GM Broad Protection Bid Nixed in Switch Flaw Case

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By Yin Wilczek

July 27 — A federal court July 24 rejected a bid by General Motors for a broad protective order that would have severely curtailed the use of pretrial discovery materials by plaintiffs' counsel in ongoing ignition switch defect litigation.

Instead, Judge Jesse Furman of the U.S. District Court for the Southern District of New York ordered the parties to confer on a more limited protective order and to submit a joint proposal—or competing proposals—by Aug. 6.

The targeted protection was warranted given some of lead counsel's statements to the press, Furman wrote.

Separately, the court has yet to rule on the plaintiffs' motion that GM be compelled to disclose privileged information based on the crime-fraud exception, filed earlier this month.

Prior Order 

Plaintiffs in the lawsuit allege that the ignition switch flaw caused airbags in GM cars to fail to deploy.

A protective order previously imposed by the court remains in effect. GM sought to significantly expand the scope of the order, arguing that plaintiffs' lead counsel wanted to “try this case in the media,” and had made inflammatory comments about the company and released the identities of current and former GM executives involved in the case.

In partially denying GM's motion, the court found that even assuming that the company met its burden of showing good cause, public interest in the case weighs heavily against such “blanket” protection. It observed that the lawsuit has captured the attention of “scores of GM consumers and shareholders,” as well as the media and general public, and that pre-existing public interest weighs in favor of allowing public access to the discovery materials.

The court also noted that short of a broad order, it has alternative means of addressing GM's concerns, such as the discretion to enter prophylactic orders.

As part of that discretion, the court adopted a New York state professional conduct rule that subjects counsel to sanctions should they make public comments that would materially prejudice the litigation. It also directed the parties to confer on a narrow protective order covering the disclosure of certain deposition testimony and the personnel files of current and former GM employees.

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