IN THE SUPREME COURT OF TEXAS

IN = THE SUPREME=20 COURT OF TEXAS

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No. = 05-0696

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In re Ford=20 Motor Company

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On Petition for = Writ of=20 Mandamus

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PER CURIAM

Relator Ford=20 Motor Company and intervenor Volvo Car Corporation seek a writ of = mandamus to=20 vacate a trial court order that declared certain Volvo documents=20 non-confidential under a provision in a stipulated protective order. = Because the=20 trial court=92s order permitting disclosure contradicted the plain = meaning of the=20 parties=92 agreement, we conditionally grant mandamus relief.

Matthew=20 Marroquin died after being partially ejected from a Ford Expedition that = rolled=20 over after being struck at an intersection. His family filed a product = liability=20 suit against Ford and requested numerous documents from Volvo, a=20 wholly-owned-but-distinct Ford subsidiary that was not a party in the = underlying=20 case.

To = facilitate=20 discovery while maintaining the confidentiality of Volvo=92s documents, = the=20 parties agreed to a =93Stipulated Sharing Confidentiality Protective = Order=20 Regarding Volvo Documents=94 (=93protective order=94). The protective = order stipulated=20 the parties would keep confidential those Volvo documents containing = =93trade=20 secrets and other confidential research, development and commercial=20 information.=94 The agreed protective order stated that any document = Ford=20 designated as =93confidential=94 would be treated as such and not = disclosed or=20 disseminated, and it also prescribed a procedure for the Marroquins to = contest=20 any such designation. In addition, the stipulated agreement permitted = the=20 Marroquins to use the documents in litigation, and even authorized = sharing the=20 documents with other plaintiffs suing Ford in similar suits, provided = those=20 plaintiffs committed to the same protective order. The protective order, = however, excluded certain documents from its scope, including = =93documents that=20 have been submitted to any government entity without request for = confidential=20 treatment.=94 The order also specified that =93[i]nadvertent or = unintentional=20 production of documents or information containing information which = should have=20 been designed [sic] =91confidential=92 shall not be deemed a waiver in = whole or in=20 part of the party=92s claims of confidentiality.=94 After both parties = signed and=20 filed the order with the court, Ford designated as confidential and = produced=20 under seal numerous Volvo documents, including several reports and = videos=20 related to rollover testing of the Volvo XC-90 sport-utility = vehicle.

Meanwhile, a=20 plaintiff (=93Duncan=94) in Florida state court was litigating similar = product=20 liability claims against Ford, and Ford submitted under seal the same = documents=20 under a similar protective order. The clerk of the Florida court, = however, set=20 off a chain of events by inadvertently allowing an unknown number of = persons,=20 including interest groups and the media, to access the documents. One = person who=20 apparently gained access was Sean Kane, an independent automotive safety = expert=20 and consultant for plaintiff Duncan. Kane submitted portions of the = rollover=20 documents to the National Highway Traffic Safety Administration = (=93NHTSA=94), which=20 posted them on its website where they were freely downloadable. = Plaintiff Duncan=20 moved to have the documents declared non-confidential, insisting the = public=20 disclosure had destroyed the documents=92 protection, but the Florida = court said=20 the rollover documents remained protected. The NHTSA promptly removed = the=20 documents from its website.

Following=20 these events, the Marroquins likewise argued that the Volvo rollover = documents=20 cannot be deemed confidential given their public availability and = =93widespread=20 nationwide disclosure=94 through the Florida court clerk=92s office, the = NHTSA=20 website, and the attendant media coverage discussing the documents. With = this=20 level of public disclosure, the Marroquins asserted that Ford could not=20 plausibly assert trade secrecy.

The = Texas=20 trial court granted the Marroquins=92 Motion to Deem Certain Documents=20 Non-Confidential, but because Ford only had five days=92 notice of the = hearing,=20 not the thirty days=92 notice prescribed by the protective order, the = trial court=20 held a second hearing a month later (after mandamus proceedings had = begun in=20 this Court). The trial court again granted the Marroquins=92 motion and = deemed the=20 documents non-confidential. In its Order and Findings of Fact, the court = said=20 the documents satisfied an exclusion provision and thus fell outside the = protective order because they had previously been posted on the NHTSA = website.=20 The court also referenced the Duncan case in Florida and said the = clerk=92s=20 release of the documents and widespread news coverage had impaired = Ford=92s claim=20 of secrecy.

