Rel: 12/12/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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           SUPREME COURT OF ALABAMA
                          OCTOBER TERM, 2014-2015

                         _________________________

                                  1130840
                         _________________________

                         Ex parte Robert Bosch LLC

                      PETITION FOR WRIT OF MANDAMUS

     (In re: Dorothy Kilgo, individually and as personal
  representative of the Estate of Ernest Ronald Kilgo, Jr.,
                          deceased

                                          v.

                       Donnice Milam Smith et al.)

                  (Etowah Circuit Court, CV-11-900399)

MAIN, Justice.
1130840

       One of the defendants below, Robert Bosch LLC ("Bosch"),

petitions this Court for a writ of mandamus directing the

Etowah Circuit Court ("the trial court") to vacate or, in the

alternative, to amend the provisions of its order granting the

request for production of Bosch's "air bag system Electronic

Control Unit" ("ECU") filed by the plaintiff below, Dorothy

Kilgo     ("Kilgo"),       individually         and    as   the    personal

representative of the estate of Ernest Ronald Kilgo, Jr.,

deceased.       We grant the petition and issue the writ.

                   I. Facts and Procedural History

       On March 17, 2011, Kilgo and her husband, Ernest Ronald

Kilgo, Jr. ("Ron"), were passengers in a 2008 PT Cruiser motor

vehicle that Ron's stepson was driving in Etowah County.

While they were waiting for an oncoming motor vehicle to pass

through an intersection so that they could make a left turn,

the Kilgos' vehicle was struck from behind by another motor

vehicle.    The impact of that collision propelled the Kilgos'

vehicle into the intersection, where it was struck head-on by

an oncoming motor vehicle.         Ron, who was sitting in the front

passenger-side seat, suffered severe injuries and died several

days    later    as   a   result   of       those   injuries.     The   front


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1130840

passenger-seat air bag failed to deploy during either the rear

or the head-on collisions, and the front passenger-side seat-

belt "pretensioner," which is supposed to cause the seat belt

to "lock" immediately after a collision, did not activate.

However, one of the two front driver-side air bags deployed

during the collisions, and the front driver-side seat-belt

pretensioner was activated as well.

    In September 2011, Kilgo filed in the trial court a

wrongful-death      complaint,     naming      several   defendants,

including, among others, Bosch, who designed and manufactured

the ECU in the Kilgos' vehicle.        Sometime thereafter, Kilgo

served a notice of taking the deposition of a corporate

representative of Bosch.          The deposition notice included

numerous   topics   for   which    testimony    and   documents   were

requested.   Item no. 5 of the deposition notice requested

"[t]estimony and documents relating to the algorithms which

are used to deploy the supplemental restraint systems of the

2008 Chrysler PT Cruiser, including, but not limited to, the

air bags and seat-belt pretensioners" (hereinafter referred to

as "the algorithm").      Bosch filed a response objecting to

Kilgo's deposition notice and moved for a protective order


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with regard to several of Kilgo's requests for production,

including Kilgo's request for the algorithm.    In the motion,

Bosch argued that the algorithm is a trade secret and, thus,

Bosch said, protected from discovery under Rule 507, Ala. R.

Evid.;1 Rule 26(c)(7), Ala. R. Civ. P.;2 and the Alabama Trade

Secrets Act, Ala. Code 1975, § 8-27-1 et seq.



    1
        Rule 507, Ala. R. Evid., provides:

         "A person has a privilege, which may be claimed
    by the person or the person's agent or employee, to
    refuse to disclose and to prevent other persons from
    disclosing a trade secret owned by the person, if
    the allowance of the privilege will not tend to
    conceal fraud or otherwise work injustice. If
    disclosure is directed, the court shall take such
    protective measures as the interest of the holder of
    the privilege and of the parties and the interests
    of justice require."
    2
        Rule 26(c)(7), Ala. R. Civ. P., provides:

    "Upon motion by a party or by the person from whom
    discovery is sought, and for good cause shown, the
    court   in  which   the   action  is   pending   or,
    alternatively, on matters relating to a deposition
    or production or inspection, the court in the
    circuit where the deposition or production or
    inspection is to be taken may make any order that
    justice requires to protect a party or person from
    annoyance, embarrassment, oppression, or undue
    burden or expense, including ... that a trade secret
    or other confidential research, development, or
    commercial information not be disclosed or be
    disclosed only in a designated way ...."
                                4
1130840

      Bosch supported its motion for a protective order with

the   affidavit   of   Matthew   Coon,   Bosch's   "Director   of

Engineering for Airbag ECU development."      In his affidavit,

Coon stated, in pertinent part:

      "5. The Algorithm (referred to as 'the Algorithm'),
      and related subroutines, are a set of mathematical
      calculations    and   logical    steps   that    the
      microprocessor of the ECU goes through to operate
      the ECU. Proprietary software inside the ECU runs
      and employs the Algorithm. Both the software and the
      Algorithm are highly proprietary and unique to
      Bosch.

      "6. The Algorithm sought by [Kilgo] is an extremely
      confidential trade secret that provides Bosch a
      competitive advantage over other companies in the
      automotive restraint system industry. The Algorithm
      and information related to it are owned solely by
      Bosch and, to Bosch's knowledge, they are not known
      by anyone outside of Bosch, especially Bosch's
      competitors, except as described in paragraph 8
      below. Only certain Bosch employees on the project
      team have access to the Algorithm. Bosch derives
      independent economic value, actual and potential,
      because the information is not known to other
      persons or companies.

      "7. To my knowledge, the Algorithm has not been
      produced or disclosed to any federal, state or local
      agency, nor has it been produced or disclosed in
      connection with civil litigation or any court
      proceeding, or to any Bosch customer.

      "8. I have knowledge about the security controls in
      place at the company to ensure that the Algorithm is
      protected from disclosure by unauthorized persons.
      Access to these documents is tightly controlled
      inside the company. A small number of Bosch

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1130840

    employees have access to the information. Only those
    Bosch employees who need to know the information to
    perform their jobs have access to the information.
    Within Bosch, access to this information is limited
    electronically to certain designated employees to
    ensure it is not disseminated to any person or
    entity outside Bosch.

    "9. Bosch is heavily engaged in and committed to
    research and development of new designs and
    performance for the ECU. Disclosure of the Algorithm
    and documents related to the Algorithm would allow
    other persons to take advantage of Bosch's expertise
    and expenditures in new product development.

    "10. Bosch has spent over 25 years developing
    algorithms like the one requested by [Kilgo]. Over
    those years, Bosch has spent hundreds of millions of
    dollars researching, designing, and developing and
    protecting algorithms like the one requested by
    [Kilgo]. Bosch has employed scientists, engineers,
    and programmers to research, design, and develop
    this   information.   The    Algorithm   cannot   be
    ascertained or derived from publicly available
    information.

    "11. The automotive restraint system industry is a
    very competitive industry. Companies such as Bosch
    and its competitors stand to gain or lose literally
    hundreds of millions of dollars each year based upon
    the design and production of state of the art
    products such as Bosch's ECUs, which incorporate the
    Algorithm like the one in the subject ECU. If data
    and information contained in documents relating to
    its algorithms were to be disclosed outside of
    Bosch, those who obtain such information would be
    able to understand the scientific and engineering
    thought and design processes employed by Bosch when
    designing, programming, and building its ECUs. By
    supplying this confidential and secret information,
    Bosch would effectively be providing [Kilgo's]
    experts with a blueprint to build their own

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1130840

    competitive version of Bosch's ECU. While [Kilgo]
    and her counsel may not actually possess the tools
    or the knowledge to construct their own ECU,
    [Kilgo's] experts most certainly do and would stand
    to gain financially if provided with the Algorithm.

