                                                                                     ACCEPTED
                                                                                 14-15-00578-CV
                                                                 FOURTEENTH COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                             7/9/2015 1:56:55 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NUMBER 14-15-00578-CV

                                                                FILED IN
                                                         14th COURT OF APPEALS
                 IN THE COURT OF APPEALS                    HOUSTON, TEXAS
     FOR THE FOURTEENTH DISTRICT OF TEXAS              AT 7/9/2015
                                                          HOUSTON  1:56:55 PM
                                                         CHRISTOPHER A. PRINE
                                                                  Clerk

               In re MICHELIN N. AM., INC., et al, Relator


Original Proceeding from the 152nd Judicial District Court of Harris County,
  Texas, Honorable Robert Schaffer; Trial Court Cause No. 2014-57952


      UNOPPOSED MOTION FOR EXPEDITED CONSIDERATION


Tim Riley                               Michael Bourland
State Bar No. 16931300                  State Bar No. 24009912
RILEY LAW FIRM                          WITT, MCGREGOR & BOURLAND, PLLC
The Civil Justice Center                8004 Woodway Drive, Suite 400
112 East 4th Street                     Waco, Texas 76712
Houston, Texas 77007                    Telephone: (254) 751-9133
Telephone: (713) 646-1000               Facsimile: (254) 751-9134
Facsimile: (800) 637-1955               mbourland@wmbwaco.com
tdr@txtrial.com
                                        John Gsanger
                                        State Bar No. 00786662
                                        Scott Marshall
                                        State Bar No. 24077207
                                        THE EDWARDS LAW FIRM
                                        802 N. Carancahua St., Suite 1400
                                        Corpus Christi, Texas 78401
                                        Telephone: (361) 698-7600
                                        Facsimile: (361) 698-7614
                                        jgsanger@edwardsfirm.com
                                        smarshall@edwardsfirm.com

                                        Attorneys for Robert Coleman, et al.,
                                        Real Parties in Interest
TO THE HONORABLE COURT OF APPEALS:

      Come now Real Parties in Interest, Robert Coleman, et al., and file this

Unopposed Motion for Expedited Consideration, and would respectfully show

this Court as follows:

                         OVERVIEW AND TIMELINE

      This is a simple one-issue discovery dispute, and both sides have

presented a clear record for the trial court (and this Court) to consider. The

parties have agreed to ask the Court for expedited consideration of this

matter.

      The following timeline provides context for the Coleman family’s request

for one hour of access to visually observe two specific tire building machines:

August (2003) – RMS Equipment Co. manufactured the RMS 2000 first stage

      tire building machine, which Michelin purchased and later used to put

      the innerliner and carcass plies into the failed tire at issue. Ex. 1.

October (2003) – RMS Equipment Co. manufactured the RMS 3500 second

      stage tire building machine, which Michelin purchased and later used to

      put the steel belts and nylon plies into the failed tire at issue. Ex. 1

February (2011) – Michelin made the failed tire at issue, a LT265/75R16 BF

      Goodrich Rugged Terrain T/A, at its Fort Wayne, Indiana, plant. Ex. 2.




                                       2
September 8 (2012) – Robert Coleman purchased the BF Goodrich Rugged

     Terrain T/A tire and had it mounted on his pickup. Ex. 3.

September 26 - 27 (2013) – Tracey Crocker, Milo Felger and others from the

     Fort Wayne tire plant testified (in another case) about grossly negligent

     tire building practices at the plant and falsified quality controls. Ex. 1.

August 24 (2014) – The tread peeled off of the tire on the Coleman family’s

     pickup, resulting in a fatal crash with Beverly Kilpatrick, and the official

     Crash Report identified the defective tire as causing the crash. Ex. 4.

September 15 – The Coleman family asked Michelin to observe “the tire

     building machines at that plant used to build LT 265/75R16 BF Goodrich

     Rugged Terrain T/A in February of 2011 at the Fort Wayne plant.” Ex. 5.

October 3 – The surviving family members of Beverly Kilpatrick sued Michelin

     as well as Robert Coleman. Ex. 6.

