protecting against the threat of a specific irreparable harm that in a nutshell is what it is designed to do for that reason it is also supposed to be reasonably tailored narrowly tailored actually prevent the specific irreparable harm that is alleged and it is not supposed to enjoin all possible possible breach terms of the law it is designed to maintain the status quo so in a trade secrets case which is what this case is about it is appropriate to issue an injunction assuming that the elements are shown that is narrowly drawn to protect against the trade secret the use or disclosure of the trade secret pending the resolution of the case and if that is what the order in this case did we likely would not be appealing at least not on behalf of all three of the defendants which i'll come to in a moment it would be against mr record mocker only for reasons i'll explain in just a nd and it would be limited to the customers it would prohibit solicitation from the customers for which there was some evidence that the trade secrets were either or in connection with some form of solicitation so in our brief we there are a lot of numbers in the brief there are one hundred and we start with one hundred and eighty one companies that are on a novus list that the dist record adopted for the injunction one hundred and twenty two of those customers were already on a date as customer list prior to them ever meeting stephen reckon mocker and then even within that two hundred and forty two of those customers were actually doing business without a data prior to any connection with mr record mocker from there you jumped down and there was actually have a dense in terms of names of companies of twenty two companies that mr record mocker disclosed information about to data and within that twenty two  solicitation of those seven customers i would also buy it who owed it because to me provided the information to it well there was that's probably fair your honor the reason on them on  the likelihood of success on the merits the reason zero to date is different is the lack of likelihood of irreparable harm and that's what i should have come to and i felt as if i'd come to it sooner you'll recall that there was a finding asked him to delete that that somehow constitutes foliation we argue it's not spoil the action because of his counsel asked him to lead to delete it and gave him the express alternative of either deleting it or turning it and they used the word or multiple times in their letters but even if you were to assume that the spoliation finding against mr stephen reckon mocker was valid which it wasn't  assumed it there's no finding of spoliation by ota data or brian reckon mocker so when you get to zero data out it in no longer has any of the information and it's possession custody or control other than in my hand it is in my hand because they preserved it it's on a u s b drive but they don't have any of the information in their possession custody or control after approximately mid january so there's no danger of them using it so for ota data while i would agree with your clients and there seems to be some reason for him not trusting their clients or clients came in like and said stuff and then actually had to change their briefing in some affidavit because it turned out the stuff wasn't true and so that really is sort of that that difficult that's the only difficult issue in this case he doesn't trust you guys so he says don't solicit it is a very broad the cetacean injunction to get that i don't think the station junction is necessary if if he or we trusted that you would actually obey the other injunction but there's a reason minutes that's exactly right your honor to be frank that's why we are essentially conceding on the issue of stephen record mocker but for a much narrower scope of the injunction if it was the gallagher case that is kind of a good example the gallagher case is a situation where the th circuit did say that an anti solicitation injunction was appropriate but it had to be narrowly tailored to only those customers in fact in that case it was one customer call in c b c narrowly tailored to only that customer for which there was some evidence that the information at issue was used to solicit there were nine other customers where there was no such evidence and the court said the injunction could not be in place with respect to those other nine companies so if i had to just say why i just said what i thought a minute i was really the gallagher case but your honor is correct that under the retirement group versus golan take case as a different form of example you don't need an anti solicitation provision at all as long as you have the nonuse of trade secret where we trust  when i read the record at some point you were engaged in discovering other things in the district court said that he would explain motions to add to this exclude from the number of articles that you were barred from solicit yes your honor and i will go into the six of it's here because it's important yes your honor there was a motion filed with the district court fairly soon after the injunction was issued because counsel for an overnight had been meeting in conferring and even a notice to remove eighteen names from the list but then as soon as the preliminary injunction was issued they would not agree to remove any from the list we filed a motion the district court the district court initially refused to hear it at all on the grounds that we appealed and actually this court in an order dated may th two thousand and twenty told the district court that it had quote erred in concluding that it lacked a jurisdiction to modify the preliminary injunction while it is on appeal unquote order was communicated to the district court in the district court still has not even entertained our motion so i think it's fair to say we did try earnestly and it just hasn't gone anywhere and now i very good and thorough job of marshalling the facts that were presented to him and this is an unusual case i think it's also a case that judge jones recognized was a smoking gun type of case and let me explain what that means this was a audit data that was clearly