for this not to compete or is them from working in any job for a competitor of the quote who would result in the disclosure or use of i b m information it's that could result in language that effectively prohibits mr lehman from working in the industry because every job in the industry varies with that at least some possible conceivable risk no matter how infinitesimal that the information could get disclosed or used no i want to dispute the borrowing employees from an entire industry for a actual clarification yes or no is mr lima on microsoft's payroll right now it currently is your honor he has a position as executive program advisor which is actually position but he's getting paid he was getting paid around so i guess my immediate question is how do you make an argument that this non competing is so broad as to prevent mr lim working if he's got a job and i don't understand i b m to be contesting or challenging his ability to draw the salary for what he's currently doing from microsoft is your contention that he has a right to work harder to earn the same money he's getting that like a job like he has a job so far as he has been paid and he is learning about microsoft but he's not actually performing any functions and his salary is a real partially based on on his performance he's not actually performing anything and so yes he is being paid me thank being paid you know not unreasonable somebody if you would be paying more money if you was performing his position and actually meeting the benchmarks that disputes that or not can be became somebody outside out of an industry especially the industry like like the tech sector which is so dynamic so quickly moving to keep them out of that industry for a year is unreasonable it certainly goes far willing to take proactive steps to make sure that information is protected that that shows an earnestness and honest and as an attempt to not disclose information i think that should not be there that should not be overlooked that's flat iron health versus carson from the southern district the nd point is that mr bean had started at microsoft yet and so he didn't understand the details of exactly how microsoft would inforce the wall would be a situation where he had to announce you know in a meeting this is something i'm not question of how it would be done and that seems simple enough to resolve it just added it seems in the courts dismissed all of the wall there's some sort of inherent skepticism in the existence of walls but again flat iron health in the southern district so the walls are common they're not at all inherently suspect and we see walls all the time you see them in law firms and you see them in businesses just so you have is a situation where microsoft miserably might have worked very hard to set up a job where he was doing totally different things than what he was doing it i've you know he will be focused in latin america where his last two jobs in i b m were not focused in latin america we worried about him disclosing there's no concern that he's a bad actor that he's intentionally and this flows this information all of the i b m witnesses who all know mr iemma personally testified that he was honest and trustworthy understood dubious whether or not there actually are trade secrets at issue here the inevitable disclosure dr bases generally fall into two categories where they find inevitable disclosure one is where there's some misconduct or bad act where there is a deliberate intentional disclosure or there's likely to be an intentional disclosure that nobody disputes that that is not this case and then the other is where the employee has some sort of specialized technical knowledge where they're working in one job and they're going to go  another company and do the exact same thing on the i b m versus papermaster basis a really good example of that you have i b m is top microprocessor person leaving to go to apples and work on microprocessors there and they just report says it was impossible what you know about microprocessors you know from being an i b m just poker when he was on the southern district in the international paper hearses wayne said when you're talking about somebody who is hired because of their managerial experience the new york and so yeah he may know of some customers but knowing information is not enough for there to be inevitable disclosure that may show that you have something important something valuable i think in the case of customer list that's not necessarily true for leslie just said but there has to be that inevitable disclosure component of that and that comes from either misconduct or from having a job that is so similar to your old job that it is impossible to perform a new job without utilizing the trade secrets of the old job and that's what the rd department said in the mirror yet can i ask one question about the tree a judge in the district court concluded that your client did have access so the challenges that we've raised that to that issue your honor our legal questions are our argument principle the is that the just report an offer for the proper legal analysis to examine whether or not and to determine whether or not the information that paragraph where the district court let's say makes predicate findings leading to the overall conclusion that there is a trade secret do you just you or do you find clearly erroneous any of the predicate factual findings of the court at the bottom of sixteen going to seventeen for example about whether the information is known outside of the business or whether the information at issue is shared only was a groups of i top executives and i guess my question it wasn't clear to me from the brief do huge challenge any of those predicate facts is clearly erroneous you do not your honor our argument is that it may be that this information is kept secret and that is the analysis that the just record is performing very few people people outside the business do not have a very few people in the business have it go through the secrecy of the information not sure