Apr 4, 2012 | Car Accidents, Personal Injury, Uncategorized
This SC Supreme Court case discusses the availability of different courts for different jurisdictional amounts. Magistrate’s Court is the entry level court for relatively minor disputes. The jurisdictional limit is now $7,500. At that limit, these courts can easily adjudicate many claim, including minor automobile accidents. Although originally set up for pro se (unrepresented clients), many lawyers, including our firm, use it to resolve cases. The benefits of Magistrate’s Court is that your case will be reached quickly, usually only a few months. And, with no discovery (interrogatories, requests to produce, depositions), you can end your matter with relatively little costs. You can still request a jury trial, and insurance companies will respond once you actually file a lawsuit.
At Reeves, Aiken & Hightower, LLP, our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. We would like an opportunity to personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ronnie Judy, Appellant,
v.
Phillip Martin and Dorchester County Sheriff Ray Nash, Defendants,
of whom Phillip Martin is the Respondent.
Appeal from Dorchester County
Patrick R. Watts, Circuit Court Judge
Opinion No. 26604
Submitted October 22, 2008 – Filed February 23, 2009
AFFIRMED
Glenn Walters Sr. and R. Bentz Kirby, both of Orangeburg, for Appellant.
Phillip Martin, of Marion, pro se Respondent.
CHIEF JUSTICE TOAL: In this case, Appellant Ronnie Judy filed a declaratory judgment action seeking to declare an underlying magistrate’s judgment void ab initio for lack of subject matter jurisdiction. The master-in-equity found in favor of Respondent Phillip Martin. On appeal, Appellant claims that the magistrate lacked jurisdiction to render the underlying judgment, and that the master erred by assuming facts not in evidence, finding that Appellant was required to request removal to the court of common pleas, and finding that Respondent would suffer prejudice if the magistrate’s judgment was vacated.
Factual/Procedural Background
On May 8, 2000, Respondent filed suit in magistrate’s court against Appellant, seeking $2,500 in damages. Appellant filed an Answer and Counterclaim in the amount of $6,500. At the time, the jurisdictional limit in magistrate’s court was $5,000.[1] The magistrate issued a trial notice for September 28, 2000. Appellant claims he spoke with the magistrate on September 25, 2000, and that the magistrate told him the case was out of his jurisdiction and would be transferred to the circuit court. Appellant failed to appear at trial and the case was tried in his absence. The magistrate rendered a verdict for Respondent in the amount of $2,555. Appellant appealed to the circuit court on November 6, 2000. The magistrate’s return acknowledged the conversation with Appellant, but indicates that the magistrate told Appellant only that a claim for over $5,000 would be out of his jurisdiction but said nothing about transferring the case to circuit court. The circuit court affirmed the magistrate’s judgment. Appellant did not seek reconsideration from the circuit court or file an appeal.
Shortly after the final judgment, the sheriff issued an execution, which was returned nulla bona. In 2004, the probate court issued an order placing certain real property in Appellant’s name, and Respondent had a Notice of Levy issued on the property. Appellant thereby filed this action for declaratory judgment with the master, who determined that Appellant was not entitled to relief on the grounds that Appellant: (1) failed to seek removal of the case from magistrate’s court; (2) failed to appear in court to press his case for removal; (3) relied upon a verbal ex parte request by telephone for confirmation that the case would be transferred to circuit court; (4) failed to file a motion for reconsideration of the circuit court’s decision to uphold the magistrate’s judgment; (5) failed to appeal to the court of appeals; and (6) abandoned his defense of lack of subject matter jurisdiction until nearly four years later. Appellant appealed the master’s order, and this Court certified the case pursuant to Rule 204(b), SCACR. Appellant presents the following issues for review:
| Did the trial court err in failing to address the issue of subject matter jurisdiction and whether the judgment was void ab initio? |
| Did the trial court err by assuming facts not in evidence and upholding the magistrate’s order based upon what he assumed the trial judge would have ruled? |
| Did the trial court err by ruling that Appellant had to take an affirmative act to attempt to remove his case to Circuit Court? |
| Did the trial court commit error by ruling the Respondent would face prejudice relating to having to make complicated legal arguments, and ignoring the proper relief and the relief sought by the Appellant? |
Standard of Review
Declaratory judgment actions are neither legal nor equitable and, therefore, the standard of review depends on the nature of the underlying issues. Doe v. South Carolina Medical Malpractice Liability Joint Underwriting, 347 S.C. 642, 645, 557 S.E.2d 670, 672 (2001). An action for declaratory judgment that a magistrate’s judgment is void for lack of subject matter jurisdiction is an action at law. Therefore, the master’s findings of fact will not be disturbed on appeal unless found to be without evidence which reasonably supports them. Harkins v. Greenville County, 340 S.C. 606, 621, 533 S.E.2d 886, 893 (2000).
Law/Analysis
In the first question presented for our review, Appellant alleges that the master-in-equity erred in refusing to declare the magistrate’s judgment void ab initio for lack of subject matter jurisdiction. We disagree, and hold that Appellant may not seek relief from the prior unappealed order of the circuit court because the order has become the law of the case.
Under the law-of-the-case doctrine, a party is precluded from relitigating, after an appeal, matters that were either not raised on appeal, but should have been, or raised on appeal, but expressly rejected by the appellate court. C.J.S. Appeal & Error § 991 (2008); see also Bakala v. Bakala, 352 S.C. 612, 576 S.E.2d 156 (2003) (holding that a family court judge could not overrule the prior unappealed order of another family court judge because it had become law of the case); In re Morrison, 321 S.C. 370 n. 2, 468 S.E.2d 651 n. 2 (1996) (noting that an unappealed ruling becomes the law of the case and precludes further consideration of the issue on appeal); Cooper Tire & Rubber Co. v. Perry et al, 261 S.C. 538, 201 S.E.2d 245 (1973) (holding that where a ruling on a demurrer to complaint is not appealed from, it becomes the law of the case); Watkins v. Hodge, 232 S.C. 245, __, 101 S.E.2d 657, 658 (1958) (refusing to consider jurisdictional matter of underlying case where issue had been ruled upon and not challenged on appeal).
In this declaratory judgment action, Appellant seeks to reopen the question of whether the magistrate had subject matter jurisdiction to hear the merits of the underlying dispute. However, Appellant raised this issue and argued it before the circuit court on appeal from the magistrate’s judgment. The circuit court denied Appellant’s appeal and affirmed the magistrate’s judgment. Appellant did not file a motion for reconsideration, an appeal with the court of appeals, or a motion to set aside the judgment. The circuit court’s unchallenged disposition on the magistrate’s subject matter jurisdiction therefore became the law of the case, and this Court declines to reopen that issue in this subsequent action. [2]
Conclusion
For the reasons stated herein, we affirm the ruling of the master-in-equity.
WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J. concurring in result only.