    "12. If Bosch were ordered to disclose the above
    documents and data it would, in effect, hand over
    the results of years and millions of dollars worth
    of internal research and development at Bosch's sole
    cost. If Bosch's Algorithm were to be disclosed
    outside of Bosch there is no quantifiable amount of
    money that could compensate Bosch for the loss of
    revenues, profits, jobs, and competitive advantage
    it would suffer as a result of the dissemination of
    this information and these design processes. Not
    only would the disclosure of this information cause
    Bosch to suffer competitive disadvantages, it would
    enable any receiving party to unfairly and unjustly
    receive a tremendous financial windfall, gain, and
    profit from the possession and utilization of this
    proprietary information."

    Kilgo filed a response objecting to Bosch's motion for a

protective order, arguing, in part:

         "12. The results of the December 6, 2013[,]
    testing [of the Kilgos' vehicle] showed that the
    passenger airbag did not deploy and the passenger
    seat belt 'pretensioner or tensioner' did not deploy
    -- fully explaining how [Ron's] body was allowed to
    contact the forward interior areas of the subject
    vehicle. The electrical continuity tests themselves
    established that the wiring and electrical systems
    of the vehicle were functioning properly. Upon
    visual examination of the passenger airbag cannister
    itself, the cannister appeared to be equipped with
    an airbag and no obvious defects of the actual
    airbag were discovered. ...




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1130840

         "13. The airbag system components manufactured
    by Robert Bosch[] LLC are intended to sense and
    deploy [sic] crashes which can cause significant
    injury to occupants of vehicles like the subject
    vehicle. These sensors are located in the forward
    sections of the vehicle and are connected directly
    to the 'ECU.' The ECU is a computer device
    containing    microprocessors   which    have   been
    programmed (with the use of mathematical algorithms)
    to deploy the supplemental restraint system airbags
    and seat belt tensioners in the event a deployment
    crash is detected. ...

         "14. During the subject crash of March 17, 2011,
    there was partial deployment of the driver airbag
    system and the driver seat belt pretensioner. There
    was no deployment of stages 1 or 2 of the passenger
    airbag or passenger seat belt pretensioner. ...

         "15. Due to the condition of the vehicle's
    supplemental restraint system post-accident, it is
    apparent that the ECU and/or sensors failed to
    properly deploy the passenger seat belt pretensioner
    and stages 1 and 2 of the passenger airbag. This
    directly points to the failure of the crash sensing
    system and the algorithms which discriminate and
    define the crash conditions necessary for deployment
    of the safety devices used to protect occupants of
    the subject vehicle. ...

         "16. The design of the crash sensing algorithm
    and the specific calibration used to calibrate the
    sensors with the algorithm are reasonable inquiries
    in this particular case to determine whether the
    algorithms and crash sensing calibrations were
    defective, thus making the ECU defective in its role
    in deployment of the supplemental restraint systems
    in the subject Chrysler PT Cruiser."3

    3
     Bosch claims that the algorithm does not "physically
deploy[] the airbag[s] or [seatbelt] pretensioners." Rather,
Bosch claims, the algorithm is responsible for making the
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1130840

    Kilgo supported her response to Bosch's motion for a

protective order with certain documentary evidence, including

the affidavit of Chris Caruso, one of Kilgo's experts. In his

affidavit, Caruso stated that he has "personal knowledge,

experience and education with respect to the design and

function of supplemental restraint systems and, in particular,

airbags" and that he had "review[ed] ... documents in the

above-styled cause and the subject 2008 Chrysler PT Cruiser

... and its supplemental restraint systems."       Caruso further

stated:

         "15. Based upon the two inspections I have
    conducted or participated in, it is apparent to me
    that the root cause [of the failure of the front
    passenger-side air bag and seat-belt pretensioner to
    activate] appears to be a failure in the crash
    sensing system to properly detect and discriminate
    crash conditions. Based upon my years of experience
    in designing these systems, the most probable
    failure was a design of the crash sensing algorithm
    (mathematical formula) or the specific calibration
    used in the subject vehicle.

