyota’s partial summary judgment motion in the Van Alfen case contained four banker’s boxes worth of exhibits and acknowledged that the vetting process was time-consuming. "We understand the need to get that completed and done so that people can see it."

In a May 3 statement filed with the court, Galvin wrote that Toyota had proposed revised protective orders to plaintiffs’ attorneys on April 12.

He also put the brakes on the idea that the seven law firms identified by the committee should be granted unfettered access to source code materials. "Given the highly sensitive and proprietary nature of Toyota’s source code, Toyota does not agree that entire firms should be allowed access, as opposed to specifically named individuals (which is the process contemplated in the source code protective order); likewise, Toyota does not agree that counsel for non-bellwether cases should be allowed access at this time."

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