MEMORANDUM OF LAW OF AMICUS CURIAE PUBLIC CITIZEN IN SUPPORT OF
PLAINTIFF'S MOTION TO COMPEL AND OPPOSITION TO PROTECTIVE ORDER
Defendants Ford Motor Co. ("Ford") and Bridgestone/Firestone Inc. ("Firestone") have refused to respond to requests for production of certain categories of documents until a "suitable" protective order is in place. Although neither defendant has specified the scope of the protective order it proposes, both defendants undoubtedly seek to prevent the plaintiff's attorneys from disseminating these discovery documents to the public. Public Citizen Inc. files this memorandum supporting plaintiff's motion to compel and to oppose Firestone's and Ford's request for a protective order.(1)
As plaintiff explains in her motion, a protective order should not be issued in this case because neither defendant has demonstrated that the documents they would produce in discovery contain confidential, proprietary information, and because of the significant public interest in those documents. Public Citizen does not repeat the legal arguments made in plaintiff's motion, but instead provides the Court with additional information about why the documents at issue are of great interest to the public, supporting the conclusion that they should not be subject to a protective order.
INTERESTS OF PUBLIC CITIZEN
Public Citizen, Inc. is a nonprofit public interest organization founded by Ralph Nader in 1971. Affidavit of Joan B. Claybrook, attached as Exhibit A ("Claybrook Aff.") ¶ 3. Throughout its nearly thirty-year history, Public Citizen has taken an active role in promoting consumer health and safety and ensuring that the public is well informed about the health risks of consumer products. Id. In addition, Public Citizen has long been an advocate for keeping the judicial process open to the public and has frequently opposed overbroad protective orders that prohibit disclosure of information concerning consumer health and safety. See, e.g., Public Citizen v. Liggett, 858 F.2d 775 (1st Cir. 1988); In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 574 (E.D.N.Y. 1985), aff'd, 821 F.2d 139 (2d Cir. 1987).
Public Citizen has taken a leading role in informing the public of the defects in Firestone's tires. Claybrook Aff. ¶ 4. Over the past weeks, Joan Claybrook, President of Public Citizen and former Administrator of the National Highway Traffic Safety Administration ("NHTSA"), has testified twice before Congress about the dangers posed by Firestone's defective tires, the likelihood that Ford and Firestone were aware of the defects long before they chose to inform the public of the problem, and the quality of NHTSA's oversight of the safety of these tires. Id. Public Citizen has called for an expanded recall of Firestone tires and for penalties against these two companies to punish them for their conduct and deter future malfeasance. Id. The information at issue in discovery in this case would assist Public Citizen, as well as other consumer advocates, journalists, and members of the public, in continuing to investigate the risk to public safety and the conduct of these two companies. Id. ¶ 16.
The public has recently been alerted that a safety defect in Firestone tires, combined with the tendency of Ford Explorers to roll over, has proven lethal, resulting in at least 250 injuries and 80 deaths in the United States and dozens more abroad. Although the defect in Firestone's tires has existed for ten years, it has only come to national attention over the past few months, when, in response to the commencement of a government investigation, Firestone and Ford recalled approximately 14.4 million tires. Of those tires recalled, 6.5 million are currently in use, the great majority of which are installed on Ford Explorers. The recall has generated extraordinary press coverage, public interest, and government scrutiny. NHTSA is investigating the safety of Firestone tires and Ford Explorers, Congress is holding extensive hearings into the matter, and journalists and consumer safety groups are conducting their own investigations.
The discovery documents for which Firestone and Ford seek a protective order contain information about the design and manufacture of Firestone tires and Ford Explorers -- information that is of great interest to the almost 4 million persons who currently own vehicles equipped with such tires, and who are at risk of injury each and every time they drive in those vehicles. In addition, whether Firestone and Ford knew of the dangers, but failed to share that information with the public, is of interest to the entire nation, as is the question of how well government regulators did their job of overseeing vehicle safety. Because these issues are of compelling public interest, the discovery documents must be produced without the restriction of a protective order.
