Last week, on the same day that I wrote about whether corporate profits and trade secrets are more important than a defendant’s constitutional rights, the SC Supreme Court may have answered the question for us…

In Hartsock v. Goodyear, the SC Supreme Court answered a certified question from the Fourth Circuit Court of Appeals – “Does South Carolina recognize an evidentiary privilege for trade secrets?”

Their answer is that there is a qualified trade secrets privilege in SC. The SC Rules of Evidence, however, provide an exception for any privilege when the privilege would conflict with a constitutional right…

SC has a Qualified Trade Secrets Privilege

In the Hartsock case, the plaintiff sued Goodyear when a tire blowout caused a car to cross the center median and hit her car head-on, killing her. The personal representative for her estate brought the wrongful death action against Goodyear, alleging that the defective tire was the cause of the car wreck and death.  

As part of the evidence that they need to prove their claim, they asked the court to force Goodyear to turn over information on the chemical composition of their tires. Goodyear refused, claiming that the chemical composition of their tires is a trade secret that is privileged and therefore they do not have to produce the information.

The SC Supreme Court held that SC does recognize a trade secrets privilege, but it is a qualified privilege – if the plaintiff can demonstrate a “substantial need” for the information, the court should force the defendant to disclose the chemical composition of their tires.

But, is There a Qualified Trade Secrets Privilege in SC Criminal Cases?

What happens if a DNA analysis company or breathalyzer manufacturer refuses to turn over the source code or other information about tests that are being used in a SC criminal case? Can they refuse based on SC’s trade secrets privilege?

I don’t think so.

First, there is almost always going to be a substantial need for the information – the defendant must have full disclosure of the State’s methodology when they are using the results of scientific tests to put a person in prison, and they cannot obtain the information from any other source.

But, I don’t think it is even necessary to engage in the “substantial need” analysis in a criminal case in SC.

Rule 501 of SC’s Rules of Evidence states:

Except as required by the Constitution of South Carolina, by the Constitution of the United States or by South Carolina statute, the privilege of a witness, person or government shall be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. (emphasis added)

Under the state and federal constitutions, at a minimum, due process and the right to confront the witnesses against you requires that the state produce the methodology of scientific tests that are being used as evidence against you – there is almost always going to be a substantial need for the information, but disclosure is also compelled by constitutional provisions, which means that the privilege does not apply under SC’s Rules of Evidence.

SC Criminal Defense Attorneys in Myrtle Beach, Conway, Charleston, and Columbia

Corporate profits do not take precedence over constitutional rights. When you are charged with a crime, your criminal defense attorney at Coastal Law will get and analyze the evidence that the state intends to use against you, and we will not allow corporations to claim that their profits are more important than your freedom.

If you have been charged with a crime in SC, call Coastal Law now at (843) 488-5000 or fill out our online form to set up a free consultation about your case.

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