Corporate defendants, especially in product liability cases, routinely engage in scorched earth discovery designed to produce as little meaningful discovery as possible. Tactics like dump truck discovery, hiding behind ‘blanket objections’, and as I’ve written about before here, outright lies and blatant withholding of requested information. For those of us in the trenches, we all know the bitter truth: in federal court it’s simply much harder to hold a defendant’s feet to the fire and have the court order truthful and meaningful discovery.

So yesterday, in my inbox, I received a notice that the Civil Rules Advisory Committee – which is the committee that recommends changes to the federal rules – is once again seeking to tighten the discovery rules and limit a plaintiff’s ability to discover evidence. NELA did a great job summarizing the changes in a chart which is attached here.

The proposed rules include, among other things:

-          Reduction of presumptive limits of depositions from 10 to 5.

-          Reduction of presumptive time limits for depositions from 7 hours to 4.

-          Reduction of number of interrogatories from 25 to 15.

-          Limitation on number of requests for admissions.

And here’s the kicker: a change in the definition of the scope of discovery that will require the court to apply a new balancing test to consider whether requested discovery is appropriate based on a variety of factors including the size of the case, “importance” of the issues, “importance” of the discovery, and the “expense versus the benefit” of the discovery. Great.

If this passes, it will surely result in hundreds of millions of dollars worth of billable hours for the Biglaw firms hired to stall and stonewall discovery. Why? This rule will create mini-trials on scope of discovery in every case. Just like what happened when the rules for expert testimony changed from Frye to Daubert.

This proposed change is part of the continued trend in federal court: big corporations win, little guys lose.

Unlike last year, he didn’t train. He was bitten this fall by the lacrosse bug and had lost his interest in track. He didn’t even want to to run track this year until his coach cajoled him into it.

Sadly, he lost. Lost painfully.  Lost predictably to the district’s best runner and also to one of they guys on his own team who was supposed to be a middle-of-the-packer.

After the race he tried to act like it was no big deal but I knew better: he was dying inside. Disappointed, ego wounded, trying not to let his lip quiver, with that awful tightness in the back of his throat.

I felt terrible for him, knowing all about that feeling. Exact feeling I’ve had after losing a big jury trial I was supposed to win. No worse feeling in the world.

That night after we got home I asked him, “Well, aren’t you glad you did it, now that it’s over?”

Without a moment’s hesitation, “No.” Zero equivocation.

Hoping for a teaching moment, I asked him, “Well, do you think you know what happened tonight?” I expected an answer along the lines of ‘should’ve trained more like I did last year’ or ‘didn’t work hard enough to win.’

He replied instead, “Sure.  I didn’t want to run track this year and shouldn’t have let the coach talk me into it.”

Not the answer I was looking for. But entirely true. Having lost interest in track, he didn’t train, didn’t work,and so wasn’t mentally or physically prepared to race.

A old trial lawyer once gave me some sage business advice when he told me, “Plaintiffs’ lawyers make more money with the cases they turn down than with the cases they take.”

Like my sixth grader this weekend, I’ve taken my hardest hits when I’ve been talked into taking a case that I didn’t really want to take in the first place. Cases with bad facts, a bad client, or a case that I just didn’t believe it.

Like my sixth grader pointed out, the lesson isn’t about more work, or more preparation, or better strategy. The lesson is to listen to your gut. And say no at the beginning.

This week I spoke to David Kurtz, who was in the middle of drafting his motion for attorneys fees — which Judge Silver awarded as part of her sanctions Order. It was a great conversation in which he shared the story of the case and some of the public details about the sanctions fight that were not spelled out in the order.

Here are some of the highlights of what I learned during our conversation, both the good, the bad and the ugly:

1. The Good.

Hats off to both Kurtz and Judge Silver. First to Kurtz for gutting through nine years of stonewalling and all of the frustrations that go along with trying to prove and present the case for discovery abuse to a busy court. During our conversation it became clear that he was squeezed hard by over a dozen lawyers during the almost decade long fight. In the end he prevailed because he dug deep and put in the sweat and insane amount of work it takes win a fight of this magnitude.

Huge kudos also to Judge Silver, for taking what was surely weeks of time away from a busy docket to understand thousands of pages of pleadings and documents, and then distill the facts into a comprehensive and elegantly written order. Rarely does a court have the patience, or take the time, to drill down through a big products discovery fight. It’s sincerely refreshing and offers hope to consumer lawyers who face similar fights in other cases.

