Thursday, February 26, 2015

Next, next!

Girl: Next, next, let's go look!
Friend: You want more?

I'm having a simply grand time looking through all these documents again. Next, next, each one is more interesting than the last...

Monday, February 23, 2015

Step right up and place your bets on Skadden's early-morning filing of emergency injunction

Short odds.

Morning is rolling around to California right around now. Lisa must be waking up.

Soo....Ladies and gents, step right up and place your bets that first thing this morning Skadden will file for an emergency injunction against me to try to prevent me from deleting files that the court ordered me to delete.

Timeline of drafting Toyota's prospective lawsuit vs. Betsy.

Draft 1 2012

Draft 2 April, 2013

Draft 3   December, 2013

Draft 4 April, 2014

Draft 5  September, 2014

Draft 6  January, 2015

Saturday, February 21, 2015

Court order for 88 docs destruction, and a fascinating read of Toyota's secret SUA documents


The court wrote its own order insead of choosing Toyota's proposed order or mine.
Court order for destruction of 88 documents

Meanwhile, I continue to try to comply with the court's original order to destroy the 88 documents. When we submitted our proposed order on February 11, we reported to the court that I am deleting files in an effort to comply as soon as possible with the court's original order. It seemed to me that Toyota and I will never come to any agreement on the way the documents are to be deleted, so I might as well delete them. Toyota's attitude is so persistently bullying, I think with an intent that is far more malevolent than simple implementation of the current court order, that I am completely sure that we will never be able to agree on a protocol for deleting these documents. So I may as well do my best to acomplish what the court wants.

I am going forward very simply. Read. Delete. Delete. Delete. Empty Reycle Bin. Wipe Free Space 35 times. Delete some more. It seems plainly obvious that the court's sole intent is that these docs be GONE. OK, no argument. I am disappearing them.

But it is time consuming, I juggle this with my translation work, and I cannot be certain to get every last document. Who knows what might be lurking among temp files, zipped files, recoverable files, and so forth. I am not a geek. So that is why we need a forensics expert--not to delve into every nook and cranny and every bit of metadata, but once I have done the best I can, to simply make sure every last bit and byte of these docs are gone. Duh.

While the Wipe Free Space utility is spinning merrily in the background, I continue to be ever more fascinated with what I am reading in the documents, the ones that are not under the jurisdiction of the court. I had forgotten, after several years, just how much these documents contain. If only some persevering and technically qualified investigator took the time to connect the dots. The admissions! The dates! And the names! Wow. I can't believe all the names. Well, I can believe them. Most especially, the names.  Too bad the US government has not been interested.

Patience, But it is hard to be patient with a disinterested government when, as Hike Heiskell said recently to a reporter, more SUA incidents are happening all the time.

Friday, February 20, 2015

WSJ: Akio Toyoda and Shinzo Abe, a happy couple

The key to happiness.

Akio-kun's personal net worth is already over $1 billion, and Toyota is sitting on a cash pile of more than $48 billion and has a market cap of over $200 billion.

Question: How much money does he need to make before his attention shifts to workers' needs and to complying with functional safety standards to keep his global customers truly safe?

PS Does this gift of a car count as a bribe under the FCPA?

Thursday, February 19, 2015

Hilliard: Toyota lawyers "desperate" after 60% liability verdict in Koua Fong Lee case

A new level of desperation in Toyota's motion to federal court..

The Toyota Motor Co., which was ordered by a jury to pay $10.9 million as a result of a fatal accident in St. Paul, has asked U.S. District Judge Ann Montgomery to make Koua Fong Lee pay more than $4 million of the award because the jury found Lee 40 percent at fault in the crash.
Bob Hilliard, the Texas attorney who represented Lee in the federal trial that ended earlier this month, was informed of the motion by a reporter. Hilliard called the proposal “baseless and desperate.”
Hilliard said that Toyota never filed a counterclaim against Lee, 37, the driver of the 1996 Toyota Camry. “They never brought him in as a third-party defendant,” Hilliard said. “They can’t now seek a contribution from him. It’s ridiculous.”

