in Re Michelin North America, Inc.

ACCEPTED
14-15-00578-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/22/2015 3:39:00 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 AT7/22/2015
HOUSTON 3:39:00 PM
CHRISTOPHER A. PRINE
Clerk

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

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

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

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

ORAL ARGUMENT WOULD NOT Attorneys for Robert Coleman, et al.,
LIKELY BENEFIT THE COURT Real Parties in Interest
I. TABLE OF CONTENTS

I. TABLE OF CONTENTS ........................................................................ ii
II. INDEX OF AUTHORITIES ................................................................... iv
III. STATEMENT OF THE CASE.............................................................. viii
IV. ISSUES PRESENTED ......................................................................... ix

With respect to the two specifically identified tire building machines to…..14
be observed in normal use, did Michelin prove a trade secret despite
the fact that (1) the machines were purchased from a third party
vendor who also sells such machines to other tires companies
besides Michelin, (2) similar machines and tire manufacturing
processes have been disclosed on plant tours and on the internet and
on both local and national television, and (3) the only evidence
purporting to address alleged trade secrets were two conclusory
affidavits admittedly based partly on “information made available to"
the affiants rather than the affiants' personal knowledge?

With respect to the hour of observation of two tire building machines…..37
in normal use, did the Coleman family demonstrate this discovery was
reasonably necessary with (1) the affidavit of a tire expert explaining
the observation is "invaluable" "substantive evidence" "critical" to
proving causation and safer alternative designs as the "only means of
establishing the link between" negligence at the plant and defects in
the tire, (2) an affidavit from a second tire expert describing the
"importance" and "critical" nature of this observation to prove
causation and safer alternative designs, (3) an affidavit from a third
expert explaining access to such evidence is "reasonably necessary
for them to perform the required failure analyses," and (4) testimony
from a fourth expert that the tire building process is so complicated
that describing it is not "anywhere near the amount of helpfulness to
the jury as actually showing them the actual manufacturing"?

Did the trial court abuse its discretion when it weighed conflicting.....48
evidence and then ordered a confidential non-destructive observation
of tire building machines expressly (1) limited to one hour, (2) limited
to observation with no sampling or testing or measurements, (3)
limited to just two machines used to build the failed tire at issue, (4)
limited to just two stages of the tire-building processes, and (5) limited
in who may attend this visual observation?

ii
V. STATEMENT OF FACTS ...................................................................... 1
A. The RMS Equipment Co. Machines Used to Build the Failed Tire ... 1
B. Disclosure of Michelin’s Processes and Problems at the Plant ........ 1
C. The Defective Michelin Tire Caused a Fatal Crash .......................... 4
D. The Discovery Fight to Observe the Tire Machines for One Hour .... 5
E. Objections to Michelin’s Statement of Facts and Record ................. 9
VI. SUMMARY OF THE ARGUMENT ...................................................... 11
VII. ARGUMENT ........................................................................................ 13
A. The High Standard for Mandamus Review of Discovery Orders .... 13
B. Michelin Failed Its Burden to Prove any Basis to Deny Discovery . 14
1. The fatal flaws in Michelin’s affidavits......................................... 15
a. Affidavits cannot be based on information reviewed ............. 15
b. Affidavits cannot be conclusory or lack explanation .............. 18
c. Unanswered questions fatal to Michelin's alleged privilege ... 28
2. Michelin misapplies the standard for burdensomeness.............. 29
a. The "creation of evidence" objection was not raised ............. 31
b. Michelin misinterprets In re Goodyear ................................... 34
C. Coleman Proved the Reasonable Necessity for this Discovery ..... 37
1. 1st expert: invaluable causation proof otherwise unavailable ..... 39
2. 2nd expert: discovery needed for jury to understand case .......... 40
3. 3rd expert: critical proof of designs to fix manufacturing flaws .... 41
4. 4th expert: discovery reasonably necessary for failure analysis . 42
5. Michelin's objections to the affidavits are unfounded ................. 43
D. Conflicting Evidence Provides Discretion for the Narrow Order ..... 48
VIII. CONCLUSION AND PRAYER ............................................................ 53
IX. CERTIFICATES .................................................................................. 54

iii
II. INDEX OF AUTHORITIES
Cases Pages
Able Supply Co. v. Moye,
898 S.W.2d 766 (Tex. 1995)............................................................................... 13

Arlington Mem'l Hosp. Found. v. Barton,
952 S.W.2d 927 (Tex. App.-Fort Worth 1997, orig. proceeding) ........................ 18

Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A, Ltd.,
249 S.W.3d 380 (Tex. 2008)............................................................................... 18

Atlas Bradford Co. v. Tuboscope Co.,
378 S.W.2d 147 (Tex. Civ. App.-Waco 1964, no writ) .................................. 17, 23

Blundon v. Goodyear Dunlop Tires N. Am. Ltd.,
11CV990S, 2012 WL 5473069 (W.D.N.Y. Nov. 9, 2012) ................................... 50

Cameron County v. Hinojosa,
760 S.W.2d 742 (Tex. App.—Corpus Christi 1988, orig. proceeding) ................ 15

Computer Assoc. Int'l, Inc. v. Altai, Inc.,
918 S.W.2d 453 (Tex. 1996)............................................................................... 19

Cooper Tire & Rubber Co. v. Lahey,
No. 13-09979-S (Kan. Dec. 23, 2013) ................................................................ 50

Ex parte Continental Tire the Americas, LLC,
No. 1130556 (Ala. Apr. 9, 2014) ......................................................................... 50

Garcia v. Peeples,
734 S.W.2d 343 (Tex.1987)................................................................................ 13

Griffith v. Goodyear Dunlop Tires N. Am. Ltd.,
11CV761S, 2012 WL 5473494 (W.D.N.Y. Nov. 9, 2012) ................................... 50

Independent Insulating Glass/Southwest, Inc. v. Street,
722 S.W.2d 798 (Tex. App.—Ft. Worth 1987, writ dism'd w.o.j.) ........................ 32

In re Angelini,
186 S.W.3d 558 (Tex. 2006) (orig. proceeding).................................................. 49

In re Bass,
113 S.W.3d 735 (Tex. 2003) (orig. proceeding).................................................. 37

iv
In Re Bridgestone/Firestone,
No. 01-01-410 (Tex. Coordinated Litigation, Sep. 20, 2001) .............................. 50

In re Bridgestone/Firestone, Inc.,
106 S.W.3d 730 (Tex.2003) (orig. proceeding)................................. 15, 18, 38, 46

In re Cercone,
323 S.W.3d 293 (Tex. App.—Dallas 2010, orig. proceeding) ............................. 14

In re CI Host, Inc.,
92 S.W.3d 514 (Tex. 2002) (orig. proceeding).................................................... 14

In re Colonial Pipeline Co.,
968 S.W.2d 938 (Tex.1998) (orig. proceeding)................................................... 13

In re CSX Corp.,
124 S.W.3d 149 (Tex. 2003) (orig. proceeding).................................................. 13

In re E.I. DuPont de Nemours & Co.,
136 S.W.3d 218 (Tex. 2004) (orig. proceeding).................................................. 18

In re Goodyear Tire & Rubber Co.,
437 S.W.3d 923 (Tex. App.—Dallas 2014, orig. proceeding) ........................ 34-36

In re Guidry,
316 S.W.3d 729 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding) ........ 48

In re HEB Grocery Co., L.P.,
375 S.W.3d 497 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding) ........ 31

In re Kimberly-Clark Corp.,
228 S.W.3d 480 (Tex. App.—Dallas 2007, orig. proceeding) ............................. 29

In re Kuntz,
124 S.W.3d 179 (Tex.2003) (orig. proceeding)............................................. 14, 49

In re Le,
335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) ........ 48

In re Pirelli Tire, L.L.C.,
247 S.W.3d 670 (Tex. 2007) (orig. proceeding).................................................. 49

In re Sanders,
153 S.W.3d 54 (Tex.2004) (orig. proceeding)............................................... 14, 48

In re Union Carbide Corp.,
145 S.W.3d 805 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding) ........ 49
v
In re Union Pac. R.R. Co.,
294 S.W.3d 589 (Tex. 2009) (orig. proceeding)............................................. 37-38

In re Whiteley,
79 S.W.3d 729 (Tex. App.-Corpus Christi 2002, orig. proceeding) ................ 30-31

In re Wyatt Field Serv. Co.,
454 S.W.3d 145 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) .. 14, 48

ISK Biotech Corp. v. Lindsay,
933 S.W.2d 565 (Tex. App.-Houston [1st Dist.] 1996, no pet.) ........................... 30

John Paul Mitchell Sys. v. Randalls Food Markets, Inc.,
17 S.W.3d 721 (Tex. App.-Austin 2000, pet. denied) ......................................... 38

Jordan v. Court of Appeals for the Fourth Supreme Judicial District,
701 S.W.2d 644 (Tex. 1985)............................................................................... 15

Kerlin v. Arias,
274 S.W.3d 666 (Tex. 2008)................................................................... 16, 21, 26