2. The Bad.

Throughout her Order, Judge Silver references numerous emails between Goodyear’s inside and outside lawyers. These emails were crucial to putting the nails in these lawyers’ coffins. But the Order is silent on the question that jumped off the page to me: how did Kurtz get Goodyear to produce internal emails from its lawyers, that should have been otherwise unquestionably protected by attorney client privilege?

So I asked Kurtz how that happened. “During the hearing on our Motion for Sanctions, Goodyear put their own lawyers on the stand who talked about some of their internal communications. On cross examination of Goodyear’s national coordinating counsel, Goodyear attempted to limit any waiver of privileged communications to the hearing. The Court correctly noted the issue of a limited waiver was a question of law and Goodyear abandoned any further objections on grounds of privilege,” explained Kurtz.

As a result of the testimony and waiver, Kurtz requested and the Court ordered Goodyear to produce documents – including internal emails – which would have otherwise been privileged. Wow, I responded. Seems like a pretty bad move in retrospect.

“Absolutely. They would’ve been better keeping quiet and taking a broadside hit,” Kurtz replied.

3. The Ugly.

I asked Kurtz what happens next. ”Right now I’m preparing my fee affidavit, which will be around three million dollars, give or take.”

Reading the order, it’s not just Goodyear who got hit with sanctions, it was also its lawyers. Local lawyer Graeme Hancock of Fennemore Craig PC will have to pay 20% of the award, while Goodyear and “National Coordinating Counsel” Basil Musnuff of Roetzel & Andress will be on the hook for 80%.

Here’s where it gets ugly… because the Court’s Order clearly specifies that the lawyers engaged in intentional bad faith, misrepresentations and deceit, I’m thinking that there’s probably no E&O coverage. Most E&O policies have exclusions for intentional acts. Regardless of how much the Court eventually awards Kurtz, and how it’s cut up between the different lawyers and their firms, it will still be a large enough amount to take a more than healthy bite out of any Big Law year-end bonus.

Unfortunately for the Goodyear lawyers however, that’s just the start. Judge Silver’s Order is the gift that keeps on giving. The Court’s order makes clear that the Haegers may sue for fraud. Kurtz says that is exactly what will happen in future proceedings against Goodyear and its attorneys.

And that might not be the half of it. As Sean Kane noted in his post, the Court “hinted darkly” at further “unfortunate professional consequences that may flow from the Order.” Smells like serious potential Bar issues might be in play. Moreover, lying in federal court while under oath constitutes a federal crime. No telling how the situation will unfold but it will certainly be worth watching.

Hiding the ball and playing games with discovery can be devastating for lawyers and firms who decide to go down that path. Hopefully other defense lawyers will read this opinion and tap the brakes a bit on hard core defense stonewalling, which is unfortunately the norm and not the exception in tire and auto product liability litigation.

After a great meal, P.J. Scheiner gave a CLE presentation with really good nuggets I wanted to share. P.J. is one of the young stars of the plaintiffs bar in Florida having obtained several recent million dollar plus verdicts. I like to think I’m relatively up to speed on technology, especially tech that can be used in a jury trial, but I had never heard of this: an iPhone app called Air Sketch.

Air Sketch is described as a whiteboard for the iPad that lets you easily import images and documents in a variety of the usual file formats. However, what I liked best about this app was the way P.J. demonstrated using the app to walk a witness through photographs in a videotape deposition. Toggling the camera from the witness to the photo shown on the iPad, you can annotate the photo — either live or before the dep. This way it’s all captured elegantly on the video for easy cuts and clips to play for the jury during trial.

I’m huge fan of using lists with witnesses — especially the coached and paid kind — who are bent on avoiding questions and try to write a book with each BS response. This is a topic that deserves a separate blog post, but I typically take a stack of white copy paper and a sharpy pen and make lists live during a dep, that are later marked and attached for later use as a demo exhibit during trial. P.J.’s Air Sketch app will make list-making live during a depo much easier and effective. Look forward to giving it a spin soon.

P.J. also mentioned several other iPad apps he uses which include:

• Dictaus
• iJuror
• Exhibit A
• Exhibit View
• Trial Pad — which we used this recently in a gun case we tried in Citrus County and liked it very much.

