Excerpt: The Memorandum by Robert W. Kelley

What's in a Document?

John had proven invaluable already. In early August, a week before the depo of Ivey, he had hit one out of the park.

We were still in the early days of the Internet as far as legal research was concerned. It’s hard to imagine now, but only a scant percentage of court records and judicial opinions were digitized at the time, and an even tinier portion of case files. The older the documents were, the less likely they were to be on the Internet. And, even if they were, they were almost impossible to find. Google, email, and listserves didn’t exist yet.

The firm only had one computer connected to the Internet. We were concerned about security, about getting hacked, about providing a pipeline for anyone and everyone to spy on everything happening in the office. When you litigate against huge multinational corporations that have more money than most countries in the world, you can’t be too careful.

As a science and math major at Vanderbilt, I understood the power of this budding technology. I had been in awe of the power of my pocket-sized Hewlett Packard calculator while I was in college. And years later when the first green-screen PC hit the market with its DOS prompt, I bought one immediately. Then, when the first laptop computers became available, I bought one after another. I used them and the budding Internet to my great advantage in this case and others long before other lawyers and law firms recognized the technological revolution that was taking place. Most trial lawyers have no background or training in science or mathematics, and they were unable to use a computer until Bill Gates and his team created Windows, which made computers commonplace and accessible to almost everyone.

I had been using my Toshiba laptop to listen to music while I typed up notes or read a file my paralegal had helpfully loaded onto a “floppy disc.” I spent hours wandering around clumsily in the backwoods of the inchoate WorldWideWeb searching for nuggets of information and case law. I remember marveling at what I saw as the near-magical power of my laptop not long before I met John.

“I am sitting in the booth in the kitchen very late at night typing these words on my new computer—a Toshiba Satellite Pro 400 CDT,” I wrote in my notes. “This machine is truly amazing. I have been loading CDs all night, and as I type, Mozart is playing gently in this late quiet kitchen through the small speaker in the computer . . . I can switch the music on and off with a punch of the mouse button. Truly, truly amazing. We live in mystifying technological times.”

I was awestruck, and I understood and quickly deployed the power behind this new technology on behalf of all of my clients.

John was from a younger generation, and he also appreciated the power of technology. And, as I’ll say again and again, he was relentless. There might not have been a Google or Bing, but he learned how to finesse facts from our more rudimentary search engines—things like Excite, Lycos, and AltaVista.

Although, as he would say years later, looking back at what he could accomplish there at the time, “I hesitate to call it research.”

These were simpler digital times.

“People didn’t do legal research in that way on the Internet,” he said. “There was a service called Westlaw, but the Internet wasn’t used for that.”

He spent most of his efforts digging through newspaper clippings and magazine articles, online blogs, and user groups—whatever he could find that seemed useful. Dial-up connection speeds were painfully slow; search engines frustratingly blunt. Compared to today, it was more like rummaging around through grandma’s old steamer trunk in the attic than a refined and focused search.

“I was looking more to educate myself on fire stuff, to see how to protect fuel systems,” he explained. “What bladders, shields, or whatever did they use? How did they protect fuel systems in race cars?”

True legal research relied on the printed and bound volumes of case law in the library, or electronic subscription services like Westlaw.

Digitally accessible services definitely sped up access to reported judicial opinions and things like that, but they still didn’t provide a conduit to any of the reams of supporting materials—the depositions and documentation, exhibits, hearing transcripts, and all of the rest—that cases are built on. And that was what was most useful.

So, instead of using the internet, email, or a listserv, attorneys relied on each other. They used word-of-mouth to supplement their legal research in law libraries, networked actively in Bar associations related to their practice area, and, in certain specialties, formed their own centralized data repositories.

The Attorneys Information Exchange Group in Alabama served lawyers working on product defect cases, including a large number involved in cases against automobile manufacturers. They not only helped similarly minded attorneys connect with each other, they maintained a storehouse of case files from across the country. It contained a wealth of information—transcripts of depositions and courtroom testimony, evidentiary hearings, and exhibits entered into evidence. All painstakingly categorized and organized, and stored in the building that served as AIEG’s headquarters in the hilly heart of the south, Birmingham.