1. The Discovery In This Case Will Assist In Determining The Nature And Scope Of Safety Problems With The Firestone Tire/Ford Explorer Combination.
Numerous questions regarding the nature and scope of the safety problems with Firestone tires, particularly in combination with Ford Explorers, remain unanswered. On August 9, 2000, Firestone and Ford announced jointly that Firestone will recall 14.4 million tires that contain a safety related defect. See http://www.nhtsa.dot.gov/hot/firestone/index.html (NHTSA's web site describing details of Firestone tire recall). Most of the tires in question were original equipment on Ford vehicles, primarily the Ford Explorer. Id. The recall covers 15-inch ATX and ATX II tires (from 1991 to the present), and 15-inch Wilderness AT tires (from 1996 to the present) manufactured at Firestone's Decatur, Illinois plant. Id.
Firestone has not explained why the recalled tires are defective, although the company has speculated that the problem is related to human error and machine problems at the company's Decatur, Illinois, factory. See Matthew L. Wald, Rancor Grows Between Ford and Firestone, N.Y. Times, Sept. 13, 2000, at C31. Consumer groups, including Public Citizen, contend that the underlying problem is a design defect, and thus seek to extend the recall to tires manufactured at other plants, and to 16-inch tires. Claybrook Aff. ¶ 5. NHTSA also believes that additional models suffer the same defect as the models that have already been recalled. See Statement by U.S. Transportation Secretary Slater on Bridgestone/Firestone Recall, Sept. 6, 2000 <http://www.nhtsa.dot.gov/nhtsa/announce/press/pressdisplay.dbm?year=2000&filename=pr163-00.html>. The agency has issued a consumer alert about the safety of 1.4 million additional tires and has requested that Firestone recall these additional tires. Id. Thus far, Firestone has refused to do so.
The documents for which Firestone seeks a protective order in this case could help answer the question whether the problem is a manufacturing error limited to the Decatur, Illinois plant, or a design defect affecting many more tires than have thus far been recalled. For example, plaintiff in this case requested documents concerning "blowout stability test and vehicle stability test records, test protocols and test results for the subject tire." See Firestone's Response to Plaintiff's Request for Production of Documents at 5, attached as Exhibit B to Plaintiff's Motion. Firestone admits having documents responsive to the request, but will only produce those documents after they are "subject to the entry of a suitable protective order." Id. Firestone also refused to respond to a request for the Mold Profile Drawings, or Cross-Section Drawings, to which its tires were manufactured unless the documents are covered by a protective order. Id. at 13. Both categories of documents should be produced without restriction, because this information will help the public determine whether the tires at issue have a design defect, as consumer groups contend, in which case many more tires may be affected than Firestone has been willing to admit.
Likewise, Firestone refused to respond to a request for "training of operators and tire builders" at the Decatur, Illinois plant and "quality control manuals" and "training materials" without a "suitable protective order" in place. See Firestone's Response to Plaintiff's Request for Production of Documents at 12, 15-16, attached as Exhibit B to Plaintiff's Motion. This information could assist the public in determining whether a manufacturing error caused the problems with the tires at the Decatur, Illinois plant, as Firestone has suggested, which, if true, would ease concerns that tires manufactured at other plants might have similar problems.
These documents should not be subject to a protective order because of the significant public interest in obtaining information about the safety of additional Firestone tires that are not now subject to the recall. If the problem is a design defect, as consumer groups believe, then consumers who own cars with tires manufactured at other Firestone plants, or have tires that are similar in design to those subject to the recall (such as the 16-inch model) need to know that they are also in danger. Moreover, if additional Firestone tires are defective, then perhaps the recalled tires are being replaced with similarly defective tires. The documents in this litigation may provide information about the scope of the defects in Firestone tires, which could be instrumental in preventing additional injuries and fatalities.
