Rel: 12/12/2014

Notice: This opinion is subject to formal revision before publication in the advance

sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

229-0649), of any typographical or other errors, in order that corrections may be made

before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2014-2015

_________________________

1130840

_________________________

Ex parte Robert Bosch LLC

PETITION FOR WRIT OF MANDAMUS

(In re: Dorothy Kilgo, individually and as personal

representative of the Estate of Ernest Ronald Kilgo, Jr.,

deceased

v.

Donnice Milam Smith et al.)

(Etowah Circuit Court, CV-11-900399)

MAIN, Justice.
1130840

One of the defendants below, Robert Bosch LLC ("Bosch"),

petitions this Court for a writ of mandamus directing the

Etowah Circuit Court ("the trial court") to vacate or, in the

alternative, to amend the provisions of its order granting the

request for production of Bosch's "air bag system Electronic

Control Unit" ("ECU") filed by the plaintiff below, Dorothy

Kilgo ("Kilgo"), individually and as the personal

representative of the estate of Ernest Ronald Kilgo, Jr.,

deceased. We grant the petition and issue the writ.

I. Facts and Procedural History

On March 17, 2011, Kilgo and her husband, Ernest Ronald

Kilgo, Jr. ("Ron"), were passengers in a 2008 PT Cruiser motor

vehicle that Ron's stepson was driving in Etowah County. 

While they were waiting for an oncoming motor vehicle to pass

through an intersection so that they could make a left turn,

the Kilgos' vehicle was struck from behind by another motor

vehicle. The impact of that collision propelled the Kilgos'

vehicle into the intersection, where it was struck head-on by

an oncoming motor vehicle. Ron, who was sitting in the front

passenger-side seat, suffered severe injuries and died several

days later as a result of those injuries. The front

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passenger-seat air bag failed to deploy during either the rear

or the head-on collisions, and the front passenger-side seatbelt "pretensioner," which is supposed to cause the seat belt

to "lock" immediately after a collision, did not activate. 

However, one of the two front driver-side air bags deployed

during the collisions, and the front driver-side seat-belt

pretensioner was activated as well.

In September 2011, Kilgo filed in the trial court a

wrongful-death complaint, naming several defendants,

including, among others, Bosch, who designed and manufactured

the ECU in the Kilgos' vehicle. Sometime thereafter, Kilgo

served a notice of taking the deposition of a corporate

representative of Bosch. The deposition notice included

numerous topics for which testimony and documents were

requested. Item no. 5 of the deposition notice requested

"[t]estimony and documents relating to the algorithms which

are used to deploy the supplemental restraint systems of the

2008 Chrysler PT Cruiser, including, but not limited to, the

air bags and seat-belt pretensioners" (hereinafter referred to

as "the algorithm"). Bosch filed a response objecting to

Kilgo's deposition notice and moved for a protective order

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with regard to several of Kilgo's requests for production,

including Kilgo's request for the algorithm. In the motion,

Bosch argued that the algorithm is a trade secret and, thus,

Bosch said, protected from discovery under Rule 507, Ala. R.

Evid.; Rule 26(c)(7), Ala. R. Civ. P.; and the Alabama Trade 1 2

Secrets Act, Ala. Code 1975, § 8-27-1 et seq. 

Rule 507, Ala. R. Evid., provides: 1

"A person has a privilege, which may be claimed

by the person or the person's agent or employee, to

refuse to disclose and to prevent other persons from

disclosing a trade secret owned by the person, if

the allowance of the privilege will not tend to

conceal fraud or otherwise work injustice. If

disclosure is directed, the court shall take such

protective measures as the interest of the holder of

the privilege and of the parties and the interests

of justice require."

Rule 26(c)(7), Ala. R. Civ. P., provides: 2

"Upon motion by a party or by the person from whom

discovery is sought, and for good cause shown, the

court in which the action is pending or,

alternatively, on matters relating to a deposition

or production or inspection, the court in the

circuit where the deposition or production or

inspection is to be taken may make any order that

justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue

burden or expense, including ... that a trade secret

or other confidential research, development, or

commercial information not be disclosed or be

disclosed only in a designated way ...."

