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Opposition Brief
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Jeffrey Foote, OSB No. 74098
Jeffrey Foote and Associates, P.C.
621 S.W. Morrison St., Ste. 950
Portland, Oregon 97205
(503) 228-1133

Leslie A. Brueckner
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave. NW, Ste 800
Washington, D.C. 20036
(202) 797-8600

Attorneys for Intervenors

Intervenors have moved to intervene for the purpose of requesting that the Court allow public disclosure of certain of Nissan's crash test reports and videos. Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470 (9th Cir. 1992). The crash test videos and reports should be disclosed to the public because Nissan has failed to make the good cause showings required to prevent disclosure under Fed. R. Civ. P. 26(c). Specifically, Nissan had failed to show (1) the uniqueness-in-the-trade requirement of a trade secret and (2) the alleged competitive disadvantage with necessary specificity.

Unable to make the required good cause showings to prevent public disclosure, Nissan raises three irrelevant issues. First, Nissan attempts to shift the burden of showing good cause to plaintiff and the intervenors by raising a privacy claim (after Nissan acknowledged in the stipulated protective order that it continues to carry the burden of showing good cause). Nissan's privacy claim also attempts to reduce the Fed. R. Civ. P. 26(c) showing of a trade secret to mere treatment of the information as a secret. The argument fails because corporations have no right of privacy. Even if Nissan could claim a privacy right, it would fall within Fed. R. Civ. P. 26(c), and would fail because Nissan makes no specific showing. Second, Nissan disingenuously argues that NHTSA has primary jurisdiction over the intervenor's request for disclosure by falsely arguing that NHTSA has already been asked to provide the disclosure requested here. In fact, the information sought in the petition to NHTSA is completely different than the disclosure sought here. Third, Nissan attempts to divert the court from the dispositive good cause issue by making inaccurate representations about the relationship between plaintiff's attorney and intervenors' attorney.

Intervenors' motion to intervene should be granted. Beckman Industries, Inc. v. International Ins. Co., 966 F.2d 470 (9th Cir. 1992). Nissan misreads the adequacy-of-representation requirement of Fed. R. Civ. P. 24(a) into Fed. R. Civ. P. 24(b). See Hallco Mfg. Co. Inc. v. Quaeck, 161 F.R.D. 98, 102 (D.Or. 1995) (discussing intervention of right). Oregon Env. Council v. Dept. of Env. Quality, 775 F.Supp. 353 (D.Or. 1991) does not apply because Judge Frye there concluded that the Clean Air Act specifically and expressly denied the interest the movants sought to assert and the litigation would have been unduly delayed if the movants were allowed to intervene as parties. Id., at 358-60. Here, by contrast, the intervention is for the limited purpose of requesting public disclosure of test reports and videos--there would be little, if any, delay by allowing intervention.

Intervenors requested that Nissan show the good cause required to prevent disclosure under Fed. R. Civ. P. 26(c). Nissan failed to show that any trade secret will be revealed because it failed to articulate the unique aspects of the trade secrets it claims. Nissan also failed to specify the competitive disadvantage it will suffer from public disclosure. Nissan does not cite even one example of what a competitor might learn. Nissan does not even name a competitor who would learn something from viewing its crash testing.

To prove the existence of a trade secret, three elements are required: (1) The secret claimed is unique within the claimant's trade and not generally known to competitors in the claimant's industry; (2) the disclosure of the trade secret would work a competitive disadvantage to the claimant; and (3) the claimant has treated the trade secret as a secret. Nissan failed to show that any aspect of its crash testing, test procedures, test facilities, or test equipment is unique in the trade. Nissan has also failed to show competitive disadvantage. Indeed, the information it seeks to protect is stale and of no present value to competitors.

Uniqueness in the trade is a necessary element for a trade secret: the alleged secret must not be known to other members of the trade. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1973) ("secrecy, in the context of trade secrets, thus implies at least minimal novelty."); Wiebold Studio v. Old World Restorations, 484 N.E.2d 280, 284-85, 19 Ohio App.3d 246 (1985) (no trade secret where processes not unique in trade, even though kept secret from general public); American Paper & Packaging Prods., Inc. v. Kirgan, 183 Cal.App.3d 1318, 228 Cal.Rptr. 713 (1986) (information commonly known to members of an industry is not a trade secret); Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 465-66 (9th Cir. 1990) (following Kirgan); Henry Hope X-ray Products, Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1340 (9th Cir. 1982) (trade secret "may be only a slight advance over common knowledge and practice in the trade"); Precision Moulding & Frame, Inc. v. Simpson Door Co., 888 P.2d 1239, 1243, 77 Wn.App. 20 (1995) (claimant "cannot establish that a trade secret exists if the information is generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use.").