Star Tribune: Toyota asks court to make Lee pay

Monday, February 16, 2015

Toyota Hilux in Netanyahu campaign ad attacking Israel's left

A not-so-funny campaign ad about a very unfunny topic.

 ISIS fighters in Hilux ask which way to Jerusalem.
Guy in car answers "Take a left."

Going places.

"Diamond Fuji" as sun sets over Mt. Fuji on Feb 16

Despite all of its troubles, foibles and faults, Japan is an amazing country, and there is much to admire in the Japanese people. 

Toyota's proposed court order does not include a lobotomy. : )

A lobotomy.

We are now waiting for the court to choose between Toyota's proposed order, or my proposed order, for the framework of complying with the court order to destroy 88 documents.

The court's choice is between Toyota's most expansive vision, where their representative gets to see everything on my computers, or mine, which directly accomplishes what we think the court wants--simply to destroy 88 documents. I think that the court might also be free to mix and match, or order a compromise.

So it may take some time before we hear back from the court. Meanwhile, I am busy trying to delete the documents on my own, and this gives me the ability to advise the computer forensics vendor what to watch out for to make sure they are all destroyed.

Of course, this also gives me another chance to review the documents. I am using my fully functioning brain to review them with gusto. What fun! I also have much more legal knowledge than I had last time I saw them or when when I first translated them. Skadden and my own lawyers are very good teachers. Reporters are also good teachers. So now I can see far more clearly what the documents contain. I suppose that even in light of Skadden's persistent enthusiasm for overbroad interpretations of the court's orders, they will not request the court to order a lobotomy. And no one has said that I cannot re-read them to my heart's content, for now. So whatever is in my memory can stay there.

Sunday, February 15, 2015

Senator Markey report: Hackers can get into most "connected cars"

Virtually all “connected cars” on the road are vulnerable to hackers who could steal data or gain control of the vehicle, a report from a U.S. senator said Feb. 9.
The report prepared by the staff of Senator Ed Markey said the wireless connectivity and Internet access available on the vehicles opens up security gaps that could be exploited for malicious purposes.
The study found these security weaknesses in “nearly 100 percent of cars on the market” and noted that most automobile manufacturers were unaware of or unable to report on past hacking incidents.
The senator’s staff, which collected data from 16 major auto manufacturers, cited earlier studies on some vehicles which showed how hackers can get into the controls of some popular vehicles, causing them to suddenly accelerate, turn, de-activate brakes, activate the horn, control headlights, and modify the speedometer and gas gauge readings.

“These findings reveal that there is a clear lack of appropriate security measures to protect drivers against hackers who may be able to take control of a vehicle or against those who may wish to collect and use personal driver information,” the report said.
The report obtained responses from 16 major global manufacturers: BMW, Chrysler, Ford, General Motors, Honda, Hyundai, Jaguar Land Rover, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Porsche, Subaru, Toyota, Volkswagen and Volvo.


Saturday, February 14, 2015

Tacoma owner, 2015: "engine accelerates on its own"

"Something is wrong with the dam thing."
Drifterss--you are not alone.

Old 02-13-2015, 07:28 PM  #1
drifterss454 [OP] drifterss454 is offline
Junior Member
drifterss454 is on a distinguished road
Name: stephen
Joined: Jun 2011, #58029
Location: sydney nova scotia
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drifterss454's Tacoma Gallery
engine accelerates on its own

I have a serious problem with my 2011 Tacoma,4 cyl auto,access cab sr5 4x4. it went from an idle to full aceration with my wife pushing the brake pedal to the floor and holding on for dear life,this has happened twice and Toyota says that there is nothing wrong with the truck,has anybody else had this problem with their tacomas,I'd sure love to know. something is wrong with the dam thing,I don't care what Toyota tells me,wife is scared to drive the thing anymore,she was lucky twice,but maybe not a 3rd time if it happens again. please message me if anybody has had the same thing happen to them,thanks

Thursday, February 12, 2015

"Faithfully encompass the relief indicated the Court's December 17 order [sic]" !?~~~????

Really, Lisa?