a proprietary information of my client it was not public information pertaining to a number of customers not just seven customers but well over forty customers when you add it all together there was and the record markers and get into a confidentiality agreement in which record marker told him that he'd be giving them confidential information now of course the only confidential information reckon mocker had was no of his information he didn't have his own confidential information to share so it was clear that no data and the record markers specifically stephen but his son works with him together essential misappropriated information of my client clearly did and there's record evidence of that we actually submitted  then information in the record before the district court and also used that information there was record evidence that the district court relied on that stephen reckon mocker had met with a nova clients on two occasions and had reference information that he had sent to audit data specifically information about deployments of texas oil tank business tech monitoring business and information about the deployment of oil tanks and monitoring devices on those tanks that i know but was using information about when obsolete that information is very valuable to all the data because all the data wants to go to those customers and did and say look you're a nova device about to expire want to replace it with on one of our devices so the exact timing of when these devices would expire was of course very important to all the data to learn and mr recommender shared that information with them there was also evidence that both reckon markers accessed proprietary databases of unknown before they left a substantial number of them but the reason why the injunction list came to be what it was was that we were attempting to capture those customers that directly mockers either were responsible for in other words they go or paid based on sales to those customers they were in their territory or they were in customers about whom they had gained information that they had then shared with a data so when we looked at the customers that nova has meet the recommend employees responsible for the entire western region of the country they have a lot of customers the intent was to include those customers the ones that the recommenders had and used were most likely to use information regarding to target those customers for this list the anti solicitation directive now the court did say to the extent that they were or the data customers were substantial or data customers on that list that ota data should provide evidence of that and that we could negotiate that list and if necessary there'd be additional motion practice before the district court the motion practice that my adversary referred to did not really result from a full record it resulted from a selective a selection of a few e mails and other documents that really didn't show substantial business and as a result that motion was denied and now he can always revisit the issue we're still in discovery discovery's been going on for a number of months there's no reason why he couldn't resist it the issue before the district court i think is just a court would be open to that and we can obviously have negotiations i'm just trying to do the score let me ask about one hundred and eighty bucks you knowledge there's people on there that were previously customers today actually i don't acknowledge that because i don't believe it or the data has established that in the in the evidence that they put forward when they when they brought their motion which by the way they brought two days after  we don't i mean when when it's clear injunction was answered obviously we're at the beginning of the case and we're not the end so we're not in position to say with authority you know how many of those are in a one there was never any business done with but but the idea was to well but they're mostly the client that the i which of upheld injunctions against listing clients in situations where there is evidence of misconduct and the misappropriation of trade secrets the gallagher case that my adversary refers to is a case specifically where there was no evidence except circumstantial evidence of misappropriation of customer information the same is true with pickle and a case as well those are cases where the evidence of wrongdoing what was lacking not to suggest that this is an injunction intended to punish however when where a former employee in contravention of his clear and known duties does intend to harm his former employer in aid of a new employer that is conduct that can appropriately be enjoined the eminent harm there is activities but what they were doing during the time when they were working for your client well that and they were actually helping out is that going to be i mean there's going to be a lawsuit where they presumably you're going to make the case that they  answer an injunction that is that covers the proper territory and recognizes that this may be too young too too broad are you taking the position before judge jones that we shouldn't do anything until we do something or they they clearly have the incentive to do that as well they claim that they have made that motion however as i said that motion that they claim they made was made literally the day after the injunction was entered almost no evidence and it was largely on their say so they had an opportunity to put in a lot of evidence to support their position they put in almost not your honor we have to grapple with the evidence they have the evidence to face if they want to put in but they didn't put it in there was very little evidence and there was not evidence your honor let me address immediately the last point that was made that he supposedly never put on any evidence that's simply false there's an unlooked blooded two different duck liberations from andrei who lay where he goes through to clients that work out a day to clients long before they ever met the record markers he attaches and he declares in that every single name at issue which is over forty two dollars clients he then states with respect to the largest