Madison - St. Clair Record

Wednesday, November 13, 2019

Dozens of documents remain sealed in Chrysler hacking class action; Magistrate orders compliance with discovery requests

Federal Court

By The Madison County Record | Oct 9, 2019

Cuetogras
Cueto and Gras

BENTON – Chrysler shared its science with plaintiffs in a half secret class action over the vulnerability of its vehicles to hacking, yet it needed a court order to find out where plaintiffs took their vehicles for maintenance. 

U.S. Magistrate Judge Reona Daly ruled in Chrysler’s favor on Oct. 2, requiring plaintiffs to supplement their responses to document requests. 

Daly didn’t grant all the documents Chrysler requested, limiting her order to a list of locations where plaintiffs took the vehicles. 

She reminded plaintiffs that if there are responses they haven’t supplemented, timely supplementation is mandatory. 

She also ordered plaintiff Michael Keith of Michigan to provide documents “related to the disposals and the dates on which the vehicles were disposed.” 

The reference to disposals lacks context because the parties didn’t file briefs. 

Context for the entire action remains fuzzy, because the clerk has sealed dozens of documents pursuant to a confidentiality order.  

The clerk sealed the class certification motion that former district judge Michael Reagan granted and Seventh Circuit appellate judges approved. 

Belleville city attorney Brian Flynn started the action, not as lawyer but as owner of a Jeep Grand Cherokee. 

He sued Chrysler in 2015, after Wired magazine reported that remote hackers gained access to a Chrysler vehicle under controlled conditions. 

Michael Gras and Lloyd M. Cueto, both of Belleville, represented Flynn.  

He would state at a deposition that he and Gras went to law school together, and that Gras contacted him about suing Chrysler. 

Kelly Brown and George Brown of Pacific, Mo., joined Flynn as plaintiffs. 

Michael Keith of Montague, Mich. soon added his name. 

They seek damages not only from Chrysler but also from Harman Industries, maker of UConnect information devices that the hackers exploited. 

They proposed a national recall, claiming Chrysler’s voluntary recall at the time of the Wired report didn’t fix the defect. 

In the third month of the action, Armstrong Teasdale lawyers Lucas Pendry and Christopher Baucom entered appearances for Flynn and the rest. 

Former U.S. attorney Stephen Wigginton, then as an Armstrong Teasdale lawyer, entered an appearance three months later. 

In July 2016, Flynn stated at a deposition that he continued driving his Jeep and took parents, girlfriend, and others along without warning them. 

When someone asked if he knew how much Wired magazine spent to get inside the vehicle’s computer, he said no. 

He said he didn’t respond to the recall at the time of the report because he wasn’t comfortable plugging something into his car. 

“Another reason was, after discussing with my attorneys, it was my understanding that it didn’t really fix the problem,” he said. 

In September 2016, judge Reagan ruled that plaintiffs could claim that they overpaid for vehicles and that market values of the vehicles have dropped. 

He ruled that they lacked standing to claim risk of death or fear of death, finding no allegation that a real world hacker caused injury. 

In April 2017, Wigginton contacted a California lawyer to serve a subpoena on technology company Cisco about vulnerability tests. 

The California lawyer filed confidential documents from Flynn’s discovery as public record in California. 

Chrysler counsel Sharon Rosenberg, of Thompson Coburn in St. Louis, promptly persuaded the California court to remove the documents from public view. 

In Reagan’s court, she moved for sanctions. 

Wigginton filed a response, which the clerk sealed. 

At a hearing in May 2017, former magistrate judge Donald Wilkerson said he was troubled about a footnote and needed Wigginton to explain it. 

Wilkerson read the footnote out loud, according to a transcript. 

The clerk redacted the next two lines of the transcript. 

Wigginton began to make an argument but Wilkerson stopped him and said, “What I want to know is this.” 

The clerk redacted the next two lines. 

Wigginton said, “We believe that that information was in the public domain.” 

