As if the heightened media attention on Toyota, its alleged design defects and the presence of the Mr. Toyoda on Capitol Hill was not enough negative attention, the February 27, 2010 Wall Street Journal article entitled, “Toyota Accused of Withholding Records” cuts to the heart of the issue seemingly haunting the car maker. If there were multiple common complaints about design defects which caused accidents, and the company knew of such problems, then why didn’t the company act earlier and with greater resolve. Companies “speak” with either records and/or its employees. While employees forget, lie, retire, etc., records, if available, can demonstrate what happened and when. If complaints were made that showed common problems in certain car models, then law dictates records should exist and those records should document such failures. If requested in a lawsuit or investigation records should have been provided whether or not they hurt Toyota.
I make no apologies for Toyota--if they hid or destroyed evidence of design defects then they should pay the price. In other words, intentionally hiding evidence is a serious issue that needs to be punished. On the other hand, if information was not produced because after reasonable attempts, it could not be found, then maybe the courts or regulators should punish less harshly or maybe not at all. I don’t know if this is relevant to the problems facing Toyota, but I do know it is a reality in litigation in today’s explosive information world. Information volumes are growing so fast that knowing all the potentially relevant evidence in a lawsuit is almost impossible. Compounding matters, employees use endless new communications technologies making management of the expanding information universe worse than drinking from a fire hose. Finding all relevant evidence in the world that executes contracts in email, modifies them in a text message and breaches them in a blog is a challenge for all of us. In today’s litigation world, if you look closely enough at any company, you will understand why unearthing and producing ALL relevant information is a nonstarter.
--- Submitted by Randolph Kahn, ESQ. Author of Information Nation and Email Rules.