A willing investigator could find troves of useful facts, figures, and statistics, along with the names and contact information for any number of useful experts.

John was more than willing.

He flew out to AIEG’s headquarters at the beginning of August to see what he might turn up. It was, in effect, an archaeological dig, sifting through sand in the desert, hoping to come across some shard of ancient pottery—without any clear idea of what he was looking for. He looked for cases that named GM, of course. And cases related to station wagons like Jane Reilly’s, if possible. But then what? What exactly would prove useful? And would he know it when he saw it?

So it went, for two whole days. AIEG’S helpful on-site staff patiently delivered box after box of material, and John read through them. All day long. Until his eyes were bleary and his head throbbed. When he went back to his hotel at the end of day one, he was frustrated and weary. He had found little to have made the trip and the effort worth the time, and time was something we had very little of. The trial date in mid-September loomed, just six weeks away.

But John, as you know by now, is relentless.

The next morning, he pulled open the Bankers box on the table in front of him, slipped into a chair, and picked up where he had left off the evening before.

His frustration grew as the clock ticked toward noon. Even under the best circumstances, we might read through a deposition or a case file two or three times before we trip over THE THING! Something that seemed trivial or inconsequential suddenly explodes in importance. It might be that we just didn’t see it the first time or two through. It’s often the proverbial needle in a haystack that you don’t notice until it sticks you. Sometimes it’s because that thing, that item of sudden and new heft really was inconsequential—until we came across something else, somewhere else. Then, the sum truly is greater than either piece on its own.

So, I’m sure John felt more than a touch of panic as the minutes became hours and the hours slipped by. The terrible possibility existed that he had held something significant in his hand, then pushed it aside, because it meant next to nothing on its own.

But—call him unyielding, call him persistent. Call him stubborn if you want. You also have to call him smart.

He pulled out a file for a ten-year-old case in Texas, Garcia v. General Motors, thumbed through a bit, and smiled.

It had been filed by the sole survivor of an automobile accident, Manuel Garcia, whose Buick burst into flames after it was hit from behind by another vehicle. A rear-end post-collision fuel-fed fire. In a GM product just one year older than Jane Reilly’s.

What he had found, though, wasn’t just an eerily similar, and similarly horrific case. The file contained a thin, ten-page General Motors’ document marked confidential with a distinguishing Bates number.

It was dated the same exact year that the model for Jane Reilly’s station wagon had gone into production. And only five years after Ed Ivey had performed his value analysis.

The cover page read, in all caps:




Below it, near the lower right corner of the page, a handwritten note added—again in all caps—that the report had been presented to the “SRB,” the Safety Review Board, by “M. BARCELOW and W. FREIBERG.”

They did indeed love those capital letters. The rest of the document continued the same way, without a lowercase letter in the bunch.

And they didn’t waste words. If the Ivey value analysis was terse, this one was practically telegraphic. In what looked like what today would be a series of typewritten Powerpoint slides, the pages described “areas of potential improvement” for fuel tanks including, as its very first point, “puncture resistance.”

The next page bore the heading, “FUTURE FUEL TANK PROGRAMS,” and listed three items, each as its own distinctive bullet point: a “plastic tub encapsulating the current steel tank,” “steel tank with a plastic liner,” and “steel tank with a soft bladder.”

Then, and I had to thank them for this, because juries do love visual aids and so do I, came neatly drawn and labeled schematic diagrams—centerline section views, they called them—showing exactly how two variations of the protective tub option fit around the fuel tank.

