THE STATE OF SOUTH CAROLINA
IN THE SUPREME COURT

IN THE COURT’S ORIGINAL JURISDICTION

APPEAL FROM HAMPTON COUNTY
In The Court of Common Pleas

Carmen T. Mullen, Circuit Court Judge

Case No. 05-CP-25-456

Russell Laffitte, as Personal Representative of the Estate

of Angela Lynn Plyler........................................................................................ Respondent

v.

Bridgestone Corporation, Bridgestone/Firestone North
American Tire, LLC, Ford Motor Company, Bubba
Windham and Chuck Horton d/b/a Vintage Motors.......................................... Defendants

of whom Bridgestone Corporation is the............................................. Petitioner/Appellant.

Case No. 05-CP-25-531

Russell Laffitte, as Personal Representative of the Estate
of Justin Plyler.................................................................................................... Respondent

v.

Bridgestone Corporation, Bridgestone/Firestone North
American Tire, LLC, Ford Motor Company, Bubba
Windham and Chuck Horton d/b/a Vintage Motors.......................................... Defendants

of whom Bridgestone Corporation is the............................................. Petitioner/Appellant.

Case No. 05-CP-25-532

Alania Plyler, a minor by and through her Conservator,
Russell Laffitte................................................................................................... Respondent

v.

Bridgestone Corporation, Bridgestone/Firestone North
American Tire, LLC, Ford Motor Company, Bubba
Windham and Chuck Horton d/b/a Vintage Motors.......................................... Defendants

of whom Bridgestone Corporation is the............................................. Petitioner/Appellant.

Case No. 05-CP-25-533

Hannah Plyler, a minor by and through her Conservator,
Russell Laffitte................................................................................................... Respondent

v.

Bridgestone Corporation, Bridgestone/Firestone North
American Tire, LLC, Ford Motor Company, Bubba
Windham and Chuck Horton d/b/a Vintage Motors.......................................... Defendants

of whom Bridgestone Corporation is the............................................. Petitioner/Appellant.

PETITIONER'S BRIEF

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

Statutes

Court Rules

STATEMENT OF THE ISSUES

I.  Did the Circuit Court err in finding that Respondents presented competent evidence establishing “substantial need” as required by the South Carolina Trade Secrets Act, S.C. Code § 39-8-60(B), and requiring Bridgestone to produce its entire skim stock formula and related documents where: (a) Respondents failed to plead any allegations of a defect in the skim stock; (b) Respondents failed to establish that the trade secret skim stock formula was directly relevant to any allegations of their pleadings; (c) Respondents failed to demonstrate that they would be substantially prejudiced if denied access to the skim stock formula; and (d) Respondents failed to show that the complete formula and “related information” was necessary for their experts to render opinions regarding the alleged failure of the subject tire, when their own testimony referred to only specific, limited portions of the formula?

II.  Would Bridgestone suffer irreparable harm from unwarranted disclosure of its trade secret skim stock formula that cannot be effectively prevented or remedied by the Circuit Court’s protective order?

STATEMENT OF THE CASE

This is a products liability case in which the Respondents allege that a tire manufactured by Bridgestone failed as a result of a defect in its manufacture or design, allegedly resulting in injury to the Respondents or their decedents.  Bridgestone asks this Court to reverse an Order of the South Carolina Circuit Court, Hampton County, compelling Bridgestone to disclose in discovery its highly guarded and valuable trade secret formula information for the belt skim stock compound used in the subject tire.

These lawsuits arise out of an automobile accident on July 16, 2005 on Interstate 95 in Hampton County, South Carolina.  (See, e.g., Appendix (“App.”) at p. 14 ¶ 3).  As a result of this accident, lawsuits were commenced against Bridgestone and other Defendants by the following Respondents:

(a) Russell Laffitte, as Personal Representative of the Estate of Angela Plyler (No. 05-CP-25-456);

(b) Russell Laffitte, as Personal Representative of the Estate of Justin Plyler (No. 05-CP-25-531)

(c) Alania Plyler, a minor, by and through her Conservator, Russell Laffitte (No. 05-CP-25-532)

(d) Hannah Plyler, a minor, by and through her Conservator, Russell Laffitte (No. 05-CP-25-533)

(See generally App. at pp. 14-29.).[1]  Respondents allege that decedent Angela Plyler was operating a 1999 Ford Explorer along Interstate 95, when the tread separated from the left rear tire, causing the vehicle to overturn and collide with a tree.  (See, e.g., App. at p. 15 ¶ 6).  This tire is a Radial ATX steel belted radial passenger tire manufactured by Bridgestone at its facility in Hofu, Yamaguchi, Japan during the 25th week of 1996.

In these lawsuits, Respondents generally allege that Bridgestone should be held liable for alleged defects in the design and manufacture of the subject tire.  (See, e.g., App. at p. 15 ¶ 7).  For example, Respondents allege that Bridgestone failed “to use proper manufacturing techniques,” failed to “test and inspect” the tire, and used “an inadequate design” for the tire.  (See, e.g., App. at p. 15 ¶ 7(a)-(c)).  Respondents assert claims against Bridgestone and the other Defendants sounding in strict liability, negligence and breach of warranty.

Respondents’ First and Second Requests to Produce and Interrogatories contain requests for the formula for the proprietary belt skim stock used in the subject tire and other information related to that formula.  (See generally App. at pp. 34-111).  For example, Respondents requested the “rubber recipe” for the belt skim stock and all changes to that recipe, as well as documents related to the development of the belt skim stock formula and use of that formula at Bridgestone’s manufacturing plants.  (Id.; see App. pp. 43-49 ¶¶ 20, 21, 22, 23 and 38, and pp. 73-76 ¶¶ 45, 52 and 69).  These requests were collectively referred to as “the skim compound documents” by the trial court, all of which were included in the court’s broad order compelling their disclosure.  (See App. at p. 3). 

The belt skim stock refers to a specifically formulated rubber compound calendered, or pressed between rollers, onto the steel cord to form the steel belts in a steel belted radial passenger tire.  Bridgestone uses a proprietary compound manufactured to its own trade secret formula, created as a result of years of costly research, development and testing.  Consistent with appellate and trial court orders throughout the country, Bridgestone objected to providing this trade secret information where Respondents had failed to show a “substantial need” for it.  (See generally App. at pp. 34-112).