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Bosch supported its motion for a protective order with

the affidavit of Matthew Coon, Bosch's "Director of

Engineering for Airbag ECU development." In his affidavit,

Coon stated, in pertinent part:

"5. The Algorithm (referred to as 'the Algorithm'),

and related subroutines, are a set of mathematical

calculations and logical steps that the

microprocessor of the ECU goes through to operate

the ECU. Proprietary software inside the ECU runs

and employs the Algorithm. Both the software and the

Algorithm are highly proprietary and unique to

Bosch.

"6. The Algorithm sought by [Kilgo] is an extremely

confidential trade secret that provides Bosch a

competitive advantage over other companies in the

automotive restraint system industry. The Algorithm

and information related to it are owned solely by

Bosch and, to Bosch's knowledge, they are not known

by anyone outside of Bosch, especially Bosch's

competitors, except as described in paragraph 8

below. Only certain Bosch employees on the project

team have access to the Algorithm. Bosch derives

independent economic value, actual and potential,

because the information is not known to other

persons or companies.

"7. To my knowledge, the Algorithm has not been

produced or disclosed to any federal, state or local

agency, nor has it been produced or disclosed in

connection with civil litigation or any court

proceeding, or to any Bosch customer.

"8. I have knowledge about the security controls in

place at the company to ensure that the Algorithm is

protected from disclosure by unauthorized persons.

Access to these documents is tightly controlled

inside the company. A small number of Bosch

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employees have access to the information. Only those

Bosch employees who need to know the information to

perform their jobs have access to the information.

Within Bosch, access to this information is limited

electronically to certain designated employees to

ensure it is not disseminated to any person or

entity outside Bosch.

"9. Bosch is heavily engaged in and committed to

research and development of new designs and

performance for the ECU. Disclosure of the Algorithm

and documents related to the Algorithm would allow

other persons to take advantage of Bosch's expertise

and expenditures in new product development.

"10. Bosch has spent over 25 years developing

algorithms like the one requested by [Kilgo]. Over

those years, Bosch has spent hundreds of millions of

dollars researching, designing, and developing and

protecting algorithms like the one requested by

[Kilgo]. Bosch has employed scientists, engineers,

and programmers to research, design, and develop

this information. The Algorithm cannot be

ascertained or derived from publicly available

information.

"11. The automotive restraint system industry is a

very competitive industry. Companies such as Bosch

and its competitors stand to gain or lose literally

hundreds of millions of dollars each year based upon

the design and production of state of the art

products such as Bosch's ECUs, which incorporate the

Algorithm like the one in the subject ECU. If data

and information contained in documents relating to

its algorithms were to be disclosed outside of

Bosch, those who obtain such information would be

able to understand the scientific and engineering

thought and design processes employed by Bosch when

designing, programming, and building its ECUs. By

supplying this confidential and secret information,

Bosch would effectively be providing [Kilgo's]

experts with a blueprint to build their own

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competitive version of Bosch's ECU. While [Kilgo]

and her counsel may not actually possess the tools

or the knowledge to construct their own ECU,

[Kilgo's] experts most certainly do and would stand

to gain financially if provided with the Algorithm.

"12. If Bosch were ordered to disclose the above

documents and data it would, in effect, hand over

the results of years and millions of dollars worth

of internal research and development at Bosch's sole

cost. If Bosch's Algorithm were to be disclosed

outside of Bosch there is no quantifiable amount of

money that could compensate Bosch for the loss of

revenues, profits, jobs, and competitive advantage

it would suffer as a result of the dissemination of

this information and these design processes. Not

only would the disclosure of this information cause

Bosch to suffer competitive disadvantages, it would

enable any receiving party to unfairly and unjustly

receive a tremendous financial windfall, gain, and

profit from the possession and utilization of this

proprietary information."

Kilgo filed a response objecting to Bosch's motion for a

protective order, arguing, in part:

"12. The results of the December 6, 2013[,]

testing [of the Kilgos' vehicle] showed that the

passenger airbag did not deploy and the passenger

seat belt 'pretensioner or tensioner' did not deploy

-- fully explaining how [Ron's] body was allowed to

contact the forward interior areas of the subject

vehicle. The electrical continuity tests themselves

established that the wiring and electrical systems

of the vehicle were functioning properly. Upon

visual examination of the passenger airbag cannister

itself, the cannister appeared to be equipped with

an airbag and no obvious defects of the actual

airbag were discovered. ...