It went on to list what its authors saw as the advantages and disadvantages of the approach. And the cost. It was almost painful to consider. Putting a protective plastic shell around the fuel tanks, they estimated, would cost $8 to $12 each. I read it differently than they did, I’m sure. To them, they must have been mere numbers, a contractor’s calculations for materials. To me, they were an outrage, a shocking and blatant statement. Matt Murphy, a happy, outgoing, smiling 13-year-old boy, had burned to death because General Motors wouldn’t spend $8 to shield its gas tanks? Was that possible? Eight lousy bucks. Less than it cost for a night out at the movies with the kids, back then.

Those bastards!

Then came a bullet point that was equally stunning. Under the heading “PROGRAM STATUS,” it went on to say the A-body designs were finished and, “TEST PARTS WILL BE AVAILABLE IN 2 WEEKS.”

That meant, I thought, these weren’t just simple line drawings on paper. It appeared to be saying that GM had actually worked the idea up into blueprints, and that the first test models were in production. For A-body cars exactly like Jane Reilly’s A-body station wagon. Five years before workers bolted the gas tank into hers—without a protective shield—and let her take it out onto a Virginia highway like a rolling firebomb.

After I had thumbed through the long-lost report a couple of times, and given myself a few astonished moments to digest what I saw, I only needed two words to describe it.

“JJU discovers killer document,” I wrote in my attorney’s notes that day.

In bold.

How killer became obvious before the end of the month.

GM’s attorneys had continued their campaign of obstruction against us over our written interrogatories. They stalled when they could, as long as they could. They gave evasive and ambiguous answers. They objected, forcing the judge to call a hearing to listen to their arguments. Then, after he’d overruled their objection and ordered them to respond, they’d stall, evade, and object all over again. Once, they even appealed to the district Fourth District Court of Appeal asking it to reverse Judge Brescher’s orders. It didn’t.

But they still didn’t answer. Not all the questions anyway. Certainly not the critical one: my very precisely drafted interrogatory #13—“Did General Motors ever consider or evaluate placing a shield around the fuel tank on the subject station wagon or any similar vehicle?”

We now knew why GM and its attorneys were putting up such a fight. The Garcia documents John had discovered in Alabama proved not only that GM had considered and evaluated placing shields around the fuel tank on this vehicle, it had actually designed and tested them!

John, Reina, and I decided to see how far GM would go. We decided to lie low with this critical new information and continue to push GM and its attorneys to directly answer question number 13.

They kicked. They screamed. Eventually, after close to half a dozen back-and-forths that wound up in formal hearings at the courthouse, the judge limited the question to the same model year A cars, like Jane Reilly’s.

They still didn’t answer.

But, like I said, if you’re going to fight, you have to think like a fighter. While the battle over the interrogatories continued, we took a swing at another spot.

We sent a request for GM to produce all fuel tank drawings and blueprints for its A-body vehicle. That took a fight, too. More back and forth. Finally, the judge said, “enough.” He gave GM four days to cough them up.

They did, right before the deadline. They sent us more than 30,000 documents and drawings. A roomful. Literally. Hundreds of thousands of pages in all. All at once. Boom!

It was their way of saying, “You want documents? Choke on ‘em.”

I knew what they were doing. I’d seen it before. In the movies. I even mentioned it to the judge. In Class Action, Gene Hackman plays a lawyer fighting a big carmaker for putting—get this!—station wagons on the road with gas tanks that explode on impact. The company had weighed the cost of fixing the problem against what it cost to deal with a lawsuit.

In another ugly coincidence, the movie came out the same year as the Murphys’ accident.

It had all the right Hollywood touches. Hackman has to face off against his estranged daughter, who’s one of the attorneys representing the automaker. And, as Hackman starts zeroing in on a crucial safety report, the other lawyers on the car company’s legal team are boxed in. They have to deliver it, but it will cost them the case if they do.

It’s not where I got the idea, but Hackman, too, asked for all the information they had, connected with one of the company’s former researchers. The guy had spent 32 years with the firm.

“You’d have to figure, an awful lot of paper would build up over that time,” a senior partner says.

The bad guy in the movie, one of the firm partners, gets it right away.

