By on February 14, 2010

The Toyota case is heading towards hearings in DC and to courts all over the country. Both sides are putting heavy artillery in position. Both sides of the SUA wars commission heavy caliber studies – both with inconclusive results. Toyota funded a study into the electronics in its vehicles. Before that, a group of lawyers had “sponsored” Safety Research and Strategies, a company that makes money by investigating auto-safety for those suing auto makers. Ford, which had been at the receiving end of an SRS fusillade during the Explorer crisis, called the company “supposed safety advocates who are actually just shills for trial attorneys.”

Here are the latest dispatches from the front lines:

SRS produced a Big Bertha of a 180 page research report, that can be downloaded here (if your Internet connection is up to it – I’m on one of Tokyo’s finest 50 Mbit connections, and I’m still waiting… ah, download completed.) The conclusion of the monster is that “sticking accelerator pedals do not appear to cause the SUA events,” and that basically nobody knows what the reason may be. SRS is pointing fingers at the drive-by-wire system, which they call – duh – “significantly different and more complex than the older, mechanical systems.”

The computer gremlin theory “taps into our almost instinctual fear that our machines will suddenly turn on us,” writes Popular Mechanics. “To judge by press accounts and statements from government officials, those innocuous-looking Toyota sedans and SUVs in millions of American driveways are somehow kin to the homicidal ’58 Plymouth Fury in the Stephen King novel “Christine”—haunted by technological poltergeists and prone to fits of mechanical mayhem.” Primordial fear at its finest.

Washington quickly took advantage of the automotive angst. The U.S. House Committee on Oversight and Government Reform lobbed a heavy caliber staff memo that says: “Attention is now being focused on the electronic throttle control system (ETC) to determine whether sudden acceleration may be attributable to a software design problem or perhaps to electromagnetic interference.”

To provide counter-battery fire, Toyota hired the engineering research firm Exponent of Menlo Park, CA, to dig into its computers. Exponent found ”no evidence of problems in the electronics in Toyota and Lexus products,” says their study, that somehow found its way (guess how) to the Wall Street Journal.

Exponent bought six Toyota and Lexus vehicles, all equipped with the electronic throttle-control system. Then they threw all kinds of tests and stresses at the cars. When failures were induced in these sensors, Exponent says the electronic control module detected the problem and took appropriate action.

“Imposing these perturbations resulted in a significant drop in power rather than an increase,” Exponent says in the study. “In all cases, when a fault was imposed, the vehicle entered a fail-safe mode.”

So basically, instead of accelerating like a banshee, the cars on which Exponent performed a vivisection went in to limp mode, just good enough to crawl back to the next Toyota dealer.

Exponent is not finished with their investigation. “Testing and analysis by Exponent will continue for several months,” says the WSJ. So will the trench warfare. Armies of lawyers will record record amounts of billable hours, while the arms merchants of this war will deforest the earth to produce huge amounts of paper.

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35 Comments on “Toyota: The Battle Of The Papers...”


  • avatar

    I wonder how much this increased scrutiny and litigation targeting Toyota will impact foreign investment in the US. This is completely unscientific but my impression is that Corporate America has been more of a target of Trial Lawyers Inc. than Japan Inc. and other foreign entities. Now that companies like Toyota, Hyundai etc have such deep pockets, trial lawyers are turning their sights to them.

    • 0 avatar

      According to my likewise completely unscientific impressions, Trial Lawyers Inc. is completely non-discriminatory and goes after the deepest pockets only.

      Note that Safety Research and Strategies’ trademarked “Vehicle Inspections and Case Triage TM” product is advertised as follows: “How do you decide to pursue litigation against a manufacturer without first investing substantial costs? Let Safety Research & Strategies perform a Vehicle Inspection and Case TriageTM to help you evaluate and understand the potential issues even before you file a case.”

      My former client VW was the target of many legal actions in the US. The strangest was the heat exchanger of the VW bus. As most old-style heat exchangers, the original one was made with asbestos.