[1] The current jurisdictional limit of $7,500 took effect on January 1, 2001. S.C. Code Ann. § 22-3-10 (2008).
[2] The remaining three questions presented for our review each involve the master’s findings with regard to the magistrate’s jurisdiction, and are similarly foreclosed by the law-of-the-case doctrine.
Apr 3, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Although this is a SC Supreme Court case,it amply demonstrates the lengths multinational corporations will go to fight serious injury and wrongful death claims regardless of your jurisdiction. In this instance, a defective tire lost its tread and caused a family to lose control of their vehicle and rollover. Two were killed, and two were seriously injured. If you have any doubts about how difficult serious injury claims are to litigate, just count the number of lawyers involved on the defense side.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Russell Laffitte, as Personal Representative of the Estate of Angela Lynn Plyler, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Russell Laffitte, as Personal Representative of the Estate of Justin Plyler, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Alania Plyler, a minor by and through her Conservator, Russell Laffitte, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Hannah Plyler, a minor by and through her Conservator, Russell Laffitte, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
ORIGINAL JURISDICTION
Appeal from Hampton County
Carmen T. Mullen, Circuit Court Judge
Opinion No. 26606
Re-heard September 17, 2008 – Filed March 2, 2009
REVERSED
M. Dawes Cooke, Jr., Todd M. Musheff, and John W. Fletcher, all of Barnwell Whaley Patterson & Helms, of Charleston, and Wallace K. Lightsey, of Wyche Burgess Freeman & Parham, of Greenville, for Petitioner.
F. Arnold Beacham, Jr., of Young & Sullivan, of Lexington, and John E. Parker, Ronnie L. Crosby, and R. Alexander Murdaugh, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Respondents.
Elbert S. Dorn and Nicholas W. Gladd, both of Turner Padget Graham & Laney, of Columbia, for Defendant Ford Motor Company, Erin D. Dean, of Tupper Grimsley & Dean, of Beaufort, for Defendant Bubba Windham et al., and Henry B. Smythe, Jr., David B. McCormack, and David S. Cox, all of Buist Moore Smythe McGee, of Charleston, for Defendant Bridgestone/Firestone North American Tire.
E. Warren Moise, of Grimball & Cabaniss, of Charleston, and Debora B. Alsup, of Thompson & Knight, of Austin, Texas, for Amicus Curiae Rubber Manufacturers Association.
John G. Creech, James H. Fowles III, and C. Victor Pyle III, all of Ogletree Deakins Nash Smoak & Stewart, of Columbia, for Amicus Curiae South Carolina Chamber of Commerce.
C. Mitchell Brown, William C. Wood, Jr., A. Mattison Bogan, all of Nelson Mullins Riley & Scarborough, of Columbia, for Amicus Curiae Product Liability Advisory Council, Inc.
CHIEF JUSTICE TOAL: In this product liability case, we granted a petition for a writ of certiorari in our original jurisdiction to review the trial court’s discovery order compelling Petitioner Bridgestone Corporation (Bridgestone) to turn over its steel belt skim stock formula, classified as a trade secret, to Respondent Russell Laffitte. For the reasons detailed below, we find that Respondent has not shown that knowledge of Bridgestone’s trade secret is necessary in order for Respondent to litigate this product liability action. Consequently, the trial court’s order compelling disclosure by Bridgestone of the skim stock formula is reversed.
FACTUAL/PROCEDURAL BACKGROUND
On July 16, 2005, Angela Plyler was driving her 1999 Ford Explorer along Interstate 95 in Hampton County with her three children as passengers. The tread from the left rear tire of the Explorer separated from the tire, allegedly causing the vehicle to overturn and collide with a tree. The single‑car accident killed Angela and her teenage son Justin, and seriously injured her daughters Alania and Hannah.
Respondent, acting as personal representative for the decedents and as conservator for the minor daughters, filed four separate lawsuits against several defendants, including Bridgestone, the manufacturer of the vehicle’s left rear tire. The complaints allege negligence, warranty, and strict liability claims against Bridgestone. As to the negligence allegations, Respondent maintains Bridgestone used an inadequate tire design and failed to use proper manufacturing techniques resulting in a defective tire. In addition, Respondent specifically alleges Bridgestone failed to use sufficient antidegradants to protect the integrity of the tire.
The four cases were consolidated for discovery purposes. Respondent sought to obtain information on the design and manufacturing processes for the subject tire, which had been manufactured in 1996 at Bridgestone’s Hofu Plant in Japan.[1] Bridgestone objected to Respondent’s requests for its steel belt skim stock formula[2] and other related information on the basis that the skim stock formula was a trade secret of Bridgestone.[3] According to Bridgestone, Respondent can prove his claims without discovery of the skim stock formula because he has access to the actual failed tire and can therefore conduct appropriate testing on the tire itself. Respondent counters that without the information related to the skim stock ingredients and manufacturing processes, including any plant-specific deviations from the manufacturing formula, the defect claims cannot be proven.
The trial court held a hearing in January 2007 on Respondent’s motion to compel and Bridgestone’s cross-motion for a protective order. The trial court informed counsel in February 2007 that it would be granting the motion to compel. Prior to entry of the final order, however, the trial court granted Bridgestone’s request that it be allowed to depose Respondent’s experts solely on the issue of Respondent’s need for the skim stock formula. Four experts provided affidavit or deposition testimony on the issue of Respondent’s need for the skim stock formula.
Bridgestone’s expert, Brian Queiser, described the various factors beyond the tire’s chemical composition which could affect the tire’s durability.[4] According to Queiser’s affidavit:
A tire is a highly engineered, complex product, which is the result of a blend of chemistry and engineering. A steel belted radial passenger tire typically contains twenty or more components and more than a dozen different rubber compounds. . . .
. . . Furthermore, the individual components of a steel belted radial tire are designed to work in conjunction with the other components of that tire. As a result, the forces exerted on the tire during its operation are subject to the combined effects of many parameters, including tire size; inflation pressure; component materials, dimensions, and gauge; as well as vehicle characteristics. Therefore, it is not accurate to gauge the performance of any particular tire by focusing on one isolated component or compound…
. . . Given the inherent design of any steel belted radial tire, . . . the areas of the steel belt edges are generally the areas of highest stress/strain. As a result, any steel belted radial tire can sustain a tread/belt separation due to numerous service conditions such as overloading, underinflation, punctures, road hazards, impact damage and so forth.
Queiser further explained that rubber compound formulas cannot be reverse engineered from the finished product because once a tire is cured, the chemical composition changes. Queiser asserted that because the physical properties of the subject tire itself could be inspected and tested, “[a]ccess to the formulas is unnecessary to determine whether the tire was properly designed and manufactured.” As to the trade secret nature of the skim stock formula, Queiser described the formula as “one of Bridgestone/Firestone’s most valuable assets and most closely guarded secrets.”