         "16. The deployment of the knee bolster airbag
    and the driver seat belt pretensioner (and the
    failure of the passenger airbag, driver steering
    column airbag and passenger seat belt pretensioner)
    clearly indicate a system that was defectively
    designed and failed to determine the high level of



"operational    decision   to       deploy   the   airbags    and
pretensioners."
                                9
1130840

    severity experienced in the subject crash of March
    17, 2011."4

    The trial court held a brief hearing on Bosch's motion

for a protective order.   Thereafter, on March 20, 2014, the

trial court entered an order, which stated, in pertinent part:

    "[T]he Court determines that said algorithm and
    calibrations do in fact constitute a trade secret
    and warrant the protection of the Court.

         "The Court further determines that [Kilgo] has
    shown to this Court the necessity and relevance of
    the requested information.

         "The Court has weighed the harm to the trade
    secret's owner against the need for disclosure. The
    need to prevent disclosure does not outweigh the
    benefit of the disclosure to what the Court
    determines to be relevant evidence.

         "The information requested shall be provided to
    [Kilgo].

         "Said information shall be protected as a trade
    secret to the maximum extent practicable.



    4
     Kilgo moved this Court to strike an affidavit of Caruso's
attached to Bosch's response as Exhibit 12 because, Kilgo
says, that affidavit, dated June 30, 2014, was not before the
trial court when it issued its last order in this case on
April 22, 2014. We instructed the clerk's office to grant the
motion, which it has done. However, the affidavit of Caruso's
that Kilgo relies on above is attached to her mandamus
petition as part of Exhibit D and is a different affidavit,
dated January 22, 2014. The January 22, 2014, affidavit was
referenced, without objection, during a hearing held by the
trial court on February 28, 2014.
                             10
1130840

         "The information having been designated a trade
    secret shall not be shared with any person, firm or
    entity outside this litigation.

         "The Court in considering measures to limit the
    possible harm resulting from disclosure would allow
    [Bosch] to submit within 10 days from the date of
    this Order a proposed amendment to the Protective
    Order entered February 13, 2013[5] containing any
    additional safeguards [Bosch] would request."

    As allowed by the trial court's March 20, 2014, order,

Bosch filed a motion to amend the trial court's protective

order.    Specifically, Bosch sought to amend the protective

order by:

     (1) "limit[ing] disclosure of the algorithm code to those
portions of the code that relate to the point in time that a
severe crash has been detected and the decision has been made
to deploy the vehicle's restraints and all algorithm code
thereafter";

     (2) "mak[ing] available the calibration parameters that
set forth the deployment of all of the pretensioners and front
airbags when the threshold for deployment is reached";




    5
      There is no protective order dated February 13, 2013,
attached to any of the filings in this Court. The petition
reveals that, "on September 19, 2012, [Kilgo] and [Bosch]
submitted to [the trial court] a Joint Motion for Protective
Order[,] which [the trial court] subsequently approved and
signed"; the trial court entered that order on September 20,
2012.   It appears that the trial court's reference to the
February 13, 2013, protective order was either a clerical
error or a reference to an order that is not before this
Court.
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1130840

     (3) producing "the portions of the algorithm code and
calibration parameters ... at Bosch's facility in Plymouth,
Michigan";

     (4) making "the above portions of the algorithm code and
calibration parameters ... available to [Chris] Caruso on
computer hardware maintained by Bosch";

     (5) not allowing Caruso to "copy, image, photograph, or
in any way record any portions of the algorithm and
calibration parameters during his inspection";

     (6) requiring Caruso to "explicitly submit in writing to
the personal jurisdiction of the Circuit Court of Etowah
County, Alabama for enforcement of the terms of the Protective
Order prior to any inspection of Bosch's algorithm";

     (7) requiring that "Caruso agree in writing that he will
not provide any analysis, discussion, opinions, conclusions,
or  communications    relating   to  Bosch's   algorithm   and
calibration parameters to any individual or entity who is not
'a participant' in this litigation without the express
permission of this Court and without first notifying Bosch and
its counsel in this litigation of his desire to do so and
giving Bosch a reasonable opportunity to respond";

     (8) requiring that "Caruso agree   in writing that he will
not promote, advertise or discuss       the production of the
algorithm and calibration settings,      or the fact that the
production was made, to anyone other    than a 'participant' in
this litigation"; and

     (9) requiring that "all 'work product' that Mr. Caruso
creates following his inspection of Bosch's algorithm and
calibration parameters be confidentially maintained by him and
provided to Bosch's attorneys of record at the conclusion of
this litigation for subsequent destruction."