On November 6, 2006, Respondents filed a Notice of Motion and Amended Motion to Compel, requesting an “order compelling the defendant to provide complete responses to” a number of their First and Second Requests for Production.  (See App. at pp. 113-176).  Among the discovery requests included in this Amended Motion to Compel were Respondents’ requests for Bridgestone’s trade secret skim stock formula and related information.  Bridgestone filed its Opposition to Plaintiffs’ Amended Motion to Compel, arguing that the belt skim stock formula information constitutes a closely guarded trade secret, the disclosure of which would cause Bridgestone enormous competitive harm.  (See, e.g., App. at p. 179.3).

On January 30, 2007, the Honorable Carmen T. Mullen held oral argument on Respondents’ Amended Motion to Compel, addressing numerous issues, including Respondents’ request for the skim stock formula for the subject tire.  (See App. pp. 554-599).  At this hearing, Respondents submitted previously undisclosed affidavits from their expert witnesses, including Dr. James E. Duddey, who stated that he would be unable to do the work requested by Respondents’ counsel without access to the formula and related information.  (See App. at pp. 319-322).  Based upon Dr. Duddey’s representations, by e-mail dated February 20, 2007, the trial court initially indicated that it would order Bridgestone to produce the skim stock formula, changes to that formula and plant deviations to that formula.  (See App. at p. 323).

Following this Order, on February 26, 2007, Bridgestone filed a motion to stay entry of the Order and requested the opportunity to conduct discovery on the issue of “substantial need” prior to the entry of any written order compelling production of Bridgestone’s trade secrets.  (See App at p. 221-29).  On March 26, 2007, the Court granted Bridgestone leave to depose Dr. Duddey and Respondents’ other expert witnesses — including Dr. Richard Smythe (“Dr. Smythe”).[2]   

Both witnesses were deposed, as ordered by the trial court.  Asserting that neither of Respondents’ experts was able to demonstrate the requisite need to warrant disclosure of Bridgestone’s trade secret formula information, Bridgestone filed a supplemental memorandum with the Circuit Court, urging it to deny Respondents’ motion.   

By Order Compelling Discovery and Entry of a Protective Order signed on August 15, 2007 and filed on August 20, 2007 (the “Order”), the Honorable Carmen T. Mullen held that — notwithstanding the testimony of Respondents’ experts — Respondents were entitled to discovery, subject to a protective order, of Bridgestone’s trade secret skim compound documents, including the complete formula for the belt skim stock.  (See App. at pp. 1-13).  Specifically, the Court concluded that, under the South Carolina Trade Secrets Act, Respondents had shown “substantial need” for the trade secret information.  (Id.).

Given the critical importance of safeguarding its trade secret formula and convinced that irreparable harm would inevitably result from compliance with the trial court’s order (which could not be remedied by a later appeal following a final judgment in this matter), Bridgestone petitioned this Court for a Writ of Certiorari, which the Court granted on December 6, 2007. 

STATEMENT OF FACTS

At issue in this appeal is Respondents’ request for production of the formula for the belt skim stock used in the manufacture of the subject tire and information related to the development and use of that formula.  A rubber compound formula, such as the belt skim stock formula, typically contains the ingredients in the compound, the quantities or relative percentages of those ingredients, and the manner in which those ingredients are processed to form the rubber compound.  (See App. at p. 191 ¶ 29).  The belt skim stock is formulated to provide, among other things, adhesion between the rubber and steel cord, between the belts, and between the belts and surrounding components. (See App. at pp. 190-91 ¶ 28).  To accomplish these functions the belt skim stock is developed and formulated to provide certain physical properties in the finished tire as required for that tire’s performance on the road.  (See App. at p. 191 ¶ 29).  Those properties include tensile strength, “modulus” or hardness, elongation, adhesion, and so forth.  Whether these properties were proper in any particular tire can be determined by analyzing that tire.  The physical properties of the belt skim stock used in the tire can be determined by inspection of the finished tire itself and testing the belt materials, if necessary.[3]  (See App. at p. 194 ¶ 39).  Access to the formula is completely unnecessary to determine whether the tire was properly designed and manufactured.  (See id.).

Moreover, once a tire is assembled and cured (heated under pressure in a tire mold) to produce the finished product, the various compounds undergo physical and chemical changes.  (See App. at p. 194 at ¶ 38).  As a result, it is not possible to “reverse engineer” the rubber compound formulas used in a finished tire.  (See id.).  In other words, one cannot determine the ingredients used in the skim stock of any particular tire through testing and analysis of the tire.  Therefore, the skim stock formula cannot serve as a basis for comparison of whether the same ingredients or the same percentages of ingredients specified by the formula are found in the finished tire. 

In addition, there are no accepted “standard” formulas against which to measure Bridgestone’s belt skim stock formula to determine whether that formula is “good” or “bad.”  (See App. at p. 194 ¶ 37).  Rather, tire manufacturers invest substantial time and money to develop their own proprietary compound formulas for use in their tire products.  Each tire company uses a unique compound formulation to achieve the desired physical properties in its tires.  (See App. at p. 233).  Therefore, analysis of the formula will not determine whether there is a design defect in the subject tire, as there is no standard against which to assess the adequacy of the formula.   

All of these facts are undisputed and, indeed, were admitted by the Respondents’ own experts in their depositions.

SUMMARY OF THE ARGUMENT

Respondents do not dispute that Bridgestone’s belt skim stock formula is a trade secret under South Carolina law.  Accordingly, discovery of the formula is governed by the South Carolina Trade Secrets Act, S.C. Code Ann. §§ 39-8-10, et. seq. (Supp. 2006).  By enacting this legislation, the South Carolina General Assembly recognized the need to promote business development and bring new business to the state by providing rigorous protection for a company’s trade secret information.  The provisions of the Trade Secrets Act reflect the vital public interest in a strong and clear protection of trade secrets.  As the trial court noted, the test for discovery under the Trade Secrets Act is more stringent than in other states applying Rule 26(c)(7) for the discovery of trade secrets.[4]  The trial court, however, rendered these heightened protections meaningless by allowing Respondents to satisfy their burden with vague and unsubstantiated claims of need. 

The South Carolina Trade Secrets Act requires a party to establish substantial need for that information before a trade secret may be disclosed.  Respondents have not met this burden.  As their experts admitted, Respondents do not need Bridgestone’s trade secret skim stock formula to support their allegations and will not be prejudiced without access to this information.  While the trial court properly recognized the role and requirements of the Act, it incorrectly applied those requirements to the evidence before it in determining that Respondents had established the requisite level of need for Bridgestone’s trade secret skim compound documents.  As an example, the testimony of Respondents’ experts does not demonstrate that the complete formula is necessary for them to render opinions in this case.  In short, the trial court denied Bridgestone the heightened protections that the South Carolina General Assembly expressly chose to provide in the Act. 