      After asbestos was declared a threat to mankind, all asbestos-afflicted heat exchangers of the bus were recalled and exchanged for one without the dangerous substance. The recalled heat exchangers, along with the ones in storage, were given to a specialized company for environmentally responsible disposal.

      Someone somewhere at that company or one of its subcontractors thought it was a waste to destroy these good parts, and asbestos-afflicted heat exchangers found their way back into the market. The result was a flurry of court cases. Not against the purveyors of the illicit heat exchangers, as one would think, but against VW. They had the deeper pockets.

      I recall driving with a high-ranking VW exec through California, and my personal entertainment was to shout “look, there is another one” while pointing at a usually flower-power painted bus, driven by an aging hippie. Drove my guy nuts. I offered to privately buy all remaining buses, if VW would fund the undertaking. The offer was considered, but not accepted. Most likely, their New York law firm counseled against it …

  • avatar
    criminalenterprise

    Dvorak wrote a piece last week about how computers in cars will be the death of us all. Now Dvorak is usually an idiot, but he outdid himself with that article. I can’t understand how a supposed tech writer can be such a luddite.

    If lawyers force us back to the pre-DbW days, it will be a sad day for the automobile world. Your fuel economy will be the first and most obvious casualty. And if the cable sticks, there’s no override built into the ECU when it detects you’re standing on the brake.

    I don’t know even know if modern diesels or direct injection can work without DbW.

    • 0 avatar

      Modern diesels or direct injection can work without drive by wire, but computers MUST be in cars by law. Without a computer, no OBD II.

      - OBD-II has been mandatory since 1996 for all cars sold in the United States.

      - Since 2001, EOBD (you guessed it, the European variant of OBD) has been mandatory for all gasoline powered vehicles sold in the EU

      - Since 2008, all cars sold in the United States must use a variant of the Controller Area Network (CAN) bus)

      Mechanical injection existed, but was quickly replaced by computers. Today, direct injection without computers is unthinkable.

      Speaking of Dvorak: Is he still around?

    • 0 avatar
      psarhjinian

      Dvorak, probably nearly a quarter-century ago, decided that you can make more money, and gain more notoriety, by trolling than by writing worthwhile articles. He figured this out by virtue of the page views he got (back when pages were paper) by baiting Mac users.

      Remember: this is guy who predicted that the Mouse wouldn’t amount to much.

      Op-Ed journalism tends to fall into three** camps:
      * Trolls (of which Dvorak is one)
      * Purveyors of Righteous Indignation (otherwise known as “Think Of The Children!” types)
      * “You’re not just wrong, you’re an amoral idiot, too” Demagoguery

      All of it populist trash. When you see the same Op-Ed Hitman (or Hitwoman) go from job to job and from one side of the spectrum to another, you can pretty much be assured they don’t believe what they’re writing, except belief in advertising dollars. Or their own ego.

      ** there’s a fourth: the Drunken Rambler, but that person is generally at the end of their career and pretty harmless, writing about their past exploits or something really mundane that, because it happened to them, is newsworthy.

    • 0 avatar

      Actually, there is an important point, even if Dvorak is self-promoting. At the Chicago auto show I spoke to the engineer who is in charge of user interface at Ford. I expressed concern that in the software industry, companies release Beta versions for bug testing by a large group of expert users before they fine tune the final version of the code. Car companies cannot release “Beta” versions of a car and its controls. The Ford engineer insisted that their testing is rigorous but I fear that even if the testing is rigorous it won’t reproduce every real world condition.

    • 0 avatar
      YotaCarFan

      The Ford engineer insisted that their testing is rigorous but I fear that even if the testing is rigorous it won’t reproduce every real world condition.