At his deposition, when asked why the skim stock formula was unnecessary in the instant litigation, Queiser responded as follows:
Well, I guess in this case, as I understand it, all that you would need is what you essentially have. You have the tire, you have the ability to test the tire, test its physical properties. It has been my experience that that is all you need to evaluate the condition of the tire as it relates to its performance. It is my experience that the ability to have the chemical information, the recipe, really doesn’t answer those questions for you. The formula or recipe doesn’t give you the performance, frankly, which is the most important element.
Queiser elaborated that when the federal government investigated certain tires manufactured by Bridgestone/Firestone, Inc., which were similar to tires recalled by Firestone in August 2000, “[f]ormula was not part of the report . . . , it was all about the performance, the design of the tire from a mechanical and structural perspective and the performance of that tire. It was not about the chemical constituents or the recipe.” When pressed by Respondent’s counsel as to whether the skim compound or manufacturing process was ever considered as part of the federal investigation, Queiser answered as follows:
No, I would not say “never considered.” But certainly it was something that was clearly early set aside as a probable cause. We had so many tires produced from so many different plants with that same formula, hundreds of which . . . had absolutely no claim or lawsuit associated with them on that same compound. That formula or compound, per se, no, it wasn’t a factor early on.
Queiser also described how rubber changes over time from exposure to oxygen and ozone, noting that “[t]he environment, the use of the tire or the rubber, how the rubber is used, [and] other external influences naturally are a part of its properties over time.” Queiser acknowledged that oxidation in general would cause changes in the makeup of a rubber compound, but qualified his statement saying that chemical changes in rubber compounds, in his opinion, were still not fully understood by modern science. Queiser also acknowledged that antidegradants are added to the skim stock compound to combat the effects of oxygen on a tire and that there were “other inherent qualities” of other ingredients in the tire which “may also lend themselves to some resistance to change.” Queiser nonetheless adhered to his view that by physically testing the subject tire – perhaps by viewing it at a microscopic level – would be the appropriate way to assess whether there is a design defect.
Finally, Queiser testified that the skim stock compound chemically interfaces with the brass which covers the steel belts, and that this “is one of the essences of the trade secret nature of the chemical composition and the production of that compound.” If a competitor were to have knowledge on this aspect of tire design, Queiser stated that the competitor would essentially acquire “a company’s decades’ worth of experience” which would give it “a huge competitive advantage.”
Respondent presented three experts to opine on the need for the skim stock formula in support of the motion to compel. Robert C. Ochs stated in an affidavit that he had evaluated the subject tire to determine why the tire failed.[5] Ochs averred as follows:
My initial evaluation of the tire reveals that the tire failed prematurely as a result of a defect in the tire. At this time I cannot state whether the defect is in the manufacture or design of the tire.
[Respondent has] requested that I work together with James E. Duddey, Ph.D. and Richard J. Smythe, Ph.D. to determine if the failure was the result of a manufacturing defect or a design defect. In order to perform the specific work requested by [Respondent] it will be necessary to compare the failed tire with its initial physical properties as designed by Bridgestone.
Because this failure involves a separation of the tread belt, it will be necessary to examine the skim compound formula to aid in determining the true nature of the defect. Once the skim compound used to manufacture the subject tire is analyzed, both for its intended physical properties and as compared to the central compound formula, I will then be able to render opinions on the true nature of the defect.
Respondent’s second expert, Dr. James Duddey inspected the failed tire and made the following observations in his affidavit:[6]
Examination of the tire demonstrates a premature failure caused by the separation of the steel belts. The tire shows evidence of surface cracking that could be caused by fatigue or premature rubber aging. The tire tread piece examined demonstrates a degree of hardness in the skim stock that may be related to either the initial physical properties of the rubber compound or premature aging.
Additionally, because Respondent’s counsel specifically requested that Duddey review the skim stock formula to determine whether a design defect existed in the subject tire, and whether changes made to the antidegradant package used in the skim stock formula affected the aging mechanical properties of the tire, Duddey stated that he needed “access to documents showing the initial physical properties of the rubber compound to determine whether there exists a plant specific manufacturing issue or an overall design issue.”
At his deposition, Duddey acknowledged that a number of factors, such as overload and underinflation, could cause belt separation in tires that were properly designed. Duddey also explained that there were multiple possible causes for the increased hardness found in the subject tire, including oxidative aging and heat exposure.
As to needing the skim stock formula in order to determine why the subject tire exhibited hardness, Duddey testified that “as a starter you need to know what the properties were as the tire was designed and manufactured and then you need to try to make some judgment as to if it’s significantly different than when it was manufactured, how it got to that point.” Duddey admitted, however, that both the hardness and the cracking found in the subject tire did not necessarily relate back to the formulation of the compound, but could also have been associated with how the tire had been used. Duddey explained that if Bridgestone provided the skim stock formula for the subject tire, ultimately all he could do was make a comparison as to “what is the general practice that is out there in the supplier literature and the technical literature.”
Respondent’s third expert, Dr. Richard Smythe, was hired to analyze certain materials within the tire deemed important by experts Ochs or Duddey.[7] Smythe indicated that he would design an analytical protocol in order to evaluate certain aspects of the skim stock formula and that if Ochs and Duddey determined that the subject tire did not exhibit the physical properties intended by its design, he would be able to assist in a root-cause analysis of why that tire failed. Smythe asserted that it was “absolutely necessary” that he know all of the ingredients in the rubber compound in order to render his expert opinion in the matter.
After considering the experts’ depositions and the parties’ supplemental briefs, the trial court issued an order compelling discovery and issued a restrictive protective order.[8] Specifically, the trial court found that Respondent had met the prerequisites for discovery of trade secret information under either Rule 26(c), SCRCP, or the South Carolina Trade Secrets Act, S .C. Code Ann. § 39-8-10 et seq. (Supp. 2007) (hereinafter “Trade Secrets Act”). The trial court concluded that Respondent’s experts had established the need for the skim stock formula, stating as follows:
[Respondent’s] claim [is] that the failed tire experienced a steel belt separation. It further appears it is the skim stock compound that is designed to provide adhesion between the steel belts and between surrounding components. As such, the composition of the ingredients, both actual and intended, and the method by which the rubber compound was made is relevant to the inquiry into why the subject tire failed. While it may be possible, it appears unlikely that [Respondent] could seriously pursue a design defect theory without access to the materials and methods used to manufacture the portion of the tire claimed to be responsible for the failure.
Bridgestone thereafter petitioned for certiorari review of the trial court’s order in this Court’s original jurisdiction. The Court granted the petition and Bridgestone raises the following issues for review:
| I. |
What is the appropriate standard for the discovery of trade secret information in a product liability action? |
| II. |
Did the trial court err in finding that Respondent established the requisite need for Bridgestone’s trade secret skim stock formula? |
STANDARD OF REVIEW
Ordinarily, an order compelling discovery is not directly appealable. Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974). Nevertheless, a writ of certiorari may be issued when exceptional circumstances exist. See In re Breast Implant Product Liability Litigation, 331 S.C. 540, 503 S.E.2d 445 (1998). The instant case presents such exceptional circumstances as it involves a novel question of law in a matter that has been the subject of numerous claims in state and federal courts. A decision by this Court at this time best serves the interests of judicial economy by eliminating the numerous inevitable appeals raising this novel issue of significant public interest. Id. n.2.
