UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1172

THEODORE G. HARTSOCK, JR., as Personal Representative of the 

Estate of Sarah Mills Hartsock (Estate of Sarah Mills 

Hartsock),

Plaintiff – Appellee,

v.

GOODYEAR DUNLOP TIRES NORTH AMERICA LTD, a foreign 

corporation; GOODYEAR TIRE & RUBBER COMPANY, a foreign 

corporation,

Defendants – Appellants.

--------------------------------------

RUBBER MANUFACTURERS ASSOCIATION; THE PRODUCT LIABILITY 

ADVISORY COUNCIL, INC.,

Amici Supporting Appellants,

THE SAFETY INSTITUTE; SOUTH CAROLINA ASSOCIATION FOR JUSTICE,

 

Amici Supporting Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Patrick Michael Duffy, Senior 

District Judge. (2:13-cv-00419-PMD)

Argued: October 27, 2016 Decided: November 29, 2016

Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior 

Circuit Judge.
2

Unpublished Order of Certification of a question of law to the 

Supreme Court of South Carolina.

ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS LLP, Richmond, 

Virginia, for Appellants. Mark Charles Tanenbaum, MARK C. 

TANENBAUM, P.A., Charleston, South Carolina, for Appellee. ON 

BRIEF: Michael H. Brady, MCGUIREWOODS LLP, Richmond, Virginia; 

M. Gary Toole, Bianca G. Liston, MCDONALD TOOLE & WIGGINS, P.A., 

Orlando, Florida, for Appellants. Mia Lauren Maness, MARK C. 

TANENBAUM, P.A., Charleston, South Carolina, for Appellee. 

Debora B. Alsup, THOMPSON & KNIGHT LLP, Austin, Texas, for 

Amicus Rubber Manufacturers Association. Timothy L. Mullin, 

Donna P. Sturtz, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland; 

Hugh F. Young, Jr., PRODUCT LIABILITY ADVISORY COUNCIL, INC., 

Reston, Virginia, for Amicus The Product Liability Advisory 

Council, Incorporated. Courtney L. Davenport, THE DAVENPORT LAW 

FIRM LLC, Germantown, Maryland, for Amicus The Safety Institute. 

John S. Nichols, BLUESTEIN NICHOLS THOMPSON & DELGADO, LLC, 

Columbia, South Carolina, for Amicus South Carolina Association 

for Justice.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Pursuant to Rule 244 of the South Carolina Appellate Court 

Rules, we respectfully certify the following question of law to 

the Supreme Court of South Carolina:

Does South Carolina recognize an evidentiary privilege 

for trade secrets?

As we explain, we believe that no directly controlling South 

Carolina authority answers this question. Moreover, the answer 

will determine whether federal or state law applies to the 

discovery of trade secrets in this diversity action and, 

consequently, will be determinative of this appeal.

I

In July 2010, Sarah Mills Hartsock was killed in an 

automobile crash on Interstate 26 in Calhoun County, South 

Carolina. Her personal representative, Theodore G. Hartsock, 

Jr., brings this survival and wrongful death action asserting 

claims under South Carolina law for negligence, strict 

liability, and breach of warranty. Mr. Hartsock alleges that the 

vehicle in which Mrs. Hartsock was riding was struck head-on by 

another vehicle. That vehicle had crossed the median after 

suffering a blowout of an allegedly defective tire that Goodyear 

Dunlop Tires North America Ltd. and Goodyear Tire & Rubber 
4

Company designed, manufactured, and marketed.1 Federal subjectmatter jurisdiction exists under 28 U.S.C. § 1332 based upon 

complete diversity of citizenship between the parties and 

damages alleged to be greater than $75,000.

During pretrial discovery a dispute arose between the 

parties over certain Goodyear material relating to the design 

and chemical composition of the allegedly defective tire. 

Goodyear objected to producing this material, asserting that it 

constitutes trade secrets. The district court eventually found, 

and Mr. Hartsock does not dispute, that the material does, in 

fact, constitute trade secrets. However, the court ordered 

Goodyear to produce the material subject to a confidentiality 

order. In doing so, the court applied federal discovery 

standards, rejecting Goodyear’s contention that South Carolina 

trade secret law applies.