      User interfaces for things like the stereo, climate system, nav system, etc., are complex graphical systems and may have bugs that cause malfunction due to incomplete testing. But, those systems won’t kill you if they fail. Interfaces for critical components (like engine throttle control) are much simpler (e.g., a redundant pair of analog or digital signal from the gas pedal), reducing the number of possible real-world input permutations, enabling more thorough testing of the system’s responses to them. Nowadays, in addition to thinking up input combinations and simulating the system’s responses to them, developers can do “fuzzing”, which hammers the code with random inputs and random internal variable values, allowing observation of what the system will do under “impossible” conditions. This enables such thorough testing of the software (assuming allotting of enough time to do the tests, which is a function of how simple the SW engineers kept their code) that unknown failure modes are statistically very unlikely.

    • 0 avatar
      psarhjinian

      This enables such thorough testing of the software (assuming allotting of enough time to do the tests, which is a function of how simple the SW engineers kept their code) that unknown failure modes are statistically very unlikely.

      This is why the floor mat and pedal stick are so very plausible: they’re about the only points in the system where you do not have redundant, sanity-checked inputs.

    • 0 avatar
      Facebook User

      “Dvorak, probably nearly a quarter-century ago, decided that you can make more money, and gain more notoriety, by trolling than by writing worthwhile articles. He figured this out by virtue of the page views he got (back when pages were paper) by baiting Mac users.”

      Dvorak is another case in which the media has put forth someone as an “expert” in something with no real education or credentials to back it up. Before he started writing editorials about the tech industry, he was a Bordeaux wine critic. That said, I think he makes some good points at times, and I appreciate the fact that he seems to be a straight shooter who calls it as he sees it. Unfortunately a lot of his writing has this ridiculous gossipy overtone to it, as if he were trying to imitate Matt Drudge or Maureen Dowd. And yeah, a lot of his predictions are clever but ultimately rubbish.

  • avatar
    wmba

    Bertel. I like your style. Indeed I do, because you manage to hit all the relevant points without giving any impression of ranting or being unfair.

    Keep it up. I read your posts with interest, particularly those with respect to Opel and the current woes afflicting Toyota.

  • avatar
    ohsnapback

    So Bertel, by your logic (and deductive extension), you seem to be stating that since you’ve been witness to the questionable merit of past litigation, any suit(s) filed against Toyota regarding the stuck accelerator pedal assembly and/or electronic malfunctioning of the throttle control and/or any other inappropriate functioning of equipment, ECU or code which is causing acceleration absent driver input, would also be without merit, no?

    I mean, since you believe asbestos litigation was apparently frivolous (as well as other class and non-class action lawsuits, apparently), the allegations against Toyota in the instant case must be without merit, and so where’s the need for any serious investigations, let alone legal proceedings before juries or judges, right?

    In your opinion stated above, you’ve already set up a strawman in the way of the “Vehicle Inspections and Case Triage TM,” and knocked it down, so why wait and see what other experts, some having a vested interest in perpetuating litigation, some having no such interest, and some called upon by Congress and other federal and state investigative bodies conclude about whether a) a true problem exists (I believe the past communications between Toyota and NHTSA clearly suggest so, but I digress), and if such a problem exists, b) what specific device, mechanism or methodology is causing this problem?

    Finally, just because you’ve believe you’ve witnessed frivolous litigation (as we all have) in the past, you seem to ignore litigation that was clearly meritorious, which would include but no means be limited to, the carcinogenic effect of first and second (and now, apparently, third) hand cigarette smoke.

    Let’s all adopt your posture towards this issue before anymore investigations are begun (even though past investigations indicate a real problem does exist somewhere in the mechanism controlling the accelerator pedal or another device affecting the throttle), kill any further investigative or legal proceedings, and call it a day.

    We should probably do the same with the ongoing investigation of Toyota burying serious flaws in roof strength/safety, as revealed by its own testing:

    http://www.businessweek.com/news/2010-02-11/toyota-ex-lawyer-can-t-share-secret-documents-on-rollovers.html

    Toyota Ex-Lawyer Can’t Share Secret Documents on Rollovers
    February 11, 2010, 12:19 AM EST

    By Edvard Pettersson

    Feb. 11 (Bloomberg) — Toyota Motor Corp. won a temporary ruling barring a former in-house lawyer who accuses the carmaker of hiding evidence in rollover-accident lawsuits from going public with confidential documents in his possession.