    Kilgo filed a response to Bosch's motion to amend the

protective order, objecting to Bosch's requests to amend the


                             12
1130840

protective order numbered (1)-(5) above and also objecting to

what Kilgo interpreted as Bosch's limiting to one the number

of experts Kilgo could employ in analyzing the algorithm;

Kilgo wanted both Caruso and Geoff Mahan, who is described as

an expert in "airbag [and] supplemental restraint," to analyze

the algorithm.       The trial court entered an order denying

Bosch's motion to amend the protective order and, in that

order, required Kilgo to "submit a proposed Order including

safeguards it will employ to review the requested discovery";

on April 21, 2014, Kilgo submitted to the trial court a

proposed protective order.         On the following day, the trial

court entered an amended protective order, which required

Bosch to produce the entire algorithm for inspection by

Kilgo's   two    experts,    subject    to   12   confidentiality   and

disclosure      safeguards   set   forth     in   the   order.   Bosch

petitioned this Court for a writ of mandamus.

                       II. Standard of Review

               "'In Ex parte Norfolk Southern Ry.,
          897 So. 2d 290 (Ala. 2004), this Court
          delineated the limited circumstances under
          which review of a discovery order is
          available by a petition for a writ of
          mandamus and the standard for that review
          in light of Ex parte Ocwen Federal Bank,
          FSB, 872 So. 2d 810 (Ala. 2003):

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1130840

               "'"'Mandamus        is       an
          extraordinary remedy and will be
          granted only when there is "(1) a
          clear   legal    right     in    the
          petitioner to the order sought,
          (2) an imperative duty upon the
          respondent       to      perform,
          accompanied by a refusal to do
          so, (3) the lack of another
          adequate remedy, and (4) properly
          invoked   jurisdiction     of    the
          court." Ex parte Alfab, Inc., 586
          So. 2d 889, 891 (Ala. 1991). In
          Ex parte Ocwen Federal Bank, FSB,
          872 So. 2d 810 (Ala. 2003), this
          Court announced that it would no
          longer review discovery orders
          pursuant to extraordinary writs.
          However, we did identify four
          circumstances     in     which     a
          discovery order may be reviewed
          by a petition for a writ of
          mandamus.   Such     circumstances
          arise (a) when a privilege is
          disregarded, see Ex parte Miltope
          Corp., 823 So. 2d 640, 644–45
          (Ala. 2001); (b) when a discovery
          order compels the production of
          patently      irrelevant          or
          duplicative     documents        the
          production   of    which     clearly
          constitutes harassment or imposes
          a burden on the producing party
          far out of proportion to any
          benefit    received       by     the
          requesting party, see, e.g., Ex
          parte Compass Bank, 686 So. 2d
          1135, 1138 (Ala. 1996); (c) when
          the trial court either imposes
          sanctions effectively precluding
          a decision on the merits or
          denies discovery going to a

                          14
1130840

              party's entire action or defense
              so that, in either event, the
              outcome of the case has been all
              but determined and the petitioner
              would be merely going through the
              motions of a trial to obtain an
              appeal; or (d) when the trial
              court impermissibly prevents the
              petitioner from making a record
              on the discovery issue so that an
              appellate court cannot review the
              effect of the trial court's
              alleged error. The burden rests
              on the petitioner to demonstrate
              that its petition presents such
              an exceptional case -- that is,
              one in which an appeal is not an
              adequate remedy. See Ex parte
              Consolidated Publ'g Co., 601 So.
              2d 423, 426 (Ala. 1992).'"

