NUMBER 14-15-00578-CV 

IN THE COURT OF APPEALS 

FOR THE FOURTEENTH DISTRICT OF TEXAS AT HOUSTON

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 

ACCEPTED

14-15-00578-CV

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

7/22/2015 3:39:00 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS 7/22/2015 3:39:00 PM CHRISTOPHER A. PRINE Clerk
ii 

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 

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 

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? 

.....14 

.....37 

.....48
iii 

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 
iv 

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 
v 

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 
vi 

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 
vii 

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 
viii 

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 
ix 

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. 
x 

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? 
1

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: 
2

 

 

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: 

 

 
3

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: 
4

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: 
5

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. 
6

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.
7

... 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) 
8

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 nonFirestone 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 
9

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. 
10

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); 
11

 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. 
12

 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 
13

 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 
14

“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). 
15

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, 
16

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 
17

rejected in the Valenzuela casewhere 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 inplant 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 
18

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 
19

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 
20

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 
21

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 
22

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: 
23

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 
24

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.
25

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. 
26

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). 
27

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 
28

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 
29

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 
30

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 
31

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. 
32

 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 
33

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 
34

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 
35

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 Megafactories: 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; 
36

 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.
37

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 
38

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 
39

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: 

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 
40

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. 
41

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: 

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. 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 GoodyearDunlop. 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 
42

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. 
43

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: 

[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, ... 
44

a tour of the Decatur, Illinois plant, tours of three other nonFirestone 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. 
45

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.
46

 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. 
47

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.
48

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. 
49

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, 
50

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-
51

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 
52

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. 
53

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. 
54

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 
55

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
56

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