of those clients what the actual volume of business was in one of the in a paragraph or both of those declarations he then attaches to both of those declarations invoice after invoice after addition we put in the evidence of our customer list which has thousands of names on it these customer lists they were thought they were authenticated and it was declared that they were testing from publicly available sources where you get these customer lists and the most common of those are trade show lists in this business this is the time monitor business so they have trade shows around north america from time to time and you basically buy a list of who's attending that list shows that one hundred and twenty two of the names out of one hundred and eighty one and we cite to the excerpts of record where the shown are are on this list so there was plenty of evidence and at no point in time did innova actually contest any single part of it are these bigger clients smaller clients most of them are actually not bigger your honor that's why we had a separate paragraph in mr blaze declaration at the beginning of his decorations i think three or four where he lays out the biggest ones to show that those are the ones that are the most impactful but a lot of these one hundred and eighty one dollars companies are medically small at least we believe in my clients told me they're small so but with respect to the large ones yes it is impactful so it's kind of one of those situations where it's not the number that's all large it's some within that number are incredibly important in addition around i'd like to make this point that mr doogan said that became known to the record markers during their employment with the nova and or through their misappropriation of when i was confidential and trade secret information names who became known to and in fact we did meet and confer with mr du go what is it that you want this court to reverse and remand with directions if the district court is going to issue some kind of injunction that we actually do this process i've tried to do this process both before the order was issued and after the order was issued this court even told district court jones that he had erred in concluding that he didn't have jurisdiction to do it and even then he didn't consider it so i do think we were diligent so it should be reversed for the reason stated in our brief but with instructions to reconsider the issue if some injunction is appropriate with my fifteen seconds left i would say there is no injunction that's appropriate difference if there's still an injunction against ota data i agree with that your honor but he may decide to quit and not work for a day to some day and i just i'm in the unfortunate position of representing all three defendants and i feel like it is my obligation so at last argument the brave it is my obligation that might be fair which would be a either now injunction or much narrower injunction brian as o today i agree i don't know and i'm not and i wasn't trying to make that distinction  that in a nutshell is what it is designed to do for that reason it is also supposed to be reasonable and tailored narrowly tailored actually prevent the specific irreparable harm that is alleged and it is not supposed to enjoin all possible possible preachments of the law it is designed to maintain the status quo so in a trade secrets case which is what this case is about it is appropriate to issue an injunction assuming that the elements are shown that is narrowly drawn to protect against the trade secret the use or disclosure of the trade secret pending the resolution of the case and if that is what the order in this case did we likely would not be appealing at least not on behalf of all three of the defendants which i'll come to in a moment because the linear as you bust out so it sounds like from what you just said that and it would be limited to the customers who would prohibit solicitation from the customers for which there was some evidence that the trade secrets were either used or in connection with some form of solicitation so in our brief we there are a lot of numbers in the brief there are one hundred and we start with one hundred and eighty one companies that are on a novus list that the district court adopted for the  injunction one hundred and twenty two of those customers were already on a date as customer list prior to them ever meeting stephen reckon mocker and then even within that one hundred and twenty to forty two of those customers were actually doing business without a data prior to any connection with mr record mocker from there he jumped down and there was actually have a dense in terms of names of companies of twenty two companies that mr record mocker disclosed information about to ota data and within that twenty two dollars there were seven that were shown to have some different is the lack of likelihood of irreparable harm and that's what i should have come to and i felt as if i'd come to it sooner you'll recall that there was a finding made by judge roberts and that's finding which we do appeal from basically said that because mr record mocker had deleted the information that i know his counsel had asked him to delete that that somehow constitutes  foliation we argue it's not spoil the action because one of his counsel asked him to lead to delete it and gave him the express alternative of either deleting it or turning it and they used the word or or brian reckon mocker so when you get out of data out it in no longer has any of the information and it's possession custody or control other than in my hand it is in my hand because they preserved it it's on a u s b drive  but they don't have any of the information in their possession custody or control after approximately mid january so there's no danger of them using it so for ota data while i would agree with your honor on the st elements of clients or clients came in and like and said stuff and then actually had to change their briefing in some affidavit because it turned out that stuff wasn't true and so that really is sort of it that difficult that's the only difficult this you in this case he doesn't trust you guys so