The Texas Supreme Court has held that a railroad’s hazardous materials shipping rates are trade secrets. In re Union Pac. R.R. Co., No. 08-0740, 2009 Tex. LEXIS 725 (Sept. 25, 2009). Because the plaintiff had not shown “why she needs the specific rate structures” to make her argument, the high court vacated the trial court’s deposition order that could have revealed the rates. Plaintiff was attempting to use the information in her argument that Union Pacific knew it had a higher duty when dealing with hazardous materials, but disregarded it. The high court held, “a party . . . must demonstrate with specificity exactly how the lack of the [trade secret] 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.”
This toxic tort case resulted from the 2004 collision, derailment and fire of a Union Pacific train transporting chlorine gas in Bexar County, Texas. Plaintiffs claim that the chlorine gas car should have been located at the rear of the train away from steel cars. Defendants testified that hazardous materials would not be treated differently except that they could not be placed within five cars of the engine.
Texas has adopted the Restatement of Torts § 757 to use in determining whether a trade secret exists. The Restatement factors are: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
The opinion issued per curiam.
