This is the fourth in a series of articles taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen. In the last previous article and in this installment, we will continue to take a look first at the General Motors "ignition defect" MDL. Our special focus will be on the secrecy involved in these huge MDLs, secrecy that is built into such lawsuits as an integral part of them. To a great extent secrecy is a major reason such lawsuits exist in the first place.
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Concealment even after disclosure. The lawyers in the catastrophic GM MDL case proposed and the judge agreed to another seemingly new provision in the GM MDL blanket secrecy order that would address the possibility of evidence mis-marked for concealment. The lawyers and the judge provided that if Confidential or Highly Confidential information was disclosed without being designated for concealment, then the party producing it could thereafter "claim or designate" confidentiality, and the party receiving the information "must immediately return" it and all copies of it to the producing party and make no use of such information. In other words, the judge would never actually have to see it and the lawyers would never have to submit it to the judge to look at.[1]
By its own terms the MDL Court's jurisdiction to enforce this Consent Order would never end. The MDL Court would be the sole arbiter forever without end of whether parties and strangers to this litigation complied with this Order.[2]
To summarize, regardless of whether or not it had the purpose of concealing catastrophic defects that have allegedly killed people and injured others so badly that some of the people who allege injuries are now quadriplegics who lost the use of their arms and legs, and some others are paraplegics who lost the use of their lower bodies including both of their legs, the GM MDL case has had the effect of concealing the evidence of what allegedly caused those things. This is not an unfortunate byproduct of stipulated umbrella secrecy orders like Order No. 10 on file in the GM MDL case. It is the intended result of those consent orders.
NEXT: THE VOLKSWAGEN "DEFEAT DEVICE" ENORMOUS MDL CLAIMS.
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[1] GM Order: In re General Motors LLC Ignition Switch Litigation, Order No. 10, Doc. No. 294, filed 09.10.14 (S.D.N.Y. MDL Number 14-MD-2543):
"Presumption of public access" and GM's "bulk production of millions of pages of documents": unnumbered paragraph immediately following the title of this Order, "having consented thereto"; both unnumbered "WHEREAS" paragraphs;
"Sensitive information": ¶ 2 at page 3;
"Lawyers determine in the first place": ¶ 3(c), "Marking," p. 4., pp. 3-4;
"Disappearing ink provision": ¶ 3(d), "Redaction," at p. 5;
"Designating information as 'Confidential' or 'Highly Confidential' later on at any time" and "Disclosure shall not waive confidential status of such information": ¶ 3(f), "Errors," p. 6;
"Challenge one another's 'Confidential' and 'Highly Confidential' designations at any time" and "Good cause" expanded beyond what the law previously authorized: ¶ 4 (emphasis added), "Challenges to Confidentiality Designations"; at p. 5;
"Use restriction": ¶¶ 5, "Access to Confidential Information," 6, "Access to Highly Confidential Information," pp. 7-10, and 7(a), "Use of Confidential and Highly Confidential Information/ Restricted to This Proceeding and Related Litigation," p. 10; and
"Return and destroy provision": ¶ 8 (emphasis added), "Return of Discovery Materials," p. 12.
It bears repeating that this Consent Order is titled, "Protecting Confidentiality and Privileged Materials."
[2] See In re General Motors LLC Ignition Switch Litigation, Order No. 10, Doc. No. 294, ¶ 14, "Protective Order Remains In [sic] Force," filed 09.10.14 (S.D.N.Y. MDL Number 14-MD-2543).
The Consent Order in this MDL originally provided that any party could disclose "a potential safety defect" to a government agency. Id., ¶ 7(a), located in "Use of Confidential and Highly Confidential Information" paragraph, at page 10. In another Consent Order some two years later, this provision was amended by consent of Defendants and Lead Counsel for plaintiffs once again, to add that GM would also be allowed to assist in "identifying, reporting or resolving any potential safety issue," without any stated limitation to assisting a government agency. In re General Motors LLC Ignition Switch Litigation, Order No. 103, Doc. No. 2901, filed 05.27.16 (S.D.N.Y. MDL Number 14-MD-2543). This addition on May 27, 2016 undoubtedly reflects the March 11, 2016 National Highway Traffic Safety Administration ("NHTSA") statement two months earlier that NHTSA's clearly preferred such exceptions to the use of blanket stipulated protective orders. NHTSA influenced more than the lawyers in the GM ignition switch defect litigation, however. The federal Consumer Product Safety Commission virtually copied the preferences announced by NHTSA on March 11, 2016 when the CPSC released its own preferences for allowing disclosure to the CPSC in secrecy orders and in secrecy provisions in settlement agreements. See Arthur Bryant, "U.S. Consumer Product Safety Commission Seeks to Limit Court Secrecy" (posted on The Legal Examiner blog on December 12, 2016).
Two additional 'protections' were added by the MDL Consent Order No. 10 in September 2014. Not only would originally redacted evidence that was marked "Highly Confidential" and that became unredacted by the parties' consent or by Court order still be protected as Highly Confidential nonetheless under paragraph 3(d), "Redaction," on pages 4-5, if in particular any piece of disclosed evidence was "claimed" to be subject either to the attorney client privilege or to the protection that courts give to the work product of attorneys, then its disclosure in this MDL case would not forfeit the privilege or the protection in any other case, federal or state. Id., ¶ 9(a), "No Waiver by Disclosure," pp. 12-13.
NEXT: THE VOLKSWAGEN "DEFEAT DEVICE" ENORMOUS MDL CLAIMS.
Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.
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