Wilkerson said that was a different question, and he asked Wigginton if it was produced to the plaintiff and marked confidential. 

Gestures from Rosenberg caused Wilkerson to turn the question to her. 

She handed documents to him, and he began reading. 

The clerk redacted the next seven lines. 

Wilkerson said the quote came directly from a Chrysler document and he assumed it was confidential when the company produced it. 

Rosenberg said, “It was quite confidential within the company.” 

Wilkerson read a document about Cisco. 

The clerk redacted 14 lines at three points. 

Wigginton said, “We speculated that Chrysler engaged them.” 

He said he had good relations with Cisco’s lawyers before Chrysler got involved. 

Rosenberg said that was entirely false. 

Wigginton said, “How can you say that it’s false when you don’t even know how -”    

Wilkerson said, “Wait, wait, wait. Hold on hold on hold on. Mr. Wigginton-” 

Wigginton said, “How can she say that’s false?” 

Wilkerson said, “Mr. Wigginton, hold on. Hold on.” 

Wigginton said, “You don’t even know what you’re saying.” 

Wilkerson said, “Mr. Wigginton, Mr. Wigginton, all right Mr. Wigginton. Take it down a notch, okay?” 

Wilkerson sanctioned the plaintiffs, finding that no public sources conveyed all the information Chrysler contended was confidential. 

He asked Chrysler to submit a bill for addressing and remedying violations of the confidentiality order. 

Plaintiffs appealed to Reagan, who overturned Wilkerson’s order. 

Wigginton left Armstrong Teasdale in December 2017, briefly worked for Simmons Hanly Conroy, and entered private practice last year. 

In July 2018, Reagan certified a class action with separate classes in Illinois, Missouri, and Michigan. 

He defined each class as all who bought or leased vehicles subject to the recall up to the date of his order. He found genuine disputes as to whether the vehicles have defects and whether they were and are merchantable. 

“There is evidence suggesting that Chrysler knew of the defects at all relevant times and did not disclose them,” Wilkerson wrote. 

Chrysler and Harman petitioned for review at the Seventh Circuit appellate court, but didn’t get it. 

Wilkerson retired and Magistrate Judge Gilbert Sison replaced him. 

At a hearing in February, in East St. Louis, Sison said he hadn’t known he was acquainted with the plaintiff. 

He said Flynn offered to hold a happy hour reception to celebrate his appointment. 

Sison recused himself in March, and Magistrate Judge Daly took charge in Benton. 

Reagan retired and the clerk assigned District Judge Nancy Rosenstengel. 

She recused herself, and the clerk assigned District Judge Staci Yandle. 

Daly’s current order overruled Chrysler’s objection to a request for admission that connected vehicles are potential targets for malicious hackers. 

She overruled its objection to a request for admission that it didn’t notify consumers that a cyber attack could affect components in any vehicle. 

She found its objection evasive and improper, and overruled its objections to requests for admissions about primary segments and hardware trust anchors. 

She overruled its objection to a request for admission that it didn’t conduct security risk assessments as part of the design process. 

She overruled its objection to a request to admit that Chrysler had no group with dedicated responsibility for cyber security until at least April 2014. 

On the other hand, she sustained Chrysler’s objection to relevancy of documents and video about whole vehicle penetration testing. 

She sustained Chrysler’s objection to a request to admit that 2018 and later models have hardware gateways for infotainment systems. 

She wrote that it was beyond the scope of the pending claims. 

She sustained Chrysler’s relevancy objection to a request to admit that each affected vehicle had multiple attack surfaces, and sustained Chrysler’s objection to production of 130 documents that plaintiffs learned about from discovery she ordered in April. 

“There are limits to relevancy in discovery,” she wrote. 

She sustained Chrysler’s objection to production of terms and payments in a “bug bounty” program. 

She sustained Chrysler’s objection to production of consumer survey information, finding plaintiffs based the request on speculation.

District Judge Yandle hasn’t set a trial date.    

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