Lamont v. Vaquillas Energy Lopeno Ltd., LLP,
421 S.W.3d 198 (Tex. App.—San Antonio 2013, review denied) ....................... 20

Luccous v. J.C. Kinley Co.,
376 S.W.2d 336 (Tex. 1964)............................................................................... 20

Mansions in the Forest, L.P. v. Montgomery County.,
365 S.W.3d 314 (Tex. 2012)............................................................................... 45

Marks v. St. Luke's Episcopal Hosp.,
319 S.W.3d 658 (Tex. 2010)......................................................................... 12, 16

Overstreet v. Home Indem. Co.,
747 S.W.2d 822 (Tex. App.—Dallas 1987, writ denied) ..................................... 32

Peeples v. Honorable Fourth Supreme Judicial District,
701 S.W.2d 635 (Tex.1985)................................................................................ 32

Phillips v. Frey,
20 F.3d 623 (5th Cir. 1994) ................................................................................ 23

Pink v. Goodyear Tire & Rubber Co.,
324 S.W.3d 290 (Tex. App.—Beaumont 2010, pet. dism'd) ............................... 18

vi
Rivera v. Yokohama Tire Corp.,
No. C-1745-00-B (93rd Dist. Ct. Hidalgo County, Tex., Mar. 19, 2002) .............. 50

Rodriguez v. Naylor Indus., Inc.,
763 S.W.2d 411 (Tex. 1989)......................................................................... 17, 24

Shakur v. Bridgestone/Firestone, Inc.,
CIV-05-983-C, 2006 WL 1451490 (W.D. Okla. May 24, 2006) ........................... 51

Stewart & Stevenson Services, Inc. v. Serv-Tech, Inc.,
879 S.W.2d 89 (Tex. App.—Houston [14th Dist.] 1994, writ denied) .................. 11

Southtex 66 Pipeline Co. v. Spoor,
238 S.W.3d 538 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)................ 18

Unifund CCR Partners v. Villa,
299 S.W.3d 92 (Tex. 2009) (orig. proceeding).................................................... 48

Valenzuela v. State & County Mut. Fire Ins. Co.,
317 S.W.3d 550 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ................ 15, 16

Walker v. Packer,
827 S.W.2d 833 (Tex.1992) (orig. proceeding)................................................... 14

Walter v. Marathon Oil Corp.,
422 S.W.3d 848 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ...................... 48

Washington DC Party Shuttle, LLC v. IGuide Tours,
406 S.W.3d 723 (Tex. App.—Houston [14th Dist.] 2013, pet denied)........... 12, 16

Rules and Other Authorities Pages

Tex. R. App. 52.3(g) ...................................................................................................... 10

Tex. R. App. 52.3(h) ...................................................................................................... 33

Tex. R. App. 52.7(a)(1).................................................................................................. 10

Tex. R. App. 52.11(c) .................................................................................................... 10

Tex. R. App. 52.11(d) .............................................................................................. 10, 34

Tex. R. Civ. P. 193.2(e) ................................................................................................. 32

Tex. R. Civ. P. 193.4(a) ........................................................................................... 14, 44

vii
Tex. R. Civ. P. 196.2(a) ................................................................................................. 32

Tex. R. Evid. 801(d) ...................................................................................................... 44

Tex. R. Evid. 802 ........................................................................................................... 44

Tex. Gov’t Code Ann. § 312.011(1) ............................................................................... 45

viii
III. STATEMENT OF THE CASE

Nature of Case: This is a wrongful death and personal injury case about how
the grossly negligent tire building practices at Michelin’s
Fort Wayne tire plant resulted in a defective tire.

Rulings at Issue: After a hearing, extensive briefing by both sides, and
copious conflicting evidence, the trial court allowed a
confidential observation of the two tire building machines
used to build the failed tire with no sampling or testing or
measurement of those machines, limited to one hour,
limited to just two stages of the tire-building processes, and
limited in who may attend this visual observation.

Respondent: Hon. Robert Schaffer, Judge presiding over the 152nd
Judicial District Court, Harris County Civil Courthouse, 201
Caroline, 11th Floor, Houston, Texas 77002.

Relief Sought: Michelin would have this Court reverse the trial court’s
extremely narrow one-hour visual observation of two tire
building machines despite the fact that the order is based
on conflicting evidence, including evidence from four tire
experts explaining the reasonable necessity of the
observation to link the misconduct at the plant to the defects
in the tire.

ix
IV. ISSUES PRESENTED

With respect to the two specifically identified tire building machines to be
observed in normal use, did Michelin prove a trade secret despite the fact that
(1) the machines were purchased from a third party vendor who also sells
such machines to other tires companies besides Michelin, (2) similar
machines and tire manufacturing processes have been disclosed on plant
tours and on the internet and on both local and national television, and (3) the
only evidence purporting to address alleged trade secrets were two
conclusory affidavits admittedly based partly on “information made available
to" the affiants rather than the affiants' personal knowledge?

With respect to the one hour of observation of two building machines in
normal use, did the Coleman family demonstrate this discovery was
reasonably necessary with (1) the affidavit of a tire expert explaining the
observation is "invaluable" "substantive evidence" "critical" to proving
causation and safer alternative designs as the "only means of establishing the
link between" negligence at the plant and defects in the tire, (2) an affidavit
from a second tire expert describing the "importance" and "critical" nature of
this observation to prove causation and safer alternative designs, (3) an
affidavit from a third expert explaining access to such evidence is "reasonably
necessary for them to perform the required failure analyses," and (4)
testimony from a fourth expert that the tire building process is so complicated
that describing it is not "anywhere near the amount of helpfulness to the jury
as actually showing them the actual manufacturing"?

Did the trial court abuse its discretion when it weighed conflicting evidence
and then ordered a confidential non-destructive observation of tire building
machines expressly (1) limited to one hour, (2) limited to observation with no
sampling or testing or measurements, (3) limited to just two machines used to
build the failed tire at issue, (4) limited to just two stages of the tire-building
processes, and (5) limited in who may attend this visual observation?

x
V. STATEMENT OF FACTS

A. The RMS Equipment Co. Machines Used to Build the Failed Tire

In August of 2003, RMS Equipment Co. manufactured the RMS 2000

first stage tire building machine, which Michelin purchased and eventually

used to put the innerliner and carcass plies into the failed tire at issue. MR

702. Later that year, in October, RMS Equipment Co. manufactured the RMS

3500 second stage tire building machine, which Michelin also purchased and

used to put the steel belts and nylon plies into the failed tire. MR 702-03.

These are the only two tire building machines the Coleman family has

requested to observe. MR 57-66.

In February of 2011 – eight years after Michelin purchased the two tire

building machines from RMS Equipment Co. – Michelin used those two

machines to build the defective tire which gave rise to this case. MR 117,

421, 702-03. That tire was an LT265/75R16 size BF Goodrich Rugged

Terrain T/A tire, and it was assembled at Michelin’s tire plant in Fort Wayne,

Indiana. MR 117, 421, 702-03.

B. Disclosure of Michelin’s Processes and Problems at the Plant

In March of 2011, just a month after the failed tire was manufactured at

Michelin’s Fort Wayne plant, local television stations broadcast video of the

tire manufacturing process filmed from inside the plant on the evening news:

1
MR 155-56, 372-74. Later that year, the National Geographic television

program Mega-factories: Michelin was broadcast nationwide, and it showed

Michelin tire building machines and processes at another Michelin tire plant:

2
MR 155-56, 375-77.

During the four-year period beginning in 2011 when the failed tire was

made at the Fort Wayne plant, Michelin gave tours of the plant, including the

tire building room, to government officials, to family members of plant workers,

to tire dealers, and – most importantly – to customers. MR 490, 696-700, 723.

In September of 2012, Robert Coleman became a Michelin customer

when he purchased the BF Goodrich Rugged Terrain T/A tire and had it

mounted on his pickup.

In September of 2013, Tracey Crocker, Milo Felger, Mary Wheeler, and

other workers from the Fort Wayne tire plant testified (in another case) about

grossly negligent tire building practices and falsified quality control processes

at the plant. MR 652-53, 657-661, 676-77, 680-92, 722.

In March of 2014, Michelin’s employees at the Fort Wayne tire plant

were discussing plant operations freely on the internet (describing the work as

“crappy” and “FILTHY”) and posting photographs to show what Michelin’s tire

building machines look like:

3
MR 154-55, 362-65.

C. The Defective Michelin Tire Caused a Fatal Crash

In August of 2014, less than two years after Robert Coleman bought the

BF Goodrich Rugged Terrain T/A tire, 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:

4
SuppR 5-6, 22-27.1

D. The Discovery Fight to Observe the Tire Machines for One Hour

In October of 2014, the surviving family members of Beverly Kilpatrick

sued Michelin as well as Robert Coleman. MR 1-8.

In December of 2014, the Coleman family conferred with Michelin about

a protocol to observe the two “tire building machines which were used to

assemble the innerliner and the steel belts with their nylon reinforcement.”

