please the court morgan goodspeed on behalf of appellant she even bets there are a number of claims in this case so i hope to focus this morning on three specific legal errors first the district court wrongly refused to enforce a non solicitation agreement between ciii bets and ms moffat johnston second the district court wrongly awarded attorney's fees without making any of the required signings and third that the district court wrongly excluded a critical piece of evidence before it later in the middle about same evidence at trial so turning first to the enforceability of the non solicitation agreement here can i ask you question with the evidence or former customer and then did she contact him to her tell the client to contact and what's the evidence about that and can you talk a single from that purchaser of that client to sure your honor it there is not evidence from mr hagstrom as to which pacific clients although it's clear if if your honour's look at the sealed record it five nine zero six to five nine twenty five there's a an extensive list of on damages so tell me your evidence how you get to a jury on damages from that congress that specific scenario your honor again there would be an overarching d images argument here based one of the clearest lines that g e drew in order to give an example of how do we know that she said didn't say anything at that yacht day to the clogger than how your children has your wife has your golf game your honor that is  a possible inference for the jury to draw but the point that she was making is that it was not simply providing direct evidence of what may or may not have been said in that conversation and what it was providing was serious circumstantial evidence that showed  it's true that the record doesn't show an ultimate list but that discussion followed the district court making clear that she was not going to approve an injunction in this case because she incorrectly felt that this agreement was an in forcible as a matter of texas law and really that was a result of two errors in her reasoning under texas law the first is that she was requiring the agreement to do more than simply specify that it applied to clients with whom is moffitt johnston had had contact that's the accepted rule under the texas supreme court decision in pete marr work versus haas and the just record impose this additional  a an agreement say it applies only to the clients with whom there's been contact but it must also say that it applies to some subset of that client to specific individuals or specific divisions and that's simply never been in requirement under texas law and in fact texas law so just to the contrary alex issue not for example is one of the few texas supreme court decisions we have here and that case involved banks large financial institutions and there was never a suggestion that in agreement could only cover some smaller portion of those clients i've actually speaks to  be how would the former employee know who they couldn't talk to well your honor a former employee presumably has some sort of memory of the clients she had communications with that and know that right is that with your son or your honor in the ordinary course perhaps she would ask to effect a list or something to that effect that but but it's very key that the agreement does if it's at tab eight of your record although i admit it's a little hard to read there it's also quite a bit record twenty four to twenty six in sections one beans and one cd of the agreement it defines the customers covered by the agreement as those with whom moffat johnston believe the district court was wrong here because this limited series self so on its face by the terms of the agreement it does your honor section one one b and one fee although there is a lot of sort of contractual language synonyms and the like you can see that the term customer includes specific customers with whom i had any contact or communication or about whom i developed received or learned confidential information i thought it said customers any current customer of the company correct your honor but after that including false it's any current customer of the company with whom i had any contact or communication and so on its face it is limited to i thought it since it would be any customer prospective customer regarding products or services that are similar to a competitive with those i gained knowledge of well employed by the company that's correct with whom i've had contact me and i'm bringing in the definition of customer which is section one b one b then defines customer current customer of the company including representatives of the customer key decision makers plant managers with whom i had any contact or communication or about whom i developed receivers or learned confidential section one b defines the term customer section one b one c defines prospect of customer and also does so in a way that limits it to clients with whom ms muffet johnson had specified contact those are also it's a bit illegible the agreement itself so that's also coated mournful in our complaint at twenty four to twenty six in the record but but that's the key here is that the term customer and i don't think this is something out police have ever disagreed with that the term customer limits the agreement to the clients with whom office johnston had contact and the district court was wrong to require something more it also required an actual immiscible list of those customers and that's something that's relevant to an injunction but doesn't relate to the enforceability of the agreement on its face now even if this court were to find that the agreement isn't forcible which for these reasons we do not believe it is that at a minimum the court must reverse the award of attorney's fees the district court made none of the required findings under texas business and commerce code fifteen point five one c and in fact ordered an award of attorney's fees that as far as we can tell has no basis in the party's filings and like to turn to the third key error here in last year on or has additional questions about the enforceable the enforceability of the agreement and that error relates to the data loss prevention report or what we've called the deal p report what the deal pew report is a complete report of all actions taken on ms moffat johnston's computer during her last ninety days at g e and the district initially excluded this report thinking that it was an impermissible summary under rule one thousand and six but then all timidly emitted the same report at trial so we submit that there is no cause for deference here as there would be in the ordinary case in reviewing an evidentiary