thank you good afternoon a man please the court i would like request four minutes of rebuttal time if i may very well thank you as a matter of law and logic a statute of limitations cannot begin to r until an injury occurs no matter how much suspicion there is without an underlying misappropriation in a trade secrets case the statute of limitations does not and cannot begin to run here just  found that an entire database of drawings was taken by the defendant some time before two thousand and fifteen accordingly the district court held that the statute of limitations began to run prior to two thousand and fifteen thus barring plaintiffs twenty  compliant the court found and repeatedly said throughout its findings quote presumably the china like drawings were included in this database the fundamental problem with this finding is that it's unsupported by the record and even the entire file he gets that from the two thousand and fifteen letter that d m p itself sent to the f b i right they say these folks have our entire drawn so well they i made it as a as a foundational matter the letter does say that right it says we believe it speaks in terms of suspicions it doesn't get in terms of the entire set of drawings right it relays t suspicion at the end that we believe based on these facts we have disclosed that they must have the only reason they say that they must therefore have the entire set of drawings when you go back and you look at the bullet point items the actual facts disclosed in the f b i letter there are two drawings two drawings that are dafydd that think they know and they compared the rest of it is hearsay the rest of us and  i'm nine different desired call vendors or whatever we want to call them are presumably independently telling your client these guys over here have all your drawings so you hear this nine different times and it's not every day we get ip case where someone has gone to the f b i that they're that alarmed and they do all this in two thousand and fifteen so i don't know i'm just scratching my head  about i mean it's like you know either we believe your client two thousand and fifteen or we believe them now i think you can believe now i don't think that that's that's entirely the way it should go you can believe that they had suspicions and tw let's proceed and you all just keep track and then when we get to say where the yellow light would come on you could just say one minute to go and then you could just sort of you know and then just say ok time's expired so i think we should keep going thank you no sure marriage whom of course so what i was saying your honor is that you can decouple the what the defendants actually said about what they had you can't ignore their story their story was we didn't acquire the we didn't have the database the entire database as a as set forth in that report and you can see it we never had it and here's how we got these drawings that relate to the two thousand and eighteen complaint we got the drawings from two different sources we got a physical copies there's no allegation and importantly out of this no allegation in a pleading anywhere that pointis made that the entire database was taken that they suspected sure i'll admit that all day long that they asserted in a pleading no they did not and when you go back when you really look at this this is this is i think we're you know there are factual court if the end of the summary judgment opinion of the statement in relies on this the similarities in these exhibits clearly indicate the b n p digital information was utilized by prescott machine to produce the drawings provided to be in the vendor so he relies on that but when you go in you look where does what those coffins say what what is the basis of this findings the read very carefully because you to go back to a page earlier in the coffin report and he says that from my professional experience computer aided design software was used to generate exhibits wanted to use of the only drawings that are ever done five from b m p drawings of exhibits three and four he then goes on to say that it is my belief that a cad system identified as solid works was used to generate these drawings if i may he says that from my experience it is difficult to believe that p had a couple of drawings i'm sorry prescott had a couple of b a p drawings and they used a computer aided software program to generate their own database this is very different those are the only facts that are disclosed  about what i'm saying and i'm i'm struggling to understand exactly what the connection is for you but it appears to me that you're saying that there are two different times of misappropriation and recognizing a relied on that misappropriation or that possession of those drawings that never became part of a lawsuit there was never a finding by the district court that the subsequent acquisition of the china lake drawings in twenty team related back to those two thousand and twelve those are different products different projects who or any other documents any other drawings that you that had already been in his pos are two ways that prescott and miller say that got those drawings and they didn't arise until this didn't become clear to being until the bids went out on that product on that project that's when they learned that he had those drawings limitations well if there were earlier choir drawings the trade secret claims don't arise until there is an improper use so you could you could have some drawings earlier but it's the improper use of those drawings that we learned about the triggers the statute triggers the act the triggers liability and a potential quite well i mean obviously if like nine different vendors are telling you that these guys are using the drawings in granite these you know we can be talking about different kinds of drawings here but i mean the record appears to be awash in evidence that mr slow then and b n p generally made a litigation decision that it would cost too much thank you lance would cost too much to pursue this and so i mean i guess i'm just at a loss as to you know we're supposed to say that there's like particular documents that we don't know for sure right now that have been misappropriated at that time let's let's let's back up a little bit of let's separate this out because the district court that you're focusing on something a little different the district court you're focusing on did they have drawings over here or a religious project or do they have drawings here the court said you took an entire database you're talking about something different and there's a findings in the record about about whether this vendor over here had these databases or what we knew that was all hearsay if that were in a complaint it would have been attacked on that basis but about people down that he relied on there being an entire database taken there are in there is no proof that the entire database that's the finding the court made but you know i don't know if the discovery rule requires proof and hearsay probably is relevant but i mean you're got four minutes rebuttal of inventor and you'll get every