“Right!” he says. “So we bury it. We send them everything. Every letter, every phone message, every scrap of paper. Anything we can find. We’ll send them the goddamned Library of Congress.”

And, just to be sure, he says, misfile things. Jumble them up.

“Bottom line,” the top dog says, “it is within the letter of the law.”

So, on the eve of trial, we see deliverymen rolling out hand truck after hand truck stacked high with Bankers boxes headed to Hackman’s office.

I thought of that scene immediately as the Bankers boxes full of GM documents showed up at our office. Especially when we opened them up and realized the documents were in no apparent order.

A team of associates and clerks and paralegals, led by John and Reina, went through them. Every single one. We searched and we sorted.

Nothing. We couldn’t find a single blueprint or drawing for the fuel tank. They were not in there.

So, I decided to set the deposition of the corporate representative of General Motors identified as having the most knowledge of the fuel tank design and layout. We made the request duces tecum. That meant the rep had to bring the requested documents with him.

GM refused. It said we already had them.

Well, two can play that game.

I figured, OK, if the mountain won’t come to me, then . . .

The Saturday before we were supposed to sit down with the first “most knowledgeable” representative, Larry Feiler, we rented a big, yellow Penske truck. Like a moving truck. We loaded all 30,000-plus documents into it, and assigned two of our young law clerks to drive it from Fort Lauderdale, Florida, to South Bend, Indiana, where we were to depose Feiler.

They weren’t thrilled. Who would be? It was a thirty-hour trip. Then they had to lug all the boxes in by hand and have them ready and waiting for us when we got there. Before the start of business Monday.

So, no, Omar and Vince didn’t look too happy as they climbed into the truck’s cab to head out. And they didn’t inspire a lot of confidence. I don’t remember who was behind the wheel at the start. Whoever it was threw the truck into gear and immediately backed into one of the fancy new light poles in the parking lot in front of the firm. One of those decorative ones, that were pretty and expensive. The pole shuddered just a second, then it went down like a redwood in the forest. I shuddered too, wondering how the rest of the trip would go with my two young law clerks.

They made it, though. The documents were right where they were supposed to be when John and I flew in and got there—set up neatly in unassuming binders that filled the large hotel conference room.

I didn’t say anything about them right away. Not when Feiler got there. Not when he was sworn in. Not for a good while into the deposition.

After about a half-hour, though, I did.

“Now, when we noticed this deposition, we requested that the Corporate representative of General Motors bring with him all design drawings, assembly drawings, blueprints for any and all development designs, prototype designs of the fuel-tank and the fuel-tank placement pertaining to the . . . Oldsmobile Cutlass Cruiser station wagon. Do you have any of those with you?”

“No, sir,” Feiler said. “I would not have access to them.”

“We have brought with us here this morning—and the videographer can kind of back out for this—all of the documents that General Motors has produced to us in this case, and they are on the book shelves behind you,” I said, gesturing with my hand. “From the first document they produced up to the most recent document that was produced and all the drawings, blueprints and everything are here.”

I motioned toward the binders again.

“What I would like for you to do at this point, Mr. Feiler, is to locate the drawings that we’ve talked about here this morning that pertain to the fuel-tank in the . . . Oldsmobile Cutlass Cruiser station wagon.”

GM’s attorney sputtered and complained, of course. But I told him they were all in order from the lowest Bates number to the highest. Which was better than the way they sent them to us. So, I said, since GM answered our question by referring us to Bates numbers, all they had to do was pull out the ones that corresponded to our request.

While they did that, John and I went to lunch. A two-and-a-half-hour lunch.

When we came back I put three photocopies in front of Feiler.

“Let me ask you a question,” I said. “I am here. I traveled 2,000 miles today and I brought all these documents that GM has given us. What I want is the plans, blueprints, drawings that were used in the design and the development of the fuel-tank in the . . . A-body station wagon. Do we have those plans with us?”

