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Chrysler alleges lead counsel in UConnect case has conflict of interest by also representing expert

By Record News | Nov 14, 2017

EAST ST. LOUIS – Chrysler, defending a federal class action about hacking, claims plaintiff lawyer Stephen Wigginton improperly represents an expert for the class. 

Chrysler counsel Sharon Rosenberg alleged a conflict of interest on Nov. 8, and moved to strike testimony of “white hat hacker” Marc Rogers. The term refers to an “ethical” computer security expert who tests organizations’ information systems. 

“The same counsel who represent plaintiffs and who want to be appointed to represent a class represented Rogers at deposition instructing him not to answer questions that go to the very bases of the opinions he proffers,” Rosenberg wrote. 

She wrote that there could be no serious debate that by giving Rogers legal advice, Wigginton had an attorney client relationship with him. 

She attached electronic mail showing she asked Wigginton and three other lawyers at the Armstrong Teasdale firm to confirm the relationship. 

She wrote their failure to answer implicitly confirmed it. 

“An attorney is prohibited from concurrently representing multiple clients where the representations will be adverse, or where it entails a significant risk that the representation of one will be materially limited by the attorney’s responsibilities to the other,” she wrote. 

“The party/witness conflict is particularly compelling in class actions because of the need to protect the interests of the class. 

“As a starting point, having one’s own client act as an expert in a case for a different client creates an overall air of bias for the expert way beyond that created by simply being a paid witness. 

“Even more significantly, the simultaneous representation here has resulted in a situation where plaintiff’s counsel found it necessary to withhold testimony on topics. 

“Strictly from plaintiff’s view, this withholding of testimony is a clear detriment as it creates a risk of disqualification of an expert vital to their claim.” 

Rosenberg wrote that withholding the bases for opinions is the equivalent of having no basis at all, which would require disqualification. 

She wrote that plaintiffs and class members have a keen interest in assuring that his opinions are admitted and that he appears to be beyond reproach. 

Lead plaintiff Brian Flynn, city attorney of Belleville, sued Chrysler in 2015. 

The suit followed publication of an article in Wired magazine about successful remote hacking of a Jeep through UConnect, an optional electronic device. 

Flynn also sued the device’s manufacturer, Harman International. 

He seeks damages for paying more than he would have paid for his Jeep if he had known of potential hacking, and for receiving less when he sells it. 

Defendants deposed Rogers on Sept. 22, in San Mateo, Calif. 

Rosenberg filed fragments of the transcript with her motion to strike Rogers, with most pages missing and black bars over much of what she did file. 

Rogers began the deposition by explaining that white hat hackers attack targets, notify owners of weaknesses, and help them tighten security. 

He said he hacked Apple Touch ID, Google Glass, and Tesla Model S. 

Someone asked what other consumer products he hacked. 

Rogers said, “Other products I’ve hacked have not been disclosed yet and so I don’t tend typically to talk about them publicly so I -” 

He stammered and said, “I’ve got a question here. Anything I say here, will it be a matter of public record?” 

Wigginton said, “It could be…If you’re subject to a protective order in another case or you’re subject to a confidentiality agreement that your firm has regarding your services, then you’re not under an obligation to disclose that here but you are under an obligation to let counsel know what it is.” 

Later, Rogers said he was performing research on mobile telephone infrastructure, mobile devices, and at least one automotive product. 

Rosenberg asked if the vehicle is on the market today, and he said yes. 

She asked who the manufacturer is, and he said he couldn’t tell. 

“We’re on a confidential record in any case, but if he’s not revealing the vulnerabilities for anybody to do something with, we would be entitled to know who the manufacturer is,” Rosenberg said. 

Wigginton said, “My advice to Mr. Rogers is, not disclose it and we can take it up with the court if you guys feel to pressure it. I don’t think it’s that big a point but I would just tell Marc not to disclose it.” 

Rosenberg asked Rogers what model year the vehicle was. 

Wigginton advised him not to disclose it and said, “She is well within her rights to ask these questions, and that’s why I’m not objecting…It’s just that I’m being careful to make sure that I don’t harm you or your company.” 

Rosenberg repeated the question and Rogers said, “That’s not something I’d like to answer, on advice of counsel.” 

She asked if it was a Chrysler and he said, “It is not.” 

She asked if it was a Tesla and he said, “I’m not going to answer that question.” 

Later, she asked what vehicles he examined in terms of cyber security. 

Rogers said, “I do not wish to name any of the manufacturers that I have worked with or I am working with.” 

Wiggington said, “And I’m instructing you not to answer…You are under contract with the United States of America, you are under contract with other manufacturers, and those are protective orders.” 

Page 76 of the deposition, with no page 75 in the exhibit, began with Rosenberg saying, “Okay, all right, thanks.” 

Wigginton replied, “Go ahead, you know, I don’t need to deal with rookie shit.” 

Later, Rosenberg asked Rogers if by the standards of his expert report, the 2013 Ford Escape has adequate cyber security. 

Rogers said, “I don’t believe I can comment on that at this time.” 

Rosenberg said, “You don’t know one way or the other?” 

Rogers said, “I don’t believe I can comment on that at this time.” 

Rosenberg said, “I would like to know if that’s I don’t know or I know but I can’t tell you my answer.” 

Rogers said, “I know some things about the Ford but I can’t talk about them.” 

District Judge Michael Reagan plans a hearing on class certification on Jan. 18.

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Organizations in this Story

Armstrong Teasdale Fiat Chrysler Automobiles