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.

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