MR 45. After Michelin declined to offer a protocol, the Coleman family

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

identified machines pursuant to a detailed protocol. MR 9-28, MR 57-66. The

Coleman family’s intervention is based on Michelin’s gross negligence at the

Fort Wayne tire plant in the tire building and quality control process as the

cause of the defects in the failed tire. MR 17-21, 25-26. Accordingly, the

Coleman family asked Michelin to preserve the two tire machines at issue and

provided Michelin with information to help Michelin identify the two specific

machines used to make the failed tire. SuppR 36-39, 44-45. 2

In January of 2015, at the first discovery hearing in this case, the

1
Michelin’s mandamus record includes the Coleman family’s petition in intervention,
but omits the exhibits filed as attachments to the petition. These omitted exhibits
include the official Texas Peace Officer’s Crash Report, which was incorporated in
the petition in intervention, and is included in the supplemental record.
2
Michelin’s mandamus record generally omits the documents concerning Michelin’s
unwillingness to preserve the tire building machines at issue. SuppR 36-181.

5
Coleman family raised concerns about Michelin’s unwillingness to preserve

the tire building machines which are the subject of the challenged order.

SuppR 127. Later that month, on the eve of Michelin’s deadline to respond to

the discovery request to observe the tire machines, Michelin objected and

asserted a trade secret privilege. SuppR 237-38.3 In response, 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.” MR 29-37. The Coleman family’s motion to compel

included the affidavit of Dennis Carlson, a former Michelin tire engineer who

explained why access to the tire building machines was necessary discovery:

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]

3
Michelin’s mandamus record includes the first 48 pages of its discovery responses,
MR 414-61, but excludes those pages which show its objections and assertions of
privileges to the request to observe the tire building machines. SuppR 237-38.

6
… 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.

MR 104-05. This motion also included the testimony of a second tire engineer

(Joe Grant, a witness who often works on behalf of Michelin in litigation), and

he also explained the importance of this evidence:

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.

MR 112. When Michelin asked for additional time to respond to the motion to

compel, the Coleman family offered to postpone the hearing provided that

Michelin would agree at least to preserve the two tire building machines, but

Michelin refused. SuppR 177-78.

In February, Michelin moved to strike the affidavit of Dennis Carlson but

not the testimony of Joe Grant. MR 104-110, 111-12, 118-41.

In March, The Coleman family filed a response explaining how

Michelin’s motion to strike was mistaken, MR 145-48, and offered affidavits

from two more tire engineers (including another former Michelin engineer)

7
who further documented why access to the machines was necessary

discovery:

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
processes.

MR 312.

[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.

MR 314, 319-20 (Michelin did not seek to strike this affidavit from the second

8
Michelin tire engineer). The Coleman family also objected to the only

evidence that Michelin offered to oppose the discovery because both affidavits

were conclusory and based on information made available to the affiants

rather than based solely on personal knowledge:

MR 606-17; see also MR 485, 584.

On March 16th, 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. MR 738-71. At the hearing, the Coleman

family served a bench brief addressing the burdens of proof, MR 759, SuppR

182-85, and – after the hearing – another brief clarifying Michelin’s statements

at the hearing. MR 644-726.

In April, 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. MR 732-35.

9
E. Objections to Michelin’s Statement of Facts and Mandamus Record

Rule 52 expressly requires a mandamus petition to include “the facts

pertinent to the issues or points presented” in the statement of facts and

expressly forbids “omitting an obviously important and material fact.” Tex. R.

App. 52.3(g), 52.11(c). Likewise, with respect to the record, “Relator must file

… a certified or sworn copy of every document that is material to the relator's

claim for relief and that was filed in any underlying proceeding.” Id. 52.7(a)(1),

52.11(d). Michelin failed to meet these standards.

Michelin’s record and petition omit the following documents and facts:

 The exhibits attached to and filed with Original Petition in Intervention of
Robert Coleman and Kimberly Coleman for Blayne Cook and Cameron
Cook; SuppR 1-35 (SuppR 21-35 was omitted from the record);

 Intervenors’ Response to Michelin’s Motion to Inspect the Failed Tire by
Unknown Persons According to an Undisclosed Protocol and Request
that Michelin Preserve and Document Evidence; SuppR 36-126;

 Intervenors’ Opposition to Defendant Michelin’s Motion for Continuance
of Hearing on Motion to Preserve Evidence; SuppR 127-81;

 Bench Brief on Burden Shifting to Party Seeking Discovery if Resisting
Party Proves Trade Secrecy (The Burden Never Shifted But Was
Nevertheless Met); SuppR 182-85;

 The pages within Michelin North America, Inc.’s Responses and
Objections to Intervening Coleman’s First Requests for Admission,
Interrogatory, and Requests for Production to Defendant, Michelin North
America, Inc., where Michelin responded to the discovery request at
issue; SuppR 186-242 (SuppR 234-42 was omitted from the record);

10
 Michelin’s statement of facts raises the objection that the order requires
the “creation of evidence,” but Michelin fails to note that its objections in
response to the discovery request to observe the tire machines do not
assert such an objection; compare Pet. Mand. p. 9 with SuppR 237-38;

 Michelin’s statement of facts says the failed tire shows pre-existing
damage, Pet Mand. p. 1, but this is disputed and was not an issue
before the trial court (which is why Michelin offers no record citation);

 Michelin’s statement of facts says the Coleman family offered no
competent evidence of the necessity of the discovery, but then Michelin
mentions neither Joe Grant’s deposition testimony nor John Daws’
affidavit; compare Pet. Mand. p. 2 with SuppR 314-23; and

 Michelin’s statement of fact argues that no discovery is necessary
because the substance of the experts’ opinions have been disclosed
prior to the observation of the tire machines, but this was neither before
the trial court nor relevant to the discovery dispute. See Pet. Mand. p.
7.

VI. SUMMARY OF THE ARGUMENT

The issue before this Court is a narrow discovery dispute. The trial

court had conflicting evidence, including proof that Michelin had previously

publicly disclosed similar information 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 confidential access to the two

specific machines. 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.

11
Michelin failed to prove the requested information is a trade secret

because 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). The trial court had

ample basis to conclude that Michelin’s tire building operations had been

previously disclosed more broadly than the one-hour observation at issue

would entail. Moreover, Michelin’s only evidence was two conclusory

affidavits where both affiants admittedly based statements within their

affidavits on information made available to them. The Coleman family

specifically objected to these fatal flaws in the affidavits, citing governing

authorities from this Court and the Texas Supreme Court. See, e.g., Marks v.

St. Luke's Episcopal Hosp., 319 S.W.3d 658, 666 (Tex. 2010); Washington

DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 731-32 (Tex. App.—

Houston [14th Dist.] 2013, pet denied).

Notwithstanding the fact that Michelin did not meet its burden of proof,

the Coleman family nevertheless proved this discovery is necessary for a fair

trial. Specifically, the Coleman family offered evidence from four tire

engineers to explain why access to the tire building machines is critical where

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

the plant

12
Even if this Court were to leave aside the fatal weaknesses in Michelin’s

affidavits and the strength of the Coleman family’s proof, the trial court’s order

was based on conflicting evidence, and mandamus review is inappropriate for

reweighing conflicting evidence.

VII. ARGUMENT

A. The High Standard for Mandamus Review of Discovery Orders

Because the “scope of discovery is largely within the trial court's

discretion,” mandamus will issue only “to correct a discovery order if the order

constitutes a clear abuse of discretion.” In re Colonial Pipeline Co., 968

S.W.2d 938, 941 (Tex.1998) (orig. proceeding). Discovery rulings must reflect

that “the ultimate purpose of discovery is to seek the truth, so that disputes

may be decided by what the facts reveal, not by what facts are concealed,”

and all parties “are entitled to full, fair discovery within a reasonable period of

time.” Id. (quoting and citing Able Supply Co. v. Moye, 898 S.W.2d 766, 773

(Tex.1995); Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex.1987)). In this

context, a trial court abuses its discretion only when its discovery ruling is

“unreasonable or arbitrary” because the trial court made its decision “without

reference to guiding rules and principles.” Id. Because Michelin, as the

relator, must show that the challenged ruling was “so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law,” the burden

13
“on the party resisting discovery … is a heavy one.” In re CSX Corp., 124

S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).

“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 Wyatt Field Serv. Co., 454 S.W.3d

145, 149 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (quoting In

re Sanders, 153 S.W.3d 54, 56 (Tex.2004) (orig. proceeding)); 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.”). The Court of Appeals “may not resolve disputed fact

issues in an original proceeding.” In re Cercone, 323 S.W.3d 293, 295 (Tex.

App.—Dallas 2010, orig. proceeding).

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

factual determinations are not to be second guessed on mandamus:

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 Kuntz, 124 S.W.3d 179, 180 (Tex.2003) (orig. proceeding).

