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Wednesday, December 3, 2014
Toyota Attempts to Legally Hammer its own Whistleblower!
Tentative Sanctions Against Translator in Toyota Probes
Amanda Bronstad, The National Law Journal
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A federal judge has tentatively sanctioned a former translator and subcontractor for Toyota who posted dozens of confidential documents relating to its sudden-acceleration recalls on her blog.
At the same time, the judge rejected repeated attempts by Toyota attorney Lisa Gilford to extend the sanctions order as to hundreds of other documents against translator Betsy Benjaminson, a self-described whistleblower.
At a hearing on Wednesday, U.S. District Judge James Selna of the Central District of California found that most of the documents that Toyota sought to include as part of the sanction were “simply not covered by the contempt order” because Benjaminson hadn’t yet signed a protective order designating them confidential at the time she obtained them.
“She should’ve been required to sign a protective order,” he said. “For whatever reason, that wasn’t done.”
Benjaminson, who was a subcontractor for Toyota assigned to translate documents from Japanese to English amid probes over sudden-acceleration recalls, later worked for plaintiffs attorneys in the litigation. She has provided internal Toyota documents to various news organizations and is writing a book about the sudden-acceleration recalls.
After she began posting thousands of internal documents on her blog this year, Toyota moved for sanctions, insisting that her actions violated the protective order, which she signed in 2012 while working for a translation services vendor for the plaintiffs.
At the end of the hearing, Gilford, a partner in the Los Angeles office of New York-based Skadden Arps, Slate, Meagher & Flom—who argued repeatedly that sanctions should be applied to all the documents since they were subject to the protective order—vowed that her client wouldn’t back down from forcing Benjaminson to return those materials.
“We definitely consider these documents here to be protected and will pursue additional remedies,” she said.
Toyota spokesman Scott Vazin declined to comment.
Benjaminson, who lives in Israel, did not appear for the hearing. Her attorney, Hemant (Shashi) Kewalramani, founding partner of Lee, Jorgensen, Pyle & Kewalramani in Tustin, Calif., said his client would comply with the court’s order but wanted to provide documents to the Department of Justice and an independent monitor overseeing its $1.2 billion deferred-prosecution agreementwith Toyota.
Selna appeared concerned about that request.
“I’m somewhat troubled when you said I want to leave a back door to do that,” he said. “It’s not a palatable position.”
Selna did not issue a final order, stating he planned to review his tentative decision “from top to bottom.”
Toyota, which recalled more than 10 million cars and trucks for faulty accelerator pedals and floor mats that it says caused cars to suddenly accelerate, has paid billions of dollars to resolve hundreds of consumer lawsuits, regulatory fines and the criminal investigation. But Toyota, which is in the process of settling lawsuits filed by people injured or killed in accidents, has never admitted that glitches in the electronic throttle control system of the vehicles caused the problems.
In pursuing sanctions against Benjaminson, Toyota was particularly incensed about a PowerPoint presentation prepared by a plaintiffs software expert that it claimed contained “highly confidential source code information.” Toyota considers its source code to be a trade secret, but plaintiffs attorneys have pushed for access to prove the software has bugs.
On Sept. 2, Selna ordered Benjaminson to show why she should not be sanctioned.
Benjaminson, who removed the contested materials from public view, hasinsisted she obtained most of the documents prior to signing the protective order when she worked for Toyota’s translation-services vendor, Linguistic Services Inc. At that time, she was translating for Toyota’s attorneys at Debevoise & Plimpton as part of the government’s criminal investigation.
In 2012, she began working for two plaintiffs’ translation-services vendors, American Language Services and Technovate Inc.
In his tentative order, Selna found that Benjaminson should be sanctioned as to 88 documents she obtained while working for those firms. But he found that documents Benjaminson translated for Debevoise & Plimpton were “simply not covered by the contempt order” because she hadn’t yet signed the protective order.
Gilford insisted that those documents also were produced in the multidistrict litigation and that Benjaminson had signed the protective order as of this year, when she began posting the documents on her blog.
“As of July of this year, she had all the information she needed to understand what was protected,” she said. “We believe that is enough to find her in contempt with regard to the body of documents.”