On certiorari, review by the Court is confined to the correction of errors of law. Berry v. Spigner, 226 S.C. 183, 84 S.E.2d 381 (1954).
LAW/ANALYSIS
We begin our analysis by putting the legal nature of a trade secret into context. As aptly described in a recent opinion by the Indiana Supreme Court:
Trade secrets are unique creatures of the law, not property in the ordinary sense, but historically receiving protection as such. Unlike other assets, the value of a trade secret hinges on its secrecy. As more people or organizations learn the secret, the value quickly diminishes. For this reason, owners or inventors go to great lengths to protect their trade secrets from dissemination.
The value of trade secret protection to a healthy economy has been widely accepted for some time. Over the last two hundred years, the law has developed mechanisms for accomplishing this end.
Bridgestone Am. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 192 (Ind. 2007) (footnote omitted).
However, it is also true that “trade secrets may be valuable during the course of litigation not involving misappropriation claims, and there are moments when justice requires disclosure.” Id. at 193. In spite of this acknowledgement of the potential value of trade secrets in litigation, the Mayberry court also cautioned that “courts must proceed with care when supervising the discovery of trade secrets, lest the judiciary be used to achieve misappropriation or mere leverage.” Id.
I. Standard for Discovery of Trade Secrets
The question of what standard governs the discovery of trade secret information is a novel issue in South Carolina. Under the Trade Secrets Act, a person “aggrieved by a misappropriation, wrongful disclosure, or wrongful use of his trade secrets may bring a civil action to recover damages incurred as a result of the wrongful acts.” S.C. Code Ann. § 39-8-30(C). The Trade Secrets Act addresses discovery matters and provides in pertinent part as follows:
(A) In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding hearings in-camera, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
(B) In any civil action where discovery is sought of information designated by its holder as a trade secret, before ordering discovery a court shall first determine whether there is a substantial need by the party seeking discovery for the information.
“Substantial need” as used in this section means:
(1) the allegations in the initial pleading setting forth the factual predicate for or against liability have been plead with particularity;
(2) the information sought is directly relevant to the allegations plead with particularity in the initial pleading;
(3) the information is such that the proponent of the discovery will be substantially prejudiced if not permitted access to the information; and
(4) a good faith basis exists for the belief that testimony based on or evidence deriving from the trade secret information will be admissible at trial.
S.C. Code Ann. § 39-8-60. Although Respondent suggests that the Trade Secrets Act only applies to those actions alleging trade secret misappropriation,[9] we find that the plain language of § 39-8-60(B) clearly indicates that trade secrets may be protected during discovery not only in misappropriation cases, but in “any civil action” where trade secrets are sought during discovery. See Key Corp. Capital, Inc. v. County of Beaufort, 373 S.C. 55, 59, 644 S.E.2d 675, 677 (2007) (noting that where a statute’s language is plain, unambiguous, and conveys a clear meaning, the court has no right to impose another meaning).
This is not to say, however, that the “substantial need” language of the Trade Secrets Act is the sole relevant inquiry in determining the standard governing trade secret information. As Respondent points out, the South Carolina Rules of Civil Procedure also provide for the protection of trade secret information when such information is sought during discovery. Specifically, Rule 26(c), SCRCP, allows for protective orders under certain circumstances as follows:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden by expense, including one or more of the following: . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.
In determining whether trade secret information is subject to a protective order under Rule 26(c)(7), federal and state courts typically apply a balancing test that incorporates a “relevant and necessary” standard for the party seeking to discover the trade secret information.[10] See generally 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2043 (2d ed. 1994) (hereinafter “Wright & Miller”); James J. Watson, Annotation, Discovery of Trade Secret in State Court Action, 75 A.L.R.4th 1009, 1028-30 (1990). The test is a three-part inquiry:
| 1. |
The party opposing discovery must show that the information sought is a trade secret and that disclosure would be harmful. |
| 2. |
If trade secret status is established, the burden shifts to the party seeking discovery to show that the information is relevant and necessary to bring the matter to trial. |
| 3. |
If both parties satisfy their burden, the court must weigh the potential harm of disclosure against the need for the information in reaching a decision. |
See also Mayberry, 878 N.E.2d at 193; Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 292-93 (D. Del. 1985).[11]
We disagree with Respondent’s argument that our determination that the Trade Secrets Act applies to any civil action impermissibly supplants a rule of civil procedure. See Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97 (2006) (rejecting an interpretation of a statute which would have contravened a rule of evidence). Unlike the statute at issue in Baggerly, § 39-8-60 does not improperly limit the operation of Rule 26, but rather is consistent with Rule 26 in that both provide for reasonable restrictions on the discovery of trade secrets. The Trade Secrets Act therefore does not supplant, but rather complements, Rule 26(c), SCRCP. Cf. Mayberry, 878 N.E.2d at 194 (finding that the application of Rule 26 to trade secrets “should be informed by Indiana’s enactment of the Uniform Trade Secrets Act”).
To this end, we hold that the balancing test associated with the discovery of trade secret information under Rule 26(c), SCRCP, governs the discovery of trade secret information in this matter. Regarding the requirement that the trade secret information must be “relevant,” we hold that the information must be relevant not only to the general subject matter of the litigation, but also relevant specifically to the issues involved in the litigation. See Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1185 (D.S.C. 1974). For the trade secret information to be deemed “necessary,” we hold that the party seeking the information “cannot merely assert unfairness but must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat.” In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 733 (Tex. 2003); accord Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d 709, 713 (Cal. Ct. App. 1992) (holding that a party seeking discovery must make a “particularized showing” that “the information sought is essential to a fair resolution of the lawsuit”). “Implicit in this is the notion that suitable substitutes must be completely lacking.” Mayberry, 878 N.E.2d at 196. In other words, the trial court must evaluate whether there are reasonable alternatives available to the party seeking the discovery of the information, and ultimately, the trial court must require the discovery of a trade secret only when “the issues cannot be fairly adjudicated unless the information is available.” Wright & Miller, § 2043.
From here, we turn to an analysis of the second issue on appeal in order to determine whether Respondent meets the “relevant and necessary” standard of proof for discovery of a trade secret.
II. Application of the standard to Respondent’s request for Bridgestone’s skim stock formula
Bridgestone argues that the trial court erred in finding that discovery of the skim stock formula was necessary to Respondent’s case. Specifically, Bridgestone contends that: (1) the expert testimony does not establish that if the experts were provided the skim stock formula and related manufacturing information, they would necessarily be able to opine on a defect; and (2) other methods, such as testing the tire itself, are available to Respondent. We agree.