one of those and problem did any of those companies provide the the copies of the documents themselves or did those companies refuse to did they refused to do so did any of them no do you claim that you have to make separate claims in this case one that was the earlier disclosure of the two documents the chief that you have and then the lake issue the navy issued this this r f p if you will and he went in he pulled those out of a file cabinet that he said was locked that he had in two thousand and thirteen so if you had three still wasn't a misuse in the misappropriation we don't know how  looking to start by correcting a few of brother council statements in response to the most recent questions judge strawn she asked whether there were other instances b m p receiving drawings similar to the analysis that was done in two thousand and twelve and the answer to that is demonstrably yes if you look at and this is found in a few places in the record but what we did for the trial court because  there was so much information concerning made two thousand and fifteen knowledge and investigation we actually had to compile that in a crime doubt exhibit that's roughly two inches  in other places throughout the record at number six x and this is the listing that i believe judge kept the capital was referring to of multiple instances in november d of two thousand and forty metal tech provided drawings for an that it's a bit of a logical fallacy or honor to say that it has nothing to do with the china late drawings what the m p has alleged in this case and this is another item that i need to correct on the amended complaint b i do your honor bear with me that's an interesting point your honor because in connection with the motion for leave to a man to assert that complaints white b m p did was they told prescott miller and the court more importantly that they had no other knowledge they were completely unaware of any other reason to make that allegation but for the fact that six months prior in discovery my clients had produced roughly twenty or so drawings additional drawings that they determined to be there when in fact the reality is and this touches more so on some of the attorney's fees issues the judge wanting to address the reality is th complaint exposed the prior knowledge the two thousand and fifteen complaint and it wasn't just the two thousand and fifteen complaints it was a whole host of other documents board meetings historical emails with my clients had the entire database or portfolio of their drawings that's that's the issue and judge waddington spent roughly twenty pages going through over two opinions really he did that so that he would afford every deference to be m p under the political standard there is no doubt a host of information that would show your honor i believe my time interruption on your honor i know her living in a different world so there was a host of information that was withheld here that judge criminology you will find e mails and letters dating back to two thousand and ten which is what we argued to judge ludington in the district court that the statute had actually accrued much earlier than two thousand and twelve i think what we're all struggling with us is quicker the line is drawn when you have some information and even some good hit from a action versus when you actually  hard evidence that would enable you to bring a lawsuit i'm sure in applying the trade secret standards we don't want to discourage investigation of  of alleged clients of stealing of trade secrets nor do we want to put the onus under that law on someone to find out the cause of action before they can actually prove a call for  so what i'm struggling with is what is in this record i think you've given me a lot of i'm also look though at a good bit that's in the in the evidence about the companies that have been provide a copy of the letter that contained the affirmation cygnus would not provide the actual drawings metal tech would not reveal the source of the drawings no the n b a believed it to be right miller i think probably are and mr chua did not actually had some drawings in conceal them from baby and gives me in general why you believe there was sufficient hard tell you under rule i have been i would feel very comfortable taking the vast amount of information that's in the two thousand and fifteen complaint and turning that into a play seventy eight record number seventy eight you're going to find a treasure trove of information including the response from the f b i concerning their declaration that claymation to availability of civil litigation and civil remedies in that e mail civil litigation is referenced no i asked him four times but i i want to answer answer your broader question judge i could go through and spend the balance of my time on going through all of the documents that are in exhibit seventy eight or easy at seventy eight but you will find there's no need to do that you'll find for example there is e mail drawings because the way this work is drawings would go out to machine shops and metal tack and other vendors would report back to b m p concerning the drawings and their belief that the p you will see a response from a b m p employee back to the vendor saying confirming that these are not legitimate copies of b and b trying to please complaints you have e mail the internal e mails in which they are surmising that the defendant has all of the offending content all the drawings when you go through that case your honor you will see that that tracks very closely this case although the factual record in this case is even more pronounced now celeste and that's your though is a lot of statements by the impede that they believe under the discovery row from the vantage point of the plaintiff and what the plane to leave what the plate to knew or should have known pilkington addressed this issue probably most directly in bridge acting that you should look at what the defendant says or doesn't say about an alleged list pro creation because that could lead to some absurd logical extremes where a statute doesn't run until after the case is adjudicated i fear said here's a strong one following up on judge exactly sure what your honour's referring to mr mr henry was affiliated with prescott you might be referencing some testimony that certain drawings from mr mr miller perhaps that certain drawings came from test is when in the exercise of reasonable diligence they should have known that this misappropriation was going on i mean i just i don't know what more we need the case i mean let me ask you this i mean i makes a different decision and he doesn't think litigation is too costly in two thousand and thirteen or whatever it was but he decides to go for it they blow the whistle and they they start to enforce their rights in two thousand thirteen with respect to this rampant misappropriation that is obviously going on at the time whether it included every china only document or not i mean does does the law take any account what that intervention effect that intervention might have had upon you know actions in two thousand and seventeen well to the