Proposed Pretrial Order in Defective Windshield Suit Highlights Confidential Materials

The U.S. District New Jersey Court recently issued a discovery confidentiality order which highlights how confidential information will be handled going forward in a class action showdown between Christine Powell and Subaru of America, Inc. and Subaru Corporation (collectively Subaru).

The suit was originally filed by Powell against Subaru for allegedly defective windshields. The vehicles involved include: 2017-2020 Subaru Forester, 2017-2020 Subaru Outback, 2017-2020 Subaru Crosstrek, 2017-2020 Subaru Legacy and 2017-2020 Subaru Impreza vehicles.

“Any party to this litigation and any third-party shall have the right to designate as ‘confidential’ and subject to this Order any information, document, or thing, or portion of any document or thing: that contains trade secrets, competitively sensitive technical, marketing, financial, sales or other confidential business information, or that contains private or confidential personal information, or that contains information received in confidence from third parties, or which the producing party otherwise believes in good faith to be entitled to protection,” a portion of the order reads.

According to the order, the plaintiff, defendant, or third party covered by the order who produces any material that is deemed confidential shall mark the materials with a legend. The order also states that the legend can include one of the following: confidential or confidential – subject to discovery confidentiality order.

Any party to the suit also has the right to designate sensitive documents as “attorneys’ eyes only”, according to the order. The legal document defines sensitive information as “any information, document, or thing, or portion of any document or thing that contains highly sensitive business or personal information, the disclosure of which is highly likely to cause significant harm to an individual or to the business or competitive position of the designating party.”

Background

The suit alleges Subaru was “manufacturing, marketing and selling new vehicles with defective and dangerous windshields that were spontaneously and/or unreasonably cracking, chipping and otherwise breaking.”

Subaru’s brief, which advocated for dismissal, said the drivers can’t sue over models they didn’t drive. The plaintiffs, according to court documents, have stated the auto manufacturer failed to inform them of the alleged dangerous defect and refused to cover the replacement cost. Subaru however has stated the claims “fail as a matter of law due in part to the overly broad class.”

According to the plaintiffs consolidated complaint, the vehicles represented in the case include 2017-2020 Subaru Forester, 2017-2020 Subaru Outback, 2017-2020 Subaru Crosstrek, 2017-2020 Subaru Legacy and 2017-2020 Subaru Impreza vehicles (collectively known as class vehicles). The plaintiffs are seeking replacement windshields and reimbursements for their repair costs, or for Subaru to buy their cars back, according to the consolidated complaint.
According to court documents, Subaru stated no plaintiff has ever purchased, leased, or owned a: Legacy of any model year; any 2017 Crosstrek, Forester, or Impreza; any 2019 Impreza; or any 2020 Crosstrek, Forester, or Impreza.

The suit added 15 new plaintiffs in February 2020. In March 2020 Subaru filed a motion to dismiss for failure to state a claim and lack of jurisdiction. In its most recent motion, Subaru notes several “errors” the plaintiffs have made. In September, the law office representing Subaru of America and Subaru Corporation (collectively Subaru) wrote a letter to U.S. District Court Judge Noel L. Hillman, to support a motion to dismiss filed in June 2020 . According to Subaru’s lawyers, the letter is to provide “supplemental authority to support dismissing the lawsuit. The letter noted Powell has not met certain requirements listed in the auto manufacturer’s responses to the complaint. In November, Hillman issued an order which granted parts and denied parts of Subaru’s motion to dismiss.

Look to a future edition of glassBYTEs for more information on this suit.

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