Mayberry v. Bridgestone 854 N.E.2d 355 (Ind. Ct. App. 2006), http://www.in.gov/judiciary/opinions/pdf/08310601ewn.pdf, began as a straightforward wrongful death action involving alleged defects in a Firestone tire. Then the plaintiffs requested Firestone's "skim stock" formula — the never-before-disclosed recipe for a complex compound that binds a tire's rubber to its steel chords. Firestone refused, and promptly sought a protective order barring disclosure of what it described as a "trade secret" of inestimable value. Denying Firestone's motion, the trial court ordered disclosure subject to the terms of its own protective order, and Firestone sought an interlocutory appeal. The appellate court accepted the appeal but affirmed the trial court order compelling Firestone to disclose its formula. Firestone, joined by the Indiana Legal Foundation as amicus curiae, then sought transfer to the Indiana Supreme Court, asking (in part): "must a court require a requesting party to present competent evidence of necessity, rather than conclusory allegations, before the court compels production of trade secret information[?]"
The Indiana Supreme Court accepted transfer on March 22, 2007, and its opinion will prove significant for (as Firestone put it) "virtually every competitive, technology-driven industry where market share depends heavily on innovation in product designs." Trade secrets pose a special problem for a system of liberal discovery for one reason: disclosure can destroy their value. But until announced by the Court of Appeals, no Indiana court had articulated a standard for protecting trade secrets in civil discovery. And while the Court of Appeals' new test generally replicates law from other jurisdictions — that is, generally balances the value of the trade secret against the need to discover it — the court's application of that test arguably does not. The Court of Appeals ordered disclosure of what may be Firestone's steel-tread equivalent of the secret formula for Coca-Cola, and before the plaintiffs had so much as identified an expert to explain why they need it. Stay tuned: the future of trade secret protection in Indiana has yet to be decided.