    A former judge arbitrating the case between Dimitrios Biller and Toyota issued a partial preliminary injunction that prevents Biller from disseminating the documents, said Jeffrey Allen, a lawyer for Biller, in a phone interview yesterday. The arbitrator rejected Toyota’s request to require Biller to turn over the documents or to provide an inventory of them, Allen said…

    But I digress, again.

    • 0 avatar
      psarhjinian

      Biller and Toyota have an interesting history, and one that people should read up on. He has an axe to grind with them, mostly because he was dismissed by Toyota (after they paid him over $3M in severance), possibly because he was trying to hock confidential internal information to anyone wanting to file a suit.

      That he started a one-stop lawsuit facilitation firm pretty much instantly after he was kicked out and continued to disclose proprietary information (despite an injunction to stop him doing so) should tell you something.

      Dimitrios Biller is no Ralph Nader: he and many of his partners have a definite and signficant financial stake here.

      It always pays to read about where the news is coming from. In cases like this, there’s a lot of press releases (from both sides) masquerading as journalism. Lawyers have a long and storied history of seeding public opinion as a tactical measure.

    • 0 avatar

      ohsnapback:

      I usually have endless patience, and it takes a lot to affect my mental or emotional well-being. However, consider the “no flaming” line as crossed.

      Two options:

      1.) We accept the suggestion in the paragraph beginning with “Let’s all adopt your posture” and call it a day.

      2.) You carefully read the FAQ, and in pertinent part “What’s TTAC’s commenting policy”, subsection 1. You will quickly realize that you are in violation thereof. I personally detest any editing or deletion of comments. But consider the warning as given. After a subsequent offense …

      Your choice.

    • 0 avatar
      ohsnapback

      Bertel, would you include your two recent personal snipes at me (since redacted; thank you for that) in the grand scheme of things (whereas I’ve yet to once personally insult you, but have only addressed your policy views)?

      I have thick skin and truly am not trying to inflate the gravity of what are a couple of (relatively benign) off-the-cuff remarks towards me, but those remarks coupled with what appears to be your editorial bias against all things tort law has been shining through forcefully in your recent opinions, and feels like personal animus towards me.

      Back to the merits of the debate, you clearly have a strong opinion concerning the role plaintiffs’ attorneys play in society, as well as the general utility and legitimacy of the suits they initiate.

      That’s all fine and well, but you’ve already appeared to have decided that on a relative scale, Toyota either has not committed a foul commensurate with the negative attention, proceedings and ongoing litigation they face, and/or you’ve partially or wholly dismissed the genuineness of the claims of Toyota sudden acceleration issues as specious at best?

      Am I wrong?

    • 0 avatar

      Ohsnapback is blacklisted.

      When a member of the TTAC editorial staff issues a cease and desist warning, then it means just that: Cease and desist. No talking back. No back and forth arguing. Enough is enough. It’s like a party: When the host tells a guest to tone it down or he won’t be invited back, then the guest tones it down. If he argues with the host, he will be shown the door and won’t be back.

      Again, I personally hate any editing or deletion of other people’s comments. I personally think it’s educational to see what leads to a blacklisting. The TTAC system automatically deletes a post where a blacklisting is issued. Therefore, I have issued the blacklisting using an innocuous post in order to let the post stand that triggered the blacklisting. To conserve the innocuous post, it did read:

      “psarhjinian, Biller allegedly has ’smoking gun’ documents.
      His history with Toyota and personality aside, those documents (produced by Toyota, and not Biller) are probably at least interesting, if not damaging to Toyota (hence the objection by Toyota to their release?).”

      The post that triggered the blacklisting is the one above. A discussion of this measure is not desired.

    • 0 avatar
      YotaCarFan

      you seem to be stating that since you’ve been witness to the questionable merit of past litigation, any suit(s) filed against Toyota regarding the stuck accelerator pedal assembly and/or electronic malfunctioning of the throttle control and/or any other inappropriate functioning of equipment, ECU or code which is causing acceleration absent driver input, would also be without merit, no?

