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Eric T. Chaffin
Eric T. Chaffin
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Judge Rules GM Interview Notes Protected by Attorney-Client Privilege

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After starting what became a series of recalls related to the ignition switch defect in February 2014, General Motors (GM) turned to Anton Valukas, Jenner & Block LLP Chairman, to conduct an internal investigation into the issue. According to Auto News, the National Highway Traffic Safety Administration (NHTSA) gave GM only until April 3, 2014, to find out why it took the company nearly a decade to take meaningful recall action to protect the public and fix the flaw.

Plaintiffs involved in lawsuits against the company were hoping to see the lawyers’ notes on interviews conducted for the report, but a judge recently ruled against them. For now, these materials from the investigation will remain for GM’s eyes only.

Interview Notes to Remain Protected

According to U.S. District Judge Jesse Furman, the notes collected during the investigation and creation of the so-called “Valukas Report” are protected by attorney-client privilege. Thus plaintiffs, who were hoping to find evidence supporting their claims that GM was aware of the ignition switch defect long before correcting it, cannot access them.

In January 2015, Reuters reported that Valukas and his firm interviewed 230 witnesses during their investigation, including past and present GM employees, and had created notes and summaries of the conversations. The firm also examined more than 41 million documents. The final report, released in June 2014, showed evidence of “a pattern of management deficiencies and misjudgments” stated the NHTSA, but no cover-up.

GM CEO Mary Barra expressed her disappointment in how her company had handled the ignition switch issue, noting that “individuals failed to disclose critical pieces of information” that could have potentially made a large impact on individuals who were affected by the defect.

Plaintiffs Will Have Access to Unnamed Witnesses

In trying to gain access to the interview notes, plaintiffs argued that since GM intended to prepare the Valukas report for the public eye anyway, the notes used to create that report should not be protected.

Furman disagreed, stating that GM had established a valid claim that the notes were protected by attorney-client privilege, and that any benefits gained by releasing the materials would not overcome the harm to society’s current procedure of encouraging “full and frank communication” between attorney and client.

Despite Judge Furman’s ruling, plaintiffs will still be able to learn the identities of the witnesses whose names did not appear in the report. These “unnamed” witnesses will be available to plaintiffs to interview if they so choose. Plaintiffs are expected to follow up on that, in an effort to discover potential flaws in the Valukas report.

Ignition Switch Defect Increased Risk of Injury

In 2014, GM recalled more vehicles than any other car dealer has ever recalled in one year’s time (about 30 million worldwide). The faulty ignition switches could turn off at any time, potentially robbing air bags of power during an accident and increasing risk of serious injury and/or death. Plaintiffs who were injured in a related accident or who had loved ones who were injured or killed may be eligible to file a lawsuit in an effort to recover damages.