Given the enormous value of its trade secret skim stock formula, Bridgestone will suffer immediate and irreparable harm in the marketplace from the unwarranted disclosure ordered by the trial court if this information were to fall into the hands of Bridgestone’s competitors.  Under the particular circumstances of this case, as discussed further below, unwarranted disclosure of the complete formula along with information related to the development and use of that formula, even with the limitations of a protective order, would unnecessarily jeopardize the value of Bridgestone’s trade secret formula.  Bridgestone therefore asks this Court to reverse the trial court’s erroneous order requiring disclosure of the complete skim stock formula and related documents. 

ARGUMENT

I. RESPONDENTS FAILED TO MEET THE THRESHOLD REQUIREMENTS OF THE SOUTH CAROLINA TRADE SECRETS ACT TO ESTABLISH A SUBSTANTIAL NEED FOR BRIDGESTONE’S TRADE SECRET SKIM STOCK FORMULA BEFORE OBTAINING DISCOVERY RELATING TO THE FORMULA

It is undisputed that the skim stock formula is a trade secret under South Carolina law.  (See App. at p. 5); see also S.C. Code Ann. § 39-8-20.  Therefore, the trial court correctly determined that the South Carolina Trade Secrets Act, specifically § 39-8-60(B), applied to this discovery dispute.[5]  In a civil action such as this, before a trial court may compel production of a trade secret, the court must first determine that the party seeking production has a “substantial need” for the trade secret information.  § 39-8-60(B).  The Act defines “substantial need” as a four-part inquiry to determine whether:

(1) the allegations in the initial pleading setting forth the factual predicate for or against liability have been plead with particularity;

(2) the information sought is directly relevant to the allegations plead with particularity in the initial pleading;

(3) the information is such that the proponent of the discovery will be substantially prejudiced if not permitted access to the information; and

(4) a good faith basis exists for the belief that testimony based on or evidence deriving from the trade secret information will be admissible at trial.

This inquiry is mandatory.  The Act states that the court “shall first determine” whether all four factors have been met before ordering discovery of a trade secret.  Id.  However, the court misapplied those requirements in this case, effectively denying Bridgestone the protections afforded by the Act.  By concluding without factual support that the Respondents had demonstrated substantial need for the trade secret skim compound documents, the trial court’s order compelling disclosure amounts to a clear abuse of discretion that must be remedied by this Court to prevent irreparable harm to Bridgestone.  Dunn v. Dunn, 298 S.C. 499, 502, 381 S.E.2d 734, 735 (1989).

A. Respondents Have No “Substantial Need” for Bridgestone’s Trade Secret Skim Stock Formula

Contrary to the trial court’s findings, Respondents have not demonstrated substantial need in this case.  They have not and cannot satisfy each of the four factors required by South Carolina law.

1.  Respondents’ Pleading Does Not Set Forth Particularized Allegations Relating to the Formula

The first prong of the substantial need analysis requires Respondents’ initial pleading to set forth, with particularity, a “factual predicate” supporting the claimed need.  Respondents’ Amended (and initial) Complaints fail to do so.  Rather than particular allegations of liability, Respondents’ Complaints make only the most general allegations of design and manufacturing defects in the subject tire.  In their only specific allegation of any defect or problem with the design or manufacture of the subject tire, Respondents allege that Bridgestone should be held liable for “failing to use sufficient antidegradents (sic) to protect the integrity of the tire.”  (See App. at pp. 15-16).  This allegation does not, by any stretch, create or support a “substantial need” for access to Bridgestone’s entire trade secret formula for the belt skim stock and the documents related to that formula’s development.

To the contrary, as demonstrated by Bridgestone, Respondents’ allegation of insufficient antidegradants cannot be substantiated by looking at Bridgestone's trade secret formula.  (See App. at pp. 181-85).  There is no standard formula for a belt skim stock, including no standard for the types and amounts of “antidegradants”;[6] rather, each tire manufacturer develops its own proprietary formula for the compounds in its tires.  (See App. at 194 ¶ 37).  In other words, there is no accepted recipe against which to measure Bridgestone’s belt skim stock formula to determine whether the types and amounts of antidegradants were sufficient.  (See id.). 

Indeed, Respondents’ expert, Dr. Duddey, freely admits he can offer no meaningful analysis of Bridgestone’s trade secret formula.  Specifically, Dr. Duddey testified that he would like access to the trade secret formula so that he could compare it to generic formulas that appear in trade and advertising literature, which he terms “middle of the road” formulas, but he admittedly does not know what “middle of the road” means, or its significance.  The most he could offer in terms of a comparison would amount to an “act of faith,” a “guess.”  (See App. at pp. 314:18-315:5 and 478).  The statutory requirement of “substantial need” cannot be satisfied by a hired expert’s unsupported statement that disclosure of the trade secret would enable him to “guess.”  Otherwise, the protections of the Act will be rendered completely meaningless.

Based upon the allegations in Respondents’ Complaint, the very most that the trial court could have ordered Bridgestone to produce was information about the antidegradants in its trade secret formula.  However, the trial court’s order was much broader.  Accordingly, the trial court erred in concluding that the allegations in Respondents’ Complaint set forth a factual predicate with sufficient particularity to require the disclosure of Bridgestone’s trade secret information. 

2. The Formula Has No Direct Relevance to Respondents’ Allegations

The trial court appears to have relied on Respondents’ allegation that the subject tire experienced a belt separation as being a sufficient foundation to require disclosure of the entire formula for the belt skim stock.  (See App. at p. 11).  However, any steel belted radial tire can experience a tread/belt separation due to numerous reasons, and the occurrence of such a separation is not evidence of a defect.  (See App. at p. 189 ¶ 24).  None of the allegations cited by the trial court even mention the skim stock, much less explain how the skim stock formula will assist Respondents in proving their allegations.  See In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 733-34 (Tex. 2003) (denying disclosure of skim stock formula where “the plaintiffs have not shown how knowledge of Firestone’s formula is even linked to [their] allegations, let alone necessary to their fair adjudication”).

a. The Testimony of Dr. Duddey Fails to Establish that the Formula Is Directly Relevant to the Allegations

The testimony of Respondents’ own experts makes clear that Bridgestone’s trade secret formula has no direct relevance to Respondents’ allegations.  Dr. Duddey was deposed on April 23, 2007.  His testimony demonstrated that he was unable to follow through on the promises he made in his Affidavit, upon which the trial court relied in its initial order of the production of the Bridgestone trade secret formula.