determination and in any event even if the ordinary standard were to apply there's a clear legal error here can you tell me again where it says at it says customer the term customer refers to any current customer of the company including representatives of the customer key decision makers plant managers purchasing agents technical representatives or any other employee or consultant providing services for the customer with whom i had any contact or communication or about whom i developed received or learned confidential information that's what the first page of tab eight one beat i see that ok from injunctive larry you would get it but that didn't happen well past the eighteen months we're just now talking of that damages i don't see how the print out of the twenty thousand downloads helps you print damages and only one that is probably the clearest example i think there was other evidence about the images that included a comparison of g e s profits before and after and the loss of particular e customers to him spec which he had argued was the product of a combination of solicitation and the use of g e s confidential information so well you know what you got to the jury on use to tell g e about her future plans to compete what we did not get to the jury on was any of our arguments about a breach of confidential information misappropriation of confidential information solicitation and the like and because those are intertwined our damages planned and our damages expert was going to explain the loss that you suffered as a result of stadol world he says she talked to him  the yacht event sure and he downloaded confidential information which included him for him but maxwell hagstrom got hired by the new company as well and he was not hamstrung by non computer greenman so how do you spill for example there was evidence that ms moffat johnston spoke with the oil there was evidence that stout only treated ms moffat johnston there are particular point of contact not treated hagstrom as their point of contact at the injunction with regard to these large multinational oil and gas companies that restricted her ability to miss market johnson's ability to contact every single employee at these companies g e has changed her story in the appellate court we all agree overly broad that the judge did the right thing by saying your interpretation of this agreement is overly broad and i need to limit it now under our family at a minimum the agreement prohibited her from soliciting clients with which she had had direct contact or for for supervising others in soliciting clients and there seems to be some evidence that she supervise hagstrom while hagstrom was soliciting former g e con so we agree that it limited in her ability to to solicit certain clients in fact she did that th testimony was that she was following what she believed believed the injunction to is there evidence that she preferred a client to hack you know with the evidence was your honor that she told him there are certain customers i can't talk to so she didn't talk to those customers the only evidence that she supervised mr hatch from that they put in the record was mr hagstrom sent an e mail that said i'm going to see antonio letting her know he was going to be out of town and they tried to argue that somehow that was evidence that he was supervising her or him  happened to be located in san antonio so the only evidence of any coordination or forwarding of customers were just routine types of emails about his you know where he's going to be there was no evidence that she was forwarding or funneling customers to him or somehow doing anything under the table to get around her non computer green in fact testimony was that she tried to follow it by saying ok i know i can't contact these people if something comes into those people you need to deal with it and then it's important to stand that these two businesses both did business with the same customers in fact the evidence was that before any spec got into this business gene would actually send its marketing people to inspect marketing events to piggyback so they already had lots of contacts with these customers  going back to your you're issue on the images we put into the record a long footnote of all the different contacts and relationships for example with stadol well that and spec had irrespective of miss moffat for example jack smith testified that he had dinner with the very person th it's not that where i don't think there is or i think there's speculation that she talked to somebody a stat oil at a party and later on an expected business with stat all therefore there must be enough to raise a fact issue and i think the judge looked at that said that's not enough to raise the fact it with there wasn't that a violation of that her agreement and isn't that some evidence that she used to gain a competitive advantage frames and i'm glad you asked that question your own in fact that comes from the business plan that they're arguing is filled with trade secrets  and there is no evidence that inspect cut profit margin to compete with g e or anybody in fact the ol all that the business plan says is get market share not from g e it doesn't say anything respect to targeting g e or using inside information from g e the only evidence they had was this business plan which i think when you look at your honor it's just talking points for her interview it has general things on there like hard hitting team  nt we need equipment we need a strong safety culture we need a good mix of higher margin and lower margin business these are just general business plans for in egypt say you could use the same elements for really any business not even the cargo treatment  to say that they had it she had a specific target plan to use trade secrets to go after g e that's not evidence of that in our in this was this was their best evidence that they offer to the trial court for that theory so i would say that that falls fall short of raising a fact issue on that point i want to go back because i think you said you were you were leaning against us on the not to be agreement i want to try to convince you what's the issue in that agreement your honor is the way it defines customer is refers to any current customer of the company and it's your agreement then that whole agreement has to be that doesn't need to be narrowly terror it's overbroad on its face if that's the agreement i think the agreement is subject to a number of different interpretations which is poorly drafted they are the master if they had going to get a trial now what was or was it well i think you have to look at the summary judgment stage because that's where the judge rules if you