14
B. Michelin Failed Its Burden to Prove any Basis to Deny Discovery

“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). Because the

party asserting the privilege bears the burden of proof, if there is 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 Supreme Judicial District, 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). A “party who claims the trade secret privilege cannot do so

generally but must provide detailed information in support of the claim.” In re

Bridgestone/Firestone, Inc., 106 S.W.3d 730, 732 (Tex.2003) (orig.

proceeding).

1. The fatal flaws in Michelin’s affidavits

a. Affidavits cannot be based on information the affiant reviewed

In both of Michelin’s affidavits, the witness purports to base his affidavit,

15
in part, on “information available to me.” MR 485, 584. This fatal flaw

eviscerates both affidavits.

Contrary to Michelin’s affidavits, “to have probative value, the affiant

must swear the facts in the affidavit reflect his personal knowledge.”

Valenzuela v. State & County Mut. Fire Ins. Co., 317 S.W.3d 550, 552-53

(Tex. App.—Houston [14th Dist.] 2010, no pet.) (quoting Kerlin v. Arias, 274

S.W.3d 666, 668 (Tex. 2008) (per curiam)). Furthermore, an “affidavit must

explain how the affiant has personal knowledge,” id., and Michelin’s affidavits

not only fail to explain how the affiants have personal knowledge of all the

facts asserted, the affidavits affirmatively state they are based in part on

“information available” to the affiants.

An affiant’s claim that the affidavit is “true and correct to the best of my

personal knowledge and belief” based on a review of testimony, documents,

and accounts is insufficient to create any probative value. Kerlin v. Arias, 274

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

319 S.W.3d 658, 666 (Tex. 2010) (op. on reh'g) (a lack of personal knowledge

renders an affidavit legally insufficient); Washington DC Party Shuttle, LLC v.

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

pet denied) (same).

Michelin’s affidavits are even weaker than the affidavit this Court

16
rejected in the Valenzuela case where the affiant claimed personal knowledge

and identified her job title as the basis for that knowledge but did not explain

“how her job duties… afforded her the knowledge … or how she was familiar

with this particular” issues in dispute. Valenzuela, 317 S.W.3d at 554.

Slagh does not work at Michelin’s Fort Wayne tire plant nor does his

affidavit profess that he has ever even visited the plant. MR 584-87. The in-

plant information that Slagh provides is something he claims to have

“confirmed” rather than anything he personally knew, MR 585, presumably

based on information Michelin made “available to” him for the creation of his

affidavit, MR 584, rather than personal knowledge.

Peirano admits that some of Michelin’s technology is disclosed through

its patents, MR 489, but he never says what machines and processes are

disclosed and which are not disclosed, and he never states how he would

have personal knowledge to address this critical issue. See Atlas Bradford

Co. v. Tuboscope Co., 378 S.W.2d 147, 148 (Tex. Civ. App.-Waco 1964, no

writ) (a potential “‘trade secret’ is no longer a ‘secret after the issuance of the

patent, and is no longer entitled to the protection of the law of trade secrets’”).

Peirano admits that some tire dealers, employees’ family members, and

Michelin customers are given tours of the Fort Wayne plant, MR 489-90, and

he admits that school children have also been given plant tours but he is “not

17
aware” of any recent plant tours for school children. MR 490. See Rodriguez

v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989) (“an employee's lack

of awareness is not conclusive on the issue”). Most significantly, Peirano

does not state that he has participated in any of these plant tours or what has

been disclosed on such tours or how he would have personal knowledge of

that key fact. MR 489-90; cf. MR 723-24. Similarly, Peirano states that the

various unidentified persons who have been permitted to tour the Fort Wayne

plant “would not recognize or appreciate the specific confidential plant

processes,” MR 490, but Peirano offers no explanation of how he would have

personal knowledge of this.

b. Affidavits cannot be conclusory or lack explanation

If the party resisting discovery attempts to prove a privilege by affidavit,

it “must necessarily be descriptive enough to be persuasive.” Arlington Mem'l

Hosp. Found. v. Barton, 952 S.W.2d 927, 929 (Tex. App.-Fort Worth 1997,

orig. proceeding). Accordingly, “an affidavit is of no probative value if it merely

presents global allegations” asserting that the discovery requested is

privileged. In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex.

2004); see also Pink v. Goodyear Tire & Rubber Co., 324 S.W.3d 290, 296–

97 (Tex. App.—Beaumont 2010, pet. dism'd) (an affidavit is “is considered

conclusory if it is essentially a ‘conclusion without any explanation,’” quoting

18
Arkoma Basin Exploration Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380,

389 & n. 32 (Tex. 2008)); Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538,

542 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (affidavits must

contain specific factual bases that would be admissible in evidence and which

the conclusions are based upon); see also In re Bridgestone/Firestone, Inc.,

106 S.W.3d 730, 732 (Tex.2003) (orig. proceeding) (“a party who claims the

trade secret privilege cannot do so generally but must provide detailed

information in support of the claim.”).

Michelin failed to meet this burden.

For example, Peirano’s affidavit states that the first stage tire building

machine used to assemble the failed tire has been modified to change its “tray

movements, bead sets, sidewall cutters, plumbing and programming, finish

strip application, timers, and bar coding.” MR 487. Yet the Coleman family

has made no complaint about the failed tire’s tray movements, bead sets,

sidewall cutters, plumbing and programming, finish strip application, timers, or

bar coding. See MR 9-28. Peirano makes no effort to explain why such

unrelated changes would have bearing on the request for a mere 15 minutes

of access to this first stage tire building machine. Most importantly, since the

first stage tire building machine was purchased from RMS Equipment Co., and

Michelin’s own evidence mentions only a few modifications, the overwhelming

19
preponderance of the machine remains as originally designed and built by

RMS Equipment Co. To the extent that this machine is known to third parties

(such as RMS Equipment Co. and its customers in the tire industry), this

machine cannot possibly qualify as Michelin’s trade secret. See Computer

Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 457 (Tex. 1996) (“once a trade

secret is made public all ownership is lost.”); Luccous v. J.C. Kinley Co., 376

S.W.2d 336, 338 (Tex. 1964) (“It is self-evident that the subject matter of a

trade secret must be kept secret.”); Lamont v. Vaquillas Energy Lopeno Ltd.,

LLP, 421 S.W.3d 198, 210 (Tex. App.—San Antonio 2013, review denied)

(“Secrecy is a key part in the definition of a trade secret.”). Peirano makes no

effort to explain how tray movements, bead sets, sidewall cutters, plumbing

and programming, finish strip application, timers, and bar coding would be

disclosed in the 15 minute observation or how those details give Michelin an

advantage over competitors. When Peirano discusses Michelin’s putative

trade secrets, MR 488-92, he discusses machines and processes scattered

throughout the plant rather than discussing the specific request to observe

RMS Equipment Co.’s first stage tire building machine for 15 minutes.

Likewise, Peirano’s affidavit states that the second stage tire building

machine used to assemble the failed tire has been modified to change its

“tread stitcher, unloader movement, servo controls, fault detection, turret logic

20
and cycles times.” MR 487. Again, the Coleman family’s extremely detailed

petition has made no mention of these aspects of the failed tire’s assembly.

See MR 9-28. Moreover, Peirano neglects to explain why such changes

would have bearing on the request for limited access to this second stage tire

building machine. Significantly, the Coleman family’s request for 45 minutes

of access to the second stage tire building processes focuses primarily on

“alternative” tire processes and so changes from the 2011 process have little

relationship to the discovery request. Because Michelin lists “tread stitcher,

unloader movement, servo controls, fault detection, turret logic and cycles

times” as the few modifications to the machine as designed and sold by RMS

Equipment Co., the overwhelming majority of the machine is not secret from

RMS Equipment Co. and its customers. The record contains no proof to

explain how tread stitcher, unloader movement, servo controls, fault detection,

turret logic and cycles times would be disclosed in the observation or how

those details give Michelin any advantage over competitors. Again, Peirano’s

discussion of Michelin’s trade secrecy allegations focuses on machines and

processes scattered throughout the plant and does not focus on the request to

observe RMS Equipment Co.’s second stage tire machine for 45 minutes.

Pierano’s affidavit next states that “MNA does not believe that any other

tire manufacturer uses tire building machines configured similarly to these

21
machines.” MR 487-88 (emphasis added). Such information based on a

mere belief has no probative value. Kerlin v. Arias, 274 S.W.3d 666, 668

(Tex. 2008). He further states “Many of the production machines used at the

Woodburn, Indiana, plant are designed, built, and/or modified and installed by

MNA itself,” but conspicuously omits stating that the two machines the

Coleman family asked to view were designed or built by Michelin. MR 490

(emphasis added). This evasiveness appears to be intentional because,

contrary to the impression implied in Peirano’s affidavit, Michelin’s other

discovery responses confirm that the two tire building machines which the

Coleman family has asked to review were purchased from a third-party

vendor. MR 702-03. The machines Michelin is seeking to hide from the

discovery process were not even designed or manufactured by Michelin.