Also unknown is the degree to which the design of the Ford Explorer is responsible for the accidents in question. Ford CEO Jacques Nasser, appearing before the House Committee on Commerce's oversight and investigations panel, claimed that Ford automobiles are safe, and insisted that "[t]his is a Firestone tire issue, not a vehicle issue." See Lynn Sweet, Ford Tells Senators It's Not To Blame, Chicago Sun-Times, Inc. (Sep't 13, 2000). However, NHTSA Administrator Sue Bailey said that many of the accidents were caused by a combination of flawed Firestone tires and the characteristics of the Ford Explorer, which has a higher center of gravity and is more apt to roll over than most cars. Ms. Bailey explained to the House Committee that it "clearly is a combination of situations that produced the outcome." Id.
Evidence supports the conclusion that Ford Explorers are prone to roll over. In mid-1989, company engineers outlined the design modifications that could make the vehicle safer, which included widening the vehicle's track width, altering the suspension system, and lowering the vehicle's center of gravity. See, e.g., Kevin Carmody, Tire Loss Deadlier On Explorers, Austin American Statesman (Aug. 25, 2000), at A1; Claybrook Aff. ¶ 9. However, these major design changes would have taken up to ten months to implement. Claybrook Aff. ¶ 9. Rather than re-engineer the Explorer, Ford decided to lower the recommended air pressure in its Firestone tires to 26 pounds per square inch ("psi") to make the vehicle less likely to roll over when a driver swerved suddenly, left the road, or experienced tire failure, despite Firestone's recommendation of 35 psi for the maximum load. Id.
Ford's decision to lower the tire pressure may have exacerbated the defects in Firestone tires. The lower tire pressure puts more stress on the tires, leading to heat buildup and increasing the likelihood of tread separation. Claybrook Aff. ¶ 10. Evidence strongly suggests that Firestone model ATX, ATX II and Wilderness tires on Ford Explorers are overheating with highway use, causing the tread to separate and the Explorers to experience catastrophic crashes, not infrequently rolling over and causing fatal injuries. Id.
Ford is seeking a protective order to cover documents that might help answer questions about the safety of its vehicle design and whether its decision to lower the tire pressure in tires on Ford Explorers increased the risk of tire failure. For instance, Ford is withholding documents on vehicle stability and vehicle design, which might determine whether the design of the Ford Explorer makes it more likely than other vehicles to roll over when a tire loses its tread. See Explorer Protected Document Log, attached as Exhibit E to Plaintiff's Motion to Compel and Opposition to Protective Order. This information should not be subject to a protective order because it concerns a pressing issue of public health and safety. Consumers cannot determine the risk of continuing to drive vehicles with Firestone tires until they know how their vehicles are likely to react to tread separation. Moreover, Ford Explorers may be so dangerous that consumers will choose not to drive them once they learn the now-hidden corporate data on the stability of the vehicle and its likely reaction to a tire tread separation. In short, the information could save lives by informing consumers of the risks of driving Ford Explorers with Firestone tires.
2. The Discovery In This Case Will Help Determine Whether Ford and Firestone Covered Up Safety Problems With The Firestone Tire/Ford Explorer Combination.