“I have some prints here that you put in front of me just a couple of minutes ago,” Feiler said. “If you would like me to address these pieces of paper.”

“Well, Mr. Feiler, what I would first like is an answer to my question.”

“What’s your question?”

“My question is this: It’s simple. Do you have with you today in front of you all of the blueprints and drawings that were used in the design and development of the . . . A-body station wagon?”

“Sir, I would question if I do,” Feiler answered. “There’s certainly more paperwork involved than this, probably, but I don’t know.”

“You don’t know.”


“Okay,” I said.

We spent the next twenty-five minutes establishing that he did know. That there were many more—10, 20, maybe 100—that were missing.

“Before the . . . Oldsmobile Cutlass Cruiser station wagon was manufactured,” I asked him, “there would be a drawing that would show the location of the fuel-tank in the station wagon, a final approved drawing. Correct?”

“There would probably be one or many to instruct production folks how to do that.”

“How to build the car,” I said. “Okay. And so the record is clear: We don’t have any of those drawings here with us in this room today to the best of your knowledge. Correct?”

“I have not seen any of those drawings here today.”

I had another set of questions I wanted to ask him before we wrapped up for the day. I wanted to get his answers on the record. I didn’t show him the document John had found in Birmingham. I didn’t mention the Garcia case at all. I showed him a picture of a shield like the one the company used on its Chevy Blazers.

“Do you know if General Motors ever considered placing a tub shield like that around the fuel-tank in the . . . ‘A’ car? Do you know?”

“No, I don’t know,” Feiler said.


“I don’t know what reason there would have been to do that.”

We wrapped up that afternoon with the understanding that we would finish at some later date. That would give GM time to produce the design drawings. Two weeks later, they still hadn’t.

And they still hadn’t answered interrogatory question 13: “Did General Motors ever consider or evaluate placing a shield around the fuel tank of the subject station wagon or any similar vehicle?”

It was time for some artillery.

I met with John and Reina, and we decided to file a motion for sanctions, asking the judge to strike their pleadings. In effect, to throw out all of GM’s defenses. That way, we wouldn’t have to prove they made and sold a defective vehicle. All the jury would have to decide is damages, how much GM should pay. We set the motion for a hearing in late August in front of Judge Brescher, already knowing what GM would have to admit if it answered the question truthfully.

When I showed up at the hearing and explained to the judge that GM had still not complied with his orders and provided a full and complete answer to question 13, he became incensed. He ordered GM to provide us with “a complete, truthful and accurate answer to question 13,” by 5:00 P.M. that same day or face sanctions and having its pleadings stricken. It was time for GM to fish or cut bait.

Sure enough, their answer came right at the wire. As we expected, GM blathered away in its long rambling answer and then finally stated “General Motors did not consider a part designed as a shield around the fuel tank of the . . . A-body station wagon, coupe and sedan.”

Checkmate! I thought. They’re dead. A jury will never let them get away with this kind of deception. We will crush them at trial.

I was back in front of Judge Brescher at 9:25 the next morning. David Sloan called in by phone, from South Bend. I had stayed up late the night before with Reina, and we put together a notebook, with tabs, laying out the background for my motion. Every order the judge had entered, every objection and evasive response from GM. Including the one from the evening before.

Then I dropped the bombshell I knew Sloan wasn’t expecting.

“If you will turn to tab twenty-one, Your Honor,” I said, “you will see a document that was produced by General Motors in another lawsuit—the case of Garcia versus General Motors in Texas—which I obtained through other lawyers. And in that document it clearly shows that General Motors did consider and evaluate placing a plastic tub around the shield, around the fuel tank on the A car, that they designed for it. There’s—you’re looking at drawings of it right there. Those are the design drawings for the shield around the fuel tank.”

I gave the judge a moment to study what I had given him. That page, and the next. When he finished, I continued.

“And you can see there that they clearly considered it for the A car,” I said. “Test parts would be available in two weeks. The purpose of it was to provide puncture protection, which is exactly what happened in this case, which was a minor impact where the fuel tank was punctured, and so, therefore the answer that General Motors filed last night after multiple hearings and orders from this court is false.”