Next, Peirano claims that a tire “cannot be ‘reversed-engineered’ to

reveal the specific manufacturing processes, techniques, and equipment used

to construct them.” MR 488. Yet Peirano’s qualifying language is carefully

crafted so that it does not dispute that tires are reverse engineered to reveal

their raw materials and tire construction, which is routinely performed in the

tire industry, MR 318-19; see also:

22
MR 621-38. Peirano’s conclusory and evasive statements about reverse

engineering are fatal to Michelin’s trade secrecy arguments because “reverse

engineering applied to the finished product" is an exception to trade secrecy

because “trade secret law does not offer protection against discovery by fair

and honest means such as ... ‘reverse engineering.’” Phillips v. Frey, 20 F.3d

623, 628 (5th Cir. 1994) (applying Texas law).

Peirano claims that “Most of MNA’s processes and machinery are not

patented for fear of losing their secrecy.” MR 489 (emphasis added). This

statement that most of Michelin’s processes and machinery are not patented

fails to address whether or not some or all of the processes and machinery

requested to be observed are patented. Again, Peirano’s conclusory and

evasive statements are fatal to Michelin’s trade secrecy arguments because a

“‘trade secret’ is no longer a ‘secret after the issuance of the patent, and is no

23
longer entitled to the protection of the law of trade secrets.’” Atlas Bradford

Co. v. Tuboscope Co., 378 S.W.2d 147, 148 (Tex. Civ. App.-Waco 1964, no

writ). There is no evidence, for example, that the first stage machine’s tray

movements, bead sets, sidewall cutters, plumbing and programming, finish

strip application, timers, and bar coding were not patented (and these are the

only features not designed by RMS Equipment Co.). Similarly, there is no

evidence that the second stage machine’s tread stitcher, unloader movement,

servo controls, fault detection, turret logic and cycles times were not patented.

Peirano admits that Michelin permits plant tours (and the Coleman

family is only asking to observe two machines and not requesting to tour the

plant) subject to confidentiality which is only intermittently enforced (many

terms of which the Coleman family agreed to in their proposed protocol):

MNA does not generally permit third persons to enter the plant
unless there is a legitimate business reason. The few business
guests permitted to enter the Woodburn, Indiana, plant must
identify themselves to security personnel[4] and state the specific
purpose for their visit.[5] … Each visitor must conspicuously wear a
badge[6] denoting his or her status and the extent of their access
within the plant is limited based on business need and prior
approval with signed secrecy agreements[7] in many instances. …
Any items brought into the plant by a visitor may be inspected.
The MNA employee with whom the visitor is meeting must
accompany the visitor continuously[8] until the conference is
4
The order incorporates this limitation. MR 734.
5
The order incorporates this limitation. MR 732-34.
6
The order incorporates this limitation. MR 734.
7
The order incorporates this limitation. MR 732-34.
8
The order incorporates this limitation. MR 734.

24
terminated and the visitor leaves the plant. …. Dealers or
customers[9] of MNA who are permitted into the plant are normally
asked to sign a confidentiality agreement. They are given “wide
aisle” tours, and are accompanied by an MNA employee. … In
addition, in the past we have given wide aisle tours to children on
school trips, but I am not aware of any[10] in the last fifteen (15)
years…. During the past 4 years, there have been two (2)
occasions whereby MNA permitted persons (e.g.,[11] employee
family members) who are not knowledgeable about tire
manufacturing and who would not recognize or appreciate the
specific confidential plant processes to enter the plant[12] on a
limited basis during shut down periods.

MR 489-90 (emphasis added). The fact that Michelin only intermittently

requires confidentiality agreements as a prerequisite to plant tours and only

sporadically enforces the other confidentiality provisions shows that Michelin

sometimes allows uncontrolled access to far broader information than what

the Coleman family has requested.

Slagh’s affidavit is no less conclusory than Peirano’s.

For example, just one month after the failed tire was made at Michelin’s

plant, a local Fort Wayne television station ran a news story that showed tire

9
As a result of having purchased the failed Michelin tire, Robert Coleman is a customer of
Michelin.
10
A witness’s affidavit that he is unaware of a fact is not evidence disproving the fact. See
Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989).
11
Employee family members may be one example of those who were permitted to tour the
plant, but the overly general and conclusory statement does not purport to list all the
categories of people permitted to tour the plant, and Michelin’s admissions confirm that
others who are unmentioned in Peirano’s affidavit – such a governmental officials – have
also toured the plant. MR 700.
12
The affidavit offers no basis for Peirano’s conclusory statement about what these plant
tour attendees were knowledgeable about or what they would or would not recognize or
appreciate.

25
manufacturing processes filmed from within the plant. See MR 155-56, 372-

74. Slagh’s affidavit states no tire building machines were shown on that

news story but it does not dispute that Michelin’s tire manufacturing processes

were shown on the local news after being filmed from within the plant just a

month after the failed tire was made there. Instead, Slagh states that

“Michelin’s general practice [is] not to allow media in any of its plants.” MR

586 (emphasis added). This conclusory statement about Michelin’s general

practices is not evidence of any specific practice, and if disclosure of a trade

secret is the occasional practice rather than the general practice, then the

secret has still been disclosed.

While the local broadcast of footage filmed within the Fort Wayne tire

plant revealed tire manufacturing processes, Michelin’s tire building machines

were revealed on the National Geographic show Mega-factories: Michelin.

MR 155-56, 375-77. Slagh’s affidavit confirms that he merely “investigated”

the filming of Mega-factories: Michelin (indicating his statements are based on

information “made available” to him rather than personal knowledge13), MR

584, 587, and he does not dispute that the televised footage shows Michelin’s

tire building machines and processes. MR 587. Instead, Slagh claims that the

13
Information an affiant gathered from other sources through an investigation conducted in
order to create the affidavit is not personal knowledge and has no probative value. See
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008).

26
footage shows Michelin tire building machines and processes in France and

not the machines or processes at any of Michelin’s North American plants.

See id. Slagh makes no effort whatsoever to explain differences (if any)

between Michelin’s tire building machines in France – as depicted in the

nationally televised Mega-factories: Michelin program – and the two tire

building machines the Coleman family has asked to view. See id. Likewise,

Slagh makes no effort to explain differences (if any) between Michelin’s tire

building process revealed in Mega-factories: Michelin and the processes the

Coleman family has asked to view. See id. Slagh makes no effort to explain

why a national broadcast of tire building practices and machines at one plant

does not reveal trade secrets but one hour of confidentially observing two tire

building machines at another plant would supposedly disclose trade secrets.

See id.

Finally, Slagh states that the tire building machine depicted in the

internet discussion of a self-identified Michelin employee working at the Fort

Wayne plant where the tire was made is not a photograph taken at that plant.

MR 585. The fact that the images of the RMS Equipment Co. tire machines

used at Michelin’s Fort Wayne plant were downloaded from the internet (not

photos taken in the plant) was never disputed. MR 154-55, 362-65. Instead,

the Coleman family offered this internet discussion to show that “Michelin’s

27
employees at the tire plant where the failed tire was made discuss plant

operations freely on the internet and post photographs to show what

Michelin’s tire building machines look like.” MR 154-55. Regardless of

whether Michelin employees photographed the RMS Equipment Co. tire

machines used at the Fort Wayne plant to show what they look like or

downloaded pictures of RMS Equipment Co. machines to show what they look

like, the appearance of the machines at the Fort Wayne plant is nevertheless

disclosed. Slagh neither disputes that Michelin’s employees at the Fort

Wayne tire plant discuss plant operations freely on the internet nor rebuts the

fact they post pictures on the internet showing what Michelin’s machines look

like.

c. Unanswered questions fatal to Michelin's alleged privilege

Michelin bore the burden to prove its alleged privilege, but Michelin only

offered two affidavits that were not based solely on personal knowledge and

failed to address critical questions necessary to meet the burden of proof:

 the two machines at issue were designed and made by RMS Equipment

Co.; what would be disclosed by one hour of observing those machines

that is secret from RMS Equipment Co. and its tire industry customers?

 the extensive televised footage of Michelin’s tire building machines and

processes shown on Mega-factories: Michelin was filmed at a different

28
plant, but how did that differ from what is the subject of the order?

 if Michelin was unconcerned about disclosing machines and processes

on Mega-factories: Michelin, why is one hour of confidential observation

of two RMS Equipment Co. machines a cause for concern?

 some of Michelin’s machines and tire building processes are disclosed

through Michelin’s patents, and some are not, but are the machines and

processes that are the subject of the order patented or not?

 Michelin allows tire dealers, government officials, family members,

students, and customers to tour its plant (sometimes with a

confidentiality agreement and sometimes without); what do these tours

disclose?

 compared to one hour of observing two machines, what secrets might

be disclosed that are not already disclosed to other RMS Equipment Co.

customers, on tours of the plant, in patents, or in televised programs?