Goodyear thereafter moved for reconsideration, reiterating 

its argument that South Carolina law applies. The district court 

denied the motion but certified its order for interlocutory 

review pursuant to 28 U.S.C. § 1292(b).2 The court also stayed 

 1 Goodyear Dunlop is now known as Sumitomo Rubber USA, LLC.

For ease of reference, we will refer to the defendants

collectively as “Goodyear.”

2 Section 1292(b) provides that when a district judge 

believes that an order that is otherwise not appealable

“involves a controlling question of law as to which there is 

(Continued)
5

the proceedings pending Goodyear’s anticipated appeal. After 

Goodyear appealed, a panel of this Court agreed to permit the 

appeal. The parties filed briefs, and we heard oral arguments in 

October 2016.

II

Goodyear contends that “the district court erred when it 

applied Rule 26 [of the Federal Rules of Civil Procedure] and 

federal case law, rather than the South Carolina Trade Secrets 

Act (“SCTSA”), S.C. Code Ann. §§ 39-8-10 through 39-8-130, and 

South Carolina precedent, in determining the burden of 

production and persuasion that Hartsock must bear to overcome 

the trade secret privileges asserted by Defendants.” Opening 

Brief of Appellants, at 2. In Goodyear’s view, the SCTSA – as 

interpreted in Laffitte v. Bridgestone Corp., 674 S.E.2d 154 

(S.C. 2009) – provides “greater protections from discovery of 

trade secrets for civil litigants than [currently] recognized by 

federal common law,” Opening Brief of Appellants, at 19, and 

Goodyear asserts, as it did below, that Mr. Hartsock has not met 

his burden under the state standard. Goodyear’s appeal is 

 

substantial ground for difference of opinion and that an

immediate appeal from the order may materially advance the 

ultimate termination of the litigation, he shall so state in 

writing in such order.” In that instance, the court of appeals, 

“in its discretion, [may] permit an appeal to be taken from such 

order.”
6

premised on its assertion that South Carolina law recognizes an 

evidentiary privilege for trade secrets. 

Mr. Hartsock agrees that the issue presented “is the legal 

standard to be applied in determining when and under what 

conditions . . . trade secrets [must be] disclosed in products 

liability litigation based on diversity jurisdiction.” Brief of 

Appellee, at 2. Not surprisingly, however, he disagrees with 

Goodyear’s assertion that state law applies. Instead, he argues 

that the “only law applicable to the issue before the Court 

derives from the Federal Rules of Civil Procedure and federal 

common law.” Id. at 11. Further, despite his insistence that 

only federal law applies, he contends that “the SCTSA and 

federal rule are not, in fact, contradictory.” Id. Taking this 

argument a step further, he asserts that even if the state 

standard applies, “it is improbable that the District Court 

would have reached a different conclusion.” Id. at 33.3

III

“The federal courts have long recognized a qualified 

evidentiary privilege for trade secrets and other confidential 

commercial information.” Federal Open Mkt. Comm. of Fed. Res. 

Sys. v. Merrill, 443 U.S. 340, 356 (1979). Being a qualified

 3 This assertion seems debatable in light of the district 

court’s certification of the issue under § 1292(b). We express 

no opinion in that regard.
7

privilege, federal courts have not afforded “automatic and 

complete immunity against disclosure, but have in each case 

weighed [the] claim to privacy against the need for disclosure.”

Id. at 362 (citation omitted). Thus, as a general matter of 

federal litigation, “trade secrets have widely been held to be 

discoverable upon appropriate findings and with an appropriate 

protective order.” MDK, Inc. v. Mike’s Train House, Inc., 27 

F.3d 116, 120 (4th Cir. 1994).

From a procedural standpoint, the district court acted in 

accordance with this general proposition in resolving the 

discovery issue. Goodyear does not take issue with the 

proposition itself. Instead, as noted, Goodyear contends that

the proposition is inapplicable because South Carolina law, 

rather than federal law, applies.

Because this is a diversity case, we are obliged to apply 

state substantive law and federal procedural law. Gasperini v. 

Center for Humanities, Inc., 518 U.S. 415, 427 (1996). The issue 

presented involves both a matter of pretrial discovery and 

evidence. Ordinarily, “the Federal Rules of Civil Procedure and 

Federal Rules of Evidence govern the disputes concerning 

discovery and the admission of evidence.” Bradshaw v. FFE 

Transp. Servs., Inc., 715 F.3d 1104, 1107 (8th Cir. 2013).