At the outset, it is important to note that this entire discovery issue was neither initiated nor driven by any expert who raised any questions about Bridgestone’s trade secret formula.  Rather, Dr. Duddey testified that Respondents’ counsel, not Dr. Duddey himself, first raised the claimed “need” for Bridgestone’s trade secret formula.  (See App. at pp. 283:18-284:7 and 465).  In fact, after examining the tire, Dr. Duddey conceded that he found no evidence leading him to believe there was any problem with the trade secret formula or “recipe” itself.  (See App. at p. 285:6-21).  Further, even at the time of his deposition, Dr. Duddey was unable to identify any constituent of the recipe that he had any reason to believe was deficient.  (See App. at pp. 285:22-25, 291:23-292:7).  Thus, it was no surprise when Dr. Duddey conceded that Respondents’ counsel “basically” drafted the Affidavit submitted to the trial court, and which was the only record basis of the initial order compelling production of Bridgestone’s trade secret formula.  (See App. at p. 470).

Specifically, Dr. Duddey testified that, while he was “exposed” to compound formulas during his employment with Goodyear, he does not actually know any of them nor has he committed them to memory.  (See App. at p. 294:14-20).  Contrary to the statement in paragraph 9 of his own Affidavit, Dr. Duddey has never been provided access to formulas from other companies, such as Cooper, Pirelli or Michelin and is not in possession of any tire company’s belt skim compound formula against which he might compare the Bridgestone trade secret formula at issue.  (See App. at pp. 295:12-296:14).  In fact, he has “never been involved in any kind of evaluation per se in belt skim stock compounds.”  (See App. at p. 307:21-23; accord App. at p. 296:15-21 (same)).  This may explain why he has never rendered a formal opinion regarding the propriety of a tire company’s belt skim compound formula.  (See App. at p. 297:19-23).

Because he can identify no problems – or even suggest what a “problem” might entail – the most Dr. Duddey is prepared to do in this case is to compare the trade secret formula with generic compound formulas found in trade literature.  (See App. at pp. 310:24-311:9).  Even then, Dr. Duddey would be unable to conduct any meaningful comparison to any degree of engineering certainty (as opposed to a mere “guess”).  (See App. at pp. 313:18-314:5 and 478).  This testimony directly contradicts Dr. Duddey’s Affidavit and exposes the transparency of Respondents’ arguments regarding the relevance and need for the trade secret formula.

b. The Testimony of Dr. Smythe Fails to Establish that the Trade Secret Formula Is Directly Relevant to the Allegations

Dr. Smythe also was deposed on April 23, 2007.  Dr. Smythe is an analytical chemist whose role in the case is to “provide analytical chemistry” on “whichever material is deemed important by Mr. Ochs or Dr. Duddey.”  (See App. at p. 351:6-13).  As discussed, supra, Dr. Duddey is unaware of any of the compound materials as being “important” and requiring analysis by Dr. Smythe.[7]

More to the point, Dr. Smythe does not support Respondents’ claim that the trade secret formula is directly relevant to their allegations, as he is neither qualified to analyze the formula as a whole nor does he intend to offer any opinions in this case.  With respect to Dr. Smythe’s qualifications to analyze the trade secret formula, he admittedly is not a tire engineer; has never designed a tire component (or a tire); is not an expert in tires or tire design; does not consider himself to be a tire compounder; and has never formulated a compound for a tire or tire component.  (See App. at pp. 352:22-354:19).  Thus, Dr. Smythe does not hold himself out as a “person who has any knowledge as to the efficacy of variations or alternatives in tire compound formulas,” in terms of design or compounding.  (See App. at p. 355:20-24).  To the contrary, Dr. Smythe admits that he is unqualified to say that a particular formulation “is or isn’t outside the appropriate range for steel-belted radial tires,” and would be unable to determine if a formula was within ranges commonly used in the tire industry.  (See App. at p. 356:6-15).  As Dr. Smythe testified, such an analysis is dependent upon the particular application to which the formula is put.  (See App. at p. 356:15-16).

Perhaps because of his lack of a tire background, Dr. Smythe comes into this case with no particular analytical techniques in mind.  While he understands that certain basic techniques exist for identifying or assessing the level of a particular ingredient, he would have to rely upon Dr. Duddey or Mr. Ochs to tell him what to analyze.  (See App. at p. 357:3-8).  As discussed, supra, Dr. Duddey himself concedes that he has not identified a “problem” with the trade secret formula and that he is unaware of the details about the various ingredients.  In fact, Dr. Smythe testified that he does not intend to offer any opinions in this case.  Rather, he views himself as an analytical chemist much like a “bookkeeper” or “accountant,” who tries to stay away from opinions, and he considers it the role of other witnesses to draw conclusions and offer opinions.  (See App. at pp. 358:6-359:3).  Thus, either on its own or in tandem with Dr. Duddey, Dr. Smythe’s testimony does not support a finding that the trade secret belt skim stock formula is directly relevant to any allegations in this case.

3. Respondents Have Not Demonstrated and Cannot Demonstrate Substantial Prejudice from the Denial of Access to Bridgestone’s Trade Secret Formula

For purposes of this prong, “substantial prejudice” requires a showing that Respondents would be meaningfully impaired in their ability to present their case.  See, e.g.,. State v. Brazell, 325 S.C. 65, 73, 480 S.E.2d 64, 69 (1997) (“substantial prejudice” requires showing of meaningful impairment).  The trial court erroneously concluded that Respondents’ experts needed access to the formula information in order to determine whether a design defect is present in the subject tire.  However, as their testimony reveals, access to the formula will not enable them to reach any opinion regarding a design defect, since they will be unable to evaluate the formula in any meaningful way.  Rather, other methods, such as testing the subject tire itself, are available to satisfy their stated needs.  Therefore, denial of access to the trade secret skim compound information will not impair their ability to analyze and opine as to the adequacy of the tire’s design and manufacture.

Thus, Respondents have failed to demonstrate that they would suffer any prejudice at all, much less “substantial” prejudice, absent access to Bridgestone’s trade secret formula.  Since Dr. Duddey is unable to reliably analyze the formula (see, e.g., App. at p. 313:18-314:5) and the most he can offer is a “guess” (see id.), Respondents cannot suffer any prejudice.  After all, a litigant’s ability to present his case is not “meaningfully impaired” when all he is being prevented from presenting is a “guess”.

