Etowah Circuit Court, CV-11-900399
PETITION FOR WRIT OF MANDAMUS
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 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 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.; Rule 26(c)(7), Ala. R. Civ. P.; and the Alabama Trade Secrets Act, Ala. Code 1975, § 8-27-1 et seq.
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 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 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. ...
"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."
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 ...