trade secrets act and its claim for conversion under louisiana law brand seeks to have both of those rulings reversed and remanded to the trial court and the only issue concerning the trade secrets claim is whether brand was able to establish a fact issue concerning the element of damages iraq has not sought and below did not seek a ruling about whether the items that issued the property in the information protective order in pennsylvania that have not been produced in the texas case that you believe would in fact show the amount of damages that there have been documents produced that that show else i'm not interested i'm interested in whether there are pennsylvania confidential documents that you're aware that if produced in texas or allowed to be used in the texas case would in fact reap a different result many of the actual documents i have not seen documents that that that that you could determine a sum certain that you know this is the amount of overhead that we had in preparing invoices before the creation of this application based on brand's trade secrets versus after that i have not seen that but does the information from which you could question witnesses we get further information on that yes your honor absolutely because there are many documents that show that before mr stanage to use brand secrets to develop the process for iraq's that there were many complaints by customers citing you know we may end up having to drop you here invoicing is horrible you're you've transposed just about every number here so forth and so on your billing is dilatory in length and therefore  that is what i think is is is is very important that if we were allowed additional discovery which i think we should have we did file a motion for continuance and that was denied but the there are documents that we could use to question individuals there are also documents showing the billing records for various customers and so forth i will point out in response to your question your honor that they don't identify what the administrative cost was because i suppose that's not a pass through cost council if we were to agree with you assuming i q window that you did you should have had a ruling on the discovery issue before there was a ruling on the summary judgment and we were to send it back on that would we need to reach all the other issues yes some of them which ones the only issues that i believe that you would you would have to reach would be the preemption issue on the conversion klein and that claim that that that ruling i think is inherently and for there are courts certainly that go go both ways but what court the court below held was that notwithstanding the definition in the wording of the preemption provision in the in the louisiana in the louisiana uniform trade secrets act which definitely says it must it's premised on the existence of a trade secret this act applies not just a trade secret misappropriation but to the improper use of any type of business information that really flash in the face of the express wording of the statute there are numerous cases from other other districts and circuits basically not basically but expressly stating that if if the if under the lots of and also the let's say express lee says it only displaces conflicting claims pertaining to civil liability for misappropriation of a trade secret and so what these other cases from mississippi oklahoma michigan california the tenth circuit the virginia as well as the seventh circuit is that if the fire and if a finding that the information was not a trade secret does not reasonable reading of that because you just have to read i mean it's called the trade secrets act and it says you know in order to make out a claim you have to have a trade secret and if if you if you have other claims that are premised on the existence of a trade secret those are the claims and only the claims that are preempted provided that they do have conflicting room and i want to go back to the discovery because i want to be sure i'm really clear on in your exchange with your closing counsel when you were arguing about the motion to compel an ounce of saying wrongly in my view that he has no duty to supplement because you always have a duty to supplement but one thing the council did say that i'd like to know about is look you've never really said you had any kind of problem with our document production you've taken a bunch of depositions you question witnesses you've never said man i need these documents so i can do these depositions so why are you now th i'm being your opposing counsel why are you now raising all this and isn't this just a bunch so can you respond to that yes your honor first of all say that in my view and based discovery for the very first time in august of two thousand and six to me on the very thirtieth day deadline they sent back just a blanket general a blanket universal objection he should  struck that's correct we prepared a motion a motion to compel and bass and before filing it sent that over to the opposing counsel that was in october i'm sorry that was in september  when the supplemental and amended responses came down and there were much they were they were much better but they were there were many many of the document requests the had i thought that i had a very good working relationship with with my opposing counsel and weep we had been able to agree on most of the things and what my recollection of our conversations was because i'm not go say he's a liar or anything but my recollection of the conversations was that i asked him in october november i've skied in november december and then again in january after hearing we had at the district court and then again in february during the deposition of one of our of our chief information officer about these documents and the response was i'm so sorry it's taking so long my clients are you  honor i did so i could have done a better job of documenting those certainly you know that's a definite but the bottom line is that you know even after the discovery deadline and said you know it's not cool that after you get a document request you say you're going to look and then you don't even do a search because not a single document was produced by rex in this case and so the bottom line is that the court at the end said although you know i'm going to deny the motion to compel you had there were numerous requests for production that you said you will produce documents you will supplement you have a an affirmative obligation in your order to to supplement about after several weeks when we had received no documents