December 10 – The Coleman family conferred with Michelin about observing

     the two “tire building machines which were used to assemble the

     innerliner and the steel belts with their nylon reinforcement.” Ex. 7.

December 19 – After Michelin declined to offer a protocol, the Coleman family

     intervened in the case and requested a one-hour observation for two

     identified machines pursuant to a detailed protocol. Ex. 8; Ex. 9.




                                       3
December 24 – The Coleman family asked Michelin to preserve the tire

      building machines so that they would remain available for visual

      observation. Ex. 10.

December 31 – The Coleman family provided Michelin with additional

      information about the tire building stickers to help Michelin identify the

      two specific machines used to make the failed tire. Ex. 11; Ex. 1.

January 2 (2015) – At the first discovery hearing (less than a month after they

      had intervened), the Coleman family raised concerns about Michelin’s

      unwillingness to preserve the tire building machines. Ex. 12.

January 21 – The Coleman family moved for “one hour of limited access to

      [two] particular tire building machines” with no “sampling or destructive

      testing and … nothing more than a visual observation.” Ex. 13.

January 22 – The Coleman family offered to postpone the hearing on its

      motion to compel provided that Michelin would agree at least to

      preserve the two tire building machines, but Michelin would not agree.

      Ex. 14.

February 2 – Michelin moved to strike the affidavit of a former Michelin tire

      engineer who explained why access to the tire machines was necessary

      to fairly link misconduct at the plant to the tire’s defects. Ex. 15; Ex. 16.

March 6 – The Coleman family explained how Michelin’s motion to strike was


                                        4
      mistaken and offered evidence from three more tire engineers who

      further explained why access to the machines was necessary. Ex. 17.

March 13 – The Coleman family objected to the only evidence that Michelin

      offered in opposition to the motion to compel because both affidavits

      were conclusory and not based on the personal knowledge. Ex. 18.

March 16 – The trial court heard the discovery dispute, including the Coleman

      family’s objections to Michelin’s evidence and Michelin’s objections to

      the Coleman family’s evidence. Ex. 19.

March 16 – At the hearing, the Coleman family served a brief addressing the

      burdens of proof, Ex. 19 p. 22, Ex. 20, and – after the hearing – another

      brief clarifying Michelin’s misstatement at the hearing. Ex. 21.

April 21 – The trial court denied Michelin’s motion to strike the affidavit of one

      of the four tire engineers whose testimony the Coleman family offered

      and granted one hour’s observation of the tire machines. Ex. 22; Ex. 23.

For ten months, the Coleman family has been requesting Michelin to preserve

the tire building machines used to make the failed tire and has been asking to

briefly observe those machines. Although there is disagreement about many

issues in the case, the parties agree that this mandamus is suitable for

accelerated consideration and so this request is unopposed.

   FOUR REASONS WHY THIS COURT SHOULD EXPEDITE DENIAL


                                        5
      The issue before this Court is a single, narrow dispute. The trial court

had conflicting evidence, including proof that Michelin had previously publicly

disclosed similar information without any concern for confidentiality and proof

that observation of the tire building machines is necessary for a fair trial.

Based on this evidence, the trial court granted the narrowest possible access

to the two identified tire building machines. Ex. 22. Specifically, the time and

place of the visual observation of the machines are limited, the attendees are

limited, the conduct of the attendees is limited, and measurements and

sampling and testing and public disclosure are all forbidden. Ex. 22.

Michelin Failed to Prove the Requested Information is a Trade Secret

      In a discovery dispute, the “party making the objection or asserting the

privilege must present any evidence necessary to support the objection or

privilege.” Tex. R. Civ. P. 193.4(a); In re CI Host, Inc., 92 S.W.3d 514, 516

(Tex. 2002). In the context of Michelin’s trade secrecy allegations, the law

requires that the “subject matter of a trade secret must be secret.” Stewart &

Stevenson Services, Inc. v. Serv-Tech, Inc., 879 S.W.2d 89, 95 (Tex. App.—

Houston [14th Dist.] 1994, writ denied); see also In re Waste Mgmt. of Texas,

Inc., 392 S.W.3d 861, 869 (Tex. App.—Texarkana 2013, orig. proceeding).

