Nokia USA wants files on the NSW Department of Fair Trading investigation of Nokia Australia over its 8210 series mobile phones kept out of a class action lawsuit against the company, currently in its preliminary phase in a California court.

US lawyers acting on behalf of consumers and lead plaintiff, Henry La, have requested the files under California discovery rules in order to assist its case, which includes allegations Nokia was misleading and deceptive in advertising a number of its popular mobile handsets knowing they carried a common design defect that caused their displays to fail with "substantial regularity".

However, counsel representing Nokia USA has asked that the files be subjected to a protection order, arguing that they don't contain evidence relevant to the case, are outside of its control in the hands of a "non-party" sister organisation and would be too hard to retrieve from its Asia-Pacific subsidiaries.

Lawyers acting on behalf of La and consumers described Nokia USA's arguments as "dubious" and asked the court deny the company's request. They argue that the documents contain evidence directly relevant to their plaintiff's case and may contest claims by Nokia USA that the faults exhibited by the handset at the heart of NSW Fair Trading's investigation were limited to an isolated batch of Nokia 8210s manufactured between October 2001 and January 2002.

La's legal representatives alleged that the display problem was also endemic to the US equivalent of the 8210, the 8290, and recently extended that allegation to include the Nokia 32xx, 51xx, 61xx, 82xx and 88xx series handsets.

Nokia USA presented a statement from a senior engineer based at its Finnish headquartered parent company, Jonas Geust, in support of its protection motion. Geust stated that the company had identified that the screen failures in Australian version of the 8210 were due to the failure of a component present in a limited number of phones not distributed in the US.

However, the lawyers representing La and consumers said statements made by the NSW Department of Fair Trading in 2002 cast doubt on Geust's claim. A spokesperson for Fair Trading said the consumer protection authority began investigating Nokia Australia in September 2001, before the component Nokia alleged to have caused the unusually high rate of screen failures was manufactured. The legal team also claim Nokia Australia's agreement to repair all 8210 series handsets exhibiting the fault is out of step with its claim that the problem was limited to a batch.

La's legal team have also challenged Nokia USA's claim that it would have no means to access the documents from Nokia Corporation's Asia Pacific affiliate.

Nokia Australia was today sticking to the approach it has taken since the controversy over its phones began. It stuck to tigh-lipped statements on the case but sought to deflect any negative sentiment towards it products that might result from it.

"Nokia does not comment on pending litigation," said a spokeswoman for Nokia Australia today, before adding:

"In general, product quality has always been a high priority at Nokia. We recognise that maintaining the highest possible product quality is essential for customer satisfaction and we are continuously developing processes and technologies to further enhance Nokia's product quality and durability,"

The California hearings on the matter are expected to continue to tomorrow.

The group of legal firms participating in the class action suit last week launched a parallel class action against Nokia over displays in its mobile phones in the state of Colorado.

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