Vehicle submersions are one of the ‘dirty little secrets’ of auto safety. Submersions are among the deadliest of single-vehicle crashes but are rarely, if ever, talked about by the media or auto industry. The National Highway Traffic Safety Administration reports that an average of 384 occupants die in submersion type crashes each year – not including those that occur during floods.  As a coastal community, Florida leads the nation in such deaths. Every year approximately 4,800 crashes in the Sunshine State end with a car in the water, causing at least 57 fatalities.

Escapeworthiness from a vehicle submerged in water has been an issue of concern since the 1970s.  During that time the National Highway Traffic Safety Administration (NHTSA) published a series of papers written by the Oklahoma Research Institute on land and water escapes. More recently, the National Weather Service has attempted to raise awareness of the potential for submersions during storm-related flooding.  It’s Turn Around, Don’t Drown campaign warns that “the last 30 years, inland flooding has caused more than half of the deaths associated with tropical storms and hurricanes in the United States….each year, most people killed by floodwaters meet that end because they attempt to drive across flooded roadways in their cars or trucks.”

Most motor vehicle submersion victims die of drowning, rather than injuries from the impact. The majority of the research, however, has centered on vehicle sinking characteristics, rather than occupant survival strategies. And NHTSA and the manufacturers have done little since those early studies to advance the public’s understanding of how to safely escape a sinking vehicle.  Instead, many myths have taken hold – often because the authorities offer incorrect and contradictory advice.

In addition to the lack of uniform and accurate guidelines or warnings for motorists who are in submersion incidents, today’s vehicles present additional escape challenges and require nearly immediate decision-making for survival. Power windows are frequently the only means of egress – and the length of time that they remain functional can vary greatly. Some may stop functioning within seconds.  Breaking a tempered side widow requires a small hammer or other hard object, which most drivers don’t have accessible. And, once the vehicle is submerged, breaking these windows becomes more difficult — even with a tool.

Adding to the problem of a window escape is the use of advanced glazing in side windows.  These materials, like the windshield, are designed to prevent occupant ejection in crashes making them nearly impossible to break out from inside. In 2009, NHTSA established a new Federal Motor Vehicle Safety Standard 226 Ejection Mitigation. This standard, while not mandating advanced glazing, was created to encourage more manufacturers to install advanced glazing in side windows next to the first three rows of seats in motor vehicles with a gross vehicle weight rating of 10,000 pounds or less.

Along with education on submersion escape, vehicle countermeasures that could increase survivability are mechanical backups, protection of the vehicle electronics, or submersion sensors. For example, vehicles designed for off-roading, such as Jeeps or Hummers, build in protections for water-fording, such as a sealed central venting system to protect drivetrain components from moisture.

People drown in vehicle submersions because they attempt to open the doors, or believe it will be easier to exit when the passenger compartment is filled with water, or wait until the vehicle hits bottom, or believe that they will be able to await rescue by relying on air pockets. Drivers and passengers will often reach for their cell phones to dial 911, wasting precious seconds to escape their vehicles while it is still floating. Emergency dispatchers may not have proper – or any –submersion protocols.

Occupants have the best chance for survival by exiting out of side windows while the vehicle is still floating. Experts advise that drivers should unfasten their seat belt, and any child restraints, open a side window, and immediately exit, children first. Electric power windows may still function initially. Inexpensive glass punch tools, such as a small hammer or commercially sold tools such as the ResQMe (not an affiliate link!), can also be used in certain circumstance to break tempered glass windows.

The vast majority of submersion survivors save themselves or are assisted by onlookers who are already at the scene of a crash. In most cases, emergency responders cannot get to the vehicle in time to pull survivors out of a fully submerged vehicle.

Meanwhile, the media and auto industry should increase awareness about this issue. Like with other safety issues — such as the need to put children in child seats, the need to wear safety belts, and the danger of airbags for children sitting in the front seat — increased consumer knowledge makes a difference. Once consumers know about the very real danger of vehicle submersions, and some of the solutions — like having a hammer or tool readily available — they will make informed decisions and lives will be saved.