With respect to his qualifications, Dr. Duddey testified: (a) that he has never been responsible for the formulation or evaluation of a compound formula; (b) that he has no basis for comparison between Bridgestone’s trade secret formula and any other; (c) that he has never rendered an opinion regarding the efficacy of such a formula; (d) that the most he can do is refer to generic formulas which exist in the trade literature (though he has no knowledge of the details regarding ingredients); (e) and that he has no particular analytical technique in mind.    

With regard to Dr. Duddey’s purported need to have access to the complete formula and related skim compound documents, his testimony does not establish that he will be substantially prejudiced in offering opinions in this case.  One of the bases for the trial court’s order compelling disclosure was Dr. Duddey’s stated need to see the “initial physical properties of the rubber compound.”  (See App. at p. 8).[8]  However, the formula itself does not contain and will not reveal those physical properties.  Rather, as Brian Queiser testified at his deposition in this matter, the formula does not reveal the performance or physical properties of the tire.  (See App. at p. 502).[9]  Instead, the physical properties can be determined through inspection and testing.  (See id.). 

In fact, the only way to determine whether the finished tire has the desired physical properties is to test and analyze the cured tire itself.  (See App. at p. 373 ¶ 39).  Respondents have not even attempted to rebut this fact, which has been recognized by courts across the country.  See, e.g., In re Bridgestone/Firestone, Inc., 106 S.W.3d at 732 (because it was necessary to test the physical properties of the finished tire, “there was no evidence that a defect could be proved using the formula for its (the tire’s) components.”) (quoting In re Continental Gen. Tire, Inc., 979 S.W.2d 609 (Tex. 1998)); Crum v. Bridgestone/Firestone North Am. Tire, LLC, 907 A.2d 578, 589 (Pa Super. Ct. 2006) (recognizing that “the tire can be inspected to determine whether it contains the proper physical properties”). 

Furthermore, Dr. Duddey’s testimony reveals that he is unable to provide any significant details about the constituent ingredients found within Bridgestone’s trade secret formula.  For example, Dr. Duddey cannot tell which grade(s) of natural rubber would be appropriate or unacceptable in a belt skim stock compound.  (See App. at p. 298:1-11).  Further, his testimony indicates that he has no interest in, much less a substantial need for, discovering or learning Bridgestone’s entire trade secret formula.  When pressed to identify with specificity what he would like to analyze, Dr. Duddey stated that he would only want to look at three aspects of the formula: (a) the carbon black; (b) the resin/curative system; and (c) the antidegradant package.[10]  (See App. at pp. 308:2-309:10).  Even then, he was wholly unable to provide any meaningful testimony about how he would analyze those components or what he would look for.  Yet the Circuit Court’s order requires production of the entire formula as well as documents relating to its development and use.

As to the carbon black issue, Dr. Duddey testified he only needed to know whether the grade was or was not in a certain range.  (See App. at pp. 309:11-310:23).  Obviously, that information could be provided without disclosure of the details of that aspect of the formula.  However, Dr. Duddey also admitted that he does not know which grades of carbon black are appropriate for use in belt skim stock, so it is unclear why he needs to know the grade of the carbon black used in the subject tire in the first instance.  (See App. at pp. 298:23-299:13 and 300:4-13).  With respect to the resin system, Dr. Duddey repeatedly testified he has never been involved in the evaluation of those aspects of a compound formula, and plainly lacks the expertise to offer any legitimate analysis of that issue.  (See App. at pp. 312:16-25, 314:9-11).

Perhaps most significantly, Dr. Duddey was unable to provide any meaningful testimony regarding antidegradants, which Respondents have made the focus of this case and are the only specific allegation of defect identified with any particularity in their Amended Complaints.  (See App. at p. 15 ¶ 7(f)).  He even devotes an entire paragraph to a generic discussion about the breakdown and migration of phenylenediamine (“PPD”) antidegradants.  (See App. at p. 321 ¶ 8).  In his Affidavit, Dr. Duddey claims that the subject tire “demonstrates a premature failure caused by the separation of the steel belts,” and “shows evidence of surface cracking that could be caused by fatigue or premature rubber aging.”  (See App. at pp. 319-20 ¶ 5). 

However, when asked during his deposition to explain why he believes the subject tire failed due to “premature aging,” Dr. Duddey was unable to do so.  (See, e.g., App. at p. 483).  He admitted that the indicia of “aging” that he allegedly observed (hardness and cracking) could likely have been caused by the subject tire’s use and that he had no reliable way to analyze its cause or effect.  (See App. at pp. 316:14-317:23).  Rather, he testified that a tread-belt detachment (the “separation” referred to in ¶ 5 of his Affidavit) is “the most prevalent failure among steel-belted radial tires,” a truism regardless of which company manufactured the tire.  (See App. at pp. 286:19-287:16).  This failure mode is “inherent” in the design of steel belted radial tires, and can be caused by many things, including overloaded operation, under-inflated operation, improper puncture repair and impact damage, among others, and is not itself evidence of any defect in the tire.  (See App. at p. 288:15-290:7; see also, App. at p. 504-05). 

Given his testimony, the Court might expect Dr. Duddey to have actually observed some problem with the subject tire to support his claimed “need” for the trade secret formula used in the subject tire.  Remarkably, Dr. Duddey did not.  Rather, he testified that there was nothing about his physical inspection of the tire that led him to believe its rubber compounding was somehow deficient, and that he was unable to identify even a single constituent of the trade secret formula he had reason to believe was compounded improperly.  (See App. at p. 285:17-25, 291:23-292:7).

At the end of the day, taking all of Dr. Duddey’s testimony in context, he was unable to demonstrate any need for access to Bridgestone’s trade secret formula used in the manufacture of the subject tire.  Because a rubber compounds’ chemical properties change during vulcanization and through use, the industry-accepted, most reliable way to analyze the rubber compounds in a used tire is through measurement and analysis of the tire compounds’ physical properties.  (See, e.g., App. at pp. 502, 180-95).  Dr. Duddey agreed that the “most direct method to determine the capacity of materials is to test them in the laboratory,” and that the best way to determine how a compound will perform is through testing the rubber’s physical properties.  (See, e.g., App. at pp. 226, 240-41).  Significantly, Dr. Duddey testified that he does not need the trade secret formula to perform this testing.  (See id.). Given Dr. Duddey’s own testimony, both here and elsewhere, which belies the promises made in his Affidavit, the circumstances in this case do not warrant jeopardizing Bridgestone’s interests in the trade secret formula used in the subject tire through unnecessary disclosure.