          "'897 So. 2d at 291–92 (quoting Ex parte
          Dillard Dep't Stores, Inc., 879 So. 2d
          1134, 1136–37 (Ala. 2003)).'"

Ex parte Nationwide Mut. Ins. Co., 990 So. 3d 355, 360 (Ala.

2008) (quoting Ex parte Orkin, Inc., 960 So. 2d 635, 638 (Ala.

2006)). Kilgo does not dispute that the order challenged here

pertains to a trade-secret privilege and thus is reviewable

under category (a) ("a discovery order may be reviewed by a

petition for a writ of mandamus ... when a privilege is

disregarded").

                        III. Analysis




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1130840

    Because there is no dispute that the algorithm is a trade

secret, the petition presents only two issues for our review.

First,    Bosch    argues     that    the   trial     court    exceeded         its

discretion in not issuing a protective order that would

prevent    Kilgo     from    having   any   access     to   the   algorithm.

Second, Bosch presents the alternative argument that the trial

court     exceeded     its   discretion      in     refusing     to     adopt     a

protective order drafted by Bosch and instead issuing a

protective     order     that,   Bosch      says,     provides        inadequate

safeguards to protect Bosch's trade secret.

    Bosch presents a lengthy argument as to why the algorithm

should not be disclosed to Kilgo, which may be summarized as

follows:

     (1) Bosch argues that Kilgo has not shown that the
algorithm is necessary to prove her claims. Instead, Bosch
claims, Kilgo has alleged only a "mere possibility that [the
algorithm] will prove her case." Bosch notes that, in Kilgo's
objection to Bosch's motion to amend the protective order,
Kilgo stated that "'the forward sensors and central sensor
located in this design may well be implicated with respect to
the algorithm and calibration settings.'"     This statement,
Bosch says, runs afoul of Ex parte Michelin North America,
Inc., [Ms. 1121330, January 24, 2014] ___ So. 3d ____, ____
(Ala. 2014), insofar as that case states that "'"[n]ecessity"
means that without discovery of the particular trade secret,
the discovering party would be unable to present its case "to
the point that an unjust result is a real, rather than a
merely possible, threat."'" (Quoting Bridgestone Americas
Holding, Inc. v. Mayberry, 878 N.E.2d 189, 196 (Ind. 2007).)

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1130840

     (2) Bosch argues that the algorithm is an "all-fire"
system that sends a signal to deploy all air bags and seat-
belt pretensioners rather than sending a signal to each air
bag and seat-belt pretensioner; thus, Bosch says, the fact
that some of the air bags and seat-belt pretensioners deployed
shows that the algorithm functioned as designed and that it
was not defective (implicit in this argument is that none of
the air bags or pretensioners would have deployed if the
algorithm were defective).     Bosch contends that the front
passenger-side air bag and seat-belt pretensioner did not
deploy because, it says, during the collisions, "four wires to
the passenger side airbag were cut as was the ground wire to
the vehicle's battery," thus "resulting in a disruption of
power and/or signal reference levels."

     (3) Bosch argues that the need for disclosure of the
algorithm does not outweigh the harm that would result from
that disclosure. Specifically, Bosch argues that "[Kilgo's]
airbag experts in this case -- both former employees of airbag
system suppliers -- would receive the benefit of years of ECU
scientific and engineering development by Bosch" and that
"[t]here is no quantifiable amount of money that could
compensate Bosch for the loss of revenues, profits, and
competitive advantage it would suffer if the requested
information is disseminated and exploited by Bosch's
competitors."

    Bosch argues alternatively that the trial court exceeded

its discretion in refusing to adopt the protective order

drafted by Bosch.   Specifically. Bosch argues that

    "[its] alternative proposal would give [Kilgo's]
    experts access to the portions of the algorithm and
    calibrations they claim they need without revealing
    the entirety of the trade secrets. It also allows
    [Kilgo's] expert access in a controlled environment
    where Bosch can ensure that the secrets are
    protected, while allowing [Kilgo] the ability to
    review additional data showing the 'all fire'


                              17
1130840

    system. The trial court exceeded its discretion in
    not affording Bosch these protections."