look at their briefs i would say it's woefully short of taking any position you're on a day to catch the kurds affidavit again which the kurds affidavit was the one that you will call had the twenty something companies that they alleged frankly globally i guess she was limited in soliciting they didn't even make a case that it should be the entire company or i'm not sure i can tell your honor to be honest with you i mean they basically just say are you in a minimum she's prohibited from contacting clients with which she had contact i'm not sure that's clear and i would say that that position cannot be consistent with the kurtz affidavit that they actually attached where they said here's our interpretation of the agreement she should be limited from soliciting these twenty three companies and then say to people that those twenty three companies within she had contact in last question what was there are you i would say that their position was consistent with the curse affidavit which what they offered to the court which said that she should be limited to any contacts with anybody in these twenty three companies that's what it said and i think the court took them at their work and i would point out that the evidence that a list gave it to lawyers and that's what they offered up to the court so i think that gets into arguments on the fifteen fifty want to turn his fees which is that they knowingly took a position that wasn't even within the four corners of the agreement was actually broader because they were advocating for her to be limited in contacting companies with whom they had no good faith basis to believe she even had contact within the eighteen months under the terms of the agreement and he mr kurtz testified you can read the agreement before you put together the list of companies that she should be contacting and that's what they submitted to the court as the their view of what the limitations on her should be do you give me an example of one that she did not have a relationship where they argue to the court on summary judgment that she should be banned from contacting you it's been a while i believe chevron was one that when we had negotiations that we that we had actually i think agreed to take off the list the bigger issue was geographically many of these companies are huge companies and  where i believe they fall short on the law is that they have to have a protected all interest and they have to show that they restrain is not greater than necessary to protect that interest so for example in this michelle moffat johnson was involved in a cargo treatment at a refinery for valero in san antonio and she had nothing to do with of all their opening up in seattle in fact g e doesn't do business in seattle under what they're advocating she couldn't contact that plant in seattle even though she doesn't do business there and she would say yes  the district court at the time of summary judgment not at the time yes i would say yes but that's what kirk's affidavit says that was the whole they never changed their position the court never understood them to have changed their position and you know they're now trying to change their position  part of that falls down the whole documents admissible that's the summary judgment stage i believe there's no question that the underlying documents have not been produced or made available to us there's some there is a lot of dispute after that as to whether they were completely made available or when but i don't think there's a dispute that at the time the judge ruled they were not and just the best evidence of that that i've found i mean it's clear in their motion for reconsideration that they weren't produced at the time but there to do this that at the truck or stage they're trying to make arguments based on the subject of an email from a computer printout of the subject line and who was to fact at the trial court they made an argument as to what the subject was it was a wall and we went in f the original email and it said the opposite of what they were saying that's basically them trying to get into hearsay that the original email through this through this you know who it went to and what date it was and they're trying to do the same thing in this court by argument there's they had a computer program that said that mr that mr moffat did something on a laptop then they destroy the laptop so we can't go back to the laptop and verify what they're saying is true well i think that's spoliation i think that's that's one problem that has to do more of a sanction for enforce the rules or write your out so it's not if that's not a summary i think their argument that it's a computer business record and that's their best argument that it should be miscible on that basis and i would say that that doesn't fly either and here's why their own words were that these reports are generated by intellectual property investigators not not business side employees  we would argue your honor that the entire purpose of this was to basically to use this to catch employees in violations that they would use for litigation now is to protect their business but what's the next i think that's a that's one problem here and also has to be not not at itself in your accumulation of hearsay and i think you know you can at least make the argument that the record of a download is data but the collection of the e mails again we feel very strongly that's here's what was in the e mails but it certainly is evidence that she downloaded twenty seven thousand documents right but they combine those two things together into one document so if you find that the the combination of a summary of e mails and it is not a summary but the fact that that part of it is an accumulation of hearsay which we believe it is because you're saying it's a fact that she downloaded documents and these files right that the fact that it doesn't show up in the ad doesn't report to show it in the e mails but the fact that she downloaded what she downloaded some evidence of what she downloaded but there's two separate parts of  that what you're talking about is the part of the deal to report that dealt with the downloads there's a separate part that dealt with e mails and it's all in one document your honor so if the list of it's basically just a list of e mails is what it is and then there's a separate part to that's a list of suppose  downloads the list of e mails our view is just hearsay it's a list of e mails that were supposedly sent either to or from miss muff but they are they did offer for the truth of the matter on the e mails they did treat them that they actually they actually offered it you know for the truth of what was in the e mail