In our view, Respondent’s experts’ reasons for opining that the formula was necessary for their analyses do not rise to the level of specificity required for discovery of trade secrets. For example, expert Smythe did not elaborate on why it was “absolutely necessary” that he know the skim stock formula in order to render his expert opinion in the matter. Furthermore, although expert Ochs concluded in his affidavit that it was necessary to compare the failed tire with its initial physical properties because the tire’s failure involved a separation of the tread belt, Ochs never explained how the occurrence of a tread belt separation should result in the automatic conclusion that the belt separation was related to the initial physical properties of the tire requiring disclosure of the skim stock formula. Given Queiser’s and Duddey’s testimony on the many potential causes of tread belt separation related to the usage of the tire rather than its initial physical properties, we find that Ochs’s testimony lacks the precision required for Respondent to show that disclosure of Bridgestone’s skim stock formula is necessary to this case. See also Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 716 (finding that the tire expert did not “describe with any precision how or why the formulas were a predicate to his ability to reach conclusions in the case”).
Expert Duddey’s reasoning for acquiring the formula was similarly vague. In his affidavit, Duddey initially attributed the apparent surface cracking on the subject tire to either “fatigue or premature rubber aging,” and the degree of hardness in the skim stock to “either the initial physical properties of the rubber compound or premature aging.” When later asked at deposition to elaborate on the need for the skim stock formula, Duddey responded that “as a starter you need to know what the properties were as the tire was designed and manufactured and then you need to try to make some judgment as to if it’s significantly different than when it was manufactured, how it got to that point.” Duddey provided no indication in his response at deposition that he had examined and subsequently discarded the alternative theories propounded in his affidavit for the tire’s failure. For this reason, we find that this testimony fails to adequately articulate how disclosure of the skim stock formula is critical to the analysis in this case.
We find also find no evidence that the skim stock formula is essential to a defect inquiry. Bridgestone’s expert Queiser clearly indicated that because a tire is a complex object made up of many compounds, it would be inaccurate to gauge the performance of a particular tire by focusing on one isolated component or compound. Queiser also noted how properties of the skim rubber compounds change as the tire ages. Respondent’s experts, however, focused solely on the tire’s initial properties without addressing Queiser’s assertions regarding the interaction of compounds in the tire during the curing process and throughout the tire’s lifetime. In this way, we find Respondent’s experts failed to provide a sufficiently complete argument as to why the skim stock formula was necessary to their analyses of this case.
Furthermore, the experts’ testimony provides no detailed indication as to how the case is incapable of being fairly adjudicated without the trade secret information. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 733 (holding that the party seeking trade secret information cannot simply claim unfairness but must show “with specificity how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat”). While we recognize the logic in Respondent’s theory that in order to prove a tire design or manufacturing defect, it would be useful to have knowledge of the original recipe and whatever manufacturing deviations were made from that recipe, we reiterate that the standard for discovery of trade secret information is “necessary,” not “useful.” See Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 715 (finding that “it is not enough that a trade secret might be useful” to the party seeking discovery).
Additionally, we find that the trial court failed to analyze the availability of reasonable alternatives to the discovery of the trade secret. Specifically, a chemical analysis necessitating the discovery of Bridgestone’s skim stock formula is not the sole, or even the best, way to test for defects. We find an October 2001 report issued by the National Highway Traffic Safety Administration (NHTSA) particularly instructive to the Court in this regard.[12] The stated purpose of the federal investigation documented in this report was to determine whether Firestone’s August 2000 recall of Wilderness AT tires was adequate in scope. The report focused on non-recalled tires that were manufactured primarily as original equipment for Ford Explorers, yet were similar to the tires recalled by Firestone in 2000. The study used peer tires, mostly Goodyear Wrangler tires, in order to compare performance results to the Wilderness AT tires being evaluated.
The methods of the federal recall investigation, employed on both Firestone tires and the peer tires, included “thorough analyses of available data regarding the performance of tires in the field; shearography analysis to evaluate crack initiation and growth patterns and their severity in tires obtained from areas of the country where most of the failures have occurred; and observations, physical measurements, and chemical analyses.” NHTSA Report at iii. Additionally, the NHTSA conducted belt peel adhesion testing, a physical test on one-inch wide samples of tire tread which are essentially pulled by a tensile test machine “to measure the force required to ‘peel’ the two belts apart.” Id. The report explained the purpose of this test as follows:
[T]he properties of the belt wedge and skim rubber compounds change as the tire ages. These changes reduce the compounds’ resistance to fatigue crack growth and catastrophic failure. One measure of the degradation of the belt rubber is the peel adhesion test. This test is most directly related to the belt rubber’s resistance to a final, catastrophic belt-leaving-belt failure.
Id. The report specifically noted there was “no evidence of a belt wire-to-rubber adhesion issue.” Id. at 23 n.38.
The NHTSA concluded that a safety-related defect existed in Firestone Wilderness AT P235/75R15 and P255/75R16 tires manufactured prior to May 1998 at specified manufacturing facilities. One of the primary findings was that the design of the shoulder pocket of the tires could “cause high stresses at the belt edge and lead to a narrowing of the wedge gauge at the pocket,” indicated by “a series of weak spots around the tire’s circumference, leading to the initiation and growth of cracks” in the tires. Id. at 30.
We find it significant that the NHTSA, without focusing on the skim stock formula, conducted physical testing of the tires and ultimately arrived at a scientifically-supported conclusion that there was a design defect which caused belt separation. This reliance on a structural analysis to determine defect, rather than a chemical analysis, provides tangible proof that other adequate means of testing for defects are available to Respondent and that therefore, Respondent’s case will not be substantially impaired if he is denied access to the trade secret information. We note that other jurisdictions have similarly recognized that physically testing the tire itself for defects, including testing at a molecular level if necessary, may be a suitable substitute for testing based on the skim stock formula. See Mayberry, 878 N.E.2d at 196 (noting that testimony revealed that an inspection of the failed tire appears to be “more than an adequate substitute for examining the skim stock formula”); In re Bridgestone/Firestone, Inc., 106 S.W.3d at 733 (finding that because a tire’s physical properties can be tested without knowing the recipe for the skim stock compound, tests on a finished tire are “more probative of defect than its skim stock formula would be”).
Further, the discovery already available to Respondent for analysis of the alleged defect includes information about development, design review, and testing of tires manufactured with the same specifications as the tire in this case. Bridgestone has also produced or agreed to produce analysis reports of inner liner problems with similar tires, reports from cut tire analysis done at the Hofu plant, and records and depositions from similar cases involving Bridgestone tires. The variety of information these documents encompass provides Respondent with “suitable substitutes” for analysis of the skim stock formula itself. Mayberry, 878 N.E.2d at 196. Thus, particularly in light of the discovery obtainable in this case, Respondent has not shown that the case is incapable of being fairly adjudicated without the trade secret information.