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"13. The airbag system components manufactured

by Robert Bosch[] LLC are intended to sense and

deploy [sic] crashes which can cause significant

injury to occupants of vehicles like the subject

vehicle. These sensors are located in the forward

sections of the vehicle and are connected directly

to the 'ECU.' The ECU is a computer device

containing microprocessors which have been

programmed (with the use of mathematical algorithms)

to deploy the supplemental restraint system airbags

and seat belt tensioners in the event a deployment

crash is detected. ...

"14. During the subject crash of March 17, 2011,

there was partial deployment of the driver airbag

system and the driver seat belt pretensioner. There

was no deployment of stages 1 or 2 of the passenger

airbag or passenger seat belt pretensioner. ...

"15. Due to the condition of the vehicle's

supplemental restraint system post-accident, it is

apparent that the ECU and/or sensors failed to

properly deploy the passenger seat belt pretensioner

and stages 1 and 2 of the passenger airbag. This

directly points to the failure of the crash sensing

system and the algorithms which discriminate and

define the crash conditions necessary for deployment

of the safety devices used to protect occupants of

the subject vehicle. ...

"16. The design of the crash sensing algorithm

and the specific calibration used to calibrate the

sensors with the algorithm are reasonable inquiries

in this particular case to determine whether the

algorithms and crash sensing calibrations were

defective, thus making the ECU defective in its role

in deployment of the supplemental restraint systems

in the subject Chrysler PT Cruiser." 

3

Bosch claims that the algorithm does not "physically

3

deploy[] the airbag[s] or [seatbelt] pretensioners." Rather,

Bosch claims, the algorithm is responsible for making the

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Kilgo supported her response to Bosch's motion for a

protective order with certain documentary evidence, including

the affidavit of Chris Caruso, one of Kilgo's experts. In his

affidavit, Caruso stated that he has "personal knowledge,

experience and education with respect to the design and

function of supplemental restraint systems and, in particular,

airbags" and that he had "review[ed] ... documents in the

above-styled cause and the subject 2008 Chrysler PT Cruiser

... and its supplemental restraint systems." Caruso further

stated:

"15. Based upon the two inspections I have

conducted or participated in, it is apparent to me

that the root cause [of the failure of the front

passenger-side air bag and seat-belt pretensioner to

activate] appears to be a failure in the crash

sensing system to properly detect and discriminate

crash conditions. Based upon my years of experience

in designing these systems, the most probable

failure was a design of the crash sensing algorithm

(mathematical formula) or the specific calibration

used in the subject vehicle.

"16. The deployment of the knee bolster airbag

and the driver seat belt pretensioner (and the

failure of the passenger airbag, driver steering

column airbag and passenger seat belt pretensioner)

clearly indicate a system that was defectively

designed and failed to determine the high level of

"operational decision to deploy the airbags and

pretensioners."

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severity experienced in the subject crash of March

17, 2011."4

The trial court held a brief hearing on Bosch's motion

for a protective order. Thereafter, on March 20, 2014, the

trial court entered an order, which stated, in pertinent part:

"[T]he Court determines that said algorithm and

calibrations do in fact constitute a trade secret

and warrant the protection of the Court.

"The Court further determines that [Kilgo] has

shown to this Court the necessity and relevance of

the requested information.

"The Court has weighed the harm to the trade

secret's owner against the need for disclosure. The

need to prevent disclosure does not outweigh the

benefit of the disclosure to what the Court

determines to be relevant evidence.

"The information requested shall be provided to

[Kilgo].

"Said information shall be protected as a trade

secret to the maximum extent practicable.

Kilgo moved this Court to strike an affidavit of Caruso's 4

attached to Bosch's response as Exhibit 12 because, Kilgo

says, that affidavit, dated June 30, 2014, was not before the

trial court when it issued its last order in this case on

April 22, 2014. We instructed the clerk's office to grant the

motion, which it has done. However, the affidavit of Caruso's

that Kilgo relies on above is attached to her mandamus

petition as part of Exhibit D and is a different affidavit,

dated January 22, 2014. The January 22, 2014, affidavit was

referenced, without objection, during a hearing held by the

trial court on February 28, 2014. 

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"The information having been designated a trade

secret shall not be shared with any person, firm or

entity outside this litigation.

"The Court in considering measures to limit the

possible harm resulting from disclosure would allow

[Bosch] to submit within 10 days from the date of

this Order a proposed amendment to the Protective

Order entered February 13, 2013[ ] containing any 5

additional safeguards [Bosch] would request."