he says don't solicit is a very broad the cetacean injunction to get that i don't think this is station junction is necessary if if he or we trusted that you would actually obey the other injunction but there's a reason for his lack of trust i'll keep going your honor and frank that's why we are essentially conceding on the issue of stephen record mocker but for a much narrower scope of the injunction if it was the gallagher case that is kind of a good example the gallagher case is a situation where the th circuit did say that an anti solicitation injunction was appropriate but it had to be narrowly tailored to only those customers in fact in that case was one customer call in c b c narrowly tailored to only that customer for which there was some evidence that the information at issue was used to solicit there were nine other customers where there was no such evidence and the court said the injunction could not be in place with respect to those other nine companies so if i had to just say why i just said what i thought a minute that was really the gallagher case but your honor is correct that under the to remove eighteen names from the list but then as soon as the preliminary injunction was issued they would not agree to remove any from the list we filed a motion the district court the district court additionally refused to hear it at all on the grounds that we appealed and actually this court in an order dated may th two thousand and twenty told the district court that it had quote erred in concluding that it lacked a jurisdiction to modify the primary junction while it is on appeal unquote order was communicated to the district court in the district court still has not even entertained our motion so i think it's fair to say we did try earnestly and it just hasn't gone anywhere and now i a very good and thorough job of marshalling the facts that were presented to him and this is an unusual case i think it's also a case that judge jones recognized was a smoking gun type of case and let me explain what that means this was a mocker who are father son team that worked together at the same location had been in communication with ota data for many months before they left they left on december they resigned to december  rd they have been in communication with the data since at least september and in the course of those communications and this is all record evidence the record markers and specifically stephen reckon mocker had sent information to  t data that was clearly a proprietary information of my client it was not public information pertaining to a number of customers not just seven customers but well over forty customers when you add it all together there was get into a confidentiality agreement and which record marker told him that he'd be giving them confidential information now of course the only confidential information reckon mocker had was no of his information he didn't have his own confidential information to share so it was clear that the data and the record markers specifically stephen but his son works with him together essential misappropriated information of my client clearly did and there's record evidence of that we actually submitted a lot of information in the record before the district court and also used that information there was record evidence that the district court relied on that stephen reckon mocker had met with a nova clients on two occasions and had referenced information that he had sent to audit data specifically information about deployments of texas oil tank business tech monitoring business and information about the deployment of oil tanks and monitoring devices on those tanks that i know but was using information about when  that information is very valuable to all the data because all the data wants to go to those customers and did and say look you're a nova device about to expire want to replace it with on one of our devices so the exact timing of when these devices would expire was of course very important to all the data to learn and this direct market share that information with them there was also evidence that both reckon markers accessed proprietary databases of unknown before they left to  join the data and specifically we saw that some of those databases piers mr recommender printed information out and sent it by email to the c e o and senior sales director of the data so we we saw information substantial number of them but the reason why the injunction list came to be what it was was that we were attempting to capture those customers that directly mockers either were responsible for in other words they were paid based on sales to those customers they were in their territory or they were in customers about whom they had gained information that they had then shared with a data so when we looked at the customers that nova has meet the  responsible for the entire western region of the country they have a lot of customers the intent was to include those customers the ones that the recommenders had and used were most likely to use information regarding to target those customers for this list the anti solicitation directive now the court did say to the extent that they were or the data customers were substantial or data customers on that list that ota data should provide evidence of that and that we could negotiate that list and if necessary there'd be additional motion practice before the district court the motion practice that my adversary referred to did not really result from a full record it resulted from a selector a selection of a few e mails and other documents that really didn't show substantial business and as a result that motion was denied and now he can always revisit the issue we're still in discovery discovery's been going on for a number of months there's no reason why he couldn't resist a key issue before the district court i think is just a court would be open to that and we can obviously have negotiations i'm just trying to do the score let me ask about your one hundred and eighty bucks you knowledge there's people on there that were previously customers  today actually i don't acknowledge that because i don't believe that our data has established