Bosch supports the argument portion of the petition with

numerous citations to the affidavits of Kilgo's experts,

Caruso and Mahan, and its own expert, Tom Livernois.

    In her response, Kilgo presents argument and evidence

disputing the contentions of error set forth in Bosch's

petition.   In response to Bosch's initial argument -- that

Kilgo should have no access to the algorithm -- Kilgo argues:

     (1) That Kilgo has shown that the algorithm is necessary
to prove her claims. Specifically, Kilgo notes that one of
her experts, Caruso, stated in his affidavit that "'the
specific algorithm physical principles and the calibration
settings are key factors in determining why the system
incorrectly assessed the total severity of the subject crash
and failed to deploy the passenger airbag, the driver steering
column airbag and the passenger seat pretensioner.'" In
addition, Kilgo argues that the need for disclosure does
outweigh the harm that would result from such disclosure
because, she says, "there is no evidence that [Kilgo's]
attorneys or expert witnesses would violate the strict
protective order," and that, for "independent consulting
engineers" such as Caruso and Mahan, "it is commonplace to
review trade secret information under the limitations of a
protective order."    Kilgo further argues that "what is at
issue is the algorithm and calibrations for an ECU in a 2008
model year vehicle. By the time the matter is before [this
Court], the 2015 model year automobiles will be for sale and
the information will be seven years old." Kilgo notes (and it
is undisputed) that there have been "updates" to the algorithm
that existed in the 2008 PT Cruiser.

     (2) That "Bosch's arguments are merely an assertion that
[Kilgo] and this Court must simply trust [Bosch] when it says

                             18
1130840

that the ECU cannot be defective," without Kilgo's having the
opportunity to verify that the ECU is, in fact, an "all-fire"
system that cannot signal less than all the air bags and seat-
belt pretensioners to deploy. As to Bosch's argument that the
cutting of four wires to the front passenger-side air bag and
the ground wire to the vehicle's battery during the collisions
caused the front passenger-side air bag and seat-belt
pretensioner not to deploy, Kilgo replies:

         "The reason the 'electrical system' argument
    isn't meaningful can be shown by examining its
    parts. First, the cutting of wires running to the
    passenger airbag doesn't explain why the passenger
    seatbelt pretensioner and the driver's steering
    seatbelt pretensioner and the driver's steering
    wheel airbag failed to activate -- as they operate
    from their own wiring connections. ... Second, those
    systems are designed such that the airbag needed to
    fire within milliseconds after the crash was sensed
    and thus before the wires could be cut in the
    impact, or else the ECU was defective by firing too
    late, suggesting another defect in the algorithm.
    ...

         "The issue of the severed ground wire from the
    battery also does not explain the failure of the
    restraint system. These systems are designed to
    compensate for such an occurrence by the inclusion
    of a reserve energy capacitor within the ECU that
    contains enough power to activate all of the
    restraint components. ..."

(Bold typeface in original.)

    In response to Bosch's second argument -- that Kilgo may

be entitled to some of, but not all, the algorithm -- Kilgo

argues that the proposed protective order drafted by Bosch




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"excludes the most relevant and most needed information."

Specifically, Kilgo argues that

    "[t]he information that Bosch offers to provide
    fails to include the algorithm and calibrations
    regarding    the   actual   'crash    discrimination
    thresholds.' ... Chris Caruso explained by affidavit
    that   the    'crash   sensing    algorithm   and/or
    calibrations' were needed. ... He testified that the
    most probable failure was a design of the crash
    sensing algorithm[] and that 'the specific algorithm
    physical principles and calibration settings for the
    crash determination thresholds are key factors in
    determining the [sic] why the system incorrectly
    assessed the total severity of the subject crash.'
    ... The data Bosch would agree to provide, beginning
    at the point in time when the 'all-fire' command was
    sent, omits this key information."