we filed a motion to enforce the court order requiring supplementation that was done ad based on the representation that they were unaware of any documents that were actually responsive to any of the ones that they said we will produce documents so about this same time iris is producing the same ir is producing documents in a related pennsylvania case and i've been are those documents responsive to some of the requests to which they said we had no documents in texas they are you're ok now and that's what has not been ruled protective order in the pennsylvania case so the court said provide documents in the in that pennsylvania case that are examples of the documents that are responsive within three days or else it's going denied we couldn't force the pennsylvania district court to speed up its process necessarily so the day after the court denied that particular motion the court the pennsylvania court granted the motion to use the i do believe that there that you know of the documents that we submitted in camera to the district court that there are documents that are relevant to the some we're just proceeding that would that would better assist in in establishing that more certain measure of damages ok frankly that was my original question to you when you said no but now you're saying yes these documents would support a more greater certainty in the amount of damages ok and but you know even without that i mean i think are you know it's our position that we met our burden of establishing a fact issue of showing our damages as a matter of just a reasonable inference what is the methodology of the damages for the trade and then  what logics to go through all the ways you can prove damages or what is the methodology there's a wide variety can be lost profits can be what a reasonable royalty would be a loss of the value of the trade secret what we're focused on in our summary judgment response was the unjust enrichment that accrued to iraq's from the misappropriation of the trade secret and there is you know there is indisputable and uncontested documentary evidence citing that through the use of of this new program that iraq's could save two to three days of administrative time in preparing month and invoices every month for every project let me have something that's really fundamental here much more so than what my colleagues and asking what what are the widgets what is it that has taken  me you frequently when you're trying to get a company running well you call and let's say deloitte or somebody who's you know they've now got a cottage industry about will come in and well except all your systems so if you run like a swiss watch ok so what is that exactly that has been you're talking about what's the substance of it are these software programs or what what  is a very sophisticated spreadsheet spreadsheet application that is it's not just your standard well it's a it's an empty spreadsheet it has a lot of functionality a lot of macros it allows somebody who is pricing out a project to identify you know we need fifteen supports here we need fifty supports here we need this we need that we need the other and then to basically build a whole scaffold scaffolding system of these are huge scaffolds for industrial settings and then once that is done they can prepare or build with that through the macros built into the the application they can also  track real track the budget to actual and then they can also get the that component of an invoice prepared with with the the a flick of a switch essentially without having to uses the version that it created from from from that's very spreadsheet and so the savings and the efficiencies that that they've been able to achieve through the use of brand's trade secrets are something that the damages just keep racking up unjust  fair amount to develop sort of almost doesn't make any difference except in terms of the legal framework that you used to analyze it it's something that's correct your honor confidential information that at worst case for you that's correct yeah ok ok got it thank i i would like to start by telling you that in my humble opinion that the district court not only made the correct legally and factually based decision but also made the right and just result in this case i think it's important that i start out by saying this is a louisiana case maybe you're better off sticking to legal and factual because right just is not not what you've done here but i would i would like to  answer judge any questions that you well my question is you two this guy around on discovery for a year saying you were going to produce documents then you weren't then you didn't then you said now it's too late then you said maybe i can talk i recs into producing stuff then you be in the eye of the polder well your honor i'd like to respond to that if i may because i think what you've essentially taken is opposing counsel's word ford and disregarded i read your letter started out as i have i would disturb an argument by making that accusation i read your letter i read your response to the discovery request was one paragraph saying i answered nothing ok that was your original response i read it it's one page all these discovery requests i  opposing counsel discovery it was brief and it was short and the reason for that is is that we had outstanding ourselves directed discovery to opposing counsel for months that had been an answer and in fact we complied with discovery and it's in accurate to say that my client didn't comply with discovery because we voluntarily produced to the other side an entire computer that his expert had for over eighteen months so it's it's just roam it's wrong to say that that my client didn't participate in his cover up i have no idea what they're talking about because those documents have not been produced to me i can answer you i can tell you this i can tell you this in as much candor as i can i i do not believe the here's a difficulty i don't know what documents council is talking about they've never been produced to get iraq's produce anything and something millions of dollars have you looked at any of them i've looked at some of them but no i have not because i'm not counsel there i do not have a thing that's reading writing about and i mean you're looking at me this is your client ok you have an independent obligation to make sure that you're supplementing of that i realize that you have to rely a lot on your client for things i've been a lawyer i've represented large companies i understand the complexity but if i had a case where they were saying these pennsylvania