Plaintiffs seeking documented communications between General Motors and its lawyers urged a New York federal judge Thursday to order GM to release the documents, arguing the automaker and its lawyers conspired to commit fraud to conceal a deadly ignition switch defect and therefore should not be allowed to hide their misconduct behind attorney-client privilege.
Plaintiffs’ lawyers singled out three cases demonstrating how GM and its attorneys allegedly lied and buried evidence that it knew the ignition switches in millions of its cars were unsafe – actions that constitute a crime or fraud as defined by the crime-fraud exception to the attorney-client privilege, Law360 reported.
The plaintiffs also asserted that GM admitted to violating the Safety Act when it failed to disclose the ignition switch defect and that a court has already determined that GM had sufficient information about the defect to launch a recall in 2009 – the year that the GM emerged from Chapter 11 bankruptcy as the “New GM.”
“New GM’s admitted concealment of the ignition switch defect — despite knowing about the safety defect for years before the delayed recall — constitutes a ‘crime’ or ‘fraud,’” the plaintiffs’ brief said. “And there is probable cause to believe that New GM used its lawyers’ services in furtherance of that wrongdoing,”
Plaintiffs’ also claim that GM’s law firm, King & Spalding LLP, advised the automaker to settle ignition switch defect lawsuits confidentially so facts about the defect could not escape and lead to costly safety recalls.
King & Spalding warned GM more than three years before the first ignition-switch recall that jury awards would be substantially higher for plaintiffs should evidence be produced in litigation that the automaker knew of the flaw, plaintiffs claim. Still, GM disregarded the law and failed to notify its customers that their cars were unsafe, capable of suddenly stalling while in motion.
Instead, GM issued “incomplete and misleading” service bulletins to address the problem while thwarting regulatory attention, which plaintiffs say violated the Racketeer Influenced and Corrupt Organizations (RICO) Act.
According to Law360, “the plaintiffs request that the court conduct an in camera review and compel GM to produce communications with King & Spalding regarding the three cases in which GM was allegedly advised to lie, a pre-recall investigation of the defect, all communications related to the recall or communications with the NHTSA, and documents from the firm over whether it had an obligation to reveal information regarding its representation of GM.”
GM finally began recalling automobiles affected by the defective ignition switch in February, although evidence would later show the automaker knew about the defect for at least a decade. Lance Cooper, of The Cooper Firm in Marietta, Ga., uncovered the ignition-switch cover-up while investigating a case involving a young woman killed when her ignition switch moved from the run to the off position, cutting power steering and brakes, and disabling the airbags.