David Hechler
Corporate Counsel
September 02, 2009

View the full story at www.law.com

Lawsuits brought by unhappy former employees are never welcome. But when a lawsuit is brought by a former in-house lawyer, it’s likely to be much messier.

And when he accuses his former company’s current and past general counsel of willfully ignoring him when he told them that the company was concealing and destroying evidence it was required to turn over to plaintiffs in lawsuits—well, it doesn’t get much uglier that that.

Exhibit A? The lawsuit brought by Dimitrios Biller against Toyota Motor Sales, U.S.A., Inc. (TMS).

Biller’s allegations go way beyond the circumstances of his dismissal from the company. He accuses Toyota of obstructing justice and violating civil racketeering laws. The lawyer asks that the company be enjoined from enforcing the confidentiality clause that was part of his 2007 severance agreement, and that it pay damages for allegedly harassing him and forcing him to resign.

Biller filed his complaint in federal court in Los Angeles in late July, but it’s only just been publicized. In it, he describes four tumultuous years at Toyota (2003-2007), where he was national managing counsel in charge of defending litigation brought in rollover accidents involving the popular 4Runner sports utility vehicle. “Key Toyota executives,” he alleges, “have conspired, and continue to conspire, to unlawfully withhold evidence from plaintiffs and obstruct justice in lawsuits throughout the United States.”

In addition to the company, the lawsuit names as defendants the current general counsel at TMS, Christopher Reynolds; his predecessor, Dian Ogilvie; Jane Howard Martin, an assistant GC in charge of outside counsel; Eric Taira, an assistant GC who was Biller’s immediate supervisor; and Alicia McAndrews, a managing counsel in charge of airbag litigation.

Messages passed through company media representatives to the in-house lawyers seeking responses were not returned. Toyota spokeswoman Zoe Zeigler e-mailed a statement from the company: “We are disappointed that Mr. Biller has elected to file this lawsuit in an attempt to avoid what we believe are his obligations as an attorney formerly employed by Toyota.  In our view, Mr. Biller has repeatedly breached his ethical and professional obligations, both as an attorney and in his commitments to us, by violating attorney-client privilege in defiance of a court restraining order that Toyota obtained against him.”

Biller’s disagreements with Toyota first began, his complaint says, when plaintiffs’ electronic discovery demands began ramping up in 2004. He warned his superiors that the company was not being forthcoming. His warnings, he says, were ignored. Nevertheless, he continued to complain about discovery violations, initiating three separate meetings with then-GC Ogilvie in late 2006 and 2007. For his efforts, his complaint says, he received a poor work evaluation.

In the spring of 2007, under intense pressure at work, his physical and mental health began deteriorating. Ultimately, he says, he suffered a complete emotional breakdown. He took a medical leave in June and was “forced to resign” in September 2007. He claimed it was a “constructive wrongful discharge,” and soon settled (without having filed a lawsuit) for $3.7 million.

The severance agreement he signed (which is attached to his complaint) included a confidentiality clause that requires him to pay $250,000 for each violation. Biller complains that Toyota has used it to attempt to silence him. He argues that it doesn’t apply to instances where injunctive relief is sought, and it’s invalidated by the crime/fraud exception.

In its e-mailed statement, his former employer said: “Toyota takes its legal obligations seriously and works to uphold the highest professional and ethical standards.  Mr. Biller continues to make inaccurate and misleading allegations about Toyota’s conduct.

“Toyota has initiated proceedings against Mr. Biller, and we intend to defend against Mr. Biller’s claims vigorously. As with all pending litigation and legal matters, we are not in a position to comment further.”

A message left for Biller was not returned.