Ford Continues Fight to Seal Volvo Roof Strength Documents

Since Ford Motor Company purchased Volvo in 1999 and made the company a division of its Premier Auto Group, Ford has reaped significant profits from the Swedish automaker whose hallmark is safety. But, Ford is also inheriting a headache as Volvo's position on important safety issues conflicts with those of it corporate parent-and these conflicts keep surfacing in the public despite Ford's efforts to keep them secret. This conflict is playing out in litigation and in has seeped into the public in one of the most controversial areas of motor vehicle safety-occupant protection in rollover crashes.

Ford has been fighting the release of documents since April, when they were briefly public in the Duval County, Fla. Court Clerk's office, and later, on the National Highway Transportation Safety Administration's website. The documents showed that Volvo considered roof strength critical to protecting occupants in rollovers and was working to improve its roofs, as Ford was weakening them on the Explorer. Entered into the record as part of a civil lawsuit by the estate of a woman who died in a rollover crash, these documents have been of keen interest to safety advocates, news reporters and other attorneys.

Ford has been equally determined to keep these disclosures from wide distribution. In the last three months, the automaker has argued unsuccessfully for their confidentiality in a Texas rollover case that resulted in substantial plaintiff's verdicts. Ford has also attempted to obtain the deposition of Safety Research & Strategies President, Sean Kane, alleging that Kane improperly obtained the documents and submitted them to the government.

The controversy erupted more than a month after the 12-person jury found unanimously that the roof structure was defective in design on a Ford Explorer that rolled over resulting in the death of Claire Duncan. [Gregory Scott Duncan, et al V. Ford Motor Company, et al (Circuit Court, Fourth Judicial Circuit, Duval County, Florida, Case: A01-7230-CA. Div.: CV-F)]. During the six week trial, the jurors heard evidence from the plaintiff's produced to them by Ford Motor Company throughout the course of the litigation that included Ford's own internal documents and videos showing Volvo, Ford's wholly owned division, considered roof strength as a critical part of occupant protection in rollovers. Several weeks following the verdict Safety Research & Strategies, Inc. (SRS) and others, including the national press, obtained copies of the Volvo materials that was entered into evidence at the trial by retrieving them from the public court file in the possession of the Clerk at the Duvall County courthouse in Jacksonville where the trial took place. What ensued were a number of print and broadcast news reports describing the Volvo documents, the first of which appeared in the Detroit News on March 29, 2005.

Ford filed a Motion to Seal the Volvo documents on April 22 referring to the language in the Sharing Protective Order in place in Duncan prior to trial and also requested that the documents be removed from the Clerk's office until there was a ruling. Ford's motion was set to be heard by the presiding trial judge on April 29; however, Ford later withdrew their motion claiming it was moot since the Clerk's office had already sealed the documents prior to the hearing date. To date, the Volvo documents entered into evidence at trial in this case remain under seal until the Court receives a Motion to Unseal the documents and has heard argument to determine their fate.

On April 27, Safety Research & Strategies also submitted the documents to NHTSA's roof strength docket to highlight the high standards of at least one automaker in ensuring occupant protection in rollovers and to show that Volvo's testing proved that it was feasible and technically available. The submission survived just 24 hours on the agency's electronic docket, before Ford convinced NHTSA lawyers that the documents were confidential subject to the protective order in the Duncan case. Once again, Ford was too late. Members of the public downloaded the submission and related documents from the closely monitored roof crush docket.

NHTSA has refused a request from SRS to revisit the decision. However, the Center for Auto Safety has filed a Freedom of Information Request for SRS's submission. If the agency refuses to release the documents, CAS is expected to litigate the matter. A decision is expected any day. NHTSA is unlikely to withstand a legal challenge, which will force the documents back into the docket.

Ford Threatens SRS

In a July 27 letter, Ford's local counsel in the Duncan case, Francis McDonald, Jr., threatened that Ford would "proceed accordingly" against Sean Kane at SRS if he did not return the Duncan documents within 48 hours. McDonald cited NHTSA's decision to grant Ford confidentiality for the documents, based on the Duncan protective order.

On that same day, Ford filed a motion in the Duval County Court to obtain a subpoena for an out-of-state deposition of Sean Kane. In response, Kane filed a motion for protective order, citing the work product doctrine and his professional journalist credentials, which are privileged under Florida statute. Kane also argued that the documents contained no trade secrets and were publicly available, that Ford didn't move to seal them in a timely fashion; and that the documents were not properly sealed under Florida law.

Kane also filed affidavits from the Deputy Clerk of Duval County Court, acknowledging that the documents were not sealed for a month following the trial. The daughter of a contractor who accompanied her father to obtain the documents for a major media outlet also testified to the documents' availability. (The contractor who obtained the documents died unexpectedly.)
A hearing is scheduled at the Duval County court before Judge Mitchell on October 31 to address Kane's motion. The judge will also rule on Ford's subpoena to obtain the depositions of the late-contractors daughter and auto safety expert Don Friedman, who Ford alleges may have violated the protective order-despite a ruling from a California judge that he did not.