Because the party asserting the privilege bears the burden of proof, if there is




                                       6
a fact issue about disclosure of the privileged information to third parties, then

the burden to prove the privilege also requires proof that no waiver occurred:

      The burden of proof to establish the existence of a privilege rests
      on the one asserting it. If the matter for which a privilege is
      sought has been disclosed to a third party, thus raising the
      question of waiver of the privilege, the party asserting the privilege
      has the burden of proving that no waiver has occurred.

Jordan v. Court of Appeals for the Fourth Sup. Judicial Dist., 701 S.W.2d 644,

648-48 (Tex. 1985) (citations omitted); see also Cameron County v. Hinojosa,

760 S.W.2d 742, 745-46 (Tex. App.—Corpus Christi 1988, orig. proceeding).

      The trial court had ample basis to conclude that the access to Michelin’s

tire building operations had been previously disclosed much more broadly

than the narrow one-hour visual observation at issue would entail:

    the two tire building machines were not made by Michelin but were
     purchased from RMS Equipment Co., a company that makes tire
     building machines for companies around the globe, see Ex. 1, interrog.
     1; Ex. 20, fn. 1;

    local television stations in Fort Wayne have shown video of the tire
     manufacturing process filmed from inside the plant on the evening
     news, see Ex. 17, Tab M:




                                        7
 Michelin’s employees at the Fort Wayne tire plant discuss plant
  operations freely on the internet and post photographs to show what
  Michelin’s tire building machines look like, see Ex. 17, Tab L, p. 4:




 Michelin tire building machines and processes at another Michelin tire
  plant were filmed for the National Geographic television program Mega-
  factories: Michelin, see Ex. 17, Tab N:




                                  8
    Michelin provides tours of its Fort Wayne tire building room to employee
     family members and government officials, and allows non-employee
     janitorial, pest control, and maintenance workers access to these areas,
     Ex. 1 admissions 65-66, 68-73.

      In summary, the tire building machines were purchased by Michelin from

a vendor that supplies such machines to many tire companies, and similar

Michelin tire manufacturing processes have been disclosed on television and

on tours of the plant. In contrast, Michelin offered two affidavits, but instead of

being based exclusively on personal knowledge, both affiants admittedly

based statements on “information made available to me.” Ex. 18 pp. 2-3. The

Coleman family specifically objected to these fatal flaws. Id. (citing Kerlin v.

Arias, 274 S.W.3d 666, 668 (Tex. 2008); Marks v. St. Luke's Episcopal Hosp.,

319 S.W.3d 658, 666 (Tex. 2010); Washington DC Party Shuttle, LLC v.


                                        9
IGuide Tours, 406 S.W.3d 723, 731-32 (Tex. App.—Houston [14th Dist.] 2013,

pet denied); Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550,

552-53 (Tex. App.—Houston [14th Dist.] 2010, no pet.)). The Coleman family

also objected that both affidavits were conclusory in their discussions of

Michelin’s “general” and “normal” practices and various plant-wide matters

which the Coleman family has not requested to observe. See Ex. 18 pp. 4-11.

      Michelin did not meet its burden of proof.

The Coleman Family Proved this Discovery is Necessary for a Fair Trial

      If Michelin had proved its alleged privilege in connection with the limited

one-hour visual observation of the two tire building machines (which it did

not), then the burden would have switched to the Coleman family to “show

reasonable necessity for the requested materials.” In re Union Pac. R.R. Co.,

294 S.W.3d 589, 591 (Tex. 2009) (orig. proceeding) (quoting In re Bass, 113

S.W.3d 735, 738 (Tex. 2003) (orig. proceeding)). The Coleman family met

this burden as a precautionary matter even though Michelin did not meet its

own burden. See Ex. 19 p. 22; Ex. 21.