Because the district court applied federal law to resolve 

the parties’ discovery dispute, the preceding statement appears 
8

at first blush to be dispositive. The twist, however, arises 

from Goodyear’s contentions that South Carolina recognizes an 

evidentiary privilege for trade secrets and the standard for 

disclosure of such information is more stringent than the 

federal standard. Goodyear’s argument implicates Rule 501 of the 

Federal Rules of Evidence, which provides that “in a civil case, 

state law governs privilege regarding a claim or defense for 

which state law supplies the rule of decision.” Under this rule, 

when, as here, “the substantive decision . . . is governed by 

state law, the state law also determines the privilege of a 

witness.” Seidman v. Fishburne-Hudgins Educ. Found., Inc., 724 

F.2d 413, 415 n.1 (4th Cir. 1984).

This brings us to the heart of the matter: does South 

Carolina recognize such a privilege? The parties vigorously 

dispute this point. Compare Brief of Appellee, at 11 (“South 

Carolina’s Trade Secrets Act does not include creation of a 

trade secrets privilege.”) with Reply Brief of Appellants, at 1-

2 (“Rule 501 . . . requires application of South Carolina’s 

trade secrets privilege to Hartsock’s effort to compel 

production of Defendants’ Trade Secrets”). If Goodyear is 

correct that South Carolina recognizes an evidentiary privilege 

for trade secrets, then South Carolina law governs the 

determination of whether Mr. Hartsock has met his burden to 
9

require Goodyear to produce the trade secrets. Conversely, if 

Mr. Hartsock is correct, then federal law applies. 

The Supreme Court of South Carolina has stated that 

“privileged matter in South Carolina is matter that is not

intended to be introduced into evidence and/or testified to in 

Court.” S.C. State Hwy. Dept. v. Booker, 195 S.E.2d 615, 620 

(S.C. 1973). The court has also recognized that not every matter 

intended to be “confidential” is necessarily “privileged.” See

S.C. St. Bd. of Med. Examiners v. Hedgepath, 480 S.E.2d 724, 726 

(S.C. 1997); see generally Communist Party of the U.S. v. 

Subversive Activities Control Bd., 254 F.2d 314, 321 (D.C. Cir. 

1958) (“Almost any communication . . . may be confidential. . . 

. But privileged means that the contents are of such character 

that the law as a matter of public policy protects them against 

disclosure.”). 

We have not found any South Carolina authority that appears 

to definitively answer the question. Indeed, different 

provisions of South Carolina law tend to point to different 

answers. For example, Rule 30(j)(3) of the South Carolina Rules 

of Civil Procedure defines the term “privilege” for deposition 

purposes as including “trade secret protection.” That definition 

supports Goodyear’s argument, but Mr. Hartsock can draw support 

for his argument from Ex parte Capital U-Drive-It, Inc., 630 

S.E.2d 464, 469 (S.C. 2006), in which the court stated: “Public 
10

access to court records may be restricted in certain situations, 

such as matters involving juveniles, legitimate trade secrets, 

or information covered by a recognized privilege.” The 

disjunctive nature of this statement suggests that trade secrets 

are not covered by a “recognized privilege.”

Of course, we are aware of the SCTSA and the state supreme 

court’s interpretation of the act in Laffitte. Unquestionably,

the SCTSA reflects the state legislature’s intent to provide 

trade secrets a significant level of protection. However, 

whether that protection amounts to an evidentiary privilege is 

not clear from either the SCTSA or Laffitte. On one hand, the 

Laffitte standard for handling civil discovery of trade secrets 

seems akin to the qualified evidentiary privilege for trade 

secrets that generally applies in federal courts. On the other 

hand, in explaining the three-part balancing test it adopted for 

determining whether trade secret information is subject to a 

discovery protective order, the Laffitte court observed that “in 

jurisdictions where trade secrets are protected by a codified 

evidentiary privilege, the courts apply a similar balancing 

test.” 674 S.E.2d at 162 n.11. This observation could reasonably 

be read to mean that unlike those other jurisdictions, South 
11

Carolina does not have a codified evidentiary privilege for 

trade secrets.4

In light of the foregoing, we believe that the issue of 

whether South Carolina recognizes an evidentiary privilege for 

trade secrets is both unresolved by any definitive state law and 

sufficiently debatable to warrant certification of the question

to the Supreme Court of South Carolina.