For these reasons, we hold that under the proper standard governing the discovery of trade secrets, knowledge of Bridgestone’s skim stock formula is not “necessary” in order for Respondent to litigate the instant product liability action.[13] Accordingly, we hold that the trial court erred in finding that Respondent was entitled to discovery of Bridgestone’s trade secret information.
We note that Bridgestone should not use our holding in this matter at trial to suggest weaknesses in Respondent’s case due to his experts’ ignorance about the formula. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 734 (recognizing that it would be unfair for the manufacturer to argue the plaintiff’s case was impaired due to lack of evidence that the manufacturer withheld);Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 716 n.8 (noting that it would be unfair for the manufacturer to challenge an expert at trial about his knowledge of the skim stock formula). Indeed, if at any time during the litigation, Respondent can satisfy his burden of showing necessity, this matter could be revisited. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 734 (finding that while the mere possibility of unfairness is not enough to warrant disclosure of the information, this issue can be addressed should it materialize).
CONCLUSION
For the foregoing reasons, we hold that Respondent failed meet the standard for the discovery of Bridgestone’s trade secret information, and therefore, we reverse the decision of the trial court compelling the disclosure of Bridgestone’s trade secret.
BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent, and would affirm the circuit court’s order compelling petitioner to disclose the skim stock formula. Since this order is before us on a common law writ of certiorari, we may reverse the trial court’s decision only if it is affected by an error of law. Berry v. Spigner, 226 S.C. 183, 84 S.E.2d 381 (1954). We cannot consider the facts, “except to ascertain whether the order is wholly unsupported by the evidence.” Id. Since I find evidence in the record, particularly the affidavit of Dr. Duddey, which supports the circuit court’s order, I would affirm.
In my opinion, the majority reverses not because there is no evidence, nor because the circuit court committed an error of law, but because, in the majority’s view, the petitioners’ experts were more persuasive than those of respondent. For example, the majority states respondent’s experts did not address Queiser’s assertion that a tire’s performance is not dependent on its initial composition. Dr. Duddey, however, acknowledged that post-manufacturing factors could explain the tire’s failure, but also maintained that he needed the formula in order to determine whether a design defect, perhaps in the antidegradant package component of the formula, contributed to its failure. In my view, whether this was sufficiently specific is a judgment call for the trial judge.
Moreover, the majority opines that “a chemical analysis necessitating the discovery of Bridgestone’s skim stock formula is not the sole, or even the best, means to test for defect” and holds there is “no evidence that the skim stock formula is essential to a defect inquiry.” It is not respondent’s burden under either the Trade Secrets Act or Rule 26 (c) (7), SCRCP to demonstrate that knowledge of the trade secret is the “best” or “sole” way for it to proceed, nor that it is “essential,” but rather that it has a “substantial need”[14]for this “relevant and necessary”[15] information. Applying our limited scope of review on certiorari[16] to the order before us, I would hold there is evidence to support the trial judge’s findings that respondent has met his burden.
I would affirm.
[1] The subject tire is a P235/75R15 Radial ATX steel belted radial passenger tire and was designed for use as a replacement tire. At the time of the accident, the subject tire was being used as a spare and was the only Bridgestone tire on the Explorer; Michelen manufactured the other three tires.
[2] According to Bridgestone’s expert witness, steel belt skim stock is “a specifically formulated rubber compound calendered onto the steel cord to form the steel belts in a steel belted radial passenger or light truck tire,” which is “formulated to provide, among other things, adhesion between the rubber and steel cord, and between the belts and surrounding components.” The formula of a rubber compound such as the steel belt skim stock “typically contains the chemicals or ingredients used in the compound; the quantities or relative percentages of those ingredients; and the manner in which those ingredients are processed to form the compound and give it the desired physical properties after it is vulcanized, or cured.”
[3] Respondent has not disputed that the skim stock formula is a trade secret. Under South Carolina law, a trade secret is defined as information, including a formula or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by the public or any other person who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
S.C. Code Ann. § 39-8-20(5)(a) (Supp. 2007).
[4] Queiser, an employee of Bridgestone/Firestone, Inc. since 1994, holds a bachelor’s degree in aeronautical and astronautical engineering as well as a master’s degree in engineering mechanics. He stated that he has “personally developed steel belted radial tires from concept through . . . production” and that his experience included analysis of tire failure.
[5] Ochs holds a bachelor’s degree and a master’s degree in mechanical engineering. Michelin employed Ochs from 1969-1994, during which time his work included analysis of failed passenger and light truck tires.
[6] Duddey holds a Ph.D. in physical organic chemistry and worked for Goodyear Tire and Rubber Company for thirty-two years.
[7] Smythe, an analytical chemist, has been exposed to at least one proprietary skim stock formula and has performed work on rubber compounds to determine why they failed. Smythe is not a tire engineer and does not claim to have expertise in tire design or manufacturing.
[8] The trial court found that a protective order could be fashioned to protect the trade secret status of the information, but “[b]ecause the parties are in a better position to narrow the issues on the terms of a protective order,” the trial court instructed the parties to collaborate on the specific terms of the protective order. There is no protective order in the record presumably because Bridgestone filed its petition for a writ of certiorari less than a month after the trial court’s order.
[9] In support of his position, Respondent asserts Griego v. Ford Motor Co., 19 F.Supp.2d 531, 533 (D.S.C. 1998), in which the federal district court held that the Trade Secrets Act does not apply to a product liability action because it “is not based on misappropriation of a trade secret or protection against such a misappropriation.” We decline to adopt the reasoning set forth inGriego and note that a federal court decision interpreting state law is not binding on this Court. Blyth v. Marcus, 335 S.C. 363, 517 S.E.2d 433 (1999).
[10] The language of Rule 26(c), SCRCP, mirrors that of federal Rule 26(c). Because there is no South Carolina precedent construing this rule, federal interpretation of Rule 26(c) is persuasive authority. See State v. Colf, 332 S.C. 313, 317, 504 S.E.2d 360, 361 (Ct. App. 1998).
[11] Likewise, in jurisdictions where trade secrets are protected by a codified evidentiary privilege, the courts apply a similar balancing test. See, e.g., In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609 (Tex. 1998); Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d 709 (Cal. Ct. App. 1992).
[12] See U.S. Dep’t of Trans., NHTSA, Office of Defects Investigation, Engineering Analysis Report and Initial Decision Regarding EA00-023 Firestone Wilderness AT Tires (October 2001) (hereinafter “NHTSA Report”).
[13] Contrary to the dissent’s assertion, we do not reverse the trial court’s order compelling discovery based on our view of the experts’ testimonies. Rather, we reverse because Respondent failed as a matter of law to meet the applicable standard governing the discovery of trade secrets.
[14] S.C. Code Ann. § 39-8-60 (B).
[15] Rule 26 (c)(7), SCRCP.