      That’s not how I interpreted the article. If you take together the aggregate of facts posted here and elsewhere over the past few weeks on SUA, then until now the only component in the cars related to throttle control not analyzed and determined to be redundant or fail safe is the ECM. And now, according to the WSJ article revealing the results of the (admittedly biased) Toyota-funded software study, ECM failures and ECM input failures lead to the car spluttering and crawling along slowly, not taking off like a bat out of Hades. Therefore, the author concludes the lawyers’ motives are financial gain rather than consumer safety.

      To reiterate, here are the parts that affect vehicle speed:
      * gas pedal – mechanics and electronic sensors
      * ECM – software and I/O ports
      * throttle servo
      * interconnecting wires
      * power source

      Here’s what we know:

      * Gas pedal mechanics: CTS model has been observed to stick (fail) after exhibiting slow return for a period of time. Denso model has not been observed to fail this way.

      * Gas pedal electronics: Dual (redundant) Hall Effect ICs, with different (offset) voltage outputs. Failure of one or both will be detected by ECM as improper voltage differentials.

      * Throttle servo: Mechanical spring snaps back to idle if power lost. Integrated position sensor allows ECM to determine if physical position corresponds to that which computer is driving servo to assume.

      * Interconnecting wires & power source & ECM I/Os: Failure of inputs to ECM (shorts, grounds, pulled high) will be detected by ECM (inputs never supposed to be 0 or 12V or equal to each other). Power failure causes throttle spring to close throttle. Failure of ECM IO port outputs will cause throttle position to be wrong, and will be detected by throttle position sensor, causing ECM to enter limp home mode.

      * ECM firmware: The recent study claims it’s fail-safe. Further, typically embedded controllers like these have code that’s produced using development tools that allow thorough analysis of all the possible states the system can enter. Mission critical systems typically have watchdog timers that detect software execution failures and force the system into a known safe state, too. Of course, only Toyota knows what’s inside the ECM and how fail-safe it truly is. However, assuming the same or similar throttle control code is likely in every single one of their cars and so few have exhibited SUA not attributable to floormats or sticky pedals, chances are slim that they’ve got HAL’s attitude embedded in there.

    • 0 avatar

      Actually, the article simply said there are two conflicting studies. And it went on to speculate that we most likely haven’t seen the last of this and that there will be legal trench warfare.

      Personally, I believe that the lawyers’ motives are financial gain rather than consumer safety. Personally, I think that assuming anything else would insult the intelligence and fiscal prudence of the lawyers in question. But these are my personal beliefs, and I kept them out of the article.

    • 0 avatar
      Steven02

      psarhjinian,
      You can speculate all you want about why he left and why he was given a severance, but you have no proof of anything, nor do I. So maybe I could say he found Toyota was doing the wrong thing and they payed him a bunch of money to keep quiet.

  • avatar
    50merc

    If any argument can be offered for confiscatory levels of income taxation, trial lawyers are it. Courtrooms should be about justice, not jackpots.

  • avatar

    Dimitrios Biller is no Ralph Nader: he and many of his partners have a definite and signficant financial stake here.

    No doubt. Biller has served an important function in society whereas Nader has done little but promote his own interests and agendas.

    Nader, and Ditlow and Claybrook have all lived very comfortably. To assume that only those on one side of an issue have financial interests is to be naive.

    • 0 avatar
      psarhjinian

      No doubt. Biller has served an important function in society whereas Nader has done little but promote his own interests and agendas.

      I sometimes forget that Nader pissed in enthusiasts’ collective cornflakes sometimes, while at the same time having the gall to be an avowed leftist.

      Ralph is many things (a zealot, unreasonable, a killjoy) but one thing he isn’t is an ambulance-chaser. Biller is trying very hard to portray himself in Nader’s image, but there’s a big difference between zealotry and rampant opportunism.

    • 0 avatar

      I never said that Nader was an ambulance chaser. One can make money other ways than from 1/3 of PI awards.