whether or not things that the courts in new york and southern district have said are not trained secrets are not eligible to be trade secrets regardless of whether or not they're kind of secret they're not trade secrets and that's really important in this case because so much of the district depends on there being disclosure or risk to trade secrets that that is the legitimate business interest under the st prong of the reasonableness analysis under  inevitable disclosure of arises from misappropriation of trade secrets and there are some cases that say a notable disclosure is only about trade secrets and then of course this is a preliminary injunction where you have to find a reparable harm the district court found a made a very particular lies but to keep his findings apply in the new york standard for trade secrets and finding that there were trade secrets he likewise found and indeed in some cases mr lehman admitted that he has knowledge of those trade secrets that he's bringing with him to microsoft and what is really happening here is you have one of i b m s most senior most highly compensated senior executives operating at the highest levels of the company going to board meetings sitting with the chair and c e o in establishing corporate strategy so he in effect is switching sides switching teams in the middle of the game in the middle of the competition crossing the field and bringing with him the playbook which in large part he wrote and he prepared including attending meetings within weeks of departing for  microsoft and yet so not and yet you don't object to him being made by microsoft right now we don't object to him being paid and we don't object to him taking a position in a non competitive way which is what look and see how it could be tailored so that he could do some things more for microsoft you've already conceded that it's simply working for microsoft doesn't doesn't trouble you he's obviously talking to them apparently  necessary now to show me where in the court's decision it determined that this was necessary to protect well st of all the injunction itself is narrowly tailored to the one particular job  not prevented from doing anything other than the job in which they sought to have him running in latin america where he would be developing and implementing global strategies in exactly the same way as it was doing  m but not dealing with any of the clients the one you know the issue in trial was not a client that's correct ok and the issue is not the clients and talking to clients the issue is developing strategy with the leadership of the corporation and executing that strategy as an executive not going door to door but knowing what he knows about i b m and in particular at i b m he authored the document which referred to microsoft's massive attack his words on i b m s client base including in latin america why not restrict the number with regard confidential information about pricing about new products about the entry date of new products about the new anchor client where i b m is going to build a st of its kind cloud computing system for financial services company which is part of i b m s counterattack to the massive attack that he identified when he worked at i b m he will be going there with what he knows about i and what's critical here is that he will be operating at the highest echelons of microsoft you will be reporting to the person in charge of global strategies he will be meeting with that team to develop those strategies knowing exactly what inadvertently drawing upon the knot after the expiration of the year greed upon twelve month period which is a time period that one hopes was reasonable in duration to ensure that what he left with the information on st of all evidence and testimony about what that information was and finding that in from specifically finding and i can get the page reference for you specifically finding that the strategy information would remain relevant for at least a year and specifically citing to not only mr lima's involvement in developing and implementing short term i b m plans he also authored and discussed long term strategies which the judge found would be relevant for the period of the non compet period no not it not in court and not in the non compete agreement itself no is part of your argument basically that the duration of the non computer is reasonable and that this was a bargain to microsoft if we could have a hypothetical debate about whether a longer period would have been necessary but certainly one year is very commonplace and in this case the judge's findings of fact none of which are alleged to be clearly erroneous are more than sufficient to find that the scope in time is reasonable and presumably presumably i b m would have been less likely to disclose the trade secrets to mr lima if they had not believed that he was subject to not so that their trade secrets were going to be protected at least for that one year period right that's correct and in may ways that undergirds the inevitable disclosure doctrine which has been around think i did i found the name of the case a somewhat amusing although i didn't know it was one hundred years ago that shows you how young i am but it's it is as the new york state court have recognized this doctrine has been around for a long time and as two of them said icon and spatial dimensions it should not be controversial at this point in fact i went back and i looked in virtually every single case of a non of a written not a four non competing agreement based on trade secrets has been enforced or has been the subject of enforcement using the inevitable disclosure doctrine by my count it's twenty eight most of them resulted in injunctions and critically there is no other test no court has ever articulated or at opted one mr lima doesn't propose any alternative he just says on the facts it shouldn't apply here of course those facts are not challenged on appeal but and to answer your question your honor the cases have said without exception that it is it is an agreement isn't