Toyota lawyer Lisa must have been in a rush. She failed to see the clear pattern that the court has not accepted her over-reaching demands in the past, so she has gone ahead and made some more. When I dared to offer a more reasonable approach to complying with the court order, she seems to have been miffed, indeed quite miffed, enough miffed that she stayed late at the office just to remind the court with an extra page of argument that Toyota deserves to take a deep look into everything on my computers, and how dare I stand in her way. Lisa, I don't know whether to laugh or cry at your persistently unrealistic demands. So I choose to laugh--at you. Your talents are wasted on such a dishonest client.

My proposal to comply with court order

Toyota's objection to my proposal

Toyota's proposal to comply with court order

As you can read in these filings, Toyota wants to send one of its people to stand and watch as a forensic tech person goes through the entire contents of my two computers--when all the court ordered was to destroy 88 documents.

Let's see what happens. In the end, the court will decide.

Wednesday, February 11, 2015

Settlement negotiations - Toyota's "Secret Sauce" vs. Betsy's "Let it all hang out"

What's in the secret sauce?
It may look yummy, but secrets are poison by definition.

Now I presume that Kevin Minnick of Toyota's defense firm Skadden, Arps and presumably also his bosses Lisa Gilford and Tom Nolan, and presumably an inside counsel with their client Toyota, have all received my answer and proposed revisions to the revisions that they made to my draft settlement proposal. Round and round we go.

Last week on this blog I promised "more definitive news" about this matter this week, but since all the details are coming to me from my lawyers, dang it, for now I cannot disclose them without risking my privilege. That is the nature of this game. Let me say that I have some amazing lawyers.

Anyway, at a very high level, I suppose that I can disclose this negotiation is like a microcosm of the whole issue of Toyota SUA, where there has been a huge but fluctuating public demand for information, and a nearly total blackout of information coming from Toyota. Its marketing secret sauce is just that, its secrets. They make money, but it is poison.

I looked around for some nice-to-hear music for "let it all hang out," but there's nothing fit for this blog. My son Moses is becoming such a Beatles fan that we are listening to that music all the time now, morning and night. I have to beg off when I cannot manage to concentrate on a heavy-duty contract translation with all that "yeah, yeah, yeah" in the background.

How about this, which fits the situation only in part, and it is directed at Lisa, who keeps trying to come in through the bathroom window when the court has shut the front door on what she wants.

Monday, February 9, 2015

Toyota settlement negotiations - update


With my splendid legal team, I am putting the final touches on my response to Toyota's proposed changes to my draft settlement agreement. 

We will be sending the response over to Toyota lawyer Kevin Minnick and his bosses Lisa and Tom within the next day or two, I think, and that will conclude our current round of settlement negotiations. 

I think that they will be displeased with it. But let's see what they come up with.

Car security loophole results: HACKERS STOLE 6,000 CARS IN LONDON LAST YEAR

Vehicle electronics vulnerability results on the streets of London.
In 2014, more than 6,000 cars were stolen in London (an average of 17 a day) by hackers using the inadequately secured OBD port under the steering wheel to download the vehicle’s information onto a blank key. And all it takes is a few seconds.There was an 8% increase in vehicle theft across the U.K. capital in the last year....
While cars are stolen without the keys throughout the day, every day, intelligence suggests that this peaks between 10 pm and 4 am, when it is dark, Sundays to Thursdays. The criminals then drive the vehicles into the home counties, where most are stripped down into their component parts and then shipped abroad. They are sold overseas, particularly in Africa where specific types of vehicles are in high demand.


BMW is a frequent target.


Saturday, February 7, 2015

Settlement negotiations with Toyota - what this is like

grey scale. continuum. came to my mind that I should consider what I would say to myself if I came to myself for counsel. In fact, I do that all the time, as any rational person does, but there is a tendency, in my thinking, for the opposed sides of a question to cancel each other more or less algebraically--this is true, but on the other hand, so is that, so I discover a kind of equivalency of considerations that is interesting but resolves nothing. If I put my thinking down on paper perhaps I can think more rigorously. Where a resolution is necessary it must also be possible. Not deciding is really one of the two choices that are available to me, so decision must be allowed its moment, too. That is, as behavior, not deciding to act would be identical with deciding not to act. If I were to put deciding not to act at one end of a continuuum of possibility and deciding to act at the other end, the whole intervening space would be given over to not deciding, which would mean not acting. I believe this makes sense.
-- Gilead by Marilynne Robinson (pp. 164-5)

For automakers, what goes around has come around

Going around.