[16] Compare Bridgestone Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189 (Ind. 2007); In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003) citing In re Continental Tire, Inc., 979 S.W. 2d 609, (Tex. 1998), relied upon by the majority, both of which came before the reviewing courts under the more liberal “abuse of discretion” standard of review.
Apr 1, 2012 | Criminal Defense, Uncategorized
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
Osiel Gomez Narciso, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Beaufort County
J. Cordell Maddox, Jr., Circuit Court Judge
Opinion No. 27104
Heard January 25, 2012 – Filed March 14, 2012
AFFIRMED IN PART, REMANDED IN PART
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Oseil Gomez Narciso (Petitioner) appeals his conviction for trafficking cocaine, and asserts that the circuit court erred in denying his motion to suppress drug evidence seized by police during a routine traffic stop. Following his conviction, Petitioner signed a Consent Order Granting Belated Direct Appeal (Consent Order) and waived his right to raise any other post-conviction relief (PCR) allegations. Petitioner requests this Court remand his case to determine whether that waiver was entered into knowingly and voluntarily. We affirm the circuit court’s order denying Petitioner’s motion to suppress, and remand the case for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
FACTUAL/PROCEDURAL BACKGROUND
On August 3, 2005, the Beaufort County Sherriff’s Office (BCSO) conducted a drug investigation focusing on Petitioner. Police believed that Petitioner may have been involved in the sale and distribution of cocaine in the Hilton Head/Bluffton area of Beaufort County. A sheriff’s deputy received information that Petitioner might be operating a vehicle in the area with expired license plates and possibly no driver’s license. The deputy conducted a traffic stop of Petitioner after confirming that his license plates were indeed expired and suspended. A “back-up officer,” arrived on scene shortly thereafter. Police placed Petitioner under arrest for operating the vehicle without a driver’s license and removed him from the vehicle. Police then conducted a “K-9” search of the vehicle. The narcotics-detection dog used in the search alerted on drug residue on the vehicle, and police conducted a search of the cargo compartment. Police seized powdered cocaine from the vehicle, and charged Petitioner with knowingly and intentionally possessing a quantity of powder cocaine with a weight in excess of one hundred grams.
The Beaufort County Grand Jury indicted Petitioner for trafficking cocaine in excess of one hundred grams, and Petitioner proceeded to trial. The jury found Petitioner guilty as indicted. The circuit court sentenced Petitioner to twenty-five years imprisonment. Petitioner did not appeal his conviction or sentence, but subsequently filed a PCR application.
Petitioner claimed in his PCR application that his trial attorney failed to file a timely notice of appeal even after assuring Petitioner that he “had multiple grounds for appeal,” and that he “would almost certainly be successful in overturning the convictions at the appellate level.” According to the Consent Order, Petitioner’s trial counsel admitted that he failed to file an appeal even though Petitioner requested one be filed. Thus, the State consented to granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974)[1]. In the same Consent Order, Petitioner “waived his right to raise any other PCR allegations.”
In a petition for writ of certiorari to this Court, Petitioner asserted that the PCR judge properly found that he did not waive his right to a direct appeal, and requested this Court remand his case to determine whether his waiver of any other PCR allegations was entered into knowingly or voluntarily. This Court granted the petition for writ of certiorari as to whether Petitioner knowingly and voluntarily waived his right to direct appeal, dispensed with further briefing on that question, and elected to proceed with further review of the direct appeal issue—the validity of the stop and search. Additionally, this Court granted review of whether Petitioner’s waiver of any other PCR allegations was entered into knowingly and voluntarily.
ISSUES PRESENTED
| Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop. |
| Whether Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily. |
STANDARD OF REVIEW
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (citation omitted). However, this Court is not barred from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence. Id.
On certiorari in a PCR action, the Court applies the “any evidence” standard. Accordingly, this Court will affirm if any evidence of probative value in the record exists to support the findings of the PCR court. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citation omitted).
LAW/ANALYSIS
I. Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop.
Petitioner argues that the facts presented by police to the circuit court did not rise to the level of “reasonable suspicion,” and that he was “unreasonably seized.” Thus, according to Petitioner, his Fourth Amendment rights were violated, and this Court should reverse his conviction. We agree with Petitioner that the search incident to arrest in this case violated his Fourth Amendment rights. However, for reasons explained below, the exclusion remedy is unavailable to Petitioner, and thus his conviction will stand.
In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court initially explained the constitutionally permissible scope of a search incident to arrest. In that case, police ordered the driver of a speeding vehicle to pull over to the side of the road and stop. Id. at 455. The policeman asked to see the driver’s license and automobile registration and simultaneously smelled burnt marijuana. Id. at 455–56. The officer directed the occupants out of the car and conducted a pat down of the four men. Id. at 456. The officer then conducted a search of the passenger compartment of the car, including a black leather jacket belonging to Belton. Id. He unzipped one of the pockets of the jacket and discovered cocaine. Id.
Belton argued that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. Belton, 453 U.S. at 456–57. The Court stressed the need to provide a “workable rule,” and held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, “he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459–60. The Court reasoned that the police should also be allowed to examine the contents of any containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id. at 460–61 (citations omitted).
In the instant case, the police stopped Petitioner as part of an ongoing drug investigation, but primarily because the license tags on his automobile were expired. The police officer asked Petitioner for his driver’s license, and verified that Petitioner did not possess a valid driver’s license. Thus, he arrested Petitioner, and police searched Petitioner’s vehicle incident to that arrest.
Petitioner challenged the search at trial. The circuit court judge initially expressed concern at the vehicle search following a mere traffic stop, but denied Petitioner’s motion to suppress:
It concerns me that the law enforcement in this case would risk this investigation by making a search under these circumstances without obtaining a search warrant. It would have been a very easy thing to do. There was just no reason that it needed to be done the way that they did it . . . . But after looking especially at the case of New York v. Belton, 433 U.S. 454, is [sic] the only thing that tips the scales in the State’s favor in this case; and that is that a search may be made incident to an arrest of the passenger compartment of the vehicle, including containers located in the passenger compartment where the search incident to arrest even if the detainee has been arrested and removed from the vehicle.
Petitioner’s trial took place in 2007, two years prior to the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the United States Supreme Court limited the expansive searches allowed by Belton. The Court noted that Beltonhad been widely understood to “allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at 1718. The Court found this reading incompatible with its previous decisions regarding the basic scope of searches incident to lawful custodial arrests. Id. at 1719 (citation omitted). Therefore the Court held that police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Id. (citing Thornton v. United States, 541 U.S. 615, 624–25 (2004)).
Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, “pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner’s conviction has not yet become final on direct review. Thus, Gant applies retroactively to this case, and Petitioner may invoke its rule of substantive Fourth Amendment law as a basis for seeking relief. However, our analysis of the instant case is further controlled by the United States Supreme Court’s decision in Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis, the defendant was charged and convicted of unlawful possession of a firearm based on discovery of a revolver in a stopped automobile in which he was the only passenger. Id. at 2425–26. During the pendency of Davis’s appeal, the United States Supreme Court decided Gant. The Eleventh Circuit applied Gant‘s new rule and held that the vehicle search incident to arrest violated Davis’s Fourth Amendment rights. Id. at 2426 (citation omitted). However, the court concluded that penalizing the arresting officer for following binding appellate court precedent would do nothing to deter Fourth Amendment violations. Id. (citingUnited States v. Davis, 598 F.3d 1259, 1265–66 (2010)).
The United States Supreme Court agreed, and reasoned that the acknowledged absence of police culpability doomed Davis’s claim. Id. at 2428. “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful deterrence’ and culpable enough to be ‘worth the price paid by the justice system.'” Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)). Excluding evidence in cases where the “constable” has scrupulously adhered to governing law deters no police conduct and imposes substantial social costs. Davis, 131 S.Ct. at 2434. Thus, the Court held that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Id.
In the instant case, the search incident to arrest violated Petitioner’s Fourth Amendment rights pursuant to Gant. However, excluding the evidence against Petitioner would not deter police misconduct because the police in this instance conducted a search incident to arrest pursuant to binding appellate precedent. See id. at 2426–28. Moreover, exclusion of the evidence in this case would result in severe social costs, including the articulation of an inexplicable and undecipherable message to law enforcement regarding how to conduct a legal search. The protection of the Fourth Amendment can only be realized if the police are acting under a set of rules which make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974).
This Court will only reverse the circuit court’s decision on a motion to suppress when there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010). The circuit court in this case applied the established law to a search executed pursuant to binding precedent. Thus, Davis v. United States, and our own standard of review, commands that the circuit court’s decision be affirmed.[2]
II. Whether the Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily.
Petitioner signed a consent order granting belated direct appeal and waived his right to raise any other PCR allegations. He now asks this court to remand his case for a determination as to whether he knowingly and voluntarily waived his right to raise additional PCR claims.
In order to determine whether a waiver is effective, the court examines the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Spoone v. State, 379 S.C. 138, 143, 665 S.E.2d 605, 607 (2008) (citing United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)). Numerous jurisdictions have upheld waivers of post-conviction relief, provided they were knowing and voluntary. Id. at 143, 665 S.E.2d at 607. A defendant’s knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant’s counsel, or both. Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001).
In Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), this Court addressed whether a PCR court erred in enforcing a written plea agreement wherein the petitioner waived his right to direct appeal, PCR, and habeas corpus relief. The petitioner argued that his waiver was not knowing and intelligent because there was no discussion at the plea proceeding about the extent of his understanding of the waiver. Id. at 141, 665 S.E.2d at 607.
The Court took into account that although petitioner had only a ninth grade education, the text of the written plea agreement was straightforward. Id. at 143–44, 665 S.E.2d at 608. In addition, the plea colloquy showed that the PCR court specifically asked petitioner about the waiver both in the language of the plea agreement, and in “plain language.” Id. Two attorneys accompanied petitioner to the plea hearing and both signed the written plea agreement along with petitioner. Id. Thus, this Court held that the PCR court correctly enforced the waiver and dismissed petitioner’s PCR application. Id.
In this case, according to the Consent Order, Petitioner appeared before the PCR court on August 26, 2008. The Consent Order states that Petitioner waived his right to raise any other PCR allegations, but was “granted a belated direct appeal pursuant to White v. State.” The record before this Court of the colloquy between the parties consists of the following:
The court: What’s the—what we got this morning?
Mr. Friedman: Your Honor, the first one is Osiel Gomez Narcisco [sic].
The court: All right.
Mr. Friedman: May we approach on this one?
The court: Yeah
(Bench conference)
Mr. Friedman: Thank you, Your Honor.
The court: Okay. Appreciate it. Thank you.
The Consent Order signed by Petitioner is straightforward. However, Petitioner used an English-speaking interpreter throughout his original trial, and apparently has, at best, a limited command of the English language. The colloquy provided to this Court does not show that the PCR court specifically asked Petitioner about the waiver, either in the language of the Consent Order, or in “plain language.”
The State argues that Petitioner’s case is distinguishable from Spoone because in that case the issue was “whether the right to appellate review and post-conviction review may be waived by a written plea agreement . . . ,” and that “[Petitioner] proceeded to trial and was convicted.” This is a distinction without a difference. The key issue in Spoone and in Petitioner’s case is the circumstances surrounding the waiver of the right to appeal PCR allegations. Aside from the consent agreement, the record in this case does not support the conclusion that Petitioner entered into the agreement knowingly and voluntarily. Additionally, the colloquy between the court and the defendant in this case does not clearly establish that Petitioner knowingly and voluntarily waived his right to raise any other PCR allegations. This Court will affirm the PCR court’s findings if any evidence of probative value exists in the record. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011). However, finding that no such evidence exists in the instant case, we must remand for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
CONCLUSION
We affirm the circuit court’s denial of Petitioner’s motion to suppress. However, the record does not adequately demonstrate whether Petitioner’s waiver was in accordance with this Court’s waiver jurisprudence. Thus, we remand the case for a determination on that issue.
AFFIRMED IN PART, REMANDED IN PART.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] In White v. State, 263 S.C. 110, 113, 208 S.E.2d 35, 36 (1974), the defendant was convicted of burglary and sentenced to twenty years imprisonment. The defendant did not appeal his conviction or sentence, but subsequently filed a petition for PCR and a circuit court denied that relief in a full evidentiary hearing. Id. The defendant argued on appeal that the PCR judge should have ordered a new trial because the defendant did not knowingly and intelligently waive the right to appeal from his conviction and sentence. Id. at 117, 208 S.E.2d at 39. The defendant’s trial counsel testified at the PCR hearing that he did not advise the defendant of his right to appeal because he was certain the defendant knew of his rights due to his prior criminal record. Id. The PCR judge found that the defendant did not knowingly and intelligently waive his right to appeal, and directed defendant’s new counsel to secure a belated appeal to this Court from his conviction and sentence. Id. at 118, 208 S.E.2d at 39. This Court found that with regard to this belated appeal, no notice of appeal had been filed, and thus the Court had no jurisdiction over such an appeal. Id. at 119, 208 S.E.2d at 39. However, the Court reviewed the record in connection with the properly presented PCR appeal and ruled that “there was no reversible error in the trial and that there was not an arguably meritorious ground of appeal, even if notice of intention to appeal had been timely served . . . .” White, 263 S.C. at 119, 208 S.E.2d at 40.
[2] Respondent argues that due to Gant, the “search-incident-to-arrest logic is no longer appropriate grounds for denying the suppression motion,” and urged this Court to find the search was justified under the automobile exception. However, the decision in Davis being dispositive, this Court need not reach the automobile exception, or any other grounds, for upholding the search. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1998) (holding that appellate courts need not discuss remaining issues when determination of a prior issue is dispositive).