As allowed by the trial court's March 20, 2014, order,

Bosch filed a motion to amend the trial court's protective

order. Specifically, Bosch sought to amend the protective

order by:

(1) "limit[ing] disclosure of the algorithm code to those

portions of the code that relate to the point in time that a

severe crash has been detected and the decision has been made

to deploy the vehicle's restraints and all algorithm code

thereafter";

(2) "mak[ing] available the calibration parameters that

set forth the deployment of all of the pretensioners and front

airbags when the threshold for deployment is reached";

There is no protective order dated February 13, 2013, 5

attached to any of the filings in this Court. The petition

reveals that, "on September 19, 2012, [Kilgo] and [Bosch]

submitted to [the trial court] a Joint Motion for Protective

Order[,] which [the trial court] subsequently approved and

signed"; the trial court entered that order on September 20,

2012. It appears that the trial court's reference to the

February 13, 2013, protective order was either a clerical

error or a reference to an order that is not before this

Court. 

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(3) producing "the portions of the algorithm code and

calibration parameters ... at Bosch's facility in Plymouth,

Michigan";

(4) making "the above portions of the algorithm code and

calibration parameters ... available to [Chris] Caruso on

computer hardware maintained by Bosch"; 

(5) not allowing Caruso to "copy, image, photograph, or

in any way record any portions of the algorithm and

calibration parameters during his inspection"; 

(6) requiring Caruso to "explicitly submit in writing to

the personal jurisdiction of the Circuit Court of Etowah

County, Alabama for enforcement of the terms of the Protective

Order prior to any inspection of Bosch's algorithm"; 

(7) requiring that "Caruso agree in writing that he will

not provide any analysis, discussion, opinions, conclusions,

or communications relating to Bosch's algorithm and

calibration parameters to any individual or entity who is not

'a participant' in this litigation without the express

permission of this Court and without first notifying Bosch and

its counsel in this litigation of his desire to do so and

giving Bosch a reasonable opportunity to respond";

(8) requiring that "Caruso agree in writing that he will

not promote, advertise or discuss the production of the

algorithm and calibration settings, or the fact that the

production was made, to anyone other than a 'participant' in

this litigation"; and

(9) requiring that "all 'work product' that Mr. Caruso

creates following his inspection of Bosch's algorithm and

calibration parameters be confidentially maintained by him and

provided to Bosch's attorneys of record at the conclusion of

this litigation for subsequent destruction." 

Kilgo filed a response to Bosch's motion to amend the

protective order, objecting to Bosch's requests to amend the

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protective order numbered (1)-(5) above and also objecting to

what Kilgo interpreted as Bosch's limiting to one the number

of experts Kilgo could employ in analyzing the algorithm;

Kilgo wanted both Caruso and Geoff Mahan, who is described as

an expert in "airbag [and] supplemental restraint," to analyze

the algorithm. The trial court entered an order denying

Bosch's motion to amend the protective order and, in that

order, required Kilgo to "submit a proposed Order including

safeguards it will employ to review the requested discovery";

on April 21, 2014, Kilgo submitted to the trial court a

proposed protective order. On the following day, the trial

court entered an amended protective order, which required

Bosch to produce the entire algorithm for inspection by

Kilgo's two experts, subject to 12 confidentiality and

disclosure safeguards set forth in the order. Bosch

petitioned this Court for a writ of mandamus. 

II. Standard of Review

"'In Ex parte Norfolk Southern Ry.,

897 So. 2d 290 (Ala. 2004), this Court

delineated the limited circumstances under

which review of a discovery order is

available by a petition for a writ of

mandamus and the standard for that review

in light of Ex parte Ocwen Federal Bank,

FSB, 872 So. 2d 810 (Ala. 2003):

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"'"'Mandamus is an

extraordinary remedy and will be

granted only when there is "(1) a

clear legal right in the

petitioner to the order sought,

(2) an imperative duty upon the

respondent to perform,

accompanied by a refusal to do

so, (3) the lack of another

adequate remedy, and (4) properly

invoked jurisdiction of the

court." Ex parte Alfab, Inc., 586

So. 2d 889, 891 (Ala. 1991). In

Ex parte Ocwen Federal Bank, FSB,

872 So. 2d 810 (Ala. 2003), this

Court announced that it would no

longer review discovery orders

pursuant to extraordinary writs.

