

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
In re Continental Tire North America, Inc.
No. 
11-01-00317-CV B
Original Proceeding
 
This is an original mandamus proceeding. We must
determine whether the trial court abused its discretion when it entered an
order allowing an inspection of Continental Tire North America=s plant in North
Carolina.  We will conditionally grant
the writ of mandamus.  
Joyce Patterson brought suit as personal
representative of the estate of Sheila Badon, deceased, and as surviving parent
of Badon, against Continental alleging that Continental was negligent in Adesigning, testing,
manufacturing, assembling, marketing and selling@
the subject tire.  Patterson filed a
motion for inspection, seeking to allow her attorney and an expert to enter
Continental=s plant
and Ato photograph,
videotape and inspect [Continental=s]
premises.@  Continental responded that Patterson=s motion sought disclosure
of trade secrets and that the motion sought information not relevant to the
litigation.  After a hearing, the trial
court granted Patterson=s
motion for inspection of Continental=s
North Carolina plant and allowed:
Plaintiff=s counsel, one expert of
his choice, and a videographer...to enter [Continental=s] premises to view, photograph, videotape and
inspect the Charlotte plant, machinery, and the entire process by which tires
are built, stored and shipped, from beginning to end. 
 
A person, or the person=s agent or employee, has a privilege to refuse
to disclose a trade secret owned by the person if the allowance of the
privilege will not tend to conceal fraud or otherwise work injustice.  TEX.R.EVID. 507.  In applying Rule 507, the party resisting discovery must
establish that the information is a trade secret.  In re Continental General Tire, Inc., 979 S.W.2d 609
(Tex.1998).  The burden then shifts to
the requesting party to establish that the information is necessary for a fair
adjudication of its claims.  In re
Continental General Tire, Inc., supra.  
A trade secret may consist of:




[A]ny
formula, pattern, device or compilation of information which is used in one's
business, and which gives him an opportunity to obtain an advantage over
competitors who do not know or use it. 
It may be a formula for a chemical compound, a process of manufacturing,
treating or preserving materials, a pattern for a machine or other device, or a
list of customers.
 
Hyde Corporation v. Huffines, 314 S.W.2d 763, 776,
cert. den'd, 358 U.S. 898 (1958), quoting RESTATEMENT (SECOND) OF TORTS ' 757 cmt. b (1939). Joseph
L. Grant, the Director of Product Analysis for Continental, stated in his
affidavit that tire manufacturing technology includes Aproprietary equipment, exotic materials and
confidential and trade secret processes.@  Grant also stated that Amillions of dollars have
been spent annually on research and development in order to obtain even the
smallest competitive advantage.@  Having shown that an inspection of their
plant would reveal trade secret information, the burden then shifted to
Patterson to show that information is necessary for a fair adjudication of her
claims.  
In her motion for inspection,
Patterson states that Agood
cause exists for the inspection and photographing of [Continental=s] premises in that such
information sought is reasonably calculated to lead to relate to (sic) the
discovery of evidence admissible at trial.@  Patterson attached to her motion an order by
the United States District Court for the Eastern District of Texas, Beaumont
Division, granting a motion for inspection of the same Continental plant in
North Carolina by another plaintiff in a different cause.  Patterson states in her motion that both
parties would be willing to coordinate the inspection date. On writ of
mandamus, the United States Court of Appeals for the Fifth Circuit found that
the plaintiffs in that cause had failed to establish that an examination of
trade secrets in Continental=s
plant was necessary to the prosecution of their case.  The court stated:
Plaintiffs
do not describe the facts they expect to discover by examining Continental Tire=s trade secrets, nor do
they disclose how this examination will assist in the presentation of their
case.  Under the standard established by
the Texas Supreme Court in In re: Continental General Tire, the
plaintiffs are clearly not entitled to discover Continental Tire=s trade secrets.  (Emphasis in original)
 




In Re: Continental General Tires, Inc., No.  01-41286 (5th Cir. January 4, 2002).  We also find that Patterson has not met her
burden under In re Continental General Tire, Inc., supra, and has not
established that she is entitled to discover the trade secrets of
Continental.  Patterson argues that the
information is Areasonably
calculated@ to lead to
admissible evidence.  Patterson
presented the trial court with the order by the United States District Court
for the Eastern District of Texas, Beaumont Division, and with articles
describing tours of some of Continental=s
other plants and tours of other tire manufacturer=s
plants.   However, Patterson did not
indicate what facts she expected to discover from touring Continental=s plant in North Carolina
and how it will assist her in her cause of action.             The trial court
abused its discretion in ordering an inspection of Continental=s plant in North
Carolina.  Walker v. Packer, 827 S.W.2d
833 (Tex.1992).  If a trial court errs
in ordering privileged information to be disclosed, there is no adequate remedy
at law; consequently, mandamus is the proper remedy.  Dillard Department Stores, Inc. v. Hall, 909 S.W.2d 491
(Tex.1995); Walker v. Packer, supra. 
The writ of mandamus is conditionally granted.  In the event that the trial court does not withdraw its October
9, 2001, order granting Patterson=s
motion for inspection of Continental=s
plant in North Carolina, the writ of mandamus shall issue.  
 
TERRY McCALL
JUSTICE
April 4, 2002
Publish.  See TEX.R.APP.P.
47.3(b).
Panel
consists of: Arnot, C.J., and
Wright,
J., and McCall, J.