Attorneys are officers of the court. Their statements in legal proceedings, spoken or written, are considered to be made under oath. Truthful. The same as if they had raised their hand and been sworn in.

“They have violated your orders,” I said, a few moments later. “They have now lied under oath. And their pleadings should be stricken.”

That was a Law & Order moment.

The judge must have thought so too. I can’t remember hearing any other judge, before or since, say what he said next.


He took a breath. Then he continued.

“Mr. Sloan, what do you say?”

David Sloan was good, I have to admit. He recovered quickly from what I was sure had been a solid uppercut that would have staggered just about any lesser attorney. But he was eyeing the corner, I could tell. He needed time to shake it off and figure out how to respond to this unexpected assault. I was really beginning to wonder whether GM was being forthright with Sloan.

“There is a huge element of surprise here,” he said at one point. Followed, a couple of sentences later, with, “If his goal was to put us out of position, so we couldn’t see that Garcia document that he’s handed you, we couldn’t respond, well, I suppose he’s succeeded.”

The judge probably had no choice but to agree.

“He’s put together quite a notebook here,” the judge said. “I don’t know if you’ve had an opportunity to see it yet. I agree with you, Mr. Sloan, that certainly you got a right to see it if you haven’t seen it. And I think you got a right to a hearing and a right to respond to all this.”

It was the Thursday before Labor Day weekend. We wound up scheduling the follow-up hearing for the next Tuesday.

But before that follow-up hearing could take place, we knew we had them on the run. On Friday we received GM’s motion to continue the trial. Attached to the motion was an affidavit from Tom Rumsfeld’s personal physician. Rumsfeld was the senior partner at his law firm and we had been told all along that he was going to be the lead lawyer for GM at trial. The doctor’s affidavit said Rumsfeld had become sick and “I have recommended to Mr. Rumsfeld that he seek shelter from the trial proposed for September . . .” Based on the doctor’s affidavit, the judge had no choice but to grant GM’s motion, and he later reset the case for trial as the #1 case on his docket beginning November 10.

In the meantime, though, it was my turn to be on the phone. For round two of our deposition with Larry Feiler. He was in South Bend, with Sloan. And John. That’s when we dropped the other bomb.

“Do you remember giving a deposition in the case of Manuel Garcia v. General Motors?” I asked him.

“Yes, I do.”

A few questions later, John handed him the Garcia document. Perfect tag team. Feiler insisted he’d never seen it before. He didn’t know anything about tub shields. I reminded him that GM had identified him as the corporate representative with the “most knowledge” about fuel tanks. It seemed to me that someone who’s supposed to know the most about the company’s fuel tanks ought to know if GM ever considered putting a shield around them, especially since he had testified as a company witness in the Garcia case—our source of the shield design drawings.

“Did you ever ask anyone at General Motors whether they ever considered placing a shield around the fuel tank of the A car?”

“Not that I remember.”

That was OK with me. Ivey “didn’t remember” why he had written his report, either.

Sloan had had a really bad Thursday. It might have ruined his whole weekend. It had apparently ruined Rumsfeld’s. But by Tuesday morning Sloan was back in court in Fort Lauderdale, facing me, and ready to fight.

By then, I had expanded my notebook some, and added charts with blowups of some of its contents to use for “Show and Tell.”

“What I would like to do, Your Honor,” I explained, “with the Court’s permission, I have a presentation that will probably take me about 15 or 20 minutes to make, that deals with the repeated violations of General Motors, the repeated violation of this Court’s orders by General Motors and the pattern of conduct in discovery that General Motors has demonstrated in this case and across the nation.”

I began by quoting from the opinion of a federal judge in a Missouri case, Baker v. General Motors, which listed a litany of cases involving the carmaker’s continued pattern of obstructing efforts at discovery.