2. Michelin misapplies the standard for burdensomeness

Just as the party resisting discovery based on an alleged trade secret

bears the initial burden of proof, the party resisting a discovery request for

entry onto land also bears the burden of proof:

In the context of a discovery request for entry onto land, the court
must balance the degree to which the proposed inspection will aid
in the search for truth against the burdens and dangers created by

29
the inspection. However, the burden is on the objecting party
to satisfy the court that the testing “should not be had.”

In re Kimberly-Clark Corp., 228 S.W.3d 480, 486 (Tex. App.—Dallas 2007,

orig. proceeding) (emphasis added, citations omitted). Just as Michelin’s

conclusory and rebutted affidavits failed to meet its initial burden to prove a

trade secret, Michelin also failed to meet its initial burden to satisfy the trial

court that the inspection “should not be had.” See id.

More significantly, Michelin applies the wrong standards when

discussing the alleged burdensomeness.

Even if there is some burden associated with a discovery request, that is

still not enough to justify protection because “it is only undue burden that

warrants nonproduction.” ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 568

(Tex. App.-Houston [1st Dist.] 1996, no pet.). A discovery request will not

result in an undue burden when the burdensomeness of responding to the

request is the result of the responding party's own “conscious, discretionary

decisions.” Id. at 569; see also In re Whiteley, 79 S.W.3d 729, 734–35 (Tex.

App.-Corpus Christi 2002, orig. proceeding). Michelin argues that providing

one hour of access to the two tire building machines will cost $2,000 to “hang

drapes” so that the Coleman family will not see any portion of the plant other

the two machines and further argues that this process will cause Michelin to

idle 12 tire building machines. MR 492. The order permits Michelin to hang

30
drapes and idle machines if it chooses to do so, MR 734, but the order

certainly does not require such efforts. MR 732-34. Moreover, the Coleman

family does not object if Michelin wants to hang drapes to hide the rest of the

plant from observation; however, this would obviously be part of Michelin’s

“conscious, discretionary decisions” that raise the burden of the discovery

response and so this is not an aspect of the discovery obligation which counts

as part of the court’s burdensome analysis. See ISK Biotech Corp., 933

S.W.2d at 569; In re Whiteley, 79 S.W.3d at 734–35. Moreover, the protocol

proposed by the Coleman family strictly prohibits any videography within the

plant other than the specific machines and processes at issue and so

“hanging drapes” would only prevent incidental, unrecorded observations.

Neither of Michelin’s affidavits suggests that the Coleman family would see

anything behind the drapes that plant tourists have not seen on the multiple

non-confidential plant tours that Michelin admits have repeatedly occurred.

a. The "creation of evidence" objection was not raised below

Michelin’s mandamus petition complains that the discovery request

seeking observation of the tire building machines improperly requires Michelin

to “create evidence.” Pet. Mand. pp. 14-16. This argument is both legally and

factually (and perhaps ethically) flawed.

31
Legally, this argument is fatally flawed because it was not raised in

Michelin’s objections. “The failure of the trial court to sustain an objection not

made could not provide a basis for mandamus relief.” In re HEB Grocery Co.,

L.P., 375 S.W.3d 497, 501 (Tex. App.—Houston [14th Dist.] 2012, orig.

proceeding); see also id. at 505 n. 11 (appellate courts do not reach issues on

mandamus review which were not first raised in the trial court). The discovery

request was served in December of 2014, MR 57-66, and Michelin filed its

objections within the 30-day requirement to avoid waiving its objections.

SuppR 237-38; see Tex. R. Civ. P. 196.2(a) (“The responding party must

serve a written response on the requesting party within 30 days after service

of the request…”); 193.2(e) (“An objection that is not made within the time

required, or that is obscured by numerous unfounded objections, is waived

unless the court excuses the waiver for good cause shown.”); Overstreet v.

Home Indem. Co., 747 S.W.2d 822, 825 (Tex. App.—Dallas 1987, writ denied)

(objections not raised within 30 days are waived absent an extension or a

finding of good cause, citing Peeples v. Honorable Fourth Supreme Judicial

District, 701 S.W.2d 635, 637 (Tex.1985); Independent Insulating

Glass/Southwest, Inc. v. Street, 722 S.W.2d 798, 801–02 (Tex. App.—Ft.

Worth 1987, writ dism'd w.o.j.)). Michelin’s petition offers no record citation

showing where it made a timely objection to the discovery request at issue in

32
this mandamus proceeding on grounds that the requested tire machine

observation protocol requires the creation of evidence. In fact, as discussed

below, Michelin’s mandamus record omits the pages where its objections are

set forth. SuppR 237-38. Michelin offers no record citation to where it made a

timely objection to the “creation of evidence” because Michelin’s objections

and assertions of privilege did not include such an objection. See SuppR 237-

38.

Factually, Michelin’s argument is incorrect because the order only

requires Michelin to make two identified tire building machines available for

one hour of observation “while the machines are in normal use.” MR 734.

The order expressly provides that the observation of specific tire building

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

processes requested to be observed. MR 733. Nothing in this order requires

Michelin to “create evidence.” Instead, the order merely allows one hour of

observation of two identified tire building machines that already exist

performing functions “as near as is practical” to the processes requested to be

observed “while the machines are in normal use.” MR 732-34.

Ethically, it is noteworthy that Michelin offers no record citation to show

where it raised this “creation of evidence” objection in the trial court. Tex. R.

App. P. 52.3(h) (a mandamus petition must contain “appropriate citations … to

33
the appendix or record” to support each argument). It is equally noteworthy

that Michelin’s mandamus record includes the first 48 pages of its 53-page

discovery response, but excludes pages 52 and 53 where Michelin objected to

the disputed request to observe the two tire building machines at issue.

Compare MR 414-61 (pages 1-48) with SuppR 186-238 (the full document,

including SuppR 237-38 where Michelin’s objection to the disputed discovery

request). Michelin’s choice to include an excerpt of its discovery response in

in the mandamus record but to exclude the pages which show that Michelin

did not raise an objection that it is now arguing conflicts with Rule 52:

On motion of any party or on its own initiative, the court may —
after notice and a reasonable opportunity to respond — impose
just sanctions on a party or attorney who is not acting in good faith
as indicated by … filing an appendix or record that is clearly
misleading because of the omission of obviously important and
material evidence or documents.

Tex. R. App. P. 52.11(d).

b. Michelin misinterprets In re Goodyear

As mentioned above, Michelin’s objections in the trial court did not

include any objection that the tire machine observation protocol required the

creation of evidence. SuppR 237-38. This raises the question why Michelin

would raise an argument in its mandamus petition that does not correspond to

its objections in the trial court. The apparent answer to this question lies in a

recent Dallas Court of Appeals decision which reversed an order granting

34
entry upon land to for the purpose of creating demonstrative evidence. See In

re Goodyear Tire & Rubber Co., 437 S.W.3d 923 (Tex. App.—Dallas 2014,

orig. proceeding).

One obvious difference between In re Goodyear and the case before

this Court is Goodyear’s objection (and supporting proof) complaining that the

discovery request required the creation of demonstrative evidence, and

Michelin’s failure to properly raise such an objection. SuppR 237-38. In

addition to this distinction, there are numerous additional differences between

this mandamus proceeding and In re Goodyear:

 in the In re Goodyear case, the claimants did not object to Goodyear’s

affidavits, id. at 926, but the Coleman family made extensive and

detailed objections to Michelin’s affidavits; MR 606-38;

 Michelin’s fatally flawed affidavits, objections to those affidavits, and the

rebuttal proof that the machines were made by RMS Equipment Co. and

the processes disclosed on local nightly news as well as Mega-

factories: Michelin were not part of the In re Goodyear record;

 in the In re Goodyear case, “the plaintiffs did not attempt to offer

contrary evidence,” id. at 926 n. 1, and the Coleman family offered

ample contrary evidence; MR 29-117, 144-464;

35
 the affidavits explaining the necessity of the discovery (from the

Coleman family’s expert and two engineers who worked for Michelin,

MR 104-10, 308-20) were not part of the In re Goodyear record;

 in the In re Goodyear case, Goodyear conceded the alternative design

“was both technologically and economically feasible” and easy and

inexpensive to install, id. at 929 n. 2, but Michelin has not stipulated to

the feasibility, ease, or cost of applying Filament at Zero; cf. MR 733-34;

 in the In re Goodyear case, Goodyear voluntarily “produced [a] tire

manufacturing video” showing a tire being built on the same type of

machine used to build the tire at issue, id. at 930, and the Coleman

family asked Michelin to create a similar video but Michelin refused; MR

37-39; SuppR 36-39, 44-45, 127, 177-78;

 in the In re Goodyear case, “the video [was] intended for demonstrative

purposes” because it did not involve “inspecting the machine that

produced the tire at issue to determine whether the condition of the

machine may have caused the production of a defective tire,” but the

order in this case does involve observing the machines that produced

the tire at issue to determine the cause of the production of a defective

tire, MR 723-34, and the Coleman family offered an affidavit proving that

such an observation is “invaluable … substantive evidence;” MR 104.

36
Ultimately, all of the factors which undermine Michelin’s arguments and

support the trial court’s decision were absent from In re Goodyear.