Nor should this Court be concerned with any unfair advantage accruing to Bridgestone by using the lack of access to the recipe to cross-examine Respondents’ experts.  As the court in Bridgestone/Firestone, Inc. v. Superior Ct. of the County of Alameda, 9 Cal. Rptr. 2d 709, 711 (Cal. App. 1992) noted, the trial court can dispense with that issue through a pretrial motion in limine.

Numerous other jurisdictions, like South Carolina, have adopted the Uniform Trade Secrets Act (“UTSA”), including California, Oklahoma, Missouri, Tennessee, Arizona, Georgia, and New Mexico.[11]  These jurisdictions have all recognized the trade secret nature of a tire company’s proprietary compound formula and the “protection” that such a property interest requires.  For example, applying a definition of “trade secret” similar to that under South Carolina law, the court in Bridgestone/Firestone, Inc. v. Superior Ct. of the County of Alameda, 9 Cal. Rptr. 2d at 711, refused to order the disclosure of Firestone’s belt skim compound formula.  That court concluded that plaintiff failed to establish the requisite need for the belt skim stock formula.  In particular, the court noted that the tire expert in that case, like Respondents’ expert, Robert Ochs, was able to render an opinion regarding the defectiveness of the tire without the formula.[12]  See id., at 716.  Similarly, in In re Bridgestone/Firestone, Inc., supra, the court required plaintiff to “demonstrate with specificity exactly how the lack of the information will impair the presentation of the case or thoughts to the point that an unjust result is a real, rather than a merely possible, threat.”  106 S. W. 3d at 733.  Since the plaintiff had other extensive evidence on which to premise Firestone’s liability, the court held that the plaintiff failed to make a particular showing of need for the trade secret formula.  Id.

In addition, the Pennsylvania Superior Court recently rejected discovery of Firestone’s skim stock formula.  See Crum v. Bridgestone/Firestone North Am. Tire, LLC, 907 A.2d 578 (Pa Super. Ct. 2006).  That court recognized that access to the formula is not necessary in establishing a defect since,

knowledge of the formula does not aid in a determination of what physical properties the tire will have after it has been cured or vulcanized.  Hence, even if Bridgestone/Firestone provided the formulas, Appellees could not use them to determine whether the manufacturing plant deviated from the formulas to produce the FR 440 tire. Rather, after the tire is vulcanized, regardless of the formula, the tire can be inspected to determine whether it contains the proper physical properties.

Id. at 589 (emphasis added).  The court therefore reversed the trial court’s order requiring disclosure of the trade secret formulas since the formulas “cannot, in themselves, indicate whether a manufactured tire is defective.”  Id.[13]  Likewise, Respondents here have not, and cannot, establish a substantial need for the trade secret formula.

Recently, the Indiana Supreme Court considered this same issue in Bridgestone Americas Holding, Inc. v. Mayberry, No. 48S02-0703-CV-120 (Ind. Sup. Ct. Dec. 18, 2007) (attached hereto as Exhibit A).  In Mayberry, as in this case, the plaintiffs claimed that the formula was necessary to understand “how the manufacture of the tire by [Firestone] contributed” to the subject accident, and presented a letter from a former Firestone engineer to support their claim.  Id.  The court found this claim to be insufficient, stating “Appellees have not shown that they need the formula.”  Id.  Instead, the court appreciated that “an inspection of the subject tire appears to be more than an adequate substitute for examining the skim stock formula.”  Id. at 10.  Because disclosure of the trade secret skim stock formula was “inappropriately ordered,” the court reversed the lower court’s order.  Id. at p. 11.

By permitting Respondents to claim substantial need on the unsupported and unfounded assertions of counsel and their experts, the trial court failed to satisfy the requirements of the Act that are a predicate to disclosure.  In short, the court thwarted the legislative policy underlying the Act by misapplying the requirements of the Act and denying Bridgestone the heightened protections afforded by it.  Accordingly, this Court should reverse the trial court’s erroneous conclusion that Respondents have satisfied their burden under the Act to demonstrate “substantial need” for Bridgestone’s trade secret formula.

This issue does not exist in a vacuum and is not limited to this one lawsuit.  Tire companies have faced repeated attacks on their trade secret formula information in cases across the country.  Almost universally, the courts of other jurisdictions have denied disclosure of the same trade secret formula at issue here.[14]  Not one of those plaintiffs was forced to abandon their claims for want of the formula. 

4. Any Testimony Derived From Bridgestone’s Trade Secret Formula Would Be Inadmissible

In addition to their inability to establish substantial prejudice, Respondents have also failed to satisfy the fourth prong of the substantial need analysis – demonstrating that a good faith basis exists to believe that testimony or evidence derived from the trade secret formula will be admissible at trial.  Moreover, the trial court did not even consider this element of the analysis, electing instead to postpone this analysis to the time of trial.  (See App. at p. 9) (stating it was “premature to pass judgment on any methodology that may be employed to analyze the skim compound”).  However, this analysis is a mandatory component of the threshold showing Respondents must make to obtain discovery.  It cannot be put off to a later time, after the discovery has already been made.  

Respondents do not have, and have not demonstrated, a good faith basis to believe that Dr. Duddey’s testimony based upon trade secret skim compound documents would be admissible at trial.  Under South Carolina Rule of Evidence 702, to find technical opinion evidence admissible, the Court must find: (1) that it will assist the trier of fact; (2) that the expert witness is qualified; and (3) that the underlying science (or technical analysis) is reliable.  See, e.g., State v. Council, 335 S.C. 1, 19-21, 515 S.E.2d 508, 517-18 (1999); accord Moriarty v. Garden Sanctuary Church of God, 341 S.C. 320, 331-332, 534 S.E.2d 672, 677-678 (2000) (Rule 702 applies to all expert testimony, not just scientific).  Duddey’s proposed testimony fails on all accounts.

Dr. Duddey conceded that any opinion he might proffer about the formula would be an “act of faith” or a “guess.”  (See, e.g., App. at pp. 313:18-314:5).  Neither the Court nor a jury would find assistance in Dr. Duddey’s “guess,” and such speculation would clearly be inadmissible.