“And he concludes,” I said, “that based on the facts given in these cases, it becomes very clear that General Motors’ activities are not isolated occurrences or unfortunate miscommunications . . . [They] are the result of a deliberate, willful policy on the part of General Motors to stonewall discovery as much as and as long as the patience of the Court would tolerate.”

There was more. The Missouri judge called GM’s efforts to impede discovery “intentional and systematic.”

“General Motors’ discovery policies are designed to turn over the least amount of information with the greatest difficulty to the opponent. Every request for discovery has been met with an objection to breadth or scope. General Motors believes that it need only produce discovery that it believes is relevant or that it believes fits within its own narrow readings of the discovery requests. General Motors will only produce what it wants to produce, not what it is required to produce.”

I cited more cases like that. Then I ran through the history of hearings and objections in our case, reminding the judge—as if I had to—that that was exactly what GM had done here. I also reminded him that he had been the one to say he was going to strike their pleadings if they didn’t answer interrogatory #13 completely, truthfully and accurately by 5:00 P.M.

That hadn’t been all, of course. I told him about the 30,000-plus document dump, and the Penske truck, and how none of the boxes, in fact, contained the blueprints or plans they said they had delivered. I told him about the Ivey value analysis, and Ivey’s near-total lapse of memory about why he wrote it or what he did with it. I told him how GM had edited the video of the accident taken by one of the witnesses, to cut out the portion showing the fire and the comments of those horrified onlookers as they saw the terribly burned victims. The company’s attorneys asserted that what they had given us was all they had. Until we obtained a copy of our own from another source, and found the missing section.

And then I reminded him about the Garcia document, and how it unequivocally showed that GM had actually prepared, evaluated, designed and tested shields for the A car, and costed them out per unit.

“And so,” I continued, “when they told you under oath after multiple, multiple hearings where they objected, re-objected, gave elusive and vague answers and finally you ordered them to provide—once again telling them that you were going to strike the pleadings if they didn’t answer completely accurately and truthfully, they lied, and they said that they never considered a part designed as a shield around the fuel tank of the A-body station wagon coupe or sedan.”

Sloan’s response was textbook. It should’ve been, I suppose. GM had been through similar hearings and similar cases across the country for decades. As the Missouri judge had said, this was the pattern, not the exception. So, Sloan’s comeback may have very well been scripted by GM, straight from their playbook.

In his version of events, they had made efforts to clarify our questions so that they could fulfill our requests, and now, in the very end, we had thrown mountains of requests at them and insisted that they fulfill them in a matter of months.

“All of a sudden,” he said, “with the trial about 60 days away, 60 days away, everything is an emergency. They are setting depositions left and right. We get 1,000—1,140 subparts for production. We get—I can’t even remember how many subparts of interrogatories. We counted at one point and it was in the 519 range.”

He was masterful. But I was beginning to suspect that GM was hiding information from its own lawyer.

“We gave them what was possible to give them, what we were able to give them,” he said. “We still are conducting searches for those things we told them that we would conduct searches on. We haven’t avoided this. We haven’t made any misrepresentations to the Court. And I think if you give us sufficient time and witnesses to get down here and explain it to you, I . . . I just think the Court would not find that General Motors has done anything wrong in this case and that we’ve worked very hard for the Court, we’ve worked very hard to meet these discovery requests.”

I didn’t really expect the judge to sanction GM and throw out its pleadings. I certainly didn’t expect him to decide right then. I guess I should have expected that, like everything else having to do with General Motors and any efforts to get our hands on their hidden documents, it would just keep getting delayed. But, at this point, it really didn’t matter to me. I knew I now had enough evidence to win the trial. Rumsfeld was out, and I knew a jury would see right through GM’s lies. But little did I know that even more damaging evidence was coming, and that when it was finally unwittingly provided to us, David Sloan would resign from his law firm, spend an entire night throwing up in his hotel room in Detroit, and that this case would end up for the nation to watch as a segment on CBS’ 60 Minutes.

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