Furthermore, Nissan must articulate the uniqueness. Jostens, Inc. v. National Computer Systems, 318 N.W.2d 691, 699 (Minn. 1982) ("Simply to assert a trade secret resides in some combination of otherwise known data is not sufficient, as the combination itself must be delineated with some particularity in establishing its trade secret status."). Here, Nissan has not asserted, even in the most conclusory terms, that there is anything unique in the automotive trade about its crash testing.

Nissan must specifically articulate the concrete competitive harm it will suffer from disclosure of its alleged trade secrets. Here, Nissan merely makes conclusory assertions that it will suffer harm because it has invested time, money, and effort in the development of its testing. That is insufficient. Koval v. General Motors Corp., 610 N.E.2d 1199, 1201 (Ohio Com.Pl. 1990) ("General Motors has not given specific examples of competitive harm. It simply argues that the information was costly to develop and that if the materials were to fall into the hands of its competitors obtaining information concerning how they how [sic] might improve the quality and performance of their products. Such vague conclusions regarding the value of these documents and their possible use by General Motors' competitors are insufficient grounds for a protective order, and fall short of the good cause requirement of the rule.").

Furthermore, the crash test films involve products released in 1993 and 1995. Auto manufacturers are currently readying the 1999 model year, and designing the 2000 model year and beyond. Presumably, the auto manufacturers have been improving their airbag system designs since 1993. Because it is at least 5 years old in a field of rapidly evolving technology, knowledge of the 1994-1995 and 1995.5 Altima's airbag system is of no present value to Nissan's competitors. Parsons v. General Motors, 85 F.R.D. 724 (N.D.Ga. 1980) ("GM does not show that the information is still confidential after 10 years."); Garcia v. Peeples, 734 S.W.2d 343, 346 (Tex. 1987) ("GMC correctly points out the hardship which would result should their competitors obtain current and relevant trade secrets.") (emphasis added). Nissan will suffer no competitive disadvantage by the release of these crash test videos and reports.

Having no legitimate factual or legal basis to withhold the videos and reports from the public, Nissan attempts to cloud the issue with irrelevant and factually incorrect arguments.

Nissan confuses the three rights which plaintiff and intervenors could assert here. Nissan focuses on the First Amendment and common law rights of access which intervenors do not raise. Intervenors raise only the good cause requirement of Fed. R. Civ. P. 26(c), which acknowledges that the public has a presumptive right of access to discovery materials because the burden of good cause is placed on the party opposing disclosure. In re Agent Orange Product Liability Litigation, 821 F.2d 139, 146 (2d Cir. 1987), cert. denied, 484 U.S. 926 (1987), aff'g 104 F.R.D. 559 (E.D.N.Y. 1985) ("Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event."); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir. 1988) ("It is implicit in Rule 26(c)'s ‘good cause' requirement that ordinarily (in the absence of good cause) a party receiving discovery material might make them public."). The stipulated protective order places the burden of showing good cause for nondisclosure squarely on Nissan.

Nissan attempts to shift the burden of showing good cause by claiming a "privacy right." The argument fails because corporations have no privacy rights. Even if corporations had privacy rights, plaintiff and intervenors would have only the burden of raising the issue; Nissan would have the burden of proving good cause for protecting its alleged privacy.

Corporations have no First Amendment right of privacy. United States v. Morton Salt Co., 338 U.S. 632, 652 (1949) ("neither incorporated nor unincorporated associations can plead an unqualified right to conduct their affairs in secret...[C]orporations can claim no equality with individuals in the enjoyment of a right to privacy.") (citations omitted); Browning-Ferris Industries v. Kelco Disposal, 492 U.S. 257, 284 (1988) ("a corporation...is not entitled to "‘purely personal' guarantees"...Thus, a corporation has no...right to privacy") (citations omitted) (O'Connor and Stevens, J.J., concurring in part and dissenting in part); Roe v. Wade, 410 U.S. 113, 152 (the Supreme Court "has recognized that a right of personal privacy...does exist under the Constitution...These decisions make it clear that only personal rights...are included in this guarantee of personal privacy.") (citations omitted).