Last night, Rep. Brodeur spoke with Orlando’s WFTV news to discuss his bill and express the importance of consumer awareness regarding tire aging. “You can’t go to the 7-Eleven and buy milk without seeing an expiration date, yet you can buy a tire that could be in any shape, any condition, without at least a heads up,” Brodeur said.

WFTV also spoke with Liz Colston, whose husband and son were killed in an automobile accident in 2011. One of the tires on Liz’s husband’s vehicle experienced a tread separation which caused a rollover. Turns out the tire that failed was more than six-years old.  Most automobile manufacturers recommend that consumers replace tires that are older than six years.

Surprisingly, the owner of a used tire dealership in Orlando expressed his concern with Brodeur’s bill in a related interview with WFTV. While the dealer in question claimed that none of the tires that his business sells are older than five years, he believes that this bill would influence consumers to look elsewhere, thus ruining his business. Really? Seems like the bill might result in MORE tires sold…

Wouldn’t it be like with the pharmaceutical industry that puts expiration dates on all of the pills and medications they sell? This is both good for consumers (safer drugs) and for the drug companies — who get to sell more drugs when older ones expire. Hopefully, unlike the dealer in the WFTV interview, other tire dealers will see the upside to this bill and lend their support.

The bill, as Brodeur explained to WFTV, is simply a measured effort to make sure that consumers know what to look for in purchasing used tires. Consumers have the right to know everything that the tire dealers already know.

Below is a clip of the report from WFTV news.

As I’ve written about before on this blog, one of the major causes of tire failures is tire ageing. As the rubber in tires gets old, it oxidizes, and becomes brittle. This will eventually lead to a tread belt separation and tire failure.

As I’ve also written about before, several states have proposed legislation that would require retailers to tell consumers how old a tire is at the time of purchase, and warn them that most automobile manufacturers advise that tires should be replaced after they are six years old. This would let consumers make informed choices about their market decisions. Unfortunately, because of stiff industry opposition, these bills have all died.

This year Representative Jason Brodeur, a Republican State Representative in Seminole County, Florida, has announced that he will sponsor a bill this year that will again try to provide consumers with safety information about tire ageing, but with a twist: Brodeur’s bill only relates to the sale of used tires by used tire dealers.

Unlike other tire ageing bills that have been filed in the past, Brodeur’s bill does not create any new civil liability or causes of action, does not affect the ability of consumers to purchase a used tire or a tire older than six years, and will not have any impact on the big industry players who have opposed tire ageing bills in the past.

Nevertheless, the bill is still good for families and highway safety. The retail used tire industry is completely unregulated. Based on the tread separations our office has reviewed, it seems that there are a disproportionately large number of tread separations of tires purchased from a used tire retailer, versus tires purchased new.

Hopefully, because the Brodeur bill is much more conservative, and will have a much smaller footprint in terms of the number of players affected, the bill will have legs and become law.

Click here to download a copy of the bill.

Recently however, there was one change in Florida law that was entirely unexpected. In a rare development, a recent case from the Third District Court of Appeals turned Florida’s law of strict product liability on its head — at least for cases filed in the Third DCA.

First, a little background. Strict products liability became an integral part of Florida law when the Florida Supreme Court famously decided West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976).  In West, the court adopted Section 402A of the Second Restatement, proclaiming that “[t]he cost of injuries or damages, either to persons or property, resulting from defective products, should be borne by the makers of the products who put them into the channels of trade, rather than by the injured or damaged persons who are ordinarily powerless to protect themselves.”  The Florida Supreme Court later reaffirmed this position, explaining:

The underlying basis for the doctrine of strict liability is that those entities within a product’s distributive chain who profit from the sale or distribution of [the product] to the public, rather than an innocent person injured by it, should bear the financial burden of even an undetectable product defect. Those entities are in a better position to ensure the safety of the products they market, to insure against defects in those products, and to spread the cost of any injuries resulting from a defect.

To determine whether a product is defective, the Second Restatement and West applies the “consumer expectations” test. Florida courts applying the “consumer expectations” test have stated that “[t]he issue to be resolved is whether the product, at the time it left the seller’s hands, is in a condition not contemplated by the consumer, which condition is unreasonably dangerous to the consumer.” Light v. Weldarc Co., 569 So. 2d 1302, 1304 (Fla. 5th DCA 1990).