However, we did identify four

circumstances in which a

discovery order may be reviewed

by a petition for a writ of

mandamus. Such circumstances

arise (a) when a privilege is

disregarded, see Ex parte Miltope

Corp., 823 So. 2d 640, 644–45

(Ala. 2001); (b) when a discovery

order compels the production of

patently irrelevant or

duplicative documents the

production of which clearly

constitutes harassment or imposes

a burden on the producing party

far out of proportion to any

benefit received by the

requesting party, see, e.g., Ex

parte Compass Bank, 686 So. 2d

1135, 1138 (Ala. 1996); (c) when

the trial court either imposes

sanctions effectively precluding

a decision on the merits or

denies discovery going to a

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party's entire action or defense

so that, in either event, the

outcome of the case has been all

but determined and the petitioner

would be merely going through the

motions of a trial to obtain an

appeal; or (d) when the trial

court impermissibly prevents the

petitioner from making a record

on the discovery issue so that an

appellate court cannot review the

effect of the trial court's

alleged error. The burden rests

on the petitioner to demonstrate

that its petition presents such

an exceptional case -- that is,

one in which an appeal is not an

adequate remedy. See Ex parte

Consolidated Publ'g Co., 601 So.

2d 423, 426 (Ala. 1992).'"

"'897 So. 2d at 291–92 (quoting Ex parte

Dillard Dep't Stores, Inc., 879 So. 2d

1134, 1136–37 (Ala. 2003)).'"

Ex parte Nationwide Mut. Ins. Co., 990 So. 3d 355, 360 (Ala.

2008) (quoting Ex parte Orkin, Inc., 960 So. 2d 635, 638 (Ala.

2006)). Kilgo does not dispute that the order challenged here

pertains to a trade-secret privilege and thus is reviewable

under category (a) ("a discovery order may be reviewed by a

petition for a writ of mandamus ... when a privilege is

disregarded").

III. Analysis

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Because there is no dispute that the algorithm is a trade

secret, the petition presents only two issues for our review. 

First, Bosch argues that the trial court exceeded its

discretion in not issuing a protective order that would

prevent Kilgo from having any access to the algorithm.

Second, Bosch presents the alternative argument that the trial

court exceeded its discretion in refusing to adopt a

protective order drafted by Bosch and instead issuing a

protective order that, Bosch says, provides inadequate

safeguards to protect Bosch's trade secret.

Bosch presents a lengthy argument as to why the algorithm

should not be disclosed to Kilgo, which may be summarized as

follows: 

(1) Bosch argues that Kilgo has not shown that the

algorithm is necessary to prove her claims. Instead, Bosch

claims, Kilgo has alleged only a "mere possibility that [the

algorithm] will prove her case." Bosch notes that, in Kilgo's

objection to Bosch's motion to amend the protective order,

Kilgo stated that "'the forward sensors and central sensor

located in this design may well be implicated with respect to

the algorithm and calibration settings.'" This statement,

Bosch says, runs afoul of Ex parte Michelin North America,

Inc., [Ms. 1121330, January 24, 2014] ___ So. 3d ____, ____

(Ala. 2014), insofar as that case states that "'"[n]ecessity"

means that without discovery of the particular trade secret,

the discovering party would be unable to present its case "to

the point that an unjust result is a real, rather than a

merely possible, threat."'" (Quoting Bridgestone Americas

Holding, Inc. v. Mayberry, 878 N.E.2d 189, 196 (Ind. 2007).)

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(2) Bosch argues that the algorithm is an "all-fire"

system that sends a signal to deploy all air bags and seatbelt pretensioners rather than sending a signal to each air

bag and seat-belt pretensioner; thus, Bosch says, the fact

that some of the air bags and seat-belt pretensioners deployed

shows that the algorithm functioned as designed and that it

was not defective (implicit in this argument is that none of

the air bags or pretensioners would have deployed if the

algorithm were defective). Bosch contends that the front

passenger-side air bag and seat-belt pretensioner did not

deploy because, it says, during the collisions, "four wires to

the passenger side airbag were cut as was the ground wire to

the vehicle's battery," thus "resulting in a disruption of

power and/or signal reference levels."