      The Coleman family’s claims in this civil action are based in part on prior

Michelin employee testimony confirming grossly negligent tire building

practices in Fort Wayne and the falsification of quality control processes:

      Michelin’s employees and ex-employees working in the tire
      building and tire inspection rooms at Michelin’s Fort Wayne,


                                       10
      Indiana plant in 2011 have knowledge of relevant facts in so far as
      they eyewitnessed roof leaks, puddled water, and the use of
      plastic sheeting to divert leaks on and near tire building operations
      as well as other negligent manufacturing practices.
      …
      Michelin’s employees and ex-employees working in the tire
      building and tire component preparation rooms at Michelin’s Fort
      Wayne, Indiana plant in 2011 have knowledge of relevant facts in
      so far as they eyewitnessed the use of rubber and rubber-coated
      components that lost some of their tack and the use of solvents in
      an attempt to restore that tack as well as other negligent
      manufacturing practices.
      …
      Michelin’s employees and ex-employees working in the tire
      building and tire component preparation rooms at Michelin’s Fort
      Wayne, Indiana plant in 2011 have knowledge of relevant facts in
      so far as they eyewitnessed the lax enforcement of standards to
      avoid misplacement and improper splicing of the steel belts and
      the rubber and rubber-coated components surrounding the steel
      belts.
      …
      Michelin’s employees and ex-employees working in the final finish
      room at Michelin’s Fort Wayne, Indiana plant in 2011 have
      knowledge of relevant facts in so far as they eyewitnessed the lax
      enforcement of standards and falsification of inspections and on-
      the-job sexual misconduct affecting the final finish inspection
      process.

Ex. 8 pp. 12-13; see also Ex. 1 (admissions 1 – 6). The Coleman family also

asserted that the tire resulting from these grossly negligent and falsified

practices at the tire building plant was defective in its design and manufacture.

Ex. 8 pp. 9-10, 14-15.

      The Coleman family offered evidence from four tire engineers to explain

why access to the tire building machines is necessary for a fair trial where



                                       11
there are claims of negligence at the plant leading to defects in a tire

produced at the plant:

     When simultaneously addressing claims involving both negligent
     practices at the tire plant as well as manufacturing and design
     defects, such observations of the tire machines while in use –
     even one hour of observation limited to cause no interruption to
     the manufacturing process as set forth in the attached order – is
     invaluable to documenting how the criticized manufacturing
     processes contributed to (or failed to contribute to) the
     manufacturing anomalies identified in the tire. This substantive
     evidence was critical to establishing (1) the causal link between
     the criticized practices at the plant and the flaws in the tire, (2) the
     relative simplicity of incorporating safer tire designs calculated to
     increase the tire’s robustness so that it would have been less
     susceptible to premature failure as a result of manufacturing
     defects, (3) better practices to more carefully build and inspect
     tires so that fewer tires with anomalies reach the consuming
     public, etc. This type of evidence is especially critical [because]
     … obtaining discovery from the tire companies is commonly the
     only means of establishing the link between a criticized practice at
     the tire plant and the safety concerns which subsequently
     manifest in a tire tread separation failure that kills or injures a
     claimant.

Ex. 15.

     I recently observed the assembly and building of tires at a
     manufacturing plant …. The importance of evidence derived from
     such an inspection is to establish its link to the observed defects
     or inadequacies of the failed subject tire and to identify
     capabilities of the manufacturer to produce a more robustly
     designed tire. These observations of the tire building machines in
     operation building a tire as near as practical to the tire at issue as
     contrasted to building a tire with known safer tire designs provides
     critical evidence to prove how careless conditions at the plant can
     result in manufacturing defects and to prove the ease with which
     the tire company can implement more robust tire designs to
     overcome shortcomings resulting from those tire building


                                       12
      processes.

Ex. 17, Tab H p. 3.

      [T]he most widely known recent failure analysis is probably the
      one performed on the Firestone Radial ATX and Wilderness AT
      tires that were the subject of a massive recall in 2000. …
      Firestone retained the services of an outside consultant, Dr.
      Sanjay Govindjee, of the University of California at Berkeley, to
      attempt to provide an understanding about the failure mode seen
      in the subject tires. As part of his work, Dr. Govindjee's report
      indicated that he had access to … the Decatur, Illinois, tire plant
      as part of his analysis. NHTSA also retained the service of an
      outside consultant, Dr. William J. Van Ooij, of the University of
      Cincinnati, to assist in their failure analysis. Dr. Van Ooij's report
      indicated that his analysis was based on, among other things, …
      a tour of the Decatur, Illinois plant, tours of three other non-
      Firestone tire manufacturing facilities ... The depth and breadth of
      the information provided to these outside consultants in this
      matter was consistent with that reasonably necessary for them to
      perform the required failure analyses with scientific integrity.

