Tentative Contempt Ruling In Toyota Unintended Acceleration MDL

Law360, Los Angeles (December 03, 2014, 9:15 PM ET) — The California federal judge overseeing multidistrict litigation over alleged unintended acceleration defects in Toyota Motor Corp. vehicles on Wednesday tentatively held a legal translator in contempt for disseminating confidential case documents, but the judge refused to order her to hand over Toyota documents she translated for a federal investigation.

Toyota had asked for a contempt finding against Israeli legal translator Betsy Benjaminson, who had been subcontracted to translate documents produced by the Japanese automotive giant from Japanese into English, only to upload hundreds of confidential and privileged documents for public access on the Internet.

At Wednesday’s hearing in Santa Ana, U.S. District Judge James V. Selna issued a written tentative ruling finding Benjaminson in civil contempt for uploading 88 confidential documents she received after signing a protective order protecting sensitive information in the MDL.

Judge Selna wrote that remedies would likely include requiring Benjaminson to turn over all copies of those documents she has, as well as 451 documents that were not marked confidential but were provided in connection with the MDL, and he said in the hearing an injunction against reacquiring the documents could be imposed as well. But Judge Selna wrote that the court does not have jurisdiction under a contempt motion to order Benjaminson to return 106 privileged documents she received while working with translation vendor LSI for Debevoise & Plimpton LLP, which was representing Toyota in the U.S. Department of Justice’s criminal investigation into the defects.

Toyota attorney Lisa Gilford of Skadden Arps Slate Meagher & Flom LLP argued that even if Benjaminson had not signed the protective order when she received the Debevoise documents, those documents are now included in the MDL, and thus subject to the order, which Benjaminson has now signed. Judge Selna, however, was not swayed.

“You’re failing to appreciate my essential point; I will not apply a retroactive obligation,” Judge Selna said. “The only way to get to your result is to retroactively impose the obligation of the protective order, and in absence of contempt, I don’t think the court has that discretion.”

Toyota issued recalls of millions of cars and trucks in 2009 and 2010 after reports that several vehicles experienced unintended acceleration.

In December 2013, the parties reached out to more than 300 plaintiffs counsel with information on the proposed settlement process. Courts in the multidistrict litigation and coordinated proceedings approved the formal start of the process in January.

Judge Selna issued a stay for all of the cases involved in the intensive settlement process, forcing them to seek certification from the special master that they complied with the requirements of the process before returning to the trial court.

In another arm of the litigation, the auto giant agreed to pay an estimated $1.1 billion to settle claims that the alleged acceleration defect hurt the vehicles’ value. The economic loss deal, which included a proposed class of roughly 23 million customers, won final approval in July 2013.

On Wednesday, H.H. Kewalramni of Lee Jorgendsen Pyle & Kewalramni PC, representing Benjaminson, told Judge Selna that his client is willing to comply with the judge’s proposed remedies and said she “does want to get out of the Toyota document business; she wants to hand them over to the authorities.”

Judge Selna took the matter under submission and said he would issue a final order soon.

Gilford closed the hearing by stating for the record that, as Judge Selna had observed earlier in the hearing, Toyota may be able to seek recourse elsewhere for the recovery of the 106 privileged documents Benjaminson obtained in connection with the DOJ investigation, and intends to do so.

“We want to make clear we consider those documents to be protected and if we have to pursue those remedies in another form, we want to make clear we are prepared to do so,” she said.

Plaintiffs liaison counsel appearing Wednesday were Donald H. Slavik of Robinson Calcagnie Robinson Shapiro Davis Inc. and Benjamin Bailey of Bailey Glasser LLP.

Toyota is represented in the sanctions matter by Thomas J. Nolan, Lisa Gilford and Kevin J. Minnick of Skadden Arps Slate Meagher & Flom LLP.

Benjaminson is represented by H.H. Kewalramani of Lee Jorgensen Pyle & Kewalramani PC.

The case is In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation, case number 8:10-ml-02151, in the U.S. District Court for the Central District of California.

— Additional reporting by Brandon Lowrey. Editing by Jeremy Barker.

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