Judge Bars Ex-Toyota Attorney From Releasing Documents

Source: LA Times

An arbitrator in a federal lawsuit filed by former Toyota Motor Corp. attorney Dimitrios Biller issued a preliminary injunction Wednesday blocking Biller from disclosing internal company documents, which Biller says show that Toyota withheld evidence in lawsuits alleging defects that caused serious injury and death. The arbitrator, former federal judge Gary Taylor, refused to grant Toyota's request for a permanent injunction or to order Biller to return the documents.

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The ruling was issued in a case Biller filed against Toyota under federal racketeering laws, alleging that it engaged in fraud, obstruction of justice and destruction of evidence.



Article posted by LA Times - Feb 10, 2010 9:05 pm

Read more: http://www.latimes.com/business/la-fi-biller11-2010feb11,0,6433877.story

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Biller is a former staff attorney for Toyota who once defended the automaker in lawsuits alleging that defects led to rollovers that caused injury and death.

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Adding link to Bloomberg article with many details, including claims 'the company destroyed engineering and testing evidence relevant in more than 300 lawsuits over sport-utility rollover accidents.'

http://www.bloomberg.com/apps/news?pid=20601170&sid=aaMdK6AfUrUY

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FYI: the arbitration is being run by a former federal judge, and he issued a preliminary injunction which prohibits this former Toyota attorney from releasing documents in his possession which he says show Toyota knew about their defective product. The judge refused to issue a permanent injunction, so it's important to understand what that means.

A preliminary injunction is a lot easier to get than a permanent injunction. The preliminary injunction typically freezes things in their current position, preserving the status quo until the judge rules otherwise. Typically, the preliminary injunction continues until the trial of the cause, and in that trial, the judge decides whether to vacate the preliminary injunction, or make it a permanent injunction.

The judge can vacate a preliminary injunction at any time. If he finds out Toyota deceived him in some aspect of making their case for preliminary injunction, he would rule they didn't have clean hands, and he would vacate the preliminary injunction.
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This situation is more complicated than one might imagine.

This guy was a lawyer for Toyota, and as such, he has duties to Toyota as their former lawyer, and those duties are ethical and continuing in nature. He also signed a severance and confidentiality agreement with Toyota when they paid him several million dollars of what appears to be extorted hush money. He may be prevented from using against Toyota certain documents (and certainly "trade secrets") he might purposely or accidentally release, by virtue of his status as their former attorney and by virtue of his contractual terms.

Take heart. I am confident these documents will be made public within a year. Now that everyone knows the docs are there, other parties can seek access to them. The government's safety branches, for example, could fairly easily get them. Congress could probably get them for investigation. Other litigants nationwide against Toyota might be able to get them.

This stuff is coming out. Toyota has put a band aid on a severed artery. It isn't going to hold, either.

.........My question (as it seems you know of or following the case) is why did this Toyota ex-attorney all of a sudden come out on this?

All I know about this matter is what been published, but I can help you read between the lines.

Here's how that column ended:
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The ruling was issued in a case Biller filed against Toyota under federal racketeering laws, alleging that it engaged in fraud, obstruction of justice and destruction of evidence. Toyota had sued Biller in 2008, asserting that he had confidential corporate documents.

Biller is a former staff attorney for Toyota's Torrance-based U.S. sales division. He once defended the automaker in lawsuits alleging that defects led to rollovers that caused injury and death.

Biller left Toyota in 2007, accepting about $4 million in severance pay. Biller is seeking to have that severance agreement declared illegal.

Taylor ruled that Biller was bound by three agreements he signed with Toyota while he was employed there, including the severance agreement, that stipulated confidentiality.
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Here's my read on this: Biller knew back in 2007 that Toyota was actively hiding discoverable materials in cases and was misrepresenting to courts what evidence they had on these problems. As I've said many times here at DU, the manufacturer always knows first. They have the evidence years before they reveal it, and it almost always takes someone like this attorney to blow the whistle.

Faced with Biller and his knowledge, Toyota chose to buy his silence with $4 million. That was hush money, and they tied it up neatly with a confidentiality agreement.

I am certain the confidentiality and severance agreement they reached with the attorney required him to turn over to them all documents of any kind, all data, all computer disks, all videos, all audios, all photos, all images or information of any kind. The duty he had to turn over all such things would have been complete and onerous. If he kept back any of them, which it appears he did, he would be in breach of their severance and confidentiality agreement.

So, in 2007 they buy him off, and in 2008 they sue him because they find out he held back some documents and is still using them. They likely heard or found out that he was leaking docs to plaintiffs or media. He is now attempting to have the severance agreement declared illegal, presumably so he can say whatever he wants to say.

Mr. Biller joined Toyota in 2003, leaving a California law firm where he was a partner. According to the suit, Mr. Biller discovered that Toyota was often not providing electronically stored documents that should have been turned over to lawyers suing the automaker. That included information pertaining to Toyota’s “design, engineering, testing and evaluation” of vehicles. In the suit Mr. Biller cited several specific suits in which Toyota was ordered to turn over documents and failed to comply.

The suit also claimed that Mr. Biller failed to convince his bosses at Toyota that they were violating the law by not turning over information. Not only did they not agree, but in some cases information was destroyed, the suit said.

For example, Mr. Biller said Toyota concealed the existence of a rollover test that required about two inches of space between the roof and the head of a dummy after the test.

The suit said the automaker also misled N.H.T.S.A. in 2005 when the agency was considering requiring stronger roofs and asked automakers how quickly they could comply with a tougher standard.

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http://wheels.blogs.nytimes.com/2009/08/31/toyota-accused-of-concealing-evidence-in-rollover-lawsuits/

to the 4 governors supporting Toyota with their demand for the government to be fair and responsible.

should they be proven in court, which I am guessing those documents might be key in determining

Toyota is being exposed for their coverups and I would wager that the NHTSA will have to deal with their feet-dragging as well.

...California Rules of Professional Conduct 3-100 makes it very difficult for an attorney to release confidential documents relating to his or her representation of a former client. According to the rule, an attorney may ONLY release documents when "necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual", but I think you'd be hard pressed to find any court that would allow this when the client is already taking remedial action.

While he certainly has the ethical problem to which you allude, he's also got a problem with the contracts he signed, and the nature of the documents he's holding. His severance and confidentiality agreements likely required him to turn over all copies of all Toyota documents and things he held. That's the provision Toyota appears to be enforcing in court.

The documents he's holding also likely contain trade secrets, and Toyota has a right to prevent those from getting out. The judge will need to decide which parts of which documents must be redacted to protect Toyota's trade secrets, while revealing information key to the case Biller and Toyota owners are making against Toyota.