 As an attorney who represents businesses with regard to document retention and electronic discovery, and who has obtained discovery sanctions in a Federal RICO case against the adverse party, I followed with great interest recent events where allegations by a former in house counsel involved in an employment dispute spawned the filing of RICO cases against Toyota and certain of its officers and employees that were thereafter voluntarily discontinued.
The assertions made by a former managing counsel for Toyota, Dimitrios Biller, sounded more like a story for a movie. While at Toyota, Biller was responsible for its defense of personal injury claims involving its vehicles. After he resigned and was in an employment related dispute with Toyota and still subject to attorney-client confidentiality obligations, he made public statements claiming that Toyota had deliberately withheld unfavorable crash test evidence and delivered to the US District Courthouse in Marshall, Texas, four boxes of documents that allegedly contained this “smoking gun” evidence. This Court was the venue for a number of personal injury cases against Toyota.
Pursuant to a Court order, the evidence was sealed and placed on a secure server.
In response to Biller’s assertions, the Dallas firm that represented the plaintiffs in the underlying lawsuits, filed fifteen lawsuits on September 25, 2009, including Lopez v. Toyota Motor Corporation et al., 2:09 CV-00292-TJW alleging that Toyota and its officials had operated a racketeering enterprise designed to obstruct justice. The claims were brought under the Federal RICO statute, which Congress enacted to target organized crime but that has been used and sometimes misused to cast a traditional business dispute into a Federal case. The remedies available where a civil RICO claim has been proven are powerful and include treble damages, attorney’s fees, and injunctive relief. In an extreme case, the Court is authorized to appoint a Federal monitor over the enterprise.
As it turns out, there was a big problem with these RICO cases against Toyota and the problem was that the evidence of misconduct that Mr. Biller asserted he delivered to the Court was not in the materials the Court received.
After the materials were secured, Plaintiff’s counsel was given electronic access to a mirror image copy of the evidence deposited with the Court and after reviewing the documents and finding no evidence to substantiate that Toyota had engaged in any discovery misconduct, counsel voluntarily dismissed the lawsuits.
These events illustrate some important points. Allegations are merely that and must be distinguished from evidence. It is fortunate that the documents were available to disprove the allegations. Allegations of non-disclosure of evidence, if proven, not only threaten to undermine the outcome in litigation but can also trigger an avalanche of ancillary lawsuits.
Jonathan and his team consult nationally with business executives and attorneys to help manage the risks involved in e-discovery and helps companies defend allegations of wrongdoing in complex litigation matters.
If you have any questions or comments about this topic, Jonathan may be reached (214) 999-0080. |