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From Products Liability Law Daily, January 16, 2015

GM not required to disclose interview materials underlying Valukas ignition switch report

By John W. Scanlan, J.D.

Notes and memoranda of more than 350 interviews conducted by Jenner & Block attorneys as part of an internal General Motors investigation into the ignition switch defect do not have to be disclosed to plaintiffs in the ignition switch multi-district litigation against GM, the U.S. District Court for the Southern District of New York said in a ruling that applies to all actions in the litigation. The court also determined that GM was not required to provide an index of all documents or information provided to Jenner & Block or its chairman Anton Valukas regarding the investigation or copies of all hard drives of documents gathered in connection with the investigation and preparation of the report (In re General Motors LLC Ignition Switch Litigation, January 15, 2015, Furman, J.).

Background. The Department of Justice opened a criminal investigation into GM after the company announced in February 2014 the first of a number of recalls of GM vehicles based on a defect in the ignition switch. GM then retained the law firm of Jenner & Block, and its chairman Anton Valukas, to represent the company’s interests and provide legal advice in a variety of matters related to the recalls. GM directed Valukas to investigate the circumstances surrounding the defect and the recalls to determine why it took as long as it did to recall the vehicles. During the investigation, Jenner & Block collected over 41 million documents and conducted more than 350 interviews with 230 witnesses, including more than 200 current and former GM employees and outside counsel. All interviews were conducted confidentially; each witness was informed at the beginning of the interview that its purpose was to assist in providing legal advice to GM and that the interview was privileged. Jenner & Block did not make recordings or transcripts of the interviews, but instead created notes during each interview, summaries after each interview, and formal attorney memoranda after the interviews.

In May 2014, Valukas presented a 315 page report—the “Valukas Report”—to the GM board of directors containing citations to some but not all of the interviewed witnesses. The report was marked “Privileged and Confidential: Protected by Attorney-Client Privilege and As Attorney Work Product” on the cover and on each page; however, GM provided a copy to Congress, NHTSA, and the DOJ, and NHTSA published it on its website with redactions for personal identifying information. GM made the report available to plaintiffs by placing it into the MDL document depository.

After plaintiffs in a related state court action filed a motion to compel GM to produce documents related to the Valukas Report, GM agreed to produce additional documents but refused to produce interview materials. The parties then submitted briefs to the court, with the plaintiffs stating that they sought production of three types of information: an index of all documents or information provided to Jenner & Block or Valukas regarding the investigation; copies of all hard drives of documents gathered in the investigation and preparation of the report, including 23 TB of data and 41 million documents; and a copy of all notes, transcripts, and tapes related to any person interviewed during the course of the investigation and preparation of the report, including those not cited in the report. GM argued that the interview materials were protected by both the attorney-client privilege and the attorney work product doctrine; the plaintiffs disagreed, but also argued that GM had waived both protections.

Attorney-client privilege/interview materials. The interview materials were protected by the attorney-client privilege and GM could not be compelled to disclose them. The interviews were conducted as part of the company’s request for legal advice in light of possible company misconduct and the DOJ investigation and in anticipation of civil litigation. The plaintiffs argued that GM CEO Mary Barra promised at a congressional hearing to share the Valukas Report and everything related to safety, but the court found that she did not promise to disclose communications reflected in the interview materials. GM disclosure of the facts shared in the report did not mean that it did not intend to keep the communications confidential. Each witness was informed that the interviews were privileged and should be kept confidential, and neither GM nor Jenner & Block have shared the interview materials with the government or any other party. Further, while obtaining legal advice was not the sole purpose of the investigation, it was a significant purpose, which satisfied the primary purpose test. GM retained Jenner & Block in light of the DOJ’s criminal investigation and the anticipation of civil litigation to provide legal advice on a variety of matters related to the recalls, and the interviews were used in connection with the law firm’s representation of GM in the DOJ investigation.

Attorney work product doctrine/interview materials. The interview materials were also protected from disclosure by the attorney work product doctrine. The interviews were conducted and the materials were prepared in light of the pending DOJ investigation and in anticipation of civil litigation. Furthermore, the plaintiffs could not show that they had a substantial need for these materials and could not obtain their substantial equivalent without undue hardship. The court observed that GM is providing a “vast” amount of material to the plaintiffs and the plaintiffs can depose the witnesses interviewed by Jenner & Block. The court ordered GM to disclose within two weeks the names of all witnesses who were interviewed but not mentioned by name in the Valukas Report.

Waiver. GM had not waived the protections of either the attorney-client privilege or the attorney work product doctrine regarding the interview materials. The court found that GM had not offensively used the Valukas Report in litigation or made a selective or misleading presentation that was unfair to litigants in this or any other proceeding, and there were no unusual circumstances under which fairness required a finding of waiver.

Other materials. Finally, GM would not be required to provide an index of all documents or information provided to Valukas or Jenner & Block or copies of the hard drives requested. The “vast” amount of information that GM has provided or will be providing made the plaintiffs’ requests unreasonably cumulative or duplicative.

The case is No. 14-MD-2543 (JMF).

Attorneys: Elizabeth J. Cabraser (Lieff, Cabraser, Heimann & Bernstein) for GM Ignition Switch MDL Plaintiffs. Andrew Baker Bloomer (Kirkland & Ellis LLP) for GM Ignition Switch MDL Defendants.

Companies: General Motors LLC

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