Many people have a certain stigma against lawsuits, they believe lawsuits are frivolous and only serve to drive up insurance premiums. And anyone who has been involved in a lawsuit can attest, a lawsuit is often contentious and time consuming. But have you ever taken the time to think about all of the positive aspects of lawsuits? Many haven’t. We would like to expand on the benefits of lawsuits using the recent discovery by counsel for Paul Walker in his daughter’s lawsuit against Porsche.
PAUL V. PORSCHE
On November 30, 2013, Walker was killed after the Porsche Carrera GT, in which he was riding as a passenger, crashed into a concrete light pole and several trees. The photographs of the collision were devastating and showed the mangled car crushed and burned. Because of Walker’s long-time involvement with the racing movie series, The Fast and the Furious, and the severe damage to the car, many assumed the collision was caused as a result of high speed travel and the careless operation of the driver, Roger Rodas. However, Walker’s daughter concluded there was more to the accident than met the eye.
Walker’s daughter filed a lawsuit against Porsche claiming the car had design flaws which caused and/or contributed to her father’s death. The alleged defects included:
- Lack of adequate safety features which could be found on Porsche’s least expensive cars;
- Failure of the car to be equipped with an electronic stability system to protect against swerving;
- Defective fuel lines; and
- Inadequate reinforcement bars within the car doors.
Walker’s experts pointed to the fact that the high-end sports car was made of weaker materials than those used on popular cars produced on the mass market. Walker’s experts argued the car was designed to travel high speeds and marketed as one of the fastest sports cars on the market, thus Porsche was negligent for failing to outfit this car with adequate safety features resulting in a design flaw. As expected, and in line with the public’s consensus, Porsche fought back claiming the accident and Walker’s death was a result of reckless driving and excessive speed.
THE INVESTIGATION & QUESTIONS
The Sheriff’s office found the car was traveling between 80 and 93 miles per hour at the time of impact – the posted speed limit was 45 mph. Walker’s experts and investigators opined the car was traveling between 40 and 60 miles per hour at the time of impact, and the severe damage to the car was a direct result not of a high speed accident, but rather the inadequate design of the car. The questions to all were:
- Was Porsche at fault for failing to adequately design the high-end sports car and equip it with safety features? And did Porsche have any knowledge of any design defect prior to Walker’s accident?
- Did a design defect cause or contribute to the crash which led to Walker’s death?
THE DISCOVERY PHASE & THE SMOKING GUN
Once a lawsuit is filed, the “discovery” phase begins, and Walker’s case was no different.
By way of background, discovery can consist of seeking documents from third parties, sending written questions to parties in the lawsuit and orally examining individuals under oath. The discovery phase is critical to a case because if a thorough job is not done in discovery, your case can be lost. The discovery phase can be expensive and challenging, but this is the critical part in litigation because this is often where key facts are uncovered that can make or break your case. Discovery is governed by many rules. For example, communications between an attorney and their client are generally not required to be disclosed during litigation because of the attorney-client privilege. The attorney-client privilege exists to encourage full disclosure between attorneys and their clients. Investigations and work completed by an attorney or an attorney’s agent are likewise generally not discoverable because of the work-product privilege. The work-product privilege exists to ensure opposing parties are not able to reap the benefits of independent work funded and completed by the opposing side.
When a party who relies on one of the discovery rules to withhold information, that party is supposed to state the basis for the privilege and when excluding or redacting information, certifies that privilege is founded in fact and law. It is up to the party who receives the discovery to challenge the sufficiency of any privilege claimed in discovery. It is important to challenge privileges claimed in discovery because often the basis for asserting the privilege can be unfounded or invalidly asserted.
In discovery, we are always looking for the proverbial “smoking gun.” The “smoking gun” is a fact or piece of evidence that serves as conclusive support of a claim. In other words, a “smoking gun” is incontrovertible evidence. The attorneys pursuing Walker’s claim against Porsche, came across their “smoking gun” in the discovery phase of litigation. Porsche was required to produce certain internal e-mails during discovery. Porsche redacted portions of the e-mails produced in discovery claiming they contained privileged information which was not subject to discovery. In a twist of fate, Walker’s attorneys were actually able to see through a portion of an e-mail Porsche redacted.
In the redacted e-mail, a Porsche employee wrote 200 of the 1,280 Porsche Carrera GTs were “totaled” within the first two years they were sold. In other words, approximately 16% of these cars were in wrecks where the damage done to the cars outweighed their value. The Porsche employees joked internally about this statistic. The Porsche employees bragged – the less cars on the market, the more their value would increase because the remaining cars would be more of a rarity. The e-mails were critical to Walker’s case because one element of his claim is that he must prove Porsche knew or should have known of a a design defect in the car. Walker’s attorneys called for Porsche’s attorneys to be disciplined and fined for deliberately hiding relevant evidence sought in discovery.
The discovery of these e-mails are vital for Walker’s case against Porsche because it serves to show Porsche had some knowledge regarding the crash-rate of these cars and that many accidents in which these cars were involved often resulted in a total loss. The way in which these e-mails were discovered have everyone wondering – What else has Porsche deliberately hidden or concealed? While Walker’s case against Porsche is still pending, this discovery may have long-term implications beyond Walker’s case against Porsche.
LEMONS TO LEMONADE
While the discovery of Porsche’s e-mails is undoubtedly a public relations nightmare for the company and their attorneys, what good can come of it? At the Cardone Law Firm, we are always trying to turn lemons into lemonade. Here are are a few of the positives that we think may flow from the finding of these e-mails:
- Auto manufactures will hear of this discovery and the internal chatter of the Porsche employees. If a lesson is learned, other auto manufacturers will use Porsche, and these e-mails, as an example to encourage their employees to report troubling statistics regarding any perceived dangerous propensity of their vehicles;
- Auto manufacturers may re-think the safety and design features of sports cars, not only for those behind the wheel but also for others on the road;
- Encourage corporate responsibility by ensuring auto manufacturers are monitoring the internal communication of their employees and thereby becoming aware of potential problems sooner; and
- Put auto manufacturers on alert as to how statistics can uncover safety problems or design defects not initially perceived by the manufacturer.
Porsche isn’t the first manufacturer to fight this battle. Numerous lawsuits have been filed against auto manufactures for design flaws which expose the public and their consumers to danger. These lawsuits, are not frivolous. Instead, they serve the purpose of not only compensating innocent victims, but making the road a safer place for all. In fact, many of the recalls you see today are a result of lawsuits which exposed potential problems with the design of certain vehicles. Many of the federal road regulations that we have which help to ensure our safety, only came about because someone filed a lawsuit exposing the potential danger the lack of the regulation presented. As you can see, not all lawsuits are bad. Lawsuits can command corporate responsibility in a certain industry.
OUR PROMISE TO YOU
At the Cardone Law Firm, we take discovery seriously because we know the benefits it can result in for our clients and for the public. Cliff Cardone rules on discovery disputes when he sits ad-hoc as a Judge in Municipal Court, and as such, has as an extensive knowledge of the laws governing the discovery process. If you have a question about whether a defective design caused or contributed to the auto accident you were in, #phonecardone for a free consultation at 504-522-3333.