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Elektronische Beweismittel: ESI Discovery and the Volkswagen Emissions Cheating Scandal

ESI Discovery - Volkswagen Diesel Emissions ScandalMy household owns an Audi A3 “clean diesel” car, which unfortunately turned out to be not-so-clean. So, I’ve been closely watching the news about the Volkswagen emissions testing scandal. (In case you haven’t followed the story, last month Volkswagen admitted to cheating on U.S. pollution tests for more than 500,000 diesel engine vehicles, by installing software called “defeat devices.” The software detects when the car is hooked up to an emissions testing system, and reduces emissions during the test; once out on the open road, the emissions ramp back up, and the cars spew as much as 40 times the permitted amount of pollutants. Affected cars include Volkswagen’s Jetta, Beetle, Golf and Passat, and the Audi A3. Here’s a good recap of the situation from CNN Money.)

I’ve studied the news reports not just with personal interest, but also with professional interest in the significant e-discovery issues that inevitably will arise in the extensive investigations and litigation over this debacle. (The flood of lawsuits has already begun: As of this posting, 34 private suits have been filed., the U.S. EPA initiated regulatory action, and the U.S. Justice department launched a criminal investigation.) I planned to write a blog post about these e-discovery implications, but dang it, the estimable Craig Ball beat me to it, writing a great post earlier this week.

As Craig noted, electronic evidence will play a key role in this matter, because “computers were the instrumentalities of the fraud.” The scope of relevant electronic evidence in these cases will be broad, encompassing questions such as how exactly the cheat was effected, how it can be remedied, and who knew what and when. The types of pertinent information will be varied, including not just emails and the usual corporate documents, but computer source code, emissions testing records, vehicle performance data, and ESI metadata (which can be probative of when someone received or sent information). Effective preservation and collection will be particularly challenging, given that the most important custodians have a vested interest in NOT turning over their incriminating evidence.

The e-discovery battles will be hard fought. Some of the country’s most respected class action plaintiffs firms filed cases—and in one suit, the plaintiffs’ team includes a powerhouse defense-side firm, Quinn Emanuel. Volkswagen retained Kirkland & Ellis, no stranger to complex e-discovery in high-stakes litigation. So those of us working in the e-discovery trenches can expect to learn about some fascinating disputes in the months (and years) to come. Buckle up—this scandal has us roaring down the autobahn.

Have questions about complicated e-discovery challenges in big-ticket litigation? Contact me and let’s chat.

Maureen O'Neill