The Bright - Watts Factor

On August 3, David Bright, attorney of Counsel to the Watts Law firm in Corpus Christi, TX, filed a motion in Marroquin V. Ford Motor Company, et. al. (Cause No. 05-61218-2, Nueces County, TX), requesting the Duncan documents be deemed non-confidential. Ford had produced the same documents in Marroquin, a case involving a 2000 Ford Expedition rollover. On August 8, Bright argued before Judge Robert Vargas that the roof strength documents were as public "as Brad Pitt and Jennifer Anniston's divorce" through the Duncan case, NHTSA's docket, and the news. Also arguing for their release was John Gsanger, a Corpus Christi attorney with the Edwards Law firm. Gsanger argued that under Texas Rule 76A, the public had no less of a right to the documents than news organizations and was there to help ensure the Texas rules were upheld.

Ford and Volvo counsel argued Bright's assertions were "almost completely wrong" and that the documents "were put on the NHTSA website from some guy name Shaun Cain (sic), who obtained them from the Duncan court under circumstances that are at the very least suspicious." They also maintained that NHTSA had granted confidentiality and that the Duncan documents were under seal. Ford submitted the affidavit of Dan Broberg, a Volvo employee, describing the confidential nature of the documents. But Broberg didn't specifically address the documents in question, instead referring to other design documents.

On August 8, Judge Robert Vargas granted the plaintiffs' motion. Ford appealed the ruling and claiming that they did not receive adequate notice of the trial court's hearing. In response, Judge Vargas ordered a second hearing on the confidentiality request, set for September 8.

At the last minute, Ford attempted to cancel the hearing; however, the hearing proceeded. At the hearing Ford and Volvo counsel claimed they were "bewildered" by it, since there was no pending motion before the court. Bright reminded Ford that the hearing was being held in response to Ford's "begging" for 30 days notice and that the motion to deem the documents non-confidential was not final and the judge could reverse his prior ruling based on new arguments and evidence offered by Ford and Volvo.

Ford objected to proceeding with the hearing, but Judge Vargas ruled that the hearing would continue. Ford and Volvo attorneys attempted to argue that the numerous affidavits substantiating the public availability of the documents submitted by Bright were hearsay. In response to Ford and Volvo counsels' assertions in the last hearing, Bright argued that there was nothing "suspicious" about documents being obtained from a clerk's office and that trade secrets are no longer trade secrets after they have been disclosed.

Bright also requested to be sworn in so that he could submit additional evidence and testified "Yesterday at 4:46:03 p.m. I accessed the documents that we are talking about on a website at http:dms.gov/search. And I have the documents in hand," he said. The night before the hearing, the Duncan documents originally submitted to the NHTSA roof strength rulemaking docket had again been posted to the agency by Paula Lawlor, a paralegal who has been actively lobbying for increased roof strength standards. Lawlor was incensed that the agency had removed the Ford / Volvo submission, which she had downloaded while they were available in April, and resubmitted the materials on Sept. 2, saying they were erroneously removed. NHTSA reposted the documents on Sept. 7, much to the surprise of many docket-watchers-including the Ford and Volvo lawyers who were unaware of their second appearance on the government web site.

The Ford / Volvo attorneys vowed to have them removed again and cross-examined Bright about the reappearance of the controversial documents. Bright testified that neither he nor his firm had any connection or contact with Ms. Lawlor and the posting was not at his request. In an effort at damage control, Ford and Volvo attorneys questioned Bright about the test videos that Kane originally submitted but were never posted on the NHTSA site, and Bright acknowledged that he did not obtain videos from the agency. The Lawlor posting was admitted into evidence under seal.

John Gsanger, also present at the hearing, again interjected on behalf of the public requesting that the deadlines and notice to the public requirements be triggered for the documents being filed under seal. Ford counsel agreed.

On September 9, Judge Vargas rejected Ford's primary argument and found that "neither Ford nor Volvo offered any evidence that the documents were obtained by media outlets and others through any suspicious circumstances." He also found that the documents were available publicly from the Duval County Clerk's office for a one month period, that they were obtained by the media and others, were subject to numerous media reports, and were available for downloading from NHTSA's docket on two occasions. He further noted that Ford / Volvo offered no evidence that they attempted to reclaim the documents from the media or how the widespread disclosure affected their basis for secrecy. Vargas granted the plaintiff's motion to deem the documents non-confidential.

In the meantime, the Court of Appeals denied Ford's request to overturn Vargas's first decision on the documents' confidentiality. Ford appealed to the Supreme Court, where the issued is currently pending.
The jury in the Marroquin case returned a $42 million verdict for the plaintiffs.

Following the Marroquin case, the Watts Law firm tried Oralia Garcia V. Ford motor Co., (Cause 2004-04-2099-A, 107 District Court, Cameron County, TX), which involved a 1993 Ford F-150 roof crush. Again, Ford produced Volvo documents to the plaintiff's who entered some of the documents into the evidence during the trial. On September 29, the jury returned a $30 million verdict for the plaintiffs. Ford subsequently filed a motion to seal the court file after the verdict and a hearing on sealing the materials is set for Nov. 10. Similarly, Ford, ex post facto,is attempting to seal the court file in Marroquin. A hearing is set for November 17.

Copyright © Safety Research & Strategies, Inc. 2005

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