After automakers have watched regulators' futile efforts to catch up to their electronics technology,  thus evading accountability for infinite numbers of latent and manifest defects, these selfsame automakers must now try to catch up to hackers. Automaker karma may be coming around.

Autoblog: bmw-hack-cyber-security-warning-feature-video/

A cyber-security hole that left more than two million BMWs vulnerable may be the most serious breach the auto industry has faced in its emerging fight against car hackers.
Security experts are not only concerned that researchers found weaknesses inside the company's Connected Drive remote-services system. They're worried about how the hackers gained entry.
German researchers spoofed a cell-phone station and sent fake messages to a SIM card within a BMW's telematics system. Once inside, they locked and unlocked car doors. Other researchers have demonstrated it's possible to hack into a car and control its critical functions, but what separates this latest exploit from others is that it was conducted remotely.
In an industry that's just coming to grips with the security threats posed by connectivity in cars, the possibility of a remote breach has been an ominous prospect. The fact it has now occurred may mean a landmark threshold has been crossed.
"It's as close as I've seen to a genuine, remote attack on telematics," said Mike Parris, head of the secure car division at SBD, a UK-based automotive technology consulting company. "At this point, the OEMs are trying to play a game of catch up."
Automakers will never catch up.

Bob Marley - Goes Around, Comes Around

Billy Preston - Will it Go Round in Circles

Friday, February 6, 2015

Settlement negotiations with Toyota

A raven.

I am considering Toyota's response to my latest settlement proposal. Look for more definitive news about the situation sometime next week. Meanwhile, enjoy a little riddle. 

"Why is a raven like a writing desk?"
"Have you guessed the riddle yet?" the Hatter said, turning to Alice again.
"No, I give it up," Alice replied. "What's the answer?"
"I haven't the slightest idea," said the Hatter.
"Nor I," said the March Hare.
Alice sighed wearily. "I think you might do something better with the time," she said, "than wasting it in asking riddles that have no answers."

Wednesday, February 4, 2015

Bob Hilliard's good question: "How can you trust Toyota?"


“If a unanimous jury determines there is a defect and Toyota spends four weeks of trial claiming there is no defect, then how can you trust Toyota to keep you and your family safe if you are in a 1996 Toyota Camry,” Hilliard said Tuesday. 

Tuesday, February 3, 2015

Plusses and minuses of US auto industry $750 billion "income" but $871 billion costs = net loss

Auto industry "study" does not examine the downside of its economic wave.

Wednesday, May 28, 2014

Economic costs alone are nearly $900 for each person living in the U.S.

WASHINGTON – The U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) today released a new study that underscores the high economic toll and societal impact of motor vehicle crashes in the United States. The price tag for crashes comes at a heavy burden for Americans at $871 billion in economic loss and societal harm. This includes $277 billion in economic costs – nearly $900 for each person living in the United States based on calendar year 2010 data — and $594 billion in harm from the loss of life and the pain and decreased quality of life due to injuries.
"No amount of money can replace the life of a loved one, or stem the suffering associated with motor vehicle crashes," said U.S. Secretary Anthony Foxx. "While the economic and societal costs of crashes are staggering, today's report clearly demonstrates that investments in safety are worth every penny used to reduce the frequency and severity of these tragic events."

The Auto Alliance, a group of automakers, perhaps in response to the NHTSA study results, is touting its positive economic impact with this "study," i.e. a nice PR piece. So lovely! But it does not add up any benefits larger than the losses caused by crashes. Perhaps we are comparing apples and oranges, and certainly this comparison excludes the huge economic benefits of vehicle ownership, and the huge economic costs of roads, pollution, and resources diverted to car infrastructure and away from public transport and public health, among many other things. But just these two figures, when taken alone, show that the auto industry brings a net loss to the US economy. And for every job gained there are lives lost, and that cannot ever really be compared.