Evidence suggests that Ford and Firestone may have known about defects in Firestone tires long before the August 9, 2000 recall. Both Ford and Firestone have been subject to multiple lawsuits arising from accidents caused by tread separation since the early 1990s. See Claybrook Aff. ¶ 12; Nedra Pickler, Documents Point to Tire Problem, Associated Press, Sep't 6, 2000. In 1996, several state agencies in Arizona began having major problems with Firestone tires on Ford Explorers and various agencies demanded new tires. See Claybrook Aff. ¶ 12. Firestone conducted an investigation of the complaints and tested the tires, but concluded that the tire failures had been caused by abuse or underinflation of the tires, and not by any defect in the tires themselves. Id. In 1998, Ford and Firestone discussed tire failures with officials in Middle Eastern, Asian, and South American countries. Id.; see also Nedra Pickler, Documents Point to Tire Problems, Associated Press, Sep't 6, 2000. Tires were tested and analyzed. Claybrook Aff. ¶ 12. Eventually, Ford decided to conduct its own recall without Firestone, and it replaced the tires on Ford Explorers in sixteen countries in 1999 and 2000. Id. Ford also instructed Firestone to add a nylon ply to the tires it manufactured in Venezuela for additional strength, and it made suspension changes to the Explorer. Id. However, Ford did not ask Firestone to add the nylon ply for Firestone tires sold in the United States, nor did it change the Explorer suspension in the United States at that time. Ford also failed to inform federal officials that it had ordered the recall in other countries. Id.; see also Nedra Pickler, Documents Point to Tire Problems, Associated Press, Sep't 6, 2000. Finally, although Firestone and Ford claimed they had no knowledge of safety problems with the tires until Ford analyzed claims against Firestone in late July and early August of this year, internal Firestone documents reveal that Firestone collected data from 1997-1999 that indicated possible safety problems with the tires that it was eventually forced to recall. Id.; see also Matthew L. Wald, Rancor Grows Between Ford and Firestone, N.Y. Times, Sep't. 13, 2000, at C1.
Ford and Firestone are seeking protective orders in this case for documents that could shed light on how much they knew about the defects in Firestone tires, and when they obtained that knowledge. For example, Ford is seeking to protect portions of the minutes of meetings of its Board of Directors and Policy and Strategy Committee throughout the early 1990s. See Explorer Protected Document Log pp. 4-5, attached as Exhibit E to Plaintiff's Motion. Firestone requests a protective order for documents in response to a request for "all communications between Ford Motor Company and Bridgestone/Firestone concerning the manufacture, design, testing, use and failure of the subject tires." See Firestone's Response to Plaintiff's Request for Production of Documents at 16, attached as Exhibit B to Plaintiff's Motion. These records may reveal that Firestone and Ford knew about the safety hazards long before they reported the problem to NHTSA and the public, and thus are of great interest to the public.
Consumer groups have also been critical of NHTSA's performance. As Public Citizen has pointed out in its press releases, NHTSA no longer has important programs in place to identify defects before they result in widespread injury and death. In the past, NHTSA had a nationwide network of repair shops to report possible defects. Claybrook Aff. ¶ 14. NHTSA also urged attorneys who worked on defect cases to report information, it communicated with owners of fleets of cars about problems, and it otherwise attempted to find out about defects before lives were lost. Id. These programs are no longer in place today. Id. At Congressional hearings, NHTSA has admitted it was too slow in identifying the problems with Firestone tires. Administrator Bailey has told the committee that the agency is exploring ways it could improve tracking of claims and litigation information.
Documents at issue in this case could be instrumental in determining how well NHTSA is doing its job and suggest methods and perhaps legislation that would improve its performance in the future. Claybrook Aff. ¶ 15. For instance, if documents reveal that defects in Firestone tires were so widespread and well known that NHTSA, using its current authority and methods of oversight, should have detected them, then there is a problem with NHTSA's performance. Id. However, if the records reveal that NHTSA could only have identified the defect with additional investigation, then the problem is a lack of funding for additional personnel to monitor auto safety. Id. The public has a legitimate interest in obtaining information about the quality of NHTSA's oversight of highway safety and the need for additional funding for that agency, and thus these documents should be freely available to the public.
For the foregoing reasons, Public Citizen supports plaintiff's motion to compel responses to its discovery requests without the imposition of a protective order because the information is of vital importance to public health and safety.
DATED: September 18, 2000 Respectfully submitted,
Amanda Frost (member of the Maryland Bar)
Alan B. Morrison (D.C. Bar. No. 073114)
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
1. Ford and Firestone have not made a motion for a protective order before this Court. Rather, they have informed plaintiff that they will not respond to discovery without such an order. See Letter from Bill D. Fountain to Michael L. Phifer, June 30, 2000, attached as Exhibit E to Plaintiff's Motion to Compel and Opposition to Protective Order ("Plaintiff's Motion"); Firestone's Response to Plaintiff's Request for Production of Documents, attached as Exhibit B to Plaintiff's Motion.