      My point is that the guy who makes a career out of writing books about the dangers of high voltage transmission lines has as much a financial interest in the matter as the guy whose research is funded by the electricity industry.

      Nader is as big a hypocrite as anyone. He lives well. Yes, he’s careful to project the hairshirt image and he is careful to not let his name show up on things that would be contrary to that image like real estate deeds. When he’s in NYC, he’s more likely to stay at his rich girlfriend’s expensive apartment than the YMCA.

  • avatar

    While no-compete agreements and other post employment restrictions are not uncommon in the business world, I think it would be the height of naivety to think that lawyers would institute any professional canons that would restrict their ability to make money working the other side of the street.

    Of course lawyers will argue that it is precisely the ability to argue both sides of an issue that makes them impartial advocates. It’s related to the idea that if the right to due process is real then lawyers must defend some sleazy people. Of course the bottom line is the bottom line. Lawyers run this country so they can make a living.

    The revolving doors that lawyers use are manifold. GovernmentBusiness, BusinessPlaintiff’s Bar, Malpractice/Defense and others.

  • avatar
    psarhjinian

    The arbitrator rejected Toyota’s request to require Biller to turn over the documents or to provide an inventory of them.

    I believe the judge’s point was along the lines of “They’re out there anyway, so it would be kind of pointless to try and stuff the genie back in the bottle and we can discuss admissibility if this ever actually goes to trial”

  • avatar
    Jimal

    This Toyota issue, like so many issues today (healthcare anyone?) have become so politicized and the debate so noisy, that it is near impossible to separate the facts from the punditry and the agendas, which is how I think many involved in this (at least on the periphery) like it. Why let the facts get in the way of some good hyperbole or political posturing, eh?

  • avatar
    Z71_Silvy

    Oh goody…another Toyota post.

  • avatar
    210delray

    Bravo, Bertel for calling out Ford’s characterization of SRS as the shills that they are. I’ve been trying to make the same argument on other websites.

    Is this organization the original source for the number of deaths at 19 for claimed sudden acceleration in Toyotas? (Or is the number now 26?) I haven’t seen anyone else defend this group’s methodolodgy.

    Their M.O. appears to take all claims of sudden acceleration at face value, without any in-depth crash investigations or even considering if drivers may have stepped on the gas pedal instead of the brakes.

  • avatar
    Potemkin

    We all know that figures lie and liars figure, throw lawyers into the mix and ….well you know. With over 500,000 cars with these pedals and software out there testing six selected cars doesn’t inspire much trust in either the testing or the resulting data. Has anyone examined the cars that were involved in the collisions?

  • avatar
    Steven02

    If one report says it isn’t the pedals, and suggests the ECU, why doesn’t Toyota also proof that it IS the pedals and not the ECU. It seems like they went over the ECU with test and didn’t find any faults. But, with the testing they were doing, you wouldn’t really expect them too either. I mean, if they knew already how to break it, they would have hopefully issued a recall to fix it. Not saying it is the ECU, not saying it isn’t. But why didn’t Toyota try to proof it was the pedals?

  • avatar
    crash sled

    I wouldn’t spend too much time worrying about Biller. He sounds pretty kooky to me, however talented a lawyer he might be.

    Biller, who said he worked at Toyota from 2003 to 2007, received a $3.7 million settlement in September 2007 for wrongful discharge, according to court filings. Biller said in his civil racketeering complaint filed July 24 in federal court in Los Angeles that he became mentally ill on the job and continues to suffer from depression and post-traumatic stress.

  • 0 avatar
    psarhjinian

    Biller allegedly has ’smoking gun’ documents

    Biller can allege all he wants, especially when he gets to seed public opinion and selectively disclose those documents, or disclose them out of context. That he has a vested financial interest should automatically put anything he puts forward under significant doubt.