The “consumer expectations” test is vital to ensuring that strict products liability theories remain strict in practice.  At its most basic level, strict liability is different from negligence because strict liability is liability without fault.  As set forth in a great post by Max Kennerly explaining the history of strict liability in Pennsylvania, theconsumer expectations test  tracks the concept of liability without fault perfectly because its focus is upon the product itself, not the reasonableness of the defendant’s conduct.  Moreover, Florida’s Standard Jury Instructions for strict liability – PL5 – follows the Second Restatement and instructs juries to apply the consumer expectations test.

The Third Restatement presents a radically altered version of products liability from the Second Restatement.  Probably the most significant departure is the Third Restatement’s test for determining whether a product was defectively designed.  Specifically, the Third Restatement “materially increases the plaintiff’s burden by requiring that the plaintiff show not only that the product fails a risk-utility test, but also that an alternative feasible design existed at the time of manufacture and that the manufacturer should have used that alternative design.” This was accomplished by changing the definition of design defect.  Under the Third Restatement, as noted by Ellen Wertheimer in an article she wrote when the Third Restatement was still a “tentative draft,” a product:

is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

Why the change?  According to the Third Restatement’s drafters, a return to negligence-based concepts for design defect claims was necessary because “[m]any product-related accident costs can be eliminated only by excessively sacrificing product features that make products useful and desirable.” Therefore, the drafters claim that “the various trade-offs need to be considered in determining whether accident costs are more fairly and efficiently borne by accident victims.”

Moreover, several scholars have found this change to be reflective of a pro-manufacturer tilt in the Third Restatement.  In the words of Elllen Wertheimer, “[r]emoving the consumer from the products liability equation is highly significant, and symbolic of the orientation of the Third Restatement towards protecting manufacturers.” Another scholar, Frank Vandall, described section 2(b) of the Third Restatement, which contains the “radically new definition of design defect,” as “a wish list from manufacturing America.”

The Florida Supreme Court has never wavered from its unequivocal adoption of the Second Restatement in the thirty-five years since it announced its decision in West.   As one would expect, the majority of Florida courts have continued to follow the Second Restatement in light of this well-established Florida Supreme Court precedent.  Some of the more notable relatively recent cases include the Fifth DCA’s decision in Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004), the Fourth DCA’s decision in McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006), and the First DCA’s opinion in Falco v. Copeland, 919 So. 2d 650 (Fla. 1st DCA 2006).

Notwithstanding West, the Third District held relatively recently that a trial court erred as matter of law by determining that Section 402A of the Second Restatement applied to a products liability claim in Union Carbide Corp. v. Aubin, (Fla. 3d DCA Aug. 22, 2012).  This decision is a dramatic and unexplainable departure from thirty-five years of precedent.

Aubin came before the Third District after a jury awarded $14,000,000.00 in noneconomic damages and $191,000.00 in economic damages to the plaintiff for his contraction of mesothelioma as a result of his exposure to the defendant’s Calidria asbestos fibers. While there were multiple issues appealed in Aubin, the issue most pertinent to this article is the trial court’s “determination that Aubin’s claims are governed by the Second Restatement rather than the Third Restatement.” In reaching this determination, the trial court explained that it was simply following the Florida Supreme Court’s decision in West and the Fourth District’s decision in McConnell.

On appeal, the defendants argued that the trial court erred by refusing to apply the Third Restatement as adopted by the Third District in Kohler and Agrofollajes – two earlier decisions by the Third in which the court discussed the Third Restatement.  The plaintiff countered that the trial court was correct in applying the Second Restatement because “Florida’s Supreme Court has not adopted the Third Restatement, and, unless and until it does so, the Third Restatement is not the law in this State.

The Third District rejected “the rationale shared by the trial court and [the plaintiff],” reasoning instead that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by [the Florida Supreme] Court.” The court then concluded that it was bound by its own decision in Kohler, which had been extended in Agrofollajes, and has not yet been overruled. As such, the court held that “the trial court erred as a matter of law in determining that Aubin’s claims are governed by Sections 388 and 402 of the Second Restatement.”

