Reminding everyone that it is the responsibility of the "court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding," Judge Douglas Woodlock recently settled multiple discovery disputes between the Alliance for Automotive Innovation (the "Alliance") and the Attorney General of Massachusetts in the Alliance's lawsuit challenging the Right to Repair law's requirement that OEMs give independent auto repair shops and vehicle owners access to a vehicle's telematics system. As we previously reported, Judge Woodlock has expressed a strong desire to resolve the Alliance's federal preemption arguments with the benefits of a full evidentiary record and after a trial on the merits. After efforts to obtain discovery to compile that record led to deadlock, the Court recently heard two discovery motions a mere week apart.
The first hearing, held on April 16, concerned the Attorney General's request that Alliance-member OEMs produce certain source code related to vehicle cybersecurity and "security architecture diagrams." Domestic OEMs agreed to make the information available for inspection at only one secure location in Detroit, but solely on a read-only basis, and refused to allow the Attorney General's expert to download the information and write his own code to analyze it. Other foreign OEMs took the position that the information sought by the Attorney General was in the possession of their overseas parent corporations and therefore they were unable to produce it. The Alliance, on behalf of all members, also argued that the information sought was not proportional to the needs of the case.
Judge Woodlock quickly dispatched the Alliance's argument that the information was not proportional to the needs of the case, calling the information "core relevant," and saying that the only question was how the Attorney General was going to get it. Judge Woodlock pressed the Alliance on why the OEMs were unable to set up access to the information at additional sites, saying that "the only road does not lead to Detroit." Rejecting the same arguments OEMs made during the campaign for the 2020 ballot initiative, that the disclosure of vehicle source code would be a "veritable gold mine" to hackers seeking to take control of vehicles, Judge Woodlock ordered that the OEMs set up two additional sites, in Boston and Seattle, to allow the Attorney General and her expert to review the information.
Judge Woodlock was not willing, however, to allow the Attorney General and her expert more than read-only access to the information. The Attorney General's counsel repeated his concern that the files at issue could contain hundreds of thousands of pages and that their expert may need to write his own software to search and analyze the information. Due to the compressed schedule leading up to the scheduled June 14, 2021 trial, Judge Woodlock reminded counsel that they did not have unlimited time and unlimited resources to get the case ready for trial and the Attorney General would have to make due.
As for the foreign OEMs' argument that they could not produce information that was in the possession of their overseas parent entities, Judge Woodlock said that if the American entities want the information bad enough, "they can get it." The Alliance's counsel argued that this was not an attempt to hide behind corporate formalities, and that the foreign OEMs should be allowed to participate on a more limited basis by providing discovery only on certain issues in the case, while other OEMs produced information related to cybersecurity issues. Judge Woodlock warned the Alliance that OEMs may be precluded from participating in the case if they do not provide full disclosures. The Alliance subsequently informed the Court that the foreign OEMs were withdrawing from participating in the case.
The parties were once again before the Court on Friday, April 23, 2021, this time on the Alliance's motion to compel the Attorney General to provide responses to certain requests for admission and interrogatories that the Attorney General objected to on the grounds that they "seek admission of pure law" or presented incomplete hypotheticals. The Alliance argued that the requests were necessary because the Attorney General had refused to disclose her position as to how the new law applies to the factual scenarios identified by the Alliance.
Judge Woodlock opened the hearing by castigating the parties for waiting until the last minute to address issues that should have been addressed at the outset of the case, warning counsel on both sides that because of their delay, they were going to "have a very busy weekend."
Judge Woodlock then took aim at counsel for the Attorney General for their "inflexible approach with this chatter about differences between law and fact." The Court then went through each request, asking counsel to justify the Attorney General's objections. Judge Woodlock chastised counsel for claiming they were unable to answer certain hypothetical questions, noting that "you are the people who are going to be enforcing this [law]" and that "if you say I don't know, that may suggest some deficiencies in the statute." When it became clear the Court was going to order the Attorney General to answer each of the requests for admission, counsel for the Attorney General said "we are happy to respond" to the requests, which provoked the Court to note that "happiness is not what I'm looking for, that's not part of Rule 1" of the Federal Rules of Civil Procedure.
The Court ordered the Attorney General to provide substantive responses to each of the interrogatories and requests for admission by noon the following Monday. The Court also refused the Attorney General's request to alter a deadline for expert disclosures, saying that a modification to the schedule would be "an invitation to disaster." Judge Woodlock also asked the parties to submit a proposal for whether the trial would be conducted in person or via videoconference, but signaled the Court was inclined to hold a virtual trial.
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