documents are what i  i would just because i did i don't know what's in pennsylvania i'm in texas i would be trying to find out that it may be impartial answer to what would your suggestion your honor i take your point and i've been obviously very much in touch with pennsylvania coun but i would like to make this point and that is that the pennsylvania litigation is massive compared to the louisiana litigation and involves many more players many more allegations many more companies many more bases for potential liability then the very confined world that we have down here so to the extent that i'm dealing with this case in new orleans i over the course i want to speak with but and but  i can't duplicate those efforts up there because there's going to be discovery in pennsylvania which has nothing whatsoever to do here it is just it's massive i would i couldn't be doing now now did i did i speak with my corresponding counseling client about whether there are documents that are responsive to these requests that have been produced there yes of force and that's why i was able to represent to the district judge and to judge roby that i have not been made aware of the existence of documents to which i should supplement ok let me ask you this then once the pennsylvania  example ours taken to the district judge in texas or the magistrate judge in texas why should we not allow that process to be completed because far as i can tell it really was a summary judgment just granted without having made that evaluation for of efforts to try and get renewed discovery came way too late they did get months after the fact so what's your second reason the second reason is is that there was no showing that any of the ok but then a council opposite believes he finds out that in pennsylvania a bunch of stuff has been produced that should have been produced in texas that's his first opportunity to say well wait a minute i was believing my posing counsel i was trying to be you collegial sort of lawyer but now i have reason to doubt and now i want to bring that and that is timely as soon as you discover that hey this guy either intentionally or unintentionally is misstating things to me now if files that motion and that motion is not untimely because it was filed as soon as he became aware of the pennsylvania doctor now it may be helpful because the pennsylvania documents may not matter but we don't yet know because the texas judge hasn't looked at the pennsylvania r's your honor the pennsylvania litigation has been pending almost as long as our litigation and the documents whatever documents were talked about were produced months and months before our case was terminated these documents or new as far as i can tell it's not like in fact it's the council's no we're represented because i have no i have no information of this effect it's these documents were not produced at some time after our discovery cut off in our case was to complete it for all we know and i don't know i'll be the first to admit to that but for all we know these so called critical important documents were produced months and months before in other words if he didn't know about them it would be your duty to know about them and to know whether they're responsive but your honor that not that's the point ripley's recall we showed up at three depositions of my clients my clients witnesses three depositions where counsel brought box loads full of documents now some of those documents i think came from the computer that were under protective order is no basis whatsoever for that statement you just made other than the fact that there was they were i wrecked documents about which i don't know where they could have come from other than that litigation ok think we've really talked about the discovery obligations and we've got three or four other issues and maybe some people more questions on that but can you agree that the theory and unjust enrichment it's a viable damages theory right i do wonder well logics in other cases that's a viable theory and that two to three days a month their expert says are saved by the use this improperly obtained spreadsheet application you agree with that that's their position right like to first of all i just point out that well logics is a texas case that was decided before important point there is no expert report that presented by my opposing counsel in this case that says anything about any unjust enrichment  anybody else ok but three days i frankly think this is a fair a manufacturer of an argument out of whole coffee i actually have the copies of the at the deposition transcript it actually says you know i don't think it was two to three days that's what the witness said now i think it's also important that what judge will lazo did was really really follow the law and gave bray and every benefit of the doubt and judge moore law so viewed it as if there was some admission of saving two to three days a month but what i'm what it does that say there's no amount that we could tie that to well then we just need to know what their monthly what their monthly tank is and then you can take away that that that increases that by you know you divide it out back thirty day and then to it's not a perfect thing but these kind of trade secrets are not to difficult as have our quotas written about except and to commentators to value and to when you've been damaged so you could take the thirty days a month or thirty one and i'm not quibbling or how many work days and then divide that you say this amount of money and so you're able to get this amount you could just use a there's a misstep is why there's no evidence of any value that comes about from these two to three days is that it's expect to live it best that there was any savings of two to three days so your client said it then they can use that but but but but it was it was it was said in the context of a question where it was actually more than i have been said in other words the question was isn't it true that to that end the witness was i don't remember anything like that brief here that it is seeking to assert a claim for conversion of information that would amount to a trade secret under the definition of the lots of louisiana trade secrets act but it's also claiming that it's making a convergent claim for information that doesn't meet that standard potential information you know what it calls proprietary information which is question begging at best will simming argue window that this record actually contains confidential information that does not rise to the level of trade secrets do they do you