that in the in the evidence that they put forward when they when they brought their motion which by the way they brought two days after injunction  well your honor i don't agree with that let me be very clear about this earlier that day after that injunction came out again as counsel said we want you to take a one hundred and thirty names off the last provided no evidence of why no evidence of was just this is that right well let's just primarily the clients that were serviced by the rector mockers there are some clients that what they had information they took information concerning that are on that list as well but they're mostly the client that the upheld injunctions against listening clients in situations where there is evidence of misconduct and the misappropriation of trade secrets the gallagher case that my adversary refers to is a case specifically where there was no evidence except circumstantial evidence of misappropriation of customer information the same is true with pickle and a case as well those are cases where the evidence of wrongdoing what was lacking not to suggest that this is an injunction intended to punish however when where a former employee in contravention of his clear and known duties does intend to harm his former employer in aid of a new employer that is conduct that can appropriately be enjoined the eminent harm there is palpable and there are cases that recognize here including there in boxers were you know looks to me like for several months when they're receiving a paycheck from you know they were they were actually soliciting bucks or their future lawyers all of them one question i've got about this is we've got to this is all the stage the case is all were doing during the time when they were working for your client well that and they were actually helping out is that going to be i mean there's going to be a lawsuit where they presumably you're going to make the case that they  they clearly have the incentive to do that as well but they claim that they have made that motion however as i said that motion that they claim they made was made literally the day after the injunction was entered almost no evidence and it was largely on their say so so  the extent that we want to look at what the evidence is of who the customers are and the like obviously that is something the response are perfectly capable of advancing there's no there's nothing stopping them  opportunity to put in a lot of evidence to support their position they put in almost not your honor we have to grapple with the evidence they have the evidence to face if they want to put in but they didn't put it in there was very little evidence and there was not evidence supporting the position they're taking now which is most of the customers should be on the list i'm sorry your honor for going over  attaches to both of those declarations invoice after invoice after invoice it's not a history can set a quote couple invoices it's something like thirty invoices not a couple of invoices and it and it corroborates every statement made  a's declaration so there was that evidence in addition we put in the evidence of our customer list which has thousands of names on it these customer lists they were thought they were authenticated and it was declared that they telling from publicly available sources where you get these customer lists and the most common of those are trade show lists in this business this is the tank monitoring business so they have trade shows around north america from time to time and you basically buy a list of who's attending that list shows that one hundred and twenty two of the names out of the one hundred and eighty one and we cite to the excerpts of record where the shown are are on this list so there was plenty of evidence and at no point in innova actually contest any single part of it so there is plenty of evidence in the record on this issue and we were diligent in terms of presenting it to the core justice minister and i think can i get you to what i'm trying to get my head around  clients customers bases that are these bigger clients smaller clients most of them are actually not bigger your honor that's why we had a separate paragraph and mr du lay's declaration at the beginning of his decorations i think three or four where he lays out the biggest ones to show that those are the ones that are the most impactful but a lot of these one hundred and eighty one dollars companies are medically small at least we believe in my clients told me they're small  so but with respect to the large ones yes it is impactful so it's kind of one of those situations where it's not the number that's all large it's some within that number are incredibly important in addition around i'd like to make this point that mr doogan said that the that the record mockers either service to receive money or commission from these clients but if you actually look at the title of the document the list it's his list of another customers who or serviced or whose name became known to the record mockers during their employment with the nova and or through their misappropriation of when i was confidential and trade secret information names who became known to and in fact we did meet and confer with mr du going to bout this we sent a letter to i sent a letter to him where i listed that all of these clients whose names became known to the record numbers that the vast majority of them were not clients t i've tried to do this process both before the order was issued and after the order was issued this court even told district court jones that he had erred into concluding that he didn't have jurisdiction to do it and even then he didn't consider it so i do think we were diligent so it should be reversed for the reason stated in our brief but with instructions to reconsider the issue if some injunction is appropriate with my fifteen working for ota data it doesn't make much make a difference if there's still an injunction against ota data i agree with that your honor but he may decide equipment not work for ota data some day and i just i'm in the unfortunate position of representing all three defendants and i feel like it is mild legation