We = consider=20 Ford=92s request for mandamus relief under a well-settled standard: = mandamus is=20 proper when the trial court has abused its discretion by committing a = clear=20 error of law for which appeal is an inadequate remedy. In re = Prudential Ins.=20 Co., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, = 827 S.W.2d=20 833, 840 (Tex. 1992); see Tex.=20 Gov=92t Code =A7 22.002(a). Moreover, as we have repeatedly held, = appeal is=20 inadequate when a trial court erroneously orders the production of = confidential=20 information or privileged documents. In re Bass, 113 S.W.3d 735, = 745=20 (Tex. 2003); In re Univ. of Tex. Health Ctr. at Tyler, 33 S.W.3d = 822, 827=20 (Tex. 2000) (per curiam); Ford Motor Co. v. Leggat, 904 S.W.2d = 643, 649=20 (Tex. 1995); Walker v. Packer, 827 S.W.2d at 843.[1]

The = Marroquins=92 arguments, at bottom, are essentially three-fold: (1) the=20 government=92s publication of the documents triggered the protective = order=92s=20 exclusionary clause and thus took the documents outside the scope of the = protective order; (2) even if the exclusionary clause was not invoked, = the=20 documents do not qualify as trade secrets; and (3) even if the documents = did=20 qualify as trade secrets at one time, the documents=92 widespread public = dissemination defeats Ford=92s secrecy claim. We reject these arguments = as legally=20 untenable and prudentially unsound.

1. =20 Whether the Exclusionary Provision of the Protective Order Applies =

The = stipulated protective order captures the parties=92 clear intent right = at the=20 beginning: =93to protect the respective interests of the parties and to = facilitate=20 the progress of discovery in this case . . . .=94 To accomplish this, = Ford agreed=20 to provide confidential Volvo documents, and the Marroquins agreed not = to=20 disclose them. One of the principal interests of Ford and Volvo was to = prevent=20 disclosure of their =93proprietary information and/or trade secrets.=94 = The parties=20 thus agreed not to disclose any Volvo documents produced by a party = =93which=20 contain trade secrets and other confidential research, development and=20 commercial information=94 without =93the prior written consent of the = producing=20 party.=94

The = protective order excluded certain documents from confidential treatment, = however, including =93documents that have been submitted to any = government entity=20 without request for confidential treatment.=94 The trial court found = that this=20 clause applied because the disputed documents had been submitted to the = NHTSA=20 without a confidentiality request.

Standing=20 alone, the exclusionary provision does not specify whose submission = would render=20 the documents unprotected. A stipulation provision, however, like any = contract=20 provision, cannot be read in isolation; all the provisions must be = considered=20 with reference to the whole. Coker v. Coker, 650 S.W.2d 391, 393 = (Tex.=20 1983). In other provisions that mention actions involving the Volvo = documents,=20 the actors are always Volvo or the producing party Ford. For = example:

$ &n= bsp; =20 The protective order refers to =93documents or information = generated by or=20 obtained from Volvo (Volvo documents) that are proprietary to the = Defendants . .=20 . .=94

$ &n= bsp; =20 The order extends to =93Volvo documents to be produced by a = party,=94=20 specifically to =93[a]ll documents or things which any party designates = as=20 =91confidential=92 . . . .=94

$ &n= bsp; =20 The =93prior written consent of the producing party=94 is = required to=20 disclose the documents to persons not listed in the order.

Given that=20 every other reference to the disputed documents has Volvo or Ford = =93generating,=94=20 =93designating,=94 and =93consenting,=94 the only reasonable = interpretation is that=20 these companies=97the parties with the paramount interest in protecting=20 confidential information=97would be the ones whose voluntary submission = would=20 forfeit the privilege. To interpret this provision otherwise would cover = a=20 multitude of absurdities and sins; it would theoretically allow even a = burglar=20 to abolish instantly and irretrievably the documents=92 confidentiality = by=20 stealing and then submitting them to the government. As the protective = order=20 itself makes clear, even an inadvertent disclosure by Ford or Volvo = itself of a=20 document that should have been designated confidential =93shall = not be=20 deemed a waiver in whole or in part of the party=92s claims of = confidentiality.=94=20 Surely, an unintentional disclosure by a third party of something marked = =93confidential=94 would not waive what an unintentional disclosure by = Ford or Volvo=20 of something it neglected to mark =93confidential=94 would not waive. =

The = protective order yields only one reasonable interpretation: either Ford = or Volvo=20 (or their agents) must submit the documents to a government agency = without=20 requesting confidential treatment for the exception to apply. The trial = court=20 plainly erred when it deemed the documents non-confidential under the=20 exclusionary provision.

2.=20 Whether the Disputed = Documents=20 Qualify as Trade Secrets or Otherwise Confidential Information Under the = Protective Order

The = Marroquins have an alternative argument: even if Volvo=92s rollover = documents fall=20 within the protective order, the documents are no longer confidential = because=20 they cannot be deemed trade secrets. Quoting a 1964 case, the Marroquins = insist=20 that once a secret is disclosed, =93[t]he =91trade secret=92 is no = longer =91secret[=91] .=20 . . and is no longer entitled to the protection of the law of trade = secrets.=94=20 Atlas Bradford Co. v. Tuboscope Co., 378 S.W.2d 147, 148 (Tex. = Civ.=20 App.=97Waco 1964, no writ). On these facts, we disagree.

The = Marroquins contend that the Florida court clerk=92s release of the = documents to=20 numerous individuals, which led to posting on the NHTSA website and = various=20 media reports, destroyed any secrecy the documents might have had. As a=20 threshold matter, we need not reach the Marroquins=92 definitional = argument that=20 the disputed documents=97either pre- or post-disclosure=97do not qualify = as trade=20 secrets. By its terms, the agreed protective order covers Volvo = documents =93which=20 contain trade secrets and other confidential research, development = and=20 commercial information.=94 (emphasis added). To be sure, the order = protects=20 trade secrets, but just as surely it also protects documents that, while = not=20 rising to the level of a trade secret, still contain confidential=20 information.

Despite these=20 clear terms, the Marroquins urge a narrow interpretation that reads = everything=20 after =93trade secret=94 as mere surplusage. This strained = interpretation ignores=20 the protective order=92s unequivocal language. See Gulf Ins. Co. v. = Burns=20 Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000) (holding that a court = will=20 construe a contract as a matter of law when it =93is worded so that it = can be=20 given a certain or definite legal meaning=94); Reilly v. Rangers = Mgmt.,=20 Inc., 727 S.W.2d 527, 530 (Tex. 1987) (=93Courts will avoid when = possible and=20 proper a construction which is unreasonable, inequitable, and = oppressive.=94).=20 Although a trial court often considers protective orders in the context = of trade=20 secrets, e.g., Garcia v. Peeples, 734 S.W.2d 343, 346 = (Tex. 1987),=20 the express terms of the parties=92 agreed protective order make clear = that trade=20 secrets are not the only materials worthy of protection.[2] In any event, the trial = court did not=20 hold that the materials never merited protection under the agreed order, = only=20 that the Florida-related disclosures had triggered the order=92s = exclusion and=20 rendered public the otherwise-privileged information.

Volvo=92s=20 rollover documents involve types of proprietary information a business = desires=20 to keep confidential. The documents contain not only the results of = engineering=20 and crash tests performed on one of Volvo=92s popular vehicles; they = also indicate=20 the process of how those tests were constructed and performed. Volvo = claims that=20 its reputation for safety has been earned in part via testing methods = that=20 exceed government standards. Volvo developed these testing processes and = generated the results after tremendous capital investments and therefore = has=20 asserted a sufficient commercial interest in preventing competitors from = seeing=20 those materials.

Although this=20 commercial interest in secrecy means little if the owner of the = proprietary=20 information does nothing to maintain confidentiality, see Black=92s Law Dictionary 318 = (8th ed.=20 1999) (defining confidential as =93meant to be kept secret=94), = both Volvo=20 and Ford did much to keep these documents confidential. Volvo stores its = documents in secure facilities that have restricted access. It does not = publish=20 or otherwise voluntarily disclose the specific test procedures and = methods used=20 in testing its automobiles. Further, it restricts the access of its own=20 personnel to these documents. Volvo has procedures specifying which = individuals=20 may view and circulate the documents and how, and it limits copying of = its=20 documents. Confidential documents are labeled =93Test Report, For = Internal Company=20 Use Only.=94 Volvo via Ford agreed to turn over these documents to the = Marroquins=20 subject to a stipulated protective order that limited disclosure without = a court=20 order or the permission of Volvo or Ford and required that all documents = submitted as =93confidential=94 would be sealed. Notably, the Marroquins = do not=20 assert that Ford or Volvo has done anything to disclose these materials, = or=20 acquiesced in their disclosure by a third party.

Finally, in=20 the Duncan litigation in Florida, production of the = rollover=20 documents was subject to a protective order that contained terms almost=20 identical to those here. We therefore conclude that Volvo and Ford took=20 sufficient actions to maintain the confidentiality of the rollover = documents.=20 Accordingly, the rollover documents warrant confidential treatment under = the=20 plain terms of the stipulated protective order.

3.=20 Whether the Public Disclosure = of the=20 Disputed Documents Defeats Their Confidentiality

Finally, the=20 Marroquins argue that, whether or not these documents were once covered = by the=20 protective order, their much-reported publication destroys any present = claim of=20 confidentiality. For their part, Ford and Volvo focus on how the = documents were=20 disclosed=97by the Florida court clerk=92s improper release=97rather = than on how many=20 people accessed them. This qualitative rather than quantitative view is = the more=20 correct statement of our case law.

The = privilege=20 to maintain a document=92s confidentiality belongs to the document = owner, not to=20 the trial court. Univ. of Tex., 33 S.W.3d at 827. Under = Texas law,=20 discovery privileges are waived by voluntary disclosure by the=20 holder of the privilege. Id.; Tex. R. Evid. 511(1). = Mistaken document=20 production by a court employee in violation of a court-signed protective = order=20 cannot constitute a party=92s voluntary waiver of confidentiality. = See Univ. of=20 Tex., 33 S.W.3d at 827; Granada Corp. v. Hon. First Court = of=20 Appeals, 844 S.W.2d 223, 226 (Tex. 1992) (=93Disclosure is = involuntary only if=20 efforts reasonably calculated to prevent the disclosure were = unavailing.=94). The=20 rollover documents were produced in the Duncan litigation = in=20 Florida under a protective order that limited disclosure and required = that the=20 documents be kept under seal. When the Florida court clerk=92s office = breached its=20 non-disclosure duty and erroneously made them publicly available, those=20 unauthorized disclosures were involuntary as to Ford and Volvo. All = these=20 companies did was entrust the materials to court employees who were = supposed to=20 honor a binding, court-signed order and keep them under seal. And the = resulting=20 submission to NHTSA by the Florida plaintiff=92s consultant certainly = should not=20 prejudice Volvo in the instant case by subverting a Texas protective = order that=20 the parties freely and carefully negotiated. No matter how many people=20 eventually saw the materials, disclosures by a third-party, whether = mistaken or=20 malevolent, do not waive the privileged nature of the information. This=20 principle should apply with particular force when documents are = entrusted to a=20 court.

Agreed=20 protective orders and confidentiality agreements matter; they matter = because the=20 parties vest confidence in them; and such confidence vanishes if these = important=20 protections are casually disregarded. See Arthur R. Miller,=20 Confidentiality, Protective Orders, and Public Access to the = Courts, 105=20 Harv. L. Rev. 427, 501 = (1991)=20 (=93The reality seems obvious: for protective orders to be effective, = litigants=20 must be able to rely on them.=94). Indeed, the phrase =93protective = order=94 becomes a=20 misnomer if parties are unable to trust them=97or trust the courts that = enforce=20 them=97thus fueling litigation that is far more contentious and far more = expensive.

The = Florida-related disclosures have not waived the confidential status of = the=20 rollover documents and do not authorize the Marroquins (or their = counsel) to=20 disclose covered confidential information, trade secret or not. The = Texas trial=20 court erred in declaring that the disputed documents fell outside the = agreed=20 protective order, an error for which there is no adequate appellate = remedy.=20 Accordingly, pursuant to Rule 52.8(c) of the Texas Rules of Appellate = Procedure,=20 we grant Ford=92s petition, and, without hearing oral argument, = conditionally=20 grant a writ of mandamus directing the trial court to vacate its order = deeming=20 the Volvo documents non-confidential.

Opinion=20 Delivered: December 22, 2006

^[1] In fact, mandamus is the only procedural = option in this=20 case. The underlying dispute is over, having already gone to trial and = final=20 judgment, so the instant controversyCwhether the Marroquins (or their counsel) can = pass=20 around the Volvo materialsCcan only be resolved by = mandamus.

^[2] It also merits mention that the protective = order at=20 issue closely tracks the language of Federal Rule of Civil Procedure = 26(c)(7),=20 which broadly protects not only trade secrets but also an array of other = confidential information. Fed. = R. Civ. P. = 26(c)(7) (permitting protective orders for = =93a trade=20 secret or other confidential research, development, or commercial = information=94).=20 The United States Supreme Court has construed this language to cover = more than=20 just trade secrets. In Federal Open Market Committee of the Federal = Reserve=20 System v. Merrill, a law student sought disclosure from a government = agency=20 of its Record of Policy Actions. 443 U.S. 340, 346-47 (1979). Although = these=20 government records were not trade secrets, the agency argued that they=20 constituted confidential commercial information and were subject to = protection=20 under federal case law and procedural rules. Id. at 356 (quoting = Federal=20 Rule 26(c)(7) as permitting protective orders for =93a trade secret or = other=20 confidential research, development, or commercial information=94). The = Court found=20 that the government records were commercial information because they = related to=20 buying and selling securities, and they were confidential because the = agency=20 kept them secret for a month before disclosure. Id. at 361. The = Court=20 wrote that a protective order under Rule 26(c)(7) may be warranted for = such=20 confidential commercial information. Id. at 357. Other federal = courts=20 have indicated that protective orders apply more broadly than just to = trade=20 secrets. E.g., Aluminum Co. of Am. v. U.S. Dept. of Justice, = Antitrust=20 Div., 444 F. Supp. 1342, 1343, 1346 (D.D.C. 1978) (holding that = protective=20 order was warranted =93to limit disclosure of confidential = information=94 in the=20 form of =93highly sensitive financial and business=20 data=94).