As the plaintiff correctly argued, the Florida Supreme Court has done absolutely nothing to alter its unequivocal adoption of Section 402A of the Second Restatement in the intervening time since West was decided.  Nevertheless, beginning with its decisions in Kohler and Agrofollajes, and continuing most recently through its decision in Aubin, the Third District rejected the Second Restatement and applied the Third Restatement instead.  Not a single one of these decisions contains any explanation as to how or why.  Kohler simply launched into a citation of the Third Restatement without explanation.  Agrofollajes simply pointed the finger back at Kohler.  Aubin then simply relied upon Agrofollajes and Kohler.

These decisions are inexplicable.  The Florida Supremes have held that “[i]n the event of a conflict between the decision of a District Court of Appeal and this Court, the decision of this Court shall prevail until overruled by a subsequent decision of this Court.”  Despite its rulings in Aubin, Agrofallajes and Kohler, the Third District has recognized in other cases that, “[i]t is axiomatic that stare decisis obligates this court to follow Florida Supreme Court precedent.”

West has been cited time and again by courts and commentators, and relied upon by trial courts with hundreds of trials over the last three decades. Which is why it Aubin/Kohler came as such a huge surprise.

As things stand now, consumers with cases filed in Third District will cannot assume that the standard instruction set forth in PL4 will be read to their jury. Meanwhile practitioners need to be aware of this change and to diligently argue in favor West and the consumer expecdtations test every time it comes up. Practitioners will most likely see this issue come up in the form of a motion opposing use of Standard Jury Instruction PL5. Attached is a memorandum of law which outlines the issue and explains why West is good law and why trial courts should continue to use PL5.

At some point this issue will surely make its way back to the Supreme Court. In her concurring opinion to the Florida Supreme Court’s recent decision preliminarily approving the proposed products liability jury instructions, Justice Pariente wrote:

Although a majority of this Court did not vote to accept jurisdiction in Agrofollajes, I hope that we will have the opportunity in the near future to clarify the law regarding the proper definition of design defect and whether the definition varies depending on the type of product involved. I would urge the appellate courts to bring this issue to our attention by way of a certified question of great public importance in the appropriate case.

We certainly hope so.

Like other automotive technologies, Event Data Recorders migrated from avionics to cars, but without regulatory oversight or technical robustness. What data points are noted, stored and analyzed can vary by vehicle make and model and even by model year within the same manufacturer’s fleet. EDR data’s usefulness is also tempered by manufacturers’ lack of transparency regarding what data a particular vehicle’s EDR collects.  Seasoned investigators know that EDR data must always be examined in the context of other evidence. Seasoned litigators know that EDR data must be secured from the outset.

Vehicle EDRs are regulated but not mandated by the federal government. The National Highway Traffic Safety Administration had experience with EDRs dating back to the early 1970s, but the push for a regulation to standardize EDRs in automobiles began in 1997, when the National Aeronautics and Space Administration and the National Transportation Safety Board recommended that NHTSA develop a plan to capture crash data. From the late 1990s to 2004, various individuals, including former NHTSA Administrator Ricardo Martinez, unsuccessfully petitioned NHTSA to require EDRs in automobiles. The agency convened a working group comprised of industry, academia, and government organizations to act as fact-finders for EDRs in automobiles. At the time, GM and a few after-market suppliers had the most advanced EDR; other major automakers were starting their applications and there was no universal collection and storage system or uniformity in the data points.

In 2004, the agency moved ahead with a proposed rulemaking to require that the EDRs voluntarily installed record a minimum set of specified data elements useful for crash investigations, among other requirements relating to data format, EDR survivability, and data accessibility. Manufacturers raised strenuous objections about the programming and installation costs. Nevertheless, in August 2006, the NHTSA passed the Final Rule requiring automakers that install EDRs to program the devices to gather 15 different inputs regarding the Delta V, the status of the seat belts, airbags, brake and throttle at the time of the crash. In addition, the Agency standardized the recording interval time and the data sample rate per second for another 30 crash elements. The Rule required manufacturers to alert consumers to the presence of an event data recorder in the owner’s manual and to make commercially available the tools to retrieve the data.  Most passenger vehicles were required to comply by September 2012, and September 2013 for vehicles manufactured in two or more stages or altered.

Among the major manufacturers, General Motors was the first to record crash data in passenger vehicles, when they introduced the Diagnostic and Energy Reserve Module (DERM) in 1990. This system recorded the closing times for the airbag arming, discriminating sensors and any fault codes present when the airbags deployed. In some 2004 model year vehicles, GM began recording data in side impacts as well. Today, GM’s EDRs record rollover sensing data including yaw rate, lateral acceleration, steer angle and anti-lock brake activation.