(3) Bosch argues that the need for disclosure of the

algorithm does not outweigh the harm that would result from

that disclosure. Specifically, Bosch argues that "[Kilgo's]

airbag experts in this case -- both former employees of airbag

system suppliers -- would receive the benefit of years of ECU

scientific and engineering development by Bosch" and that

"[t]here is no quantifiable amount of money that could

compensate Bosch for the loss of revenues, profits, and

competitive advantage it would suffer if the requested

information is disseminated and exploited by Bosch's

competitors." 

Bosch argues alternatively that the trial court exceeded

its discretion in refusing to adopt the protective order

drafted by Bosch. Specifically. Bosch argues that

"[its] alternative proposal would give [Kilgo's]

experts access to the portions of the algorithm and

calibrations they claim they need without revealing

the entirety of the trade secrets. It also allows

[Kilgo's] expert access in a controlled environment

where Bosch can ensure that the secrets are

protected, while allowing [Kilgo] the ability to

review additional data showing the 'all fire'

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system. The trial court exceeded its discretion in

not affording Bosch these protections."

Bosch supports the argument portion of the petition with

numerous citations to the affidavits of Kilgo's experts,

Caruso and Mahan, and its own expert, Tom Livernois.

In her response, Kilgo presents argument and evidence

disputing the contentions of error set forth in Bosch's

petition. In response to Bosch's initial argument -- that

Kilgo should have no access to the algorithm -- Kilgo argues:

(1) That Kilgo has shown that the algorithm is necessary

to prove her claims. Specifically, Kilgo notes that one of

her experts, Caruso, stated in his affidavit that "'the

specific algorithm physical principles and the calibration

settings are key factors in determining why the system

incorrectly assessed the total severity of the subject crash

and failed to deploy the passenger airbag, the driver steering

column airbag and the passenger seat pretensioner.'" In

addition, Kilgo argues that the need for disclosure does

outweigh the harm that would result from such disclosure

because, she says, "there is no evidence that [Kilgo's]

attorneys or expert witnesses would violate the strict

protective order," and that, for "independent consulting

engineers" such as Caruso and Mahan, "it is commonplace to

review trade secret information under the limitations of a

protective order." Kilgo further argues that "what is at

issue is the algorithm and calibrations for an ECU in a 2008

model year vehicle. By the time the matter is before [this

Court], the 2015 model year automobiles will be for sale and

the information will be seven years old." Kilgo notes (and it

is undisputed) that there have been "updates" to the algorithm

that existed in the 2008 PT Cruiser. 

 

(2) That "Bosch's arguments are merely an assertion that

[Kilgo] and this Court must simply trust [Bosch] when it says

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that the ECU cannot be defective," without Kilgo's having the

opportunity to verify that the ECU is, in fact, an "all-fire"

system that cannot signal less than all the air bags and seatbelt pretensioners to deploy. As to Bosch's argument that the

cutting of four wires to the front passenger-side air bag and

the ground wire to the vehicle's battery during the collisions

caused the front passenger-side air bag and seat-belt

pretensioner not to deploy, Kilgo replies:

"The reason the 'electrical system' argument

isn't meaningful can be shown by examining its

parts. First, the cutting of wires running to the

passenger airbag doesn't explain why the passenger

seatbelt pretensioner and the driver's steering

seatbelt pretensioner and the driver's steering

wheel airbag failed to activate -- as they operate

from their own wiring connections. ... Second, those

systems are designed such that the airbag needed to

fire within milliseconds after the crash was sensed

and thus before the wires could be cut in the

impact, or else the ECU was defective by firing too

late, suggesting another defect in the algorithm.

...

"The issue of the severed ground wire from the

battery also does not explain the failure of the

restraint system. These systems are designed to

compensate for such an occurrence by the inclusion

of a reserve energy capacitor within the ECU that

contains enough power to activate all of the

restraint components. ..." 

(Bold typeface in original.)

In response to Bosch's second argument -- that Kilgo may

be entitled to some of, but not all, the algorithm -- Kilgo

argues that the proposed protective order drafted by Bosch

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"excludes the most relevant and most needed information." 

Specifically, Kilgo argues that 

"[t]he information that Bosch offers to provide

fails to include the algorithm and calibrations

regarding the actual 'crash discrimination

thresholds.' ... Chris Caruso explained by affidavit

that the 'crash sensing algorithm and/or

calibrations' were needed. ... He testified that the

most probable failure was a design of the crash

sensing algorithm[] and that 'the specific algorithm

physical principles and calibration settings for the

crash determination thresholds are key factors in

determining the [sic] why the system incorrectly

assessed the total severity of the subject crash.'