Michelin cites the In re Goodyear case as if it stands for the proposition

that a party cannot observe evidence in another party’s possession, but that is

certainly not the holding. Instead, the court ruled that the burdensomeness of

allowing the creation of a demonstrative exhibit of a tire machine that was not

used to make the tire at issue (a burden which Goodyear proved based on

evidence that Michelin has not offered) outweighed the claimant’s need for a

demonstrative exhibit (where Goodyear had already produced a similar video

and stipulated to the alternative design, and the claimant did not offer expert

affidavits to prove the need for the discovery).

In this case, Michelin raised no such objection regarding the “creation of

evidence,” Michelin’s affidavits were fatally flawed and applied an incorrect

burdensomeness analysis, the machines to be observed are the exact ones

used to build the failed tire and so evidence sought is substantive and not

demonstrative, and the Coleman family offered abundant evidence proving

the need for the discovery.

C. Coleman Proved the Reasonable Necessity for this Discovery

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

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

37
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 Texas Supreme Court

has not defined “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.” Id. at 592 (quoting In re Bridgestone/

Firestone, Inc., 106 S.W.3d 730, 732 (Tex. 2003)).

Contrary to Michelin’s arguments, however, the Texas Supreme Court

has expressly rejected the idea that the burden to show reasonable necessity

for discovery means showing “the requesting party cannot prevail without” that

discovery. In re Bridgestone/ Firestone, Inc., 106 S.W.3d at 732. Instead, a

party can show reasonable necessity for discovery in a situation where it was

“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.” Id.

While the Texas Supreme Court has not defined “what would or would

not be considered necessary for a fair adjudication,” In re Union Pac., 294

S.W.3d at 592, this issue has been addressed by the Austin Court of Appeals.

See John Paul Mitchell Sys. v. Randalls Food Markets, Inc., 17 S.W.3d 721,

739 (Tex. App.-Austin 2000, pet. denied). The John Paul Mitchell case

38
confirms that a “requesting party must describe with particularity how the

protected information is required to reach conclusions in the case.” John Paul

Mitchell Sys., Inc., 17 S.W.3d at 739. Once the requesting party describes the

need for the discovery, the “trial court's role [is] to weigh the degree of the

requesting party's need for the information against the potential harm of

disclosure to the resisting party.” Id. at 738.

Although Michelin did not meet its own burden, the Coleman family

preemptively proved the reasonable necessity for this discovery with evidence

from four different tire experts (two who most commonly consult with claimants

and two who commonly consult with defendants; two with backgrounds at

Michelin and two with backgrounds at other tire companies).

1. 1st expert: invaluable causation proof otherwise unavailable

Dennis Carlson is a tire engineer and expert whose background is with

Michelin. MR 104. Because this case involves claims that grossly negligent

conduct at the tire plant resulted in a defective tire, MR 17-21, 25-26, the

Coleman family offered Carlson’s affidavit proving the reasonable necessity to

observe the tire building machines under such circumstances:

39
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.

MR 104-05. Carlson’s affidavit is based on personal knowledge because he

participated in a one-hour observation of tire building machines where the

order is almost identical to the order challenged in this mandamus action.

Compare MR 105, 107-10 with 732-34. Carlson confirmed that one hour’s

observation of the tire machines provides invaluable substantive evidence

critical to proving causation, the ease of implementing safer designs to

counteract sloppiness in the manufacturing process, and standards of care.

MR 105. Finally, Carlson explained that obtaining this evidence from the tire

company 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.” MR 105.

40
2. 2nd expert: discovery needed for jury to understand case

Joe Grant is another tire expert, MR 111, and the Coleman family

offered his deposition testimony explaining why he creates videotapes of the

tire building process as a trial exhibit:

MR 112. Grant confirmed that showing the tire building process is much more

helpful to the jury than simply giving testimony about the process because it is

complicated and difficult for some jurors to understand. MR 112. Michelin’s

petition does not raise any complaint about Grant’s testimony.

3. 3rd expert: critical proof of designs to fix manufacturing flaws

Troy Cottles is a tire expert who previously designed tires for Goodyear-

Dunlop. MR 310-12. Cottles’ affidavit is proof that access to the

manufacturing processes is “ultimately important” when addressing claims like

those in this case which involve both negligent practices at the plant and also

defects in a tire made at the plant:

When a full forensic tire failure analysis is conducted in cases

41
where there are claims of design and manufacturing defects, in
addition to claims of negligent lire building, processing, or
inspection, it is ultimately important to have access to the
manufacturing facility in order to fairly establish the likelihood of
contribution to the failure from the specific plant aspects.

MR 312. Cottles explained that this is an accepted practice in the tire industry

as reflected by the root cause analysis of the highly publicized Firestone tread

separation investigation. MR 312.

Cottles also participated in the same one-hour observation of tire

building machines referenced in Carlson’s affidavit, MR 105, 312, and Cottles

explained that restricting the observation to one hour while the machines are

in use is limited “so as not to cause an interruption of the manufacturing

process.” MR 312. Cottles’ affidavit is further evidence of the “importance” of

this “critical” evidence both to prove causation and also to prove how

proposed alternative designs can be used to compensate for weaknesses in

the manufacturing process at the 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 processes.

42
MR 312. Finally, Cottles’ affidavit is proof that the discovery requested is not

available from any other source. MR 312.

4. 4th expert: discovery reasonably necessary for failure analysis

John Daws is another tire engineer and expert whose background is

with Michelin. MR 314-16. Daws explained that much information about a

tire’s design and manufacture can be identified from inspecting the tire, MR

318, 621-38, but additional information is required for a root cause analysis.

MR 318. In this case, Michelin and the Coleman family differ in their analysis

of why the tire failed. Daws’ affidavit is proof that a “tire analyst would have a

reasonable necessity for … access to tire plant information, including the tire

component fabrication machines, the tire building machines,” in order to

resolve the root cause analysis. MR 318. As an example of this reasonable

necessity, Daws explained access to such evidence was part of the root

cause analysis in the Firestone tread separation investigation:

43
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.

MR 319-20. Michelin’s petition does not raise any complaint about Daws’

affidavit.

5. Michelin's objections to the affidavits are unfounded

Michelin raises several groundless objections to the affidavits.

First, Michelin complains that Carlson’s affidavit is hearsay.14

Obviously, any affidavit offered in the discovery context is “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted,” and is – therefore –

hearsay. Tex. R. Evid. 801(d). By their very nature, all affidavits are hearsay,

including Michelin’s affidavits in this case, and this fact was discussed at the

hearing. MR 746. However, hearsay is admissible as provided by the Texas

Rules of Civil Procedure. Tex. R. Evid. 802. In the context of discovery

hearings, Rule 193 expressly provides for the use of “affidavits served at least

seven days before the hearing." Tex. R. Civ. P. 193.4(a). Because there is

no dispute that the affidavits were all served well over seven days before the

hearing, the obvious fact that an affidavit is an out-of-court statement is

14
Michelin makes no similar objection to Cottles’ or Daws’ affidavits.

44
immaterial because affidavits are provided for at discovery hearings by Rule

193. Compare Tex. R. Evid. 802 with Tex. R. Civ. P. 193.4(a). Michelin’s

objection is meritless.

Next, Michelin complains that neither Carlson’s affidavit nor Cottles’

affidavit has the style of this case as a heading.15 The requirements for an

affidavit valid under Texas law are set forth in the Government Code.

Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316

(Tex. 2012). There is no requirement that an affidavit must have a heading:

“’Affidavit’ means a statement in writing of a fact or facts signed by
the party making it, sworn to before an officer authorized to
administer oaths, and officially certified to by the officer under his
seal of office.”

Tex. Gov't Code Ann. § 312.011(1). Both Carlson’s and Cottles’ affidavits are

written, factual, signed, sworn before a notary, and certified. MR 104-110,

310-13. Moreover, both Carlson’s affidavit and Cottles’ affidavit contain their

personal knowledge and explanation of the critical and invaluable nature of

the proof obtained from a similar one hour observation of tire building

machines. MR 104-110, 310-13. These affidavits meet the requirements of

the Government Code, and Michelin’s objection about the lack of a heading is

meritless.

15
Michelin makes no similar objection to Daws’ affidavit.

45
Third, Michelin complains that Carlson’s affidavit was not submitted for

this case (it is unclear if Michelin intended this objection to apply to Cottles’

affidavit as well).16 Both affidavits were submitted in this case, and Cottles’

affidavit was prepared for this case, MR 744, while Carlson’s affidavit was

prepared for a similar case as proof of the need to observe the tire machines

when addressing in-plant negligence as it relates to the cause of defects in a

tire (which is the exact same issue in this case). Compare MR 17-21, 25-26

with MR 105. Regardless of the fact that Cottles’ affidavit was prepared for

this case and Carlson’s affidavit was prepared for another case, both affidavits

are sworn proof of the need to observe the tire machines to prove causation

linking the in-plant negligence to the tire defects. Michelin’s objection is

meritless.

