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Discovery No. 01-1165, 5/22/2003. Click here for the full text of this decision FACTS:The plaintiffs in some 150 cases alleging Firestone tire tread separations and Ford Explorer rollovers seek discovery of Firestone’s skim-stock formulas, which they concede in this court are trade secrets. Although the plaintiffs contend that they can prove their tires were defective without knowing the skim-stock formulas, they nevertheless argue that disclosure of the formulas is necessary for a fair adjudication of their claims. The pretrial judge assigned to the cases agreed. HOLDING:Conditionally withheld. This court has previously considered whether a tire manufacturer’s skim-stock formula is privileged from discovery in In re Continental Gen. Tire Inc., 979 S.W.2d 609 (Tex. 1998). There, as here, the plaintiffs alleged a tire tread separation caused by a defect in the skim stock. In both cases, the plaintiffs conceded in this court that a skim-stock formula is a trade secret. In Continental General Tirethe court held that for the plaintiffs to obtain discovery they were required to establish that the information was necessary or essential to the fair adjudication of the case, weighing the requesting party’s need for the information against the potential of harm to the resisting party from disclosure. The court concluded that the plaintiffs had failed to make this showing. The court noted that the uncontroverted evidence from the defendant’s expert was that “the physical properties of a tire cannot be determined from an examination of a compound formula; rather, the finished tire itself must be tested.” Thus, there was no evidence that a defect in skim stock could be proved using the formula for its components. The court also noted that the plaintiffs had no other manufacturer’s formula to compare to the defendant’s formula. One could not tell from the formula itself whether it was better or worse than any other formula. Finally, the court stated that the plaintiffs had offered no evidentiary support for their theory that the skim-stock formula would show whether sulfur found on the defective tire was a component of the skim stock or had been improperly introduced during manufacture. The court did not attempt to state conclusively what would or would not be considered necessary for a fair adjudication, indicating instead that the application of the test would depend on the circumstances presented. In the present case, Firestone argues that the test should be applied to preclude discovery of trade secret information unless the requesting party cannot prevail without it. While it would certainly be unfair to allow a party to prevail solely by withholding such information, this court’s decision in Continental General Tirecannot be read so narrowly. It may be theoretically possible for a party to prevail without access to trade secret information and yet be unfair to put him to much weaker proof without the information. Obviously, the degree to which information is necessary in a case depends on the nature of the information and the context of the case. While it is difficult to be more specific about the test to be applied, except by demonstrating how it is properly applied in particular cases, the court can say with certainty that the test cannot be satisfied merely by general assertions of unfairness. The words “fair” and “unfair” are prone to indefinite use. Just as a party who claims the trade secret privilege cannot do so generally but must provide detailed information in support of the claim, so a party seeking such information cannot merely assert unfairness but must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat. The plaintiffs’ evidence and argument falls short of this standard. OPINION:Hecht, J.; Phillips, Enoch, Owen, Jefferson and Smith, JJ., join. Wainwright, J., did not participate. CONCURRENCE:O’Neill, J.; Schneider, J., joins. “The Court directs the seven designated pretrial judges who ordered discovery of the skim-stock formula used at Firestone’s Decatur plant to vacate their order because “the plaintiffs’ evidence of unfairness . . . is essentially no different than the evidence in Continental General Tire.” ___ S.W.3d at ___. While I agree that the plaintiffs in this case did not meet their burden to establish that the skim-stock formula’s disclosure was necessary to fairly adjudicate their claims and that Firestone is entitled to mandamus relief, I cannot join the Court’s opinion because it fails to fairly treat the plaintiffs’ contentions and offers little useful guidance to the bench and bar. Accordingly, I concur.”

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