Ex. 17, Tab I pp. 6-7.

      Oh, most jurors, I’m sure, have no idea how tires are actually
      manufactured, or the complex nature of the various components,
      and the steps that have to go through – that have to be gone
      through in order to manufacture a tire. So I think [videotape of the
      tire building process at the plant] would be very beneficial from
      that standpoint, from a juror’s perspective…. [I]t’s a pretty
      complex process that, telling it I don’t think does anywhere near
      the amount of – of helpfulness to the jury as actually showing
      them the actual manufacturing. I think they’d find it actually very
      interesting.

Ex. 17, Tab J pp. 59‐61.

      The Coleman family clearly demonstrated the “reasonable necessity” for

the observation of the tire building machines used to make the failed tire.


                                       13
Mandamus Review is Inappropriate for Reweighing Conflicting Evidence

      The Texas Supreme Court has established that the trial court's

resolution of conflicting evidence is not to be second guessed on mandamus:

     It is well established Texas law that an appellate court may not
     deal with disputed areas of fact in an original mandamus
     proceeding.
In re Angelini, 186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding).

Accordingly, the “trial court does not abuse its discretion if it bases its decision

on conflicting evidence and some evidence supports its decision.” In re

Barber, 982 S.W.2d 364, 366 (Tex. 1998); see also In re Pirelli Tire, L.L.C.,

247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding) (“If the record contains

legally sufficient evidence both against and in support of the trial court's

decision then mandamus will not lie because weighing conflicting evidence is

a trial court function.”); In re Kuntz, 124 S.W.3d 179, 180 (Tex. 2003) (orig.

proceeding) (“A trial court's determination of a factual issue is entitled to

deference in a mandamus proceeding and should not be set aside unless it is

clear from the record that only one decision could have been reached.”); In re

Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding) (“A trial court does not abuse its discretion if it bases its decision

on conflicting evidence and some evidence supports the trial court's

decision.”).




                                        14
      “In determining whether the trial court abused its discretion with respect

to resolution of factual matters, we may not substitute our judgment for that of

the trial court and may not disturb the trial court's decision unless it is shown

to be arbitrary and unreasonable.” In re Sanders, 153 S.W.3d 54, 56 (Tex.

2004); see also Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.

proceeding) (“With respect to resolution of factual issues or matters committed

to the trial court's discretion, for example, the reviewing court may not

substitute its judgment for that of the trial court.”); Walter v. Marathon Oil

Corp., 422 S.W.3d 848, 856 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(“With respect to the resolution of factual issues committed to the trial court's

discretion, the reviewing court may not substitute its judgment for that of the

trial court” and “the party seeking mandamus relief must establish that the trial

court could reasonably have reached only one decision yet did not do so.”).

      In this case, Michelin failed to meet its burden and the Coleman family

exceeded any burden that would have arisen if Michelin’s affidavits had not

been fatally conclusory and based on information beyond personal

knowledge. This was not a close call. Yet even if this discovery decision had

been a close call, it would have been based on conflicting evidence which

cannot be reweighed by mandamus as Michelin’s petition requests.

Argument about “Creating Evidence” is Incorrect and was not Raised



                                       15
      Michelin’s mandamus petition raises – for the first time – the argument

that the trial court’s order improperly requires Michelin to “create evidence.”

Pet. Mand. pp. 14-16. This argument is factually incorrect and, in any event,

differs from the arguments raised in the trial court.

      Factually, the order only requires Michelin to make two identified tire

building available for a brief observation “while the machines are in normal

use.” Ex. 22 p. 3. While the tire building machines are in normal use, the

different aspects of the tire building process which are to be observed are all

ordered with the express caveat that Michelin’s compliance is required only to

be “as near as is practical” to the tire building processes ordered to be

observed. Ex. 22 p. 2. Nothing in this order requires Michelin to “create

evidence;” instead, the order merely allows one hour of visual observation of

identified tire building machines that already exist.

