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From Products Liability Law Daily, August 13, 2015

New GM succeeds in limiting scope of Valukas deposition in ignition switch defect MDL

By Pamela C. Maloney, J.D.

The scope and duration of the deposition testimony given by Anton Valukas—the chairperson of the law firm Jenner & Block—whom General Motors LLC (New GM) hired to conduct an internal investigation into the defects and the delays in recall vehicles affected by an ignition defect was subject to privilege and, therefore, a federal district court in New York instructed plaintiffs that they could not question Valukas about what documents and materials he had considered in connection with his preparation of the so-called Valukas Report (In re: General Motors LLC Ignition Switch Litigation, August 11, 2015, Furman, J.).

Background. In February 2014, New GM announced the first of many recalls to correct a defect in the ignition switch of millions of vehicles. Shortly thereafter, the U.S. Department of Justice announced a criminal investigation of the company’s behavior and New GM retained Jenner & Block to investigate the circumstances that led up to the recall of these cars. The investigation, which involved the collection and review of more than 41 million documents and interviews with more than 200 New GM current and former employees, culminated in a written report referred to as the Valukas Report. The report was released by New GM to Congress and the DOJ, and was made available to the plaintiffs in the multi-district litigation. New GM has refused to disclose the materials, such as interview notes and related memoranda, which were created in connection with this investigation.

Plaintiffs in the MDL have moved to compel New GM to product those documents. The court denied that motion on the basis that the communications with current and former GM employees were protected by attorney-client privilege and that the documents were protected by the attorney work product doctrine. The court also found that New GM did not waive its privilege with respect to the underlying investigation by releasing the Valukas Report.

New GM’s request to limit Valukas deposition. The current issue before the court was New GM’s request for an order limiting the scope and duration of the plaintiffs’ deposition of Valukas. In requesting to depose Valukas, the MDL plaintiffs indicated that they intend to question Valukas about “(1) the facts, evidence, conclusions, and recommendations discussed in the text of the Valukas Report and (2) the evidence considered by Mr. Valukas in forming the conclusions and recommendations contained in the Report.” New GM argued that questions about the documents and materials that Valukas considered, as well as those about the bases for his conclusions in the Report, call for the disclosure of privileged information In support of their request, the plaintiffs cited the court’s order governing depositions, arguing that questions about “the bases of [Valukas’s] conclusions and the evidence he considered in reaching them” are fairly encompassed in the Order’s authorization of questions about the “text” of the Report and about Valukas’s “personal knowledge regarding the accuracy of facts set forth” in the Report.

Decision. The court rejected the plaintiffs’ interpretation of its deposition order, explaining that New GM had already agreed to disclose “every New GM Document cited in the Report, including otherwise privileged documents.” Therefore, much of the additional factual information that the plaintiffs could want was likely to come from witness interviews, which the court already has held are privileged. Furthermore, plaintiffs’ proposed topics of inquiry went well beyond the judgments actually disclosed in the Report and pertain, in part, to Valukas’ undisclosed reasoning in deciding what to include or not to include in the report, which go to Valukas’s mental impressions and personal beliefs. As such, this line of questioning would be protected by the work product doctrine.

Finally, the court declined to grant New GM’s request to limit the Valukas deposition to two hours.

The case is Nos. 14-MD-2543 (JMF) and 14-MC-2543 (JMF).

Attorneys: Andrew Baker Bloomer (Kirkland & Ellis LLP), Anne M. Talcott (Schwabe Williamson & Wyatt, PC), and Arthur Jay Steinberg (King & Spalding LLP) for General Motors LLC, and General Motors Co. Melissa M. Merlin (Husch Blackwell Sanders, LLP) for Continental Automotive Systems US, Inc. Shannon R. Becker (Costello, Cooney Law Firm) for Goldstein Chrysler Jeep, Inc. Ashley Willis Ward (Stites & Harbison, PLLC) for Stoneridge, Inc. Anton Valukas (Jenner & Block).

Companies: General Motors LLC; General Motors Co.; Continental Automotive Systems US, Inc.; Goldstein Chrysler Jeep, Inc.; Stoneridge, Inc.

MainStory: TopStory EvidentiaryNews MotorVehiclesNews MotorEquipmentNews NewYorkNews

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