Even if the interest which Nissan asserts existed, it would be subsumed within the good cause requirement of Fed. R. Civ. P. 26(c). Seattle Times Co. v. Rhinehart, 467 U.S. 20, n. 21 at 35, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (privacy concerns "are implicit in the broad purpose and language of the rule"; barring public disclosure of association's membership lists revealed in discovery because party opposing public disclosure made satisfactory showing of good cause). It has not met any such burden here. Unlike Rhinehart's specific and concrete assertion of the harm which would almost certainly flow from disclosure of Rhinehart's followers' names and addresses, Nissan merely asserts an interest. The assertion of privacy fails to show good cause for the same reason Nissan's assertions of trade secret fails--it does not state why the material should be kept from the public, and it does not state how Nissan will be harmed by the disclosure.

Nissan's counsel misleads this court by arguing and affying that the rulemaking petition PSAB signed and the instant motion seek the "very same information." In fact, the information sought is completely different, the relief is different, the applicable law is different, and abstention will not clarify any issues this court must decide.

In this case, intervenors seek release of crash test videos and reports. The petition to NHTSA seeks disclosure of airbag hardware and deployment characteristics itemized in a two-page form. See Ex. 2, and Rulemaking Petition, at ii, 19-20, attached as Ex. 3. Simply stated, the two sets of information sought are mutually exclusive. The rulemaking petition seeks information unrelated to crash testing.

The relief requested from each tribunal differs as well. Here, intervenors ask only to have the crash test videos and reports available for public disclosure. The rulemaking petition requests much broader relief. There, "[p]etitioners...urge NHTSA (1) to supplement the NHTSA brochure "Air Bags and On-Off Switches: Information for An Informed Decision" with vehicle-specific air bag specifications and performance data and (2) to require automobile manufacturers to provide prospective new car purchasers with the same specifications at the point of sale." Rulemaking Petition at ii (emphasis added). Because the requests before NHTSA and this court have no overlap and are completely distinct, no issue of jurisdiction is presented.

The law which the court is asked to apply is different from the law which NHTSA is asked to apply. The issue the court is asked to decide here is whether Nissan has shown good cause to protect an alleged trade secret under Fed. R. Civ. P. 26(c). NHTSA has no jurisdiction to decide whether there is a trade secret involved. Moreover, even if NHTSA had the power to determine that a trade secret existed, this court would still have jurisdiction to determine whether Nissan had shown good cause. Waelde v. Merck, Sharp, & Dohme, 94 F.R.D. 27, 29 (E.D.Mich. 1981). NHTSA, by contrast, has been asked to promulgate a rule by reasonably exercising its discretion under 49 U.S.C. § 30117.

Furthermore, the purpose of the doctrine is to allow the agency to interpret and clarify the applicable law. Because deference to NHTSA would not clarify any issues the court is asked to decide, a stay is not necessary. Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1031 (9th Cir. 1989) ("the doctrine does not apply here because the proceedings...will not help clarify and narrow [the issues before the court].").

The court should decline to abstain from deciding this motion because the information and relief requested are not duplicative factually, the law to be applied is different, and deference to NHTSA would not clarify the unrelated issues before this court.

Nissan appears to assert that Mr. Baron and Mr. Foote have done something improper. Nissan misrepresents their professional status to the court by describing them as "partners." While they do share office space, they are two separate professional corporations, as is made clear by the Bar Bulletin ad. See also Affidavit of Jeffrey P. Foote, ¶¶ 3, 4, attached as Ex. 1. Mr. Baron asked the Trial Lawyers for Public Justice ("TLPJ") to find an attorney for intervenor groups. Id. ¶ 6. TLPJ chose Mr. Foote because of his location in Portland, his willingness to take the case pro bono, and his longstanding association and involvement with TLPJ. Id.

As a last resort, Nissan attempts to impeach plaintiff's and intervenors' attorneys for having a "vested monetary interest" and "major monetary reasons." To the extent Nissan attacks Mr. Foote for having a monetary interest in this case, it misrepresents to the court Mr. Foote's fee arrangement. He is handling these motions for the intervenors pro bono. Id. ¶ 7. Mr. Foote is not retained by Norma Swanson, the plaintiff in this case, or any other person claiming Nissan's airbag caused an eye injury. Id. Mr. Foote has no financial interest in the claims asserted against Nissan. Id.

DATED this 22nd day of May 1998.