Ford began recording crash data in some 2001 model year vehicles, stored in Restraint Control Modules (RCMs), which made decisions to deploy restraint devices and to run diagnostics. Some RCMs could record some crash information. In 2003 Ford began incorporating data, such as accelerator pedal position, brake status, vehicle speed and RPMs, from the Powertrain Control Module (PCM) in some Ford vehicles equipped with Electronic Throttle Control.

Chrysler did not use EDR data until they were incorporated with side curtain airbags in the 2004 Dodge Durango, and did not release public data about the devices until January 2008. Toyota has been installing airbag Event Data Recorders in its vehicles since the 2001 model year, and vehicle stability control EDRs since the 2000 model year.

So today, with most vehicles having data collected by EDRs, there is a surprising new question that would shock most consumers: who owns the data? The answer, it seems, is that it depends….

When manufacturers first started recording crash data, consumers weren’t able to access and download the data.  In 2000, Vetronix (now Bosch), released a publicly available system that gave anyone who purchased the system the ability to download crash data. In the beginning, only data from certain General Motors and Ford vehicles were able to be downloaded. In January of 2008, Bosch added the download capability for certain Chrysler vehicles.  In 2012, some Toyota and Honda vehicles were also added to the Bosch Cash Data Retrieval System.

Most other manufacturers — such as BMW, Mercedes and Nissan — do not allow public access to the EDR data. If a consumer wants the data collected by the EDR in their vehicle they have to contact the manufacturer to request that this data be downloaded. Toyota’s Operations History data, another form of data recorded on the Electronic Control Module in their hybrid vehicles, is retrieved using a Toyota tool called a Techstream.

Currently, 13 states address the privacy of EDR data in their laws, but they vary in their protections for vehicle owners. As I wrote here in another article a few weeks ago, complicating the privacy issue is the new generation of vehicle telematics, which can collect similar data, such as vehicle speed and turning ratios. Unlike EDRs, these hardware and software applications can wirelessly transmit the data to the manufacturer in real time.

Event Data Recorder data has been accepted by courts as evidence in trials. However, research has shown that complete data is not always recorded in crash events. In a study entitled, Evaluation of Event Data Recorders in Full Systems Crash Tests, the authors examined Ford and GM EDRs and concluded that the majority of the EDRs did not record the entire event. In some cases the data loss was too great to allow a crash investigator to even estimate the true delta-V of a vehicle.

In addition, real-world downloads performed in civil litigation show that there are inaccuracies and discrepancies between the recorded data and the physical evidence. In some cases, the EDR data reported velocity changes well below what was evident based on the vehicle damage. In Prudencia Sanchez v. General Motors, for example, the EDR download indicated that the driver’s seat belt status was buckled in the near-deployment event and unbuckled in the deployment event that occurred immediately afterwards. Was the driver belted or not? EDR data alone cannot be relied upon without physical evidence to validate it. Inaccurate or incomplete EDR data, if allowed into evidence, can be devastating to a plaintiff trying to prove a defect or a criminal defendant trying to prove his innocence.

There is also the issue of data integrity. Today, anyone can buy software to overwrite and erase EDR data. In addition, vehicle manufacturers are not always candid about the data they download and the reports they generate, with documented incidents in which manufacturers have either falsified data or simply refused to provide all of the data downloaded. In one recent case, for example, an affidavit from Plaintiff’s counsel noted that after downloading the data, the Chrysler representative produced a report of the results dated five days prior to the date of the inspection. When asked to perform the download again and then produce another report, the correct date was presented and it appears that the original data and report were generated prior to the actual download.

Whenever vehicle manufacturers capture, store, retrieve and analyze EDR data, with no independent validation, there is often a direct conflict between the consumer who owns the car and the manufacturer. Oftentimes this conflict has dramatic and very real consequences, such as when there is a dispute over the facts of a crash involving an alleged product defect. In such circumstances because of the lack of transparency, the proprietary nature of EDR readout tools and software, and many automakers who refuse to provide or submit to protocols prior to EDR and ECM download procedures — consumers often face a very rough and difficult job in attempting to download, interpret and accurately protect the data collected by EDRs.