... The data Bosch would agree to provide, beginning

at the point in time when the 'all-fire' command was

sent, omits this key information." 

Having considered the compelling and well supported

arguments presented by both Bosch and Kilgo, we agree with

Bosch insofar as it argues that the trial court exceeded its

discretion by entering a protective order that provides

insufficient protection for the algorithm, which, as noted, is

undisputedly a trade secret. Therefore, the petition is due

to be granted to that extent. See Ex parte W.L. Halsey

Grocery Co., 897 So. 2d 1028, 1035 (Ala. 2004) ("Because [the

petitioner] has shown that it has a clear legal right to the

relief sought, we grant the petition and order the trial court

to protect [the petitioner's] trade-secret information to the

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maximum extent practicable, striking a fair and reasonable

balance between [the petitioner's] legitimate interest in

confidentiality and the defendants' equally legitimate

interest in defending the claims against them with the benefit

of discovery.").

IV. Conclusion

We grant Bosch's petition and direct the trial court to

vacate its protective order and to enter a more comprehensive

and restrictive protective order with regard to the algorithm.

See Ex parte W.L. Halsey Grocery Co., supra. This opinion,

however, is not to be read as directing the trial court to

enter the proposed protective order previously offered by

Bosch as the governing protective order in this case. 

PETITION GRANTED; WRIT ISSUED.

Stuart, Bolin, Parker, and Wise, JJ., concur.

Murdock, Shaw, and Bryan, JJ., concur in the result.

Moore, C.J., dissents.

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SHAW, Justice (concurring in the result). 

I agree with the implicit holding in the main opinion

rejecting the arguments of Robert Bosch LLC that Dorothy

Kilgo's discovery of the algorithm Bosch claims as a trade

secret is not "necessary" in Kilgo's case and that the need

for disclosure of the algorithm does not outweigh the

potential harm to Bosch from its disclosure. I further agree

that the protective order entered by the trial court was

insufficient to protect Bosch's trade secrets. See Rule 507,

Ala. R. Evid. ("If disclosure is directed, the court shall

take such protective measures as the interests of the holder

of the privilege and of the parties and the interests of

justice require."). 

I believe that the amendments to the protective order

requested by Bosch were appropriate in this case, except to

the following extent:

(1) The trial court should consider allowing more

than a single expert, Chris Caruso, to review the

algorithm information. However, it should be made

clear that the broad category of "qualified persons"

set forth in the April 22, 2014, protective order,

is not entitled to review that information.

(2) The algorithm information that Bosch offered to

provide should include information identified in 

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Caruso's affidavit as "crash discrimination

thresholds." 

Although I have some concerns that Bosch's proposed

limitations on the ability of Kilgo's experts to copy or

otherwise record the algorithm may hamper their ability to

effectively examine the materials, the trial court could, if

possible, craft a solution that would allow the experts to

retain the minimum amount of information required to

adequately examine this information.

Murdock and Bryan, JJ., concur.

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MOORE, Chief Justice (dissenting).

"The utilization of a writ of mandamus to compel or

prohibit discovery is restricted because of the discretionary

nature of a discovery order. The right sought to be enforced

by mandamus must be clear and certain with no reasonable basis

for controversy about the right to relief." Ex parte Dorsey

Trailers, Inc., 397 So. 2d 98, 102 (Ala. 1981). In this case,

the trial court crafted a protective order that allowed

Dorothy Kilgo to obtain the information she needed, subject to

12 confidentiality safeguards that were designed to protect

Robert Bosch LLC ("Bosch"). Consequently, I cannot say that

Bosch had a "clear and certain right" to even more protection

or that there is "no reasonable basis for controversy about

the right to relief." Dorsey Trailers, 397 So. 2d at 102. I

continue to maintain the position that mandamus is improper

for discovery matters except in the most extreme of

circumstances. See, e.g., Ex parte Mobile Serv. Gas Corp., 123

So. 3d 499, 516 (Moore, C.J., dissenting); Ex parte Ocwen

Fed. Bank, FSB, 872 So. 2d 810, 817 (Ala. 2003) (Moore, C.J.,

concurring in the result). Therefore, I respectfully dissent. 

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