Theodore G. Hartsock, Jr., as Personal Representative of the Estate of Sarah Mills Hartsock (Estate of Sarah Mills Hartsock), Plaintiff-Respondent,
Goodyear Dunlop Tires North America Ltd., a foreign corporation; Goodyear Tire & Rubber Company, a foreign corporation, Defendants-Appellants. Appellate Case No. 2016-002398
September 28, 2017
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE
Wallace K. Lightsey, of Greenville, M. Gary Toole, of
McDonald, Toole & Wiggins, of Orlando, Fl., pro hac vice,
E. Duncan Getchell, Jr. and Michael H. Brady, both of McGuire
Woods LLP, both of Richmond, Va., pro hac vice, for
C. Tanenbaum of Mark C. Tanenbaum, P.A., of Mt. Pleasant; and
Mia Lauren Maness, of Charleston, both for
B. Alsup, of Thompson & Knight LLP, of Austin, Tx., pro
hac vice, for Amicus Curiae the Rubber Manufacturers
L. Epps and Hannah Rogers Metcalfe, both of Greenville, for
Amicus Curiae the South Carolina Association for Justice.
Court accepted the following certified question from the
United States Court of Appeals for the Fourth Circuit:
South Carolina recognize an evidentiary privilege for trade
South Carolina does recognize an evidentiary privilege for
trade secrets, but it is a qualified privilege.
Order of Certification, the Fourth Circuit summarized the
relevant facts and procedural history as follows:
In July 2010, Sarah Mills Hartsock was killed in an
automobile crash on Interstate 26 in Calhoun County, South
Carolina. Her personal representative, Theodore G. Hartsock,
Jr., brings this survival and wrongful death action asserting
claims under South Carolina law for negligence, strict
liability, and breach of warranty. Mr. Hartsock alleges that
the vehicle in which Mrs. Hartsock was riding was struck
head-on by another vehicle. That vehicle had crossed the
median after suffering a blowout of an allegedly defective
tire that Goodyear Dunlop Tires North America Ltd. and
Goodyear Tire & Rubber Company [collectively
"Goodyear"] designed, manufactured, and marketed.
Federal subject-matter jurisdiction exists under 28 U.S.C.
§ 1332 based upon complete diversity of citizenship
between the parties and damages alleged to be greater than
During pretrial discovery a dispute arose between the parties
over certain Goodyear material relating to the design and
chemical composition of the allegedly defective tire.
Goodyear objected to producing this material, asserting that
it constitutes trade secrets. The district court eventually
found, and Mr. Hartsock does not dispute, that the material
does, in fact, constitute trade secrets. However, the court
ordered Goodyear to produce the material subject to a
confidentiality order. In doing so, the court applied federal
discovery standards, rejecting Goodyear's contention that
South Carolina trade secret law applies.
Goodyear thereafter moved for reconsideration, reiterating
its argument that South Carolina law applies. The district
court denied the motion but certified its order for
interlocutory review pursuant to 28 U.S.C. § 1292(b).
The court also stayed the proceedings pending Goodyear's
anticipated appeal. After Goodyear appealed, a panel of [the
Fourth Circuit] agreed to permit the appeal. The parties
filed briefs, and [the Fourth Circuit] heard oral arguments
in October 2016.
Hartsock v. Goodyear Dunlop Tires N. Am. Ltd., 672
Fed.Appx. 223, 224-25 (4th Cir. 2016) (footnotes omitted).
answer the certified question by analyzing how privileges are
recognized in South Carolina and evaluating the South
Carolina Trade Secrets Act (hereinafter "Trade Secrets
Act"), SC Code Ann. §§ 39-8-10 to -130 (Supp.
evidentiary privilege is "[a] privilege that allows a
specified person to refuse to provide evidence or to protect
the evidence from being used or disclosed in a
proceeding." Evidentiary Privilege, Black's
Law Dictionary (10th ed. 2014). The principle underlying
recognition of a privilege is simple: although the public
"has a right to every man's evidence, " an
exception may be justified "by a public good
transcending the normally predominant principle of utilizing
all rational means for ascertaining truth." Jaffee
v. Redmond, 518 U.S. 1, 9 (1996) (citations omitted).
"[A]n asserted privilege must also 'serv[e] public
ends.'" Id. at 11 (quoting Upjohn Co.
v. United States, 449 U.S. 383, 389
(1981)). In addition, "[i]t is well recognized
that a privilege may be created by statute" as deemed