      Legally, this argument is fatally flawed because it was not raised in front

of the trial court. See In re HEB Grocery Co., L.P., 375 S.W.3d 497, 505 n. 11

(Tex. App.—Houston [14th Dist.] 2012, no pet.) (appellate courts do not reach

issues on mandamus review which were not first raised in the trial court). It is

noteworthy that Michelin offers no record citation showing where it raised this

new argument that the order improperly requires the creation of evidence

because Michelin did not raise this argument below.



                                       16
                       CONCLUSION AND PRAYER

      This a simple discovery dispute involving just one hour of visual

observation of two specifically identified tire building machines used to make a

defective tire that resulted in a fatal crash. The Coleman family has been

requesting this information for ten months, and both parties agree that this

issue can be resolved on an expedited basis. The Coleman family urges that

Michelin’s petition can be denied on an expedited basis because the record

shows that Michelin did not meet its burden and yet the Coleman family

established the reasonable necessity for the requested one-hour observation

of the tire building machines. Even if the evidence were less clear than the

Coleman family has shown, then the trial court’s decision would still have

been based on conflicting evidence and this circumstance removes the issue

from the proper scope of mandamus review. If this Court believes that this

original proceeding requires full briefing and argument, then the Coleman

family will be happy to address the matter in greater depth, but the family asks

this Court to consider denying the petition without such delay.

                                    Respectfully submitted,

                                    THE EDWARDS LAW FIRM

                                    BY: /s/ John Blaise Gsanger
                                    John Blaise Gsanger
                                    State Bar No. 00786662
                                    Scott Marshall


                                      17
                                    State Bar No. 24077207
                                    802 N. Carancahua St., Suite 1400
                                    Corpus Christi, Texas 78401
                                    Telephone: (361) 698-7600
                                    Facsimile: (361) 698-7614

                                    Tim Riley
                                    State Bar No. 16931300
                                    Riley Law Firm
                                    The Civil Justice Center
                                    112 East 4th Street
                                    Houston, Texas 77007
                                    Telephone: (713) 646-1000
                                    Facsimile: (800) 637-1955

                                    Michael Bourland
                                    State Bar No. 24009912
                                    Witt, McGregor & Bourland, PLLC
                                    8004 Woodway Drive, Suite 400
                                    Waco, Texas 76712
                                    Telephone: (254) 751-9133
                                    Facsimile: (254) 751-9134

                                    ATTORNEYS FOR REAL PARTIES IN
                                    INTEREST

                     CERTIFICATE OF CONFERENCE

      Counsel for Real Parties in Interest conferred with counsel for Relators,
and the request for expedited consideration is agreed.

                                           /s/ John Gsanger
                                           John Gsanger

                        CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the foregoing instrument was
served upon the attorneys of record of all parties to the above cause on this
9th day of June, 2015.



                                      18
                                        /s/ John Gsanger
                                        John Gsanger

Via Facsimile: (512) 472-0721
Thomas M. Bullion III
Chris A. Blackerby
GERMER BEAMAN & BROWN, LLP
301 Congress Avenue, Suite 1700
Austin, Texas 78701
Email: tbullion@germer-austin.com; cblackerby@germer-austin.com

Via facsimile: (864) 232-2925
Giles M. Schanen, Jr.
NELSON MULLINS RILEY & SCARBOROUGH, LLP
104 South Main Street, 9th Floor
Greenville, SC 29601
Email: giles.schanen@nelsonmullins.com

Via Facsimile: (512) 482-5028
Debora B. Alsup
THOMPSON & KNIGHT LLP
98 San Jacinto Blvd., Suite 1900
Austin, TX 78701-4238
Email: debora.alsup@tklaw.com

Via Facsimile: (713) 523-4159
Robert E. Ammons
Bennett A. Midlo
THE AMMONS LAW FIRM, LLP
3700 Montrose Boulevard
Houston, Texas 77006
Email: rob@ammonslaw.com; bennett@ammonslaw.com




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