Further, the rest of Dr. Duddey’s testimony is more than sufficient to disqualify his testimony.  As Dr. Duddey conceded, he has never been involved in “any kind of evaluation” of belt skim compounds.  (See, e.g., App. at pp. 294:14-19, 295:12-296:21, 307:21-23).  Thus, he has never rendered a formal opinion regarding the propriety of a tire company’s belt skim compound formula.  (See App. at p. 297:19-23).  Moreover, he has no idea which constituent ingredients, or their types and concentrations, would be appropriate; and he has no concept of which testing or analysis he might conduct to draw a meaningful conclusion.  (See App. at pp. 298:1-299:13, 300:4-13, 301:4-25, 302:1-15, 303:2-5, 307:9-25). 

For the same reasons, Dr. Duddey’s “methodology,” to the extent he has one, is insufficient.  With respect to performing any actual analysis of the trade secret formula for “aging,” Dr. Duddey admitted that the only analytical “technique” he could employ would be to compare the antidegradants in the trade secret formula to known antidegradant packages found in trade literature.  (See App. at pp. 310:24-311:9). 

For all of these reasons, Respondents have not demonstrated, and cannot demonstrate, any good faith basis to believe that expert testimony concerning the secret skim stock formula will be admissible at trial.  Thus, Respondents have wholly failed to establish a “substantial need” for access to the Bridgestone trade secret belt skim compound formula used in the subject tire.  Therefore, the trial court erred in compelling production of Bridgestone’s trade secret skim compound documents, including the complete belt skim stock formula.  Because this error will cause immediate and irreparable harm to Bridgestone, this Court should reverse the trial court's Order.

B. At Most, the Trial Court Should Have Ordered Less Intrusive Measures

As discussed above, the only component of the belt skim stock Respondents mention with any particularity in their complaint is the antidegradant package.  As such, this is the only component of the belt skim compound formula that is even arguably discoverable under the Act.  See S.C. Code § 39-8-60(B)(1) (requiring court to find that factual predicate for discovery of trade secret was “plead with particularity”).  Given that the antidegradant package appears to be the true focus of Respondents’ quest, the Court should, if anything, first order production of only that component of the trade secret formula.  See Bridgestone/ Firestone, Inc. v. Superior Ct. of the County of Alameda, supra at 713-714 (court must consider “any less intrusive alternatives to disclosure” as part of balancing process entailed with potential discovery of trade secrets); In re Bridgestone/Firestone, Inc., supra at 737 (concurring opinion) (“Plaintiffs have not alleged that the skim stock formula comparison noted is necessary, or even the superior way, to establish their manufacturing claims.”).  By focusing on the antidegradant used in the trade secret formula, Respondents make clear that disclosure of the entire formula is both unnecessary and excessive.

If the trial court ordered the production of only the antidegradant information Dr. Duddey discussed, Bridgestone could produce, subject to an appropriately restrictive protective order, a document identifying the type(s), amount(s) and concentration(s) of the antidegradant(s), if any, used in the trade secret formula.[15]  Indeed, Bridgestone proffered three alternative orders to the trial court, other than complete disclosure of the trade secret formula, as a means to provide Respondents with the information they claim to need.  (See App. at pp. 408-35).  However, the trial court did not explore any less intrusive alternative, which would have provided Respondents with the only information relevant to their pleadings, while protecting Bridgestone’s trade secrets.  Instead, it issued a clearly overbroad order compelling disclosure of the entire formula and all documents relating to the development and use of that formula.

Likewise, though not addressed in Respondents’ Amended Complaint and, therefore, not discoverable under the Trade Secrets Act, see S.C. Code § 39-8-60(B)(1), Dr. Duddey also testified that he would also like to review certain aspects of the carbon black and the resin/curative systems used in the subject belt skim compound.  Specifically, Dr. Duddey indicated that he would like to know whether the grade of the carbon black used in trade secret formula was within a certain unspecified range (see App. at p. 308:6-20), as well as the amounts and ratios of the resin system and its curatives (see App. at p. 477).  As discussed above, Dr. Duddey is not qualified to opine as to these components nor are they relevant to the allegations of Respondents’ Amended Complaint. 

However, if the trial court had ordered their production as a less intrusive measure, Bridgestone could have separated the information Dr. Duddey discussed, to the extent it exists, from the trade secret formula as a whole and produced a document containing just the available requested information, rather than the complete formula used in the manufacture of the subject tire.  Specifically, Bridgestone could confirm or deny that the carbon black used in the trade secret formula was within a range specified by Dr. Duddey, and produce, pursuant an appropriately restrictive protective order, a document identifying the amounts and ratios of the resin system and its curatives, if any, used in the trade secret formula.  Again, the trial court failed to consider this less intrusive option, in violation of the Act and the policy of the General Assembly reflected in it.  This clear error of law requires correction if the Court does not reverse the order of the Circuit Court in its entirety. 

II. UNWARRANTED DISCLOSURE OF ITS TRADE SECRET FORMULA WILL LIKELY CAUSE BRIDGESTONE IRREPARABLE HARM THAT CANNOT BE PREVENTED OR REMEDIED BY A PROTECTIVE ORDER

The trial court ordered production of the trade secret skim compound documents under a restrictive protective order “to ensure that no competitive harm results to Bridgestone by allowing [Respondents] access to this information.”  (See App. at p. 2).  However, even a strictly fashioned protective order will not adequately protect Bridgestone’s trade secret formula, since that order cannot prevent inadvertent or even intentional dissemination of the information by either the experts or counsel in future cases, and no court sanction can adequately compensate Bridgestone for the harm that would result.  As the Pennsylvania Superior Court appreciated,

Even though the trade secrets are intended to be disseminated only to the litigants and their experts, the reality is that there is no effective remedy for a breach of the existing protective order.  Said another way, while a protective order provides some protection from dissemination, it is not foolproof.

Crum, supra at 584 (citing Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d 866, 870 (Pa. Super. 2002)) (emphasis added).  The Eighth Circuit Court of Appeals has expressed similar concerns:

Finally, we must express our concern about the effectiveness of a protective order in this case.  Remington contends that Hartman’s counsel has violated the express terms of protective orders in past cases involving Remington.  We have upheld a contempt order imposed upon an attorney who violated a protective order.  Such an after-the-fact remedy is largely ineffectual in a trade secrets case, however, for once the information is wrongfully released, the trade secret is lost forever and no sanction imposed on the violator can retrieve it.

In re Remington Arms, 952 F.2d 1029, 1033 (8th Cir. 1991) (emphasis added; footnotes and citations omitted); see also Coca-Cola Bottling Co. of Shreveport, Inc.,  v. Coca-Cola Co., 107 F.R.D. 288, 290 (D. Del 1985) (“disclosure [of trade secrets] in litigation, even with the use of an appropriate protective order, could ‘become by indirection the means of ruining an honest and profitable enterprise’”). 

