Justices reverse motion ordering Kongsberg, Bombardier Recreational Products to produce trade secret documents

By Charmaine Little | Nov 19, 2018

BEAUMONT – A lower court shouldn’t have ordered two companies to deliver trade-secret and protected items in a negligence and liability case after an accident, the Court of Appeals for the 9th District of Texas at Beaumont decided on Nov. 8.

The appeals court said the 128th District Court of Orange County abused its discretion when it determined plaintiffs Kenneth Tolman, individually and as representative of the estate of Romona Gay Tolman, et al. needed access to software programs and material from Kongsberg Inc. and Bombardier Recreational Products in a suit over the death of Romona Tolman from a motorcycle accident.

“Because the evidence before the trial court establishes that the possibility of an unjust result is merely a possible threat, we conclude the trial court erred by finding that plaintiffs met their burden to prove that the discovery of the trade secrets at issue is 'material and necessary to the litigation,'" the opinion states.

In doing so, it directed the trial court to vacate the order that granted discovery for the plaintiffs’ motion to compel.

The family of Ramona Tolman sued Kingsberg Inc. and Bombardier Recreational Products Inc. after she died following a motorcycle collision in 2014. Tolman was driving a 2011 Can-Am Spyder motorcycle when her family said she lost control of the steering, causing her motorcycle to veer off the road and hit a tree. Tolman’s daughter, who was a passenger, was also injured.

In the lawsuit, her family said the vehicle she bought from Countyline Powersports Corp. was “unreasonably dangerous due to its manufacture, design, or the way it was marked,” the opinion states.

During the lawsuit, the plaintiffs wanted the lower court to compel the defendants to release trade-secret documents concerning the software and data of Spyder vehicles so their consultant could investigate the case, which the lower court granted. The plaintiffs' consulting expert said he needed full access to the discovery so he could fully evaluate raw data that he already had.

"The consulting expert’s testimony fails to show why, should the consultant want to gather additional data, additional inspections conducted with technicians from Kongsberg and Bombardier would be insufficient to allow him to gather more information about steering units on Spyder motorcycles," the opinion states. "The record does not support the trial court’s conclusion that unfettered access to Kongsberg’s and Bombardier’s trade secrets is necessary so the plaintiffs can receive a fair trial."

The court ultimately ruled that the evidence proved that not having access to the trade secrets wasn’t an unfair shake for the plaintiffs.

Justices Steve McKeithen, Hollis Horton and Leanne Johnson authored the opinion.

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