 1 hour ago1 hour agoThe Automobile Industry = 7.25 million jobs in the United States: Embedded image permalink
Generating $500 billion in annual compensation.
Creating $205 billion in state and federal tax revenue each year.

@KenjiGoto -> #IAmKenji: "Journalism cannot exist in Japan"

 Mr. Goto.

I'm going to try to accurately translate this 2011 tweet from Kenji Goto:
As far as journalism goes, it is better to give up already on comparisons with Europe and the US. It is only emptiness, and most of all, pointless. It is the problem of each individual who gets information. I already understood before 3/11 [date of earthquake] that journalism cannot exist in Japan, and the low status of freelancers. I think that [I, you] should believe that the current results could not have been altered.


This reminds me of my own 2014 on-camera comment to Channel 2's Yigal Mosko--[I paraphrase] "There are no whistleblowers in Japan. There is no such word as 'whistleblower.'" This was almost true--as a general rule, it seems to be true. But there are execptions.

Truth-telling is a common denominator between strong journalists and strong whistleblowers. We share certain kinds of risks in varying degrees. Journalists are really braver. I have tried a little to reveal truths that the public is mainly indifferent to, but that affect their well being and safety. Among many others, I add my gratitude to the late Goto-san for his service to humanity in revealing far more profound truths at great personal risk.

In this interview with Yigal, I tried to express that almost no one in Japan is really free to tell the truth in opposition to their own organization's overall goals. And--in general--there are some exceptions among people who operate independent of organizations--inasmuch as Japanese reporters are considered appendages of the organizations they're reporting on, they have no tradition of adversarial reporting, and that is the essence of journalism. So they report the news that their sources want them to report. Kenji Goto seems to be saying that what they do is not journalism. But he was a great journalist. I hope they learn from him.

Meanwhile, after I have tried to tell the story of Toyota's misdeeds, I notice that the company seems to expect that US journalists will fall into line and support its views. They are correct, most of the time. But not all of the time.

Thanks to Phil, Mitch, Paul, some others, and a few intrepid Davids for brazenly not meeting Toyota's expectations, and, here in Israel, Asher, Yigal, Lazar, and the TLV1 and i24 staffs. I wish I had a Japanese journalist to thank.

*Thanks to NYT reporter Martin Fackler for raising this tweet from the dead.

Monday, February 2, 2015

Corporate Counsel: cites Wachtell report--Government wants more Prosecutions, More Cooperation

This year general counsel and their companies can expect the government to continue seeking massive financial settlements for wrongdoing, require more admissions of guilt and demand information to prosecute more individual employees, according to a new analysis from Wachtell, Lipton, Rosen & Katz.
When the government goes after a corporation, it imposes “jaw-dropping fines and penalties,” Wachtell said. As examples, the law firm cited the record $8.9 billion penalty for BNP Paribas bank to resolve sanctions violations; a $2.6 billion settlement for Credit Suisse Group in a criminal tax probe of its banks; and a $1.2 billion penalty for Toyota Motor Corp. to resolve safety issues.
The cost of wrongdoing is expected to continue rising this year. But there is one helpful strategy for corporations that want to get on the good side of government prosecutors: Help nail the perpetrator.
The Wachtell memo explained: The U.S. Department of Justice “signaled, in a closely watched speech by principal deputy assistant attorney general for the Criminal Division Marshall Miller, that the price for obtaining cooperation credit now includes disclosing information leading to the prosecution of individual employees.”

Read more:

Question: Can the SD NY DOJ take a look back and once again consider Toyota's lack of cooperation in bringing evidence/documents/testimony suited to prosecuting individual executives?

