Tuesday, September 9, 2014

Remember: Down in the basement, we have forgotten Biller's forgotten evidence

What's down there? Looks scary!

Then we have another forgotten case of Dimitrios Biller, who bravely attempted to expose Toyota's alleged discovery fraud. He was beaten badly when the arbitrator ruled only on whether Biller had violated the terms of his NDA, not on the substance of his allegations about Toyota's discovery fraud.

My impression is that he is widely reviled by his fellow attorneys for what they consider an unconscionable act of betraying his client. I am not so sure they are correct about this, because in my own experience, there seems to be a pattern of attorneys protecting their clients' interests at all costs, including the cost of serving the public interest. Perhaps I also discern a determined lack of focus on crime/fraud exception to privilege.

So, to me, without knowing all the details, it appears that Biller provides a fine example of an attorney who tried to stand up for truth in legal discovery and for the ethical integrity of lawyers who must serve the public interest above all, and that is valuable. Not many lawyers will quit working with clients when they uncover evidence that their clients seem to be perpetrating ongoing crimes and frauds. This is just opinion. But I hope that in his own way, Biller has made his mark on the minds of in-house counsel faced with a decision to serve the public when the public's interest trumps the client's.

Anyway, Biller had some evidence, and it was subpoenaed by the US House Oversight Committee. Now, as far as I can imagine, this evidence lies somewhere deep in the basement of House office buildings or in some archive somewhere. The Senate Judiciary Committee staffers apparently made inquiries about it in 2012 and they were apparently told it is not available. I find that very odd.

After this evidence first arrived at the Committee in 2010, Rep. Adolphus Towns reviewed it. He wrote a letter to ask Toyota for more information. In the letter, he said "In sum, the Biller documents indicate a systematic disregard for the law and routine violation of court discovery orders in litigation." [emphasis added] He said "this also raises very serious questions as to whether Toyota has withheld substantial, relevant information from NHTSA."

So we know that the DOT and DOJ already busted Toyota for withholding some information for some period of time. But I ask:  Since Rep. Towns characterized Toyota as having a "systematic disregard for the law," did they bust Toyota for withholding all the information that it may have actually withheld and may still be withholding?

That letter is here:  Towns letter

I wonder whether the FBI ever got this evidence. Some of it may relate to electronics-related causes of SUA. Some may relate to the DOJ criminal investigation because it seems reasonable to examine Toyota's discovery practices as one aspect of its treatment of not only products liability plaintiffs but also of NHTSA, and perhaps even of government investigators.

Long ago, clad in thunder, riding on a cloud
I was injured by violent things

Thanks to Sean for keeping this letter alive.