    Would you not consider it a clear breach of attorney-client privlege, or at worst a serious breach of ethics, if a tax lawyer jumped ship to the IRS with all his/her documentation in tow and selectively started disclosing his clients’ documentation? Or how about if a DA or AG quit his/her post and went to work for the Mob, bringing copies of the evidence with him?

    Because that’s more or less exactly what Biller did.

  • 0 avatar
    ohsnapback

    psarhjinian, whether or not Biller would breach rules of privilege or confidentiality by making public the documents he has is something the Rules of Professional Conduct would address.

    As far as applicability to any civil proceeding, it wouldn’t appear that a breach of either privilege or confidentiality would necessarily deem the documents inadmissible.

    In fact, there is case law supporting the admissibility of such materials in civil litigation.

    In other words, an attorney is free to violate the Rules of Professional Conduct, take their lumps from the Attorney Grievance Commission, and this wouldn’t [necessarily impact the admissibility of the documents in question at trial.

    Furthermore, there is an exception to attorney-client privilege (according to the ABA ‘Model Rules’ which most states have adopted)in the following circumstances:

    Model Rules of Professional Conduct
    Client-Lawyer Relationship
    Rule 1.6 Confidentiality Of Information

    (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

    (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

    (1) to prevent reasonably certain death or substantial bodily harm;

    (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

    (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

    (4) to secure legal advice about the lawyer’s compliance with these Rules;

    (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

    (6) to comply with other law or a court order.

    See http://www.abanet.org/cpr/mrpc/rule_1_6.html.

    I’d leave it to Biller’s counsel before any administrative hearing on misconduct to try and make exceptions under 1.6(b)1, 2, 3 or 6 fit the circumstances, but it’s not completely impossible, IMO (particularly 1.6(b)1 or 3).

  • 0 avatar
    psarhjinian

    I’d leave it to Biller’s counsel before any administrative hearing on misconduct to try and make exceptions

    Which, I think, happened, and during which he was professionally chastised.

    The reason Toyota more or less lost the request to censure the documents is that such an order was pointless because Biller had already let the cat out of the bag.

    Again, all this is academic: Biller and his partners have a vested financial interest in winning this case. Biller has a history of professional misconduct in relation to his former employer. Biller has yet to actually prove any of his allegations, nor actually produce evidence (what he said he had, and what he actually delivered, weren’t the same thing).

    Recall your point about NHTSA staff working for Toyota; this is the reverse: an Toyota lawyer working for, well, ambulance-chasers. Why is the former problematic but the latter entirely credible, especially when the former doesn’t have any of the acrimony or money involved?

  • 0 avatar

    Toyota didn’t lose the argument to censure the documents.

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

    The arbitration judge issued a partial preliminary injunction that prevents Biller from disseminating the documents.

    The arbitrator rejected Toyota’s request to require Biller to turn over the documents or to provide an inventory of them.

    The arbitrator preserved the status quo. Biller can keep the documents, but he may not disclose them. Biller had an arbitration clause in his severance agreement. Biller took the money and signed the agreement. Then he sued nonetheless. He was told by a federal judge to stick to the agreement and put any disputes to arbitration. The arbitrator has spoken. Apparently, any returning or inventorying was not in the severance agreement, so the arbitrator denied that request.

    Toyota is “pleased with the ruling.”

  • 0 avatar
    baldheadeddork

    This isn’t going to end with an arbitration ruling, Bertel. Biller is alleging Toyota committed perjury in these cases. Prosecutors can subpoena these documents as part of a criminal investigation, and plaintiffs in these cases can go back to court asking the judge to order a review of the documents. And Congress is a lock to subpoena the documents and call Biller to testify, which is immune from any judicial order IIRC.

    You shouldn’t dismiss Biller’s allegations so quickly. If he is lying about this or even exaggerating about it, he’s going to lose his law license and probably everything he’ll ever own in a libel suit. Unless he’s suicidal, he wouldn’t be this aggressive unless he has something to back up his claims.

    A lot of the righties are aghast that Biller has a financial stake in this, but can you at least be consistent and remember that Toyota wasn’t doing any of this out of the goodness of their hearts, either.


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