Given the unique nature of a trade secret, it loses its value once it is disclosed.  If the formula is wrongfully disseminated, Bridgestone will have suffered an immense loss which cannot be remedied through sanctions applied pursuant to the protective order.  See In re Remington Arms, 952 F.2d at 1033; North Atlantic Instruments Inc. v. Haber, 188 F.3d 38, 49 (2^nd Cir. 1999) (recognizing that loss of trade secrets amounts to irreparable harm that cannot be measured in monetary damages since “a trade secret once lost is, of course, lost forever”).

As Mr. Queiser testified, protective orders governing the use of confidential documents produced in other tire litigation have been violated on more than occasion.  (See App. at p. 501).  Despite the intentions to provide sufficient protection to the sensitive information, experience has shown that protective orders are often not an effective means to safeguard sensitive information.  (See id.).  Therefore, without a showing of substantial need for this information, which Respondents have not made, the trial court’s order unnecessarily jeopardizes Bridgestone’s trade secret formula.

CONCLUSION

Based on the foregoing, Bridgestone respectfully requests that this Court reverse the trial court’s order requiring disclosure of Bridgestone’s trade secret skim compound documents.

BARNWELL WHALEY PATTERSON & HELMS, LLC

By:                                                                                   

M. DAWES COOKE, JR.
TODD M. MUSHEFF
JOHN W. FLETCHER
885 Island Park Drive (28492)
P. O. Drawer H
Charleston, SC  29402
(843) 577-7700 FAX (843) 577-7708

Wallace K. Lightsey, SC Bar No. 6476
Wyche Burgess Freeman & Parham, P.A.
44 East Camperdown Way, 29601
Post Office Box 728
Greenville, S.C. 29602-0728
(864) 242-8200
Attorneys for Petitioner/Appellant Bridgestone Corporation

[1] In August, 2007, Respondents amended their complaints to change the representatives of the decedents and minors and to re-add Ford Motor Company as a party Defendant.  (See App. at pp. 537-53).  These Amended Complaints contained the same substantive allegations vis-à-vis Bridgestone as Respondents’ original Complaints.  For simplicity, citations to Respondents’ pleadings in this Brief will be to the Amended Complaint in Case No. 05-CP-25-456.

[2] The Court also permitted Bridgestone to take the deposition of Respondents’ forensic tire expert, Robert Ochs.  However, as noted by Judge King in another lawsuit, Respondents’ counsel, representing different plaintiffs, “admit that Mr. Ochs is not qualified to review…rubber compound formulas.”   (See App. at pp. 344-47).  Moreover, Ochs admitted in the case of Martinez v. Continental Tire North America (Hidalgo Co., Texas) that he had been able to reach opinions and offer testimony in numerous cases without ever having been provided access to skim compound formulas, because he was able to analyze other aspects of a tire to evaluate its adhesion.  (See App. at pp. 527 and 534-36). 

[3] For example, the American Society for Testing and Materials (“ASTM”) has a standard, D-412, for evaluating the bonding properties of belt skim stock by stripping the belts and examining the stripped surfaces.

a href="#_ftnref4" name="_ftn4" title="">[4] The Federal counterpart to this rule is now F.R.C.P. 26(c)(1)(G).

[5] Although the trial court conducted its analysis under both Rule 26(c)(7) of the South Carolina Rules of Civil Procedure and the South Carolina Trade Secrets Act, the court’s order ultimately reflects the application of the Act to the facts before it. 

a href="#_ftnref6" name="_ftn6" title="">[6] The term “antidegradants” generally refers to chemicals used in a compound’s formula to aid in processing or providing certain physical properties.  (See The Vanderbilt Rubber Handbook (13^th Ed. 1990), pp. 284-285).

a href="#_ftnref7" name="_ftn7" title="">[7] As also noted above, Mr. Ochs is equally unqualified to analyze rubber compound formulas, as Respondents’ counsel has previously acknowledged.  See n.2, supra.

[8] Similarly, Respondents’ expert, Robert Ochs, stated in his affidavit that “once the skim compound is analyzed, both for its intended physical properties and as compared to the central compound formula, I will be able to render opinions as to the true nature of the defect.”  However, the formula itself will not reveal the intended physical properties.  Rather, those physical properties can be determined through testing the finished tire.

[9] Mr. Queiser is the Manager of Product Analysis for Bridgestone Americas Holding, Inc., a subsidiary of Bridgestone Corporation.  While admittedly not a compounder, Mr. Queiser testified that access to the compound formula is not necessary to analyze the physical properties of that compound.  For example, Mr. Queiser has participated in evaluations and “root cause” analyses of compounds without having access to the complete formula for that compound.  (See, e.g., App. at pp. 512-13).

[10] Curiously, though Dr. Duddey purportedly “needs” the Bridgestone trade secret formula to evaluate whether any changes may have “affected the quality of the tire at issue” (see App. at pp. 319-20 ¶ 5), during his deposition, plaintiffs’ counsel repeatedly, and improperly, instructed him not to answer questions about which ingredients, or their types and amounts, would be appropriate.  (See, e.g., App. at pp. 301:11-25, 302:7-15, 304:1-7).  This tactic by Respondents’ counsel further demonstrates the limitations of Dr. Duddey’s expertise and his inability to explain the basis of his claims of substantial need.

[11] South Carolina adopted the Uniform Trade Secrets Act in 1992, and then substantially revised the Act in 1997 to its current form.

[12] Here, Mr. Ochs has already offered the opinion that the subject tire failed as a result of a defect, but unlike the hundreds of other cases in which he has offered opinions as to defect, he now claims that he lacks sufficient information to determine the “true nature” of the defect. 

[13] See also Orders attached to Bridgestone’s Opposition to Plaintiffs’ Motion to Compel wherein other courts have denied disclosure of a tire company’s trade secret formula where plaintiffs did not show a compelling need for that information.  (See App. at pp. 196-220).

[14] See Orders attached to Bridgestone’s Opposition to Plaintiffs’ Motion to Compel.  (See App. at pp. 196-220). 

[15] Because of the particularly sensitive nature of Bridgestone’s trade secret formula, any information about those formulas, including information about the antidegradant package should be produced only pursuant to a protective order providing enhanced protection against the inadvertent or intentional disclosure of that information.