GM Loses Fight To Keep Ignition-Defect Documents From Going Public

(paul bica)

General Motors, which has acknowledged being responsible for more than 100 deaths because of its failure to recall vehicles with a known defect in the ignition switch, doesn’t want the public to see documents turned up as part of an ongoing lawsuit. But a federal court recently ruled against the car maker, which could be embarrassing for GM.

For those who have been in a coma for the last couple of years, starting in 2001, General Motors began production on a number of vehicles — most notably the Chevy Cobalt — that used an ignition switch that could be inadvertently turned off while the car was in operation, disabling the airbags and other important safety functions.

In spite of the fact that some at the car company knew of the issue before the first affected vehicles even hit the road, it was several years before engineers quietly fixed the switch — without issuing a recall and without changing the part number. Thus, defective cars remained on the road, resulting in numerous collisions and fatalities. It wasn’t until 2014 that GM got around to issuing a recall on these cars, by which point hundreds of people had been harmed as a result.

Several of those victims are currently suing GM, and a number of those cases have been grouped into a single multi-district lawsuit. In order to expedite discovery in that case, GM was allowed to designate large swaths of documents as “confidential” or “highly confidential.” The plaintiffs’ lead counsel can challenge the confidentiality of these items, but GM claims the opposing lawyers have gone too far in their requests and their statements to the public.

The car company says the plaintiffs’ attorney has made inflammatory comments about GM and its lawyers, and has released the identities of present and former GM executives who are to be deposed in the case. GM accuses the opposition of turning “pre-trial discovery into a mockery designed to garner sensational press coverage, rather than preparing for a trial on the merits.”

And so GM asked the court to expand confidentiality protection to cover everything — documents, testimony, and any other data or information turned up during discovery — so that it can only be used for the lawsuit and not be shared publicly without the court’s approval.

In denying GM’s request, the court acknowledged that much of what’s turned up during the discovery process are documents that aren’t publicly accessible and may not end up being used at trial.

“Nevertheless, just because the public is not presumed to have access to pretrial discovery materials, it does not follow that parties should be — or are — barred from sharing them publicly,” explains the court [PDF], pointing to legal precedent declaring that in the absence of a protective order, parties to a lawsuit may disseminate materials obtained during discovery “as they see fit.”

GM claims that the plaintiffs’ airing of these items is part of a “deliberate strategy to publicly and selectively disclose materials damaging to New GM and thus deprive it of a fair trial.” Additionally, the depositions and documents involved in this discovery process are “interwoven with sensitive or potentially embarrassing information about third parties, as well as otherwise privileged information provided under special protections and orders.”

But the court concluded that there are more important countervailing interests involved.

“First, the public interest in this case weighs heavily against an order as broad as that sought by New GM here,” writes the court. “Although… the public may not have a presumptive right to discovery materials produced during this litigation, its interest in access to documents — and certainly non-confidential ones — is properly considered in determining whether to enter a protective order, particularly a ‘blanket’ protective order.”

GM had tried to argue that the high level of public interest in this case is a justification for keeping a tighter lid on discovery documents, but the court notes that this pre-existing public interest “cuts in favor of allowing public access… not against it.”

The court did, however, apply Rule 3.6 of the New York State Rules of Professional Conduct, which can penalize a lawyer for making certain statements that have a “substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

The car maker also raised the issue of privacy regarding deposed individuals who are not party to the lawsuit, but the court countered that “The privacy interests of a few, however, do not justify the wholesale bar on release of all discovery materials that New GM seeks here. Instead, they justify a more limited protective order restricting the dissemination or disclosure of, for example, certain deposition testimony or information contained in personnel files — information that could be used to embarrass, harass, or violate the privacy interests of third parties to this litigation.”

Since the plaintiffs’ lead counsel, Bob Hilliard, doesn’t entirely object to some sort of narrow protective order, the court directed them to meet with GM to hash out what that might look like.

In response to the court’s order, Hilliard issued a statement teasing the content that could now be made public.

“The disturbing documents that now are allowed to be shared will speak for themselves — clearly, unequivocally and loudly,” the Texas-based attorney told Bloomberg.