IV

One final point needs to be made. As noted, the parties 

disagree whether the South Carolina and federal standards for 

disclosure of trade secrets actually differ. Given its decision 

to certify the issue for appeal, the district court appears to 

agree with Goodyear that the South Carolina standard is more 

stringent than the federal standard; otherwise, its decision to 

certify the question for interlocutory appeal seems pointless. 

At least one other district judge in South Carolina has viewed 

the standards in this manner. See Griego v. Ford Motor Co., 19 

F.Supp.2d 531, 532-33 (D.S.C. 1998) (noting that the SCTSA 

provides “heightened protection for trade secrets” and “appears 

to establish a more stringent standard for the production of 

trade secrets” than the federal standard).

 4 The observation does leave open, however, the possibility 

that the court itself was creating or recognizing an evidentiary 

privilege for trade secrets.
12

To the extent it is relevant, several of the organizations 

that filed amicus briefs in this appeal appear to agree as well.

For example, the South Carolina Association for Justice –

arguing in Mr. Hartsock’s favor – states: “The Supreme Court of 

South Carolina has held the South Carolina General Assembly’s 

amendment to the [SCTSA] provides a different test governing 

disclosure. The issue currently before the Court . . . is 

whether the [federal standard] should be discarded in favor of a 

more restrictive test that results in unfairness to consumers.”

Brief of South Carolina Association for Justice, at i. 

Similarly, the Rubber Manufacturers Association – arguing in 

Goodyear’s favor – contends that in South Carolina “there is a 

heightened burden for discovery of trade secrets.” Brief of

Rubber Manufacturers Association, at 15.5 There is also academic 

commentary viewing the South Carolina standard as being more 

stringent. See Ranee Saunders, If I Told You Then I’d Have To 

Kill You: The Standard For Discovery of Trade Secrets in South 

Carolina, 61 S.C. L. Rev. 717, 726 (2010) (noting that the test 

expounded by the Laffitte court “presents some slight, but 

distinct, differences from the balancing test applied in other 

 5 One amicus organization does not share Goodyear’s view. 

See Brief of The Safety Institute (supporting Mr. Hartsock), at 

24 (“TSI agrees with Hartsock that Federal Rule of Civil 

Procedure 26 is the applicable standard and that the [SCTSA] is 

compatible with, not contrary to, the federal standard.”). 
13

jurisdictions” that “increase the burden on South Carolina 

litigants requesting discovery of a trade secret”).

Because this appeal is primarily focused on the 

applicability of state or federal law rather than the purported 

difference between the two bodies of law, and because the 

district court appears to view the state standard as being more 

stringent, we have accepted that view for purposes of this 

order. In this posture, if we conclude that South Carolina law 

applies, then we will vacate the discovery order and remand for 

further proceedings in the district court, which is bestsituated to supervise discovery. See Ardrey v. UPS, 798 F.2d 

679, 682 (4th Cir. 1986) (explaining that the district court 

“has wide latitude in controlling discovery” and that we will 

not overturn its decisions “absent a showing of clear abuse of 

discretion”). Of course, if the state supreme court agrees to 

answer the certified question, then our decision will be 

dictated by the court’s answer.

V

Based on the foregoing, we respectfully request that the 

Supreme Court of South Carolina accept and answer the foregoing

certified question, thereby providing the parties, the courts, 
14

future litigants, and the public with definitive guidance 

regarding trade secrets in South Carolina.6

We direct the Clerk of Court to forward a copy of this 

order under official seal to the Supreme Court of South 

Carolina.

QUESTION CERTIFIED

 6 See Brief of Rubber Manufacturers Association, at vi 

(explaining that the question “is of great importance to trade 

secret protections in general, and to tire manufacturers in 

particular, whose competitive products are used in South 

Carolina and throughout the nation”); Brief of The Safety 

Institute, at 3 (noting that “this case appears to involve a 

relatively straightforward analysis of which standard is 

applicable to trade secret disclosure in a products liability 

case based on diversity jurisdiction,” but it “also presents a 

quandary from a public policy perspective”).