Sunday, February 1, 2015

King & Spalding fighting against disclosing privileged docs re GM coverup

King & Spalding Fights Effort to Open Confidential Notes on GM Ignition Switch

, Daily Report

Buddy Darden
Buddy Darden

King & Spalding is fighting an effort to make public what lawyers at the firm said to each other about their client, General Motors, with regard to the company's faulty ignition switch litigation.
"Plaintiffs seek to throw open the door to all of King & Spalding's most protected opinion work-product based solely on the hope they will discover something useful inside," the firm stated in a brief filed with the Cobb County State Court. The firm argues that fulfilling the "inappropriate" request would present a "daunting and wasteful challenge" as well as an "extreme invasion" of what should legally be confidential communication that has never been shared even with the client.
King & Spalding's brief is signed by its attorney, Buddy Darden of McKenna Long & Aldredge, who is handling the matter with Nathan Garroway and Jeffrey Zachman, also of McKenna Long.
The battle is the latest in a legal war over an ignition switch defect that GM has acknowledged caused engines to stall, shutting off power to steering, brakes and air bags and ultimately leading to the recall of millions of cars.
The plaintiffs in this case, Ken and Beth Melton, allege the defective ignition switch killed their daughter, Brooke Melton. The 29-year-old nurse died after her Chevrolet Cobalt rolled off a highway and crashed in 2010.
The Meltons are represented by Lance Cooper of Marietta, whose investigation discovered the ignition switch defect. The Meltons settled their lawsuit in 2013 for $5 million, but they moved to rescind the settlement and reopened the case in 2014. The plaintiffs' change of heart came after GM filed documents with the U.S. Congress showing that a company engineer was aware of the defect before it was corrected, even though he said in a deposition that he did not know about it.
Now the Meltons want to know who else knew—and they believe they might find out more by reviewing communications inside GM's longtime law firm.
Oral arguments on the motion to compel scheduled for Tuesday before Cobb County State Court Judge Kathryn Tanksley were canceled Monday because of a family medical crisis for one of the lawyers in the case. No new date has been set.
Cooper has acknowledged his motion is unusual and that he is asking for information that he normally would not request. But he believes his demand is justified by what he views as a decadelong corporate cover-up of a deadly defect, and that correcting the faulty ignition switch earlier could have saved Brooke Melton's life. He based his subpoena on the "crime fraud exception" to attorney-client privilege and work product protection.
Cooper does not make allegations of any fraud by King & Spalding lawyers, but he shifted the burden to the firm to show why the request is pointless. Cooper cited as support of his motionDeloitte Haskins & Sells v. Green, 187 Ga. App. 376, a 1988 decision from the Georgia Court of Appeals involving the accounting firm's internal records. Cooper said the case established that "the party opposing discovery has the burden of proving that the requested discovery is not likely calculated" to lead to the evidence sought.
Cooper also cited a recent Cobb County case, WellStar v. Kemp. In that matter, Superior Court Judge Adele Grubbs ordered WellStar's lawyers to surrender their internal emails about the case. On the basis of the content of those emails, she sanctioned the hospital for intimidating an expert witness and threw its lawyers off the case. The Georgia Court of Appeals upheld the sanction against the lawyers, but granted WellStar a new trial.
Citing WellStar v. Kemp, 324 Ga. App. 629 (2013), Cooper's brief said, "The question of whether the fraud/crime exception is applicable in the work-product context is no longer in serious dispute."
In making his case, Cooper is challenging a conclusion in the 325-page document produced by attorney Anton Valukas of Jenner & Block in Chicago, hired by GM to investigate the handling of the ignition switch defect. Cooper disputes Valukas' contention that the company's leadership did not participate in a cover-up.
Along with King & Spalding, GM has also filed a brief opposing Cooper's motion to compel the firm to produce its internal communications, citing many of the same arguments.
King & Spalding argues that many of the "confidential and privileged internal documents" the Meltons seek contain "sacrosanct opinions." The brief adds that the "work-product doctrine protects attorneys from the threat that their work will be used against their client or them by an opponent."
McKenna's brief for King & Spalding gives four reasons the judge should deny the plaintiffs' request.
First, King & Spalding argues that "plaintiffs have not made a prima facie case that GM committed a crime or fraud." And, even if they had, that alone would "not trigger the crime fraud exception."
Second, the firm says, the Meltons' requests are "overbroad and unduly burdensome."
Third, as the documents were prepared in anticipation of or during litigation, if the court granted the request, "no law firm could defend GM in product liability litigation without automatically forfeiting the work-product protection."
Fourth, the firm says, King & Spalding did not waive the work-product protection by disclosing documents for other investigations related to the ignition switch defect.
The case is Melton v. GM, No. 14-1197-4.

Read more: