In a fatal motorcycle accident case, the Texas Court of Appeals, Ninth District, last month denied plaintiffs access to and the use of the defendants' proprietary software program to analyze the allegedly defective power steering system in the defendants' motorcycle, on the ground that the software was a trade secret.
In In re Kongsberg Inc., the plaintiffs claimed the power steering system of the motorcycle manufactured by one of the defendants had malfunctioned, causing the fatal accident. During discovery one of the defendants used its trade secret software to analyze the electronic activity in the power steering system during the accident. After doing so, the defendant provided a readout of the error codes and steering inputs to the plaintiffs. The plaintiffs' expert reviewed this software analysis of the steering system and then claimed he needed personal access to the underlying software to conduct his own independent analysis of the accident data. The trial court agreed and ordered the defendant to produce its trade secret software to the plaintiffs.
The Ninth District Court of Appeals reversed the discovery order because the plaintiffs could not show that accessing the trade secret software program was "necessary for a fair adjudication" of the case. The court reasoned that because the plaintiffs' expert had already determined that the power steering system was at fault, the expert did not need any additional information that could be generated by analyzing the defendants' trade secret software.
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