concede that under the applicable law you can bring a claim like that in louisiana we do know i can cases and which judge mulattoes said louisiana would follow and quoting a pennsylvania case it does the majority the california supreme court says information cannot be stolen unless it constitutes property and information is not property unless some law makes it so the plate divident to fires no property right outside of trade secret law then he has no remedy outside that law and there is nothing unsound or unjust about holding other theory superseded so what you're saying in a best you can hire a lawyer and get them to come fact system a software application that will manage proper procedures and so on in your business plan and that is not a thing that can be converted why not i mean if it doesn't meet the definition of trade secret then it's a listen it's not a trade secret what if it's just simply we we paid the light they went up and they have because they all now in this cottage industry we went out and they developed this terrific system for us on how we run our paperwork how we run our procedures and this guy proceeds to take the whole software package and go out and give it to our competitor and now they've got it and it saves them all this time what's the difference between stealing our software package and stealing our  one of the reasons why it wouldn't be a trade secret is that no steps were taken to keep it secret that's what that's one of the and the fit and this court has recognized that failure to take those steps means that you don't have a property right be it ok so that's the the whole case hinges on whether there's a property right in this package rather than in the equipment in the building or whatever if it's just a software package an application a software application it's not a thing whereas if it were a piece of equipment in the building it would be a thing i think that's i think that's correct i think that's correct well that pegs the issue of the existence of non trade secret confidential information it doesn't it says oh there can be no such thing there is no such animal  confidential information that is not trade secret information and that's not true that there are numerous cases where there is we deal with both trade secrets and confidence to information so that so so your answer to the question better makes it says well we're going to put it in the trade secret cat in by ask it and so there's a north said over here in this answer to the question that i asked you earlier so i want you to answer have a case that says in a from any jurisdiction that says if it's confidential information not trade secret that right so would preempt yes i think the fact this is and there's a stanage e mail that says it will save billing about three days a month of processing the manual invoices they are doing now why isn't that some evidence of the three day because what standard is specifically talking about is doing microsoft excel programming and he's saying that's what they basically provided at a high level actually that's where i think the disconnect is your honor because what he's talking about is this schedule d ok but merits it seems to me that's getting into the merits not whether there's damage if there saved three days then that's unjust enrichment if they stole it if they didn't steal anything from you guys well then are you stealing thing from then then well yeah of course you win anyway that's  especially the more fact intensive trade secret corey was dismissed on in a summary judgment contest as far as damage is are concerned unjust enrichment certainly as a viable method of calculating damages are an element of damages under the uniform wheeze and a uniform trade secret act the act is called the uniform trade secret act it's not the uniform business information act it's very clear courts go both ways we're not in california we're not in pennsylvania two lower louisiana courts have hill that conversion and other torts that don't conflict in are based on a trade secret are preempted  going back to damages i'm sorry i slipped right into the conversion argument but you know as you pointed out joe chimes there are several e mails one from mr stanage one from wesley johnson and then bert rowe gets involved  who work for ai rex but was assigned virus to be the president of one of its subsidiaries vertical access solutions that you know creation of this program would save two or three days of  so let me ask you this if we assume argue and that we agree that you've shown some degree of damage i e the unjust enrichment the three days how are we ever going to get to a number that the jury can reasonably assess for those three day because that's i think the rub here on that question what you pay an administrative person for a full day's worth of work what the i mean basically what i think the judge had issue with is   you know and that number's going to change some because you know may have five projects one one month maybe four projects the next but if we say three days a month three times eight hours a day time seven twenty five that it may be lower than the real number but it's a number that's what i would be your point that's correct or are i mean for purposes of summary judgment i think we have at least shawn the extent of our damages as a matter of just in reasonable inference which is indulgent in the non move ts favor and in the in the well logics case and the run bill versus swish swish ships case this court has said you know that's the case and if it allows you to survive summary judgment even if the actual amount of damages are basically difficult to determine at the time and you know i did point that out to the district court judge that certainly once we had trial we're going to have to ask questions about about the i mean if we're not and how many hours do they work at me if they're trying to get invoices out fast maybe they work ten hours a day you just we don't know that exact information but it should matter for purposes of summary judgment you can see that there are damages pennsylvania documents with you in a deposition but the regular discovery and it's not true that's incorrect incorrect all of that all the documents that i used during the depositions were either what we pulled off of mr stanage is a computer and there are a numerable documents that rippled off of that computer nineteen or sixteen hundred brand files were were downloaded on to the iris computer about a terabyte of information and so i mean that's it when you're talking documents that's quite a bit ok questions thank you