A federal court in the Northern District of Mississippi has allowed a plaintiff in an employment law dispute to conduct an on-site inspection for purposes of videotaping the machine which he formerly operated in Morton v. Cooper Tire & Rubber Co., (N.D. Miss. Dec. 10, 2012). Morton, an amputee with a prosthetic leg, asserted that he was denied a reasonable accommodation a claim under the Americans with Disabilities Act and then constructively discharged. Morton asserted he could do the job if allowed a couple of ten-minute breaks to adjust his prosthetic leg during his 12 hour shift. Cooper Tire countered that Morton had requested several 30 minute breaks, which it claimed was not a reasonable accommodation, and that Morton was unable to perform the essential functions of the job.
In discovery, Morton requested an inspection of the Tupelo, Mississippi plant to photograph and videotape the machine he had worked on while it was being operated by another employee, to show the physical demands of operating the machine. Cooper Tire objected and sought a protective order, asserting that trade secrets would be revealed and that the requested discovery had little to no relevance to the case. Morton responded with a motion to compel. Although it directed the parties to enter into an appropriate protective order, the court generally rejected Cooper Tire’s contentions, holding that testimony would not be a reasonable substitute for the inspection and that the videotaping and photography which Morton sought was necessary to show he was able to perform his essential job functions. The court noted that the machine would not be modified during the inspection and that Morton was not seeking information about other machines and processes beyond the one that he worked on. The court also noted that Morton had signed a confidentiality agreement when he started working for Cooper Tire, whereby he agreed not to disclose information about the company during and after employment. This, coupled with the protective order limiting disclosure only as necessary for the lawsuit, was determined to adequately address Cooper Tire’s trade secret concerns. In allowing the limited inspection, the court expressly noted that “[t]his is not a suit by a competitor who might have ulterior motives for seeking discovery,” suggesting that the result might differ depending upon the type of case.
The decision highlights the types of concerns about trade secrets that can come into play during run-of-the mill employment litigation. Employers and their attorneys should take care to protect trade secrets and confidential information by, among other things, using existing non-disclosure agreements to which former employees agreed to be bound and seeking protective orders to ensure that such information will be utilized only for purposes of the litigation at hand.