forcible even if the risk is found to be unintentional inadvertent that's the very nature of the concept that if someone is so immersed in such important trade secrets and is doing a job where in that person will be doing will have responsibilities for the same aspects of the business in direct competition in this case con cast which is a fierce competitor in broadband comcast created a job for him specifically for him outside of the broadband division having nothing to do with broadband but since he was purporting up to the executive who was responsible for broadband the court in that case found that it strain credulity to believe that his insights his knowledge wouldn't come up in discussions with his boss here or the risk is ten or one hundred dollars times greater because he is in the same division selling the same products going head to head just on the other side of the competition the thing i want to ask  responsibilities were global in nature in the last twelve months on and that they included clients and latin america is that you think that's sufficient with regard to the fact that because reason a different job i mean the job in which  acquired the trade secrets he's been out of for three years but now the current job even though it is characterized as being an account or following or just managing accounts and he's not participating in developing these strategies i mean that's not an answer is it to the fact that he's acquiring the same information in that job is that the bit that wasn't our answer and that wasn't the judge's finding the judge's finding was that in the last twelve are two really important areas of a mission i think in my friends reason to and i want to focus on the st is that his presentation was all about why the i b m information is important it's valuable it would be important  he doesn't do is talk about the overlap in the jobs that would cause disclosure george wesley asked about latin america specifically well mr lehman has had only three contacts with when american clients since two thousand it's not been disputed that he doesn't remember the information when you look at the information that i b m is focused on it's one slot in from seventy one slide presentation it's a twenty minute presentation from a two day meeting there's just no human way that somebody could apply to everything now i mean that would sort of undermine everyone compete if the person who's jumping ship just testifies oh i forgot all the trade secrets i mean not think you hartley expects the other side and say well yeah i bet you don't remember anything you can when you work at our job we'll just take their word for it i mean don't they have a right they bargain for a one year what everyone called cooling off period to to ensure that memories fade or to ensure that if remembered those trade secrets become less critical to the end of the business but didn't they basically bargain for yeah that's true your honor but he was being paid that same amount of money before he signed this not to compete that's the only point i'm making but i think more fundamentally the problem with i b m is argument the reason why in this case it is totally believable that mr lehman does remember this information is that it goes to the weakness of i b m case they were talking about a single slide in a seventy one slide presentation a twenty minute presentation in a two day meeting if they had better evidence of they had evidence not you know t briefs he was privy to this information he had access to this information he used this information if they had better evidence that actually connected the information to mr limbaugh then i think it would be much more believable the say you would remember this but but that's honest these trustworthy that he would protect that information the nd he omission is that there was a lot of talk during my friend's presentation about trade secrets but never once an explanation of how about how any of the information that we're talking about or trade secrets he said things like strategy marketing and her client those are not trade secrets there it's important business information to be sure information minister who would want to keep confidential but that doesn't make it a is not strategy your honor isn't a trade secret it's confidential information but in d s parent inverses type from the northern district of new york strategic plans and communications are not trade secrets is this possibilities  trade secrets i think often times are technical information they don't have to be but arisan of rising case that my friend was talking about those are things like formulas patterns devices or compilations of information to be used in one's business  papermaster case they are he's the head of i b m microprocessor unit he's building microprocessors there are trade secrets in there but here you're talking about a sales executive who was hired by microsoft because he's a good sales executive he exceeds is his requirements he's he's a good manager those are the things the judge parker said in international paper versus when there are not trade secrets and those are not the sorts of things that you worried are inevitably going to be this goes there's no there's no information it's i b m information that you're worried about their i mean remember the purpose of non competes under new york law the reason why they are allowed even though they're just favored is in order to protect that really sensitive important trade secret information confidential customer list and that's just not just not what we have in this case and it's just so  apply and i'll just end with this i began by talking about over breath and how broad that could result in languages were there briefing and now through argument i b m has never disputed in fact they've conceded that could result in languages overbroad what they are concerned about is a job where mr lima will disclose information they're not harmed by a job where he could but doesn't actually disclose information they could have drafted is not compete in a way that was