Michelin further objects that neither Carlson’s nor Cottles’ affidavit states

that he cannot render an opinion without observing the machines. The Texas

Supreme Court has specifically rejected this objection when it held this is not

the correct standard for defining a reasonable necessity for discovery:

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, our decision in Continental General Tire cannot
be read so narrowly.

16
Michelin makes no similar objection to Daws’ affidavit.

46
In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 732 (Tex. 2003).

Michelin’s objection is without merit.

Finally, Michelin complains that Carlson’s affidavit violated his

settlement agreement with Michelin.17 This is incorrect. Carlson’s agreement

precludes him from working as an expert in a case against Michelin. MR 131.

Carlson was not retained in this case, he has made no appearance in this

case, he did not prepare his affidavit in this case, he did no work in this case,

and Michelin was made fully aware of these facts. MR 145-48, 170-76.

Michelin further complains that Carlson did not “withdraw” his affidavit, but the

affidavit was not filed by Carlson (it was filed by the Coleman family), and so

Carlson had no more ability to withdraw his affidavit than Daws or Grant or

National Geographic had authority to withdraw their affidavit, testimony, or

television program. MR 173. Ultimately, Carlson left the issue up to the court:

I do not agree with Michelin's position, and I'm not sure that it is
proper (or even legal) to coerce someone to withdraw truthful
testimony that in no way violates a protective order, nondisclosure
agreement, or the Settlement Agreement that I entered into with
MNA over 15 years ago. Notwithstanding the fact that my affidavit
does not violate any agreement that I'm aware of, as well as the
fact that I'm uncertain as to whether it can be withdrawn at this
point, Michelin is threatening to sue me if l don't ask you to
withdraw it. Therefore, if you think that it's proper to withdraw my
affidavit in response to the threat of a lawsuit, please ask the court

17
Daws also formerly worked for Michlein, but Michelin makes no similar objection to
Daws’ affidavit.

47
permission to withdraw it, and then withdraw it should the court
decide that is the appropriate action under these circumstances.

MR 176. Michelin’s argument that Carlson’s affidavit violates any settlement

agreement is incorrect and the related objection that the affidavit is not

evidence is equally flawed. Moreover, Carlson’s affidavit provides no

information which is not already contained in Cottles’ and Daws’ affidavits and

Grant’s testimony, compare MR 104-110 with MR 310-20, so Michelin’s

objection is both meritless and without effect.

D. Conflicting Evidence Provides Discretion for the Narrow Order

As discussed above, Texas law is very clear in holding that trial court's

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

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) (orig. proceeding); see also In

re Wyatt Field Serv. Co., 454 S.W.3d 145, 149 (Tex. App.—Houston [14th

Dist.] 2014, orig. proceeding); Walter v. Marathon Oil Corp., 422 S.W.3d 848,

856 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re Guidry, 316 S.W.3d

729, 737 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding).

The trial court does not abuse its discretion if it bases its decision
on conflicting evidence and some evidence supports its decision.

48
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (orig.

proceeding); see also In re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston

[14th Dist.] 2011, 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 Kuntz, 124 S.W.3d 179, 180 (Tex. 2003) (orig. proceeding); see also In

re Union Carbide Corp., 145 S.W.3d 805, 807 (Tex. App.—Houston [14th

Dist.] 2004, 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 Pirelli Tire, L.L.C., 247 S.W.3d 670, 686 (Tex. 2007) (orig. proceeding).

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).

In this case, there were numerous conflicts for the trial court to resolve.

For example, Michelin provided broad claims that its processes are not

generally disclosed to the public, and the Coleman brought conflicting

evidence establishing particular disclosures. MR 154-56, 362-65, 372-77,

490, 652-53, 657-661, 676-77, 680-92, 696-700, 722, 723; see also MR 489-

90 (only some unidentified technologies are not patented to avoid disclosure,

49
only some third parties who are granted access to the plant are asked to sign

confidentiality agreements, etc.). Michelin provided the claim that its tire

building machines cannot be identified by reverse engineering (although the

machines at issue have already been identified), and the Coleman family

brought conflicting evidence that the tire’s construction is not a secret because

it can be reverse engineered. MR 318-19, 621-38, 702-03.

Similarly, Michelin cited a case from Alabama where an all-day

inspection of the whole tire plant was denied, and the Coleman family

provided the court with a subsequent order where the Alabama Supreme

Court approved a one-hour observation of tire building machines. MR 63-66;

see Ex parte Continental Tire the Americas, LLC, No. 1130556 (Ala. Apr. 9,

2014). Michelin cited a case from Kansas where a day-long inspection of the

whole tire plant was denied, and the Coleman family provided the court with a

subsequent order where the Kansas Supreme Court approved a one-hour

observation of tire building machines. MR 60-62; see Cooper Tire & Rubber

Co. v. Lahey, No. 13-09979-S (Kan. Dec. 23, 2013). At the hearing, Michelin

discussed other orders where inspections were denied, and the Coleman

family discussed additional orders where more tailored inspections were

granted. MR 760; see In Re Bridgestone/Firestone, No. 01-01-410 (Tex.

Coordinated Litigation, Sep. 20, 2001); Rivera v. Yokohama Tire Corp., No. C-

50
1745-00-B (93rd Dist. Ct. Hidalgo County, Tex., Mar. 19, 2002), mand. denied

sub nom In re Yokohoma Tire Corp., No. 13-02-205-CV (Tex. App. – Corpus

Christi Jul. 22, 2004); see also Blundon v. Goodyear Dunlop Tires N. Am. Ltd.,

11CV990S, 2012 WL 5473069 (W.D.N.Y. Nov. 9, 2012); Griffith v. Goodyear

Dunlop Tires N. Am. Ltd., 11CV761S, 2012 WL 5473494 (W.D.N.Y. Nov. 9,

2012); Shakur v. Bridgestone/Firestone, Inc., CIV-05-983-C, 2006 WL

1451490 (W.D. Okla. May 24, 2006).

With respect to the orders concerning access to tire plants or tire

building machines, the orders are generally granted or denied based on the

evidence offered in each case and based on the scope of the order. The

evidence is this case far exceeds the evidence discussed in any of the other

cases mentioned by either party, and the observation order is as narrow (and

in most cases, much narrower) than all of the other orders and grants Michelin

greater confidentiality than any of the other orders. The order in this case is

uniquely limited in scope:

 Michelin was granted the maximum amount of confidentiality as

permitted under Texas law; MR 732-34;

 The Coleman family is expressly forbidden from conducting any

sampling, measurements, or testing of any kind; MR 733;

 The Coleman family is expressly limited to visual observation of the two

51
machines only; MR 733;

 The Coleman family is expressly forbidden from bringing any recording

device besides one videographer’s equipment; MR 733-34;

 The videotaping is confidential to the greatest extent allowed under

Texas law and is expressly limited to the two machines; MR 733-34;

 The Coleman family is expressly forbidden from interrupting or

interfering with the normal operation of the machines; MR 734;

 The Coleman family is expressly forbidden from interfering with the

normal activities of, or communicating with, plant workers; MR 734;

 The Coleman family is expressly required to follow all of Michelin’s

requests regarding identification, badges, escorts, hardhats, ear and

eye protection, and footwear; MR 734;

 The Coleman family is expressly limited to 15 minutes of observation of

the first stage machine used to build the failed tire; MR 733;

 The Coleman family is expressly limited to 45 minutes of observation of

the second stage machine used to build the failed tire; MR 733-34;

 The persons permitted to attend are expressly limited and must be

identified and must consent to complete confidentiality; MR 732-34; and

 There are provisions requiring the observation to accommodate the

normal operation of the plant without interruption. MR 733-34.

52
No other order that either party has cited is as narrowly tailored. No other

case that either party cited discuses affidavits resisting the discovery which

were based on information made available to the affiant or were as thoroughly

rebutted. No other case cited by either party involved evidence from four

different tire experts explaining the need for the limited discovery requested.

VII. CONCLUSION AND PRAYER

This a simple discovery dispute involving just one hour of 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. The Coleman family prays that this Court

swiftly deny mandamus review.

53
Respectfully submitted,

THE EDWARDS LAW FIRM

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

ATTORNEYS FOR REAL PARTIES IN
INTEREST

X. CERTIFICATES

I certify that I have reviewed the Response to Petition for Writ of
Mandamus and the factual statements herein are supported by evidence
included in the record and supplemental record.

BY: /s/ John Blaise Gsanger

54
John Blaise Gsanger
State Bar No. 00786662

CERTIFICATE OF COMPLIANCE

I certify that the sections of the Response to Petition for Writ of
Mandamus subject to the word limit contain 11,872 words according to the
word count of the computer program used to prepare this document.

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

CERTIFICATE OF SERVICE

I certify that copies of the foregoing Response to Petition for Writ of
Mandamus was served upon the Respondent and all attorneys of record for
all parties to the above cause on this the 22nd day of July, 2015.

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

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

55
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

in Re Michelin North America, Inc.

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