    Having   considered      the   compelling   and     well    supported

arguments presented by both Bosch and Kilgo, we agree with

Bosch insofar as it argues that the trial court exceeded its

discretion   by   entering    a    protective   order    that    provides

insufficient protection for the algorithm, which, as noted, is

undisputedly a trade secret.         Therefore, the petition is due

to be granted to that extent.            See Ex parte W.L. Halsey

Grocery Co., 897 So. 2d 1028, 1035 (Ala. 2004) ("Because [the

petitioner] has shown that it has a clear legal right to the

relief sought, we grant the petition and order the trial court

to protect [the petitioner's] trade-secret information to the


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maximum extent practicable, striking a fair and reasonable

balance between [the petitioner's] legitimate interest in

confidentiality    and   the   defendants'   equally   legitimate

interest in defending the claims against them with the benefit

of discovery.").

                         IV. Conclusion

    We grant Bosch's petition and direct the trial court to

vacate its protective order and to enter a more comprehensive

and restrictive protective order with regard to the algorithm.

See Ex parte W.L. Halsey Grocery Co., supra.       This opinion,

however, is not to be read as directing the trial court to

enter the proposed protective order previously offered by

Bosch as the governing protective order in this case.

    PETITION GRANTED; WRIT ISSUED.

    Stuart, Bolin, Parker, and Wise, JJ., concur.

    Murdock, Shaw, and Bryan, JJ., concur in the result.

    Moore, C.J., dissents.




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SHAW, Justice (concurring in the result).

      I agree with the implicit holding in the main opinion

rejecting the arguments of Robert Bosch LLC that Dorothy

Kilgo's discovery of the algorithm Bosch claims as a trade

secret is not "necessary" in Kilgo's case and that the need

for   disclosure   of   the   algorithm   does   not   outweigh   the

potential harm to Bosch from its disclosure.       I further agree

that the protective order entered by the trial court was

insufficient to protect Bosch's trade secrets.         See Rule 507,

Ala. R. Evid. ("If disclosure is directed, the court shall

take such protective measures as the interests of the holder

of the privilege and of the parties and the interests of

justice require.").

      I believe that the amendments to the protective order

requested by Bosch were appropriate in this case, except to

the following extent:

      (1) The trial court should consider allowing more
      than a single expert, Chris Caruso, to review the
      algorithm information. However, it should be made
      clear that the broad category of "qualified persons"
      set forth in the April 22, 2014, protective order,
      is not entitled to review that information.

      (2) The algorithm information that Bosch offered to
      provide should include information identified in


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    Caruso's   affidavit       as       "crash   discrimination
    thresholds."

    Although I have some concerns that Bosch's proposed

limitations on the ability of Kilgo's experts to copy or

otherwise record the algorithm may hamper their ability to

effectively examine the materials, the trial court could, if

possible, craft a solution that would allow the experts to

retain    the   minimum   amount    of    information   required   to

adequately examine this information.

    Murdock and Bryan, JJ., concur.




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MOORE, Chief Justice (dissenting).

      "The utilization of a writ of mandamus to compel or

prohibit discovery is restricted because of the discretionary

nature of a discovery order. The right sought to be enforced

by mandamus must be clear and certain with no reasonable basis

for controversy about the right to relief." Ex parte Dorsey

Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981). In this case,

the trial court crafted a protective order that allowed

Dorothy Kilgo to obtain the information she needed, subject to

12 confidentiality safeguards that were designed to protect

Robert Bosch LLC ("Bosch"). Consequently, I cannot say that

Bosch had a "clear and certain right" to even more protection

or that there is "no reasonable basis for controversy about

the right to relief." Dorsey Trailers, 397 So. 2d at 102. I

continue to maintain the position that mandamus is improper

for   discovery   matters   except   in   the   most   extreme   of

circumstances. See, e.g., Ex parte Mobile Serv. Gas Corp., 123

So. 3d 499,   516 (Moore, C.J., dissenting); Ex parte Ocwen

Fed. Bank, FSB, 872 So. 2d 810, 817 (Ala. 2003) (Moore, C.J.,

concurring in the result). Therefore, I respectfully dissent.




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