In 2010, Toyota issued recalls on over eight million vehicles because of faulty acceleration. Assume that the National Highway Traffic Safety Administration (NHTSA) requests that Toyota allow the government access to the data in black boxes on the recalled cars. The black boxes are operated by proprietary software and can only be accessed with special codes by Toyota. Assume further that Toyota refuses to provide the Black Box data to the government, claiming that it would reveal its trade secrets. How should courts approach what I coin these refusal-to-submit cases? There is a void in the literature and the case law on appropriate theoretical and doctrinal approaches for the special circumstances created by these cases. The Article is the first to identify this gap in the law and to examine the problem from the lens of trade secret law with an eye toward developing a more principled approach to resolving these cases. I examine cases that address, in other contexts, when one party can be ordered to produce its trade secrets to another. Lessons from these cases ultimately help frame the proposed “shield or disclose” model. Moreover, in the process of deriving guidance for the creation of the shield or disclose model, the Article makes a further contribution by analyzing the varied and obscure patchwork of agency rules, to succinctly identify themes and approaches relevant to the refusal-to-submit problem.
Elizabeth A. Rowe, Striking a Balance: When Should Trade-Secret Law Shield Disclosures to the Government?, 96 Iowa L. Rev. 791 (2011), available at http://scholarship.law.ufl.edu/facultypub/226