which is really really perplexing because they don't even actually offer they had to e mail they could have said here's the e mail where she sent financial records to herself they didn't do that i don't know why they instead have a list of ten thousand e mails and set on e mail number four thousand seven hundred ninety two were you can see is the to and from in a subject line that that e mail is evidence of what was sent in the e mail without actually showing the court what's in the e mail they did the same thing in the trial court claiming that there's an e mail where miss muffet offered a job to a to a g e employee and when you poll the actual email because we dug and found it and it's here it's that employee resigning it's a totally different subject than what they  in was because of the discovery abuse this is this is evidently their key piece of evidence they waited until two weeks before a discovery extended discovery deadline to even produce it to us they got rid of the laptop we specifically requested documents related to misappropriation which clearly this is they made a boulder play objection and never gave it to us and they're saying well we objected but we didn't they never told us that they're withholding it the new federal rules specifically require that now because that because of games like this so they had it for the entire duration they never mention injunction hearing it's never mentioned the pleadings we took twelve or fifteen depositions they never mentioned it and all the sudden two weeks before discovery here you go and by the way we've destroyed the laptops there's no way to actually go back and verify anything that we're telling   i think you know our position would be that they got to submit it to the jury they got to make every argument that they wanted to the jury the jury still found no damages so the jury validation of trade sixty style criteria trade secrets said she stole confidential information they didn't get that to the jury well that they got to put on that evidence now they didn't get to submit a jury question on misappropriation i'll give you that but they got to actually put on all of the evidence they question her on the d o b report  and the jury heard that it says get together anywhere so keep going ok the answer to my question it would have to go back on that claim but the and last we agreed with you they argued for an overly everything i think that's right but again i think our position would be that there are there are a number of reasons why the court should have excluded that document the let's say the court picked one case or evidence that that document caused damage no  i mean i don't i would i don't believe there's evidence i would say so why do you say we have to go back well i didn't say we'd have to go back i think that well you're not out of just because let's just say hypothetically this is evidence that she misappropriated twenty eight thousand files there's nothing to show that she actually used there's nothing to show that that information actually went to the company or that she actually use that information to compete you know with the g e so from that regard i would say that it is a few points your honor at the first judge i'll read to your question about what was argued at the district court i want to be very clear here g e throughout this case has argued that the agreement isn't forcible on its face and that it applies only to clients with whom has a seattle lera are you i thought your position within the kurds affidavit was that she couldn't talk to the seattle person either yes your honor but the position is that she cannot communicate with the client and the client adage is too broad and that's not the position i thought that you were articulate that you were saying she couldn't deal with people that she had done business with i thought that's what you were telling me those are specific people their honor she had done business different there could be on a jury question for example as to whether there was actually a breach of the agreement because perhaps there hadn't been sufficient evidence to show that was her queller you would have to argue for redlining it seems to me it and that's not that's that would be so on in force i mean that's just on the forcible normally why these things work he said you know the trial judge and they don't throw that even if it's a really broad and let's just on its face were we do what's called redlining and we sit and you take the the part that isn't forcible which is the people that she had contact with the customers in whatever geographic region those customers were but not customers and not worldwide people of under the same corporate embroil and that didn't happen here it didn't happen here your honor but even if your owners disagree on enforceability again at a minimum the attorney's fees need to be reversed and because they were too broad they worked on it to the district court may no findings as required under fifteen point five one c and for the reasons we've given what remain and for them to make the proper findings you could do that your honor but as your honor and but putting aside the non solicitation agreement the d l p report alone affects claims on the misappropriation of trade secrets the use of confidential information the breach of common law a duty with regard to confidential information financials to show which clients had moved from g e to m spec immediately after the appropriation extra it could have your honor but one of the reasonable inferences for jury to draw would have been  he would be able to argue that look she took our financials and knows what profit margin we've been using with say valero now am spec comes in with a lower profit margin and you have to show that they actually use the confidential and from a create at least an inference that they had a different profit and it's my interest in the evidence did not include that in your honor g e was not allowed to argue for that because the district court excluded the d re's not that link of course the d l p report does not say about specifically but it offers circumstantial evidence it shows both margins it shows very suspicious timing it shows mr moffat johnson took twenty seven thousand  documents from g e full of highly confidential information and then shortly thereafter has success with those precise clients at numbers that were able to show to a jury and that's sufficient circumstantial evidence that the jury should have been able to  really suspicious circumstances of theft of secrets are often sufficient to demonstrate use because a an employee is unlikely to take a box of secrets without intending to actually use them thank