extent yes certainly certainly to the extent that the statutes and they do provide for a plaintiff choose not to act on the sort of thing and than just wait for them to do something four years later and say ok i'm not what about this i thought there was this like doctrine in this area where it's like misappropriation concept so to speak so i had some some argument prepared that was specific to some of the cases on these issues but the law is very is very clear and what b m p is urging this court to do is disregard the law quite frankly i mean judge ludington went through and painstaking detail a number of cases from the district from the circuit court they're continuing to make the same arguments to this court really got her are three different claims there's the original claim that miller d took the drawings and then there's a claim that sets i mean it's like if you have someone who's stealing from you on multiple occasions are you are you barred by statute of limitations the secret return of the property on the nd and rd occasions because you didn't see return of the property on the st occasion that that's put that's precisely the point the judge kaplan raised is that the law with respect to trade secret misappropriations it's a single claim it's back to the original that so to speak if it's the same trade secrets and if the plaintiff has knowledge or should have known of the faffed then yes it dates back the rule for the statute of limitations base the judge bar discovery on and said this is about the china like documents only and yet we have adman henry having kept documentation that he did not provide to melt our china light our drawings until two hundred and one thousand seven hundred and eighteen so throw that in your response to judge bush's question when something like that happens with separate documentation stolen by a separate entity and provided in two thousand and seven tonight cheney why isn't that a client your honor what you have to look at is the actual posture in cadence of this case and what actually happened in judge ludington does a very good job s in his opinions the original complaint did not reference anything other than five drawings in the china lake problem project no difference quite frankly than the allegations that were made with respect to the in the f b i complaint with respect to the metal tech drawings or the cygnus drawings or are the swe company drawings no different five drawings one project we argued given the narrow nature of the complaint that discovery should be so limits that they could have that they could have at that point with their complaints put in this vast amount of information they have had to suggest that the trade secret misappropriation was much broader than five drawings they chose not to and judge ludington touches on this extensively in connection with this award of attorneys yes that's true and then i touched on this earlier judge then they waited to the th hour without disclosing that two thousand and fifteen complaint or any of the information contained in it to us or to the court claiming to the contrary that they had no other knowledge this was all orchestrated should but that's what happened here judge this was a concerted effort it knew it was architected and when you look at the cadence of the case how this came to be you will see that in the course of discovery this asked and when did you discover these drawings and mr beres file cabinets was answers i'm going to guess the beginning of two thousand and thirteen january for march i know i'm just sort of giving you a snippet here but you know was probably talking about some of the some of the the china lake i should say not even china lake joins the mixer jobs because what the judge what the court did was limit discovery at that point to the mets or to the but i know that i've gone very long and i don't yeah i have no idea frankly i very much appreciate the questions if there are any others i'd be happy to answer but i would respectfully ask that this notion of continuing this appropriation and the judge here assumed there was a continuing this appropriation because assumed something that turned out to be wrong that is there was a database taken and we don't have that we know that the senate submitted it so what do you have you have a series of different events that occurred at different times and you have no finding no notice record finding at all that these the metal tech drawings or the other fans went through any of these related to china to you could have differing misappropriations if i go back to judge bush's comments if i go to a bank i go to a safe deposit box and i steal it i steal something on day one i go back to the same bank i go back in the safe deposit i steal something else on day two the you on a different safe deposit box those are different appropriations are continuing misappropriations they're different so everything the judge catholics you refer to in all the evidence in this f b i report st of all beyond being hearsay there's no question that those could be different misappropriations but that's not a question that was ever addressed by the district court whether they were related or not that's a question that's got to be addressed on a factual basis yet not on an assumption the court made that was wrong selection go ahead no what assumption are you talking about that entire database was taken we know that's not true ok now even though your client and mr hardway signed a letter in their responses to the f b i in two thousand and fifty your client said exactly that but judge lundy ten is not entitled understands that summary judgment so it's really a question judge ludington in your view is not entitled to rely upon that i think it's a fact question that should have been the subject of a trial and not a summary judgment especially in light of and specially in light of what the defendants presented or should have known standard really isn't apis it with respect to china like stuff because you think there's a fact question about whether they didn't get that until two thousand and seventeen it because there was nothing that gives gave rise to the claim that's correct you can't even but that you've kind of rephrase things and then i say you know what does that mean nothing gave rise to the claim there was no wrong there has to be an injury there has to been a misappropriation what was what what happened in two thousand and seventeen in your view that creates the wrong that wasn't there three years before when the talent they're actually going to the f b i and saying they've got our entire  electronic files of technical drawings because they didn't have the electronic files they went any and miller testified and you just went to part of that deposition the other part of it it talks about he said he admitted when thank you and i do want to if i have a nd i want to last point of the amended complaint you have a complaint did not broaden the allegations to include taking of intellect or an entire database it simply says that b n p maintains it ok we thank you both for your arguments i guess the court may call the next case