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Auto Innovators, Mass. AG debate recalling witnesses in ‘right to repair’ case

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Now that a new judge presides over the Alliance for Automotive Innovation’s case against Massachusetts Attorney General Andrea Campbell, there is a new dispute regarding witness testimony.

The suit was filed in 2020 after the passage of the state’s Data Access Law, which was approved by referendum on the state’s November 2020 ballot. The law expands the state’s right to repair law and requires OEMs to create and implement an onboard, standardized diagnostic system that would be accessible to everyone with or without OEM permission.

Auto Innovators argues that OEMs can’t safely and consistently comply with the legislation. A trial on the suit was held in 2021. U.S. District Judge Douglas P. Woodlock delayed ruling on the case several times before Judge Denise J. Casper took over earlier this month.

A Jan. 24 court document from Campbell’s office opposing Auto Innovators motion to recall witnesses states that the plaintiff “seeks not to allow the court to assess witness credibility firsthand but to re-try its case using a new witness and new evidence that has never been through required disclosure or discovery.”

“This court should either deny the motion and resolve the case on legal grounds or limit any re-called testimony to ensure fairness to all parties,” the document states. “The typical purpose of Rule 63 is to allow a successor judge to determine credibility firsthand, where a case will turn on such a determination… Blowing past the language of Rule 63 that permits witnesses to be ‘recall[ed],’ the plaintiff seeks to call for the first time Wayne Weikel, who neither testified at the original trial nor even appeared on the plaintiff’s witness list.”

The alliance argues that Weikel, who is Auto Innovators’ vice president of state government affairs, should be allowed to testify because of Maine’s recently adopted law that “addresses one of the Data Access Law’s deficiencies by requiring the Maine Attorney General to designate an independent entity to control vehicle data access.”

“Auto Innovators has been working with the aftermarket industry — the same proponents of the Data Access Law — to put together a proposal for that entity,” the motion states. “Mr. Weikel has been active in those discussions and could offer important testimony regarding a potential avenue for compliance here as well as how long that avenue for compliance would take to implement to avoid violating the requirements of the federal Vehicle Safety Act.”

Earlier this month, Casper wrote that she had reviewed the case record including the bench trial transcripts and pre- and post-trial filings.

“Given this familiarity and the fully developed record, the court intends to resolve the remaining claims, counts I and II, including the issue of associational standing, on the present record,” Casper wrote on the case docket. “It appears to the court that no further briefing on the merits of the issues is necessary given the trial record and extensive briefing by the parties to date.”

However, Casper allowed the opportunity to recall witnesses whose testimony is material and disputed and who is available to testify again without undue burden as provided under Rule 63.

Campbell also opposes Auto Innovators’ requested recall of three witnesses to testify about developments since then including alleged cybersecurity risks, and “about how automakers’ efforts ‘switched to Maine’ after the trial.”

“Such testimony not only exceeds the scope of a Rule 63 recall: it also has never been subject to required initial and expert disclosures under Rule 26(a), or to discovery by the AG,” the document states. “The potential for gamesmanship, prejudice, and unfairness in the plaintiff’s proposal is inescapable.”

Auto Innovators argues that Bryson Bort and Kevin Tierney, GM vice president of global cybersecurity, should be allowed to testify on the latest cybersecurity risks and developments since the trial including “the feasibility of the attorney general’s hypothetical means of compliance ‘by using short-range wireless protocols, such as via Bluetooth’

Tierney can also speak on “the important distinction between the Data Access Law and Maine’s efforts, which require the Maine Attorney General to ‘designate an independent entity… to establish and administer access to vehicle-generated data… that is transmitted by [that] standardized access platform,'” according to Auto Innovators’ motion.

Auto Innovators also wants Steven Douglas to re-testify and discuss “how compliance efforts switched to Maine and the significance of the changes to the Data Access Law.” He is the alliance’s retired energy and environment vice president.

As of Monday afternoon, Casper hadn’t ruled on either motion.

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