Dimitrios Biller, a lawyer who is in a hotly-contested battle with his former boss, Toyota Motor Sales, U.S.A., Inc., will be able to introduce documents in his arbitration hearing that the company had claimed were privileged. And if that news was not bad enough for the car manufacturer in the Biller case, the ruling will likely affect other cases. I believe this ruling may influence judges to allow the same documents into evidence in other cases against Toyota.
The arbitrator, retired federal judge Gary Taylor, said in his ruling that Biller had made a prima facie showing that the documents, which ordinarily would not be available for him to use in discovery or during the arbitration hearing, qualify under the “crime-fraud” exception. In fairness, the ruling doesn’t mean that Toyota has lost – nor does it assure Biller a victory. The arbitrator didn’t rule “that a crime or a fraud has taken place,” and that was made clear in his order. Judge Taylor wrote in the order:
The ruling is simply that a prima facie showing has been made, so otherwise-privileged materials may be used in discovery and arbitration.
The ruling does not mean that all of the documents Biller possesses, or even the more than 100 documents that Judge Taylor reviewed, can be released to the public. Though Plaintiffs’ lawyers involved in the many lawsuits Toyota faces have long sought access to them, Judge Taylor wrote that his decision only allows Mr. Biller to use the documents in this limited context. Judge Taylor added that until he rules otherwise the “materials will remain confidential within this arbitration, with no public disclosure.”
It seems obvious that Toyota will have to convince other judges that these documents, which deal with safety issues and Toyota’s conduct on safety issues, should remain a “secret.” The Biller arbitration hearing is expected to begin on November 15th, with a final ruling possibly coming in early January. It will be watched closely by our firm.
Biller, who worked for Toyota from 2003 to 2007, was its national managing counsel in charge of defending litigation brought in rollover accidents. I suspect he is a person Toyota wishes would simply go away or at least keep his mouth shut. If the many things the man has said about how Toyota has operated in rollover litigation are true, the public should have access to information that would verify his claims. In addition, Toyota should be severely punished for its conduct.
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