of like to start by focusing on the district court's order granting summary judgment in favor of the defendant house very has responded in this case the district court erred in granting summary judgment in favor of the defendant in this case in the underlying case r j b brought claims against the respondent for among others violations of the washington state uniform trade secrets act the computer fraud and abuse at and the economic espionage act and there is evidence in the record that support every single one of the elements of all of these claims what are the material questions of the in your view should have precluded the well i think there are several tell us what they are st of all the st aspect of the court's order that is clearly in error is the court's determination that our jeebies information its customer l and its outlook contacts and its pricing information is absent a matter of law does not constitute a trade secret there is case law on point edna crossed you versus rocker where the washington supreme court held  determination of whether case specific information is a trade secret is a question of fact so let's talk about the customer list for a moment the customer list is a compilation made over forty six years the information other side cite several cases for the proposition that this information that's on the customer list is readily ascertainable mr castlebury did not have a contract of employment correct not a confidentiality agreement he did sign an acknowledgment of receipt of the handbook which explain what confidential information is that handbook is in the record that acknowledgment is also in the record it explained the l b expected mr castlebury and all of its employees to go to in protecting its confidential information there is also case law that says that handbook is enough to satisfy an element related to a trade secret the rd prong of the test that set out in the row period action to protect correct that doesn't seem to be at issue here actually but you have this list comes up in virtually every case where you have an employee who leaves one job works in the same industry but if you scroll through and look at how many of these were already knapp steel customers number that have never been there there's no suggestion he contacted those people aren't you really left with just a couple of contacts that are at issue and that gets to my real question which is what's the causation or connection between this claim customer list and any claim to damages so those are two different we're talking one about whether or not the customer list is a trade secret and whether or not we have appropriate facts to support the element of damages for  boil it down to just a few contacts there is evidence in the record that creates an issue of fact there what's the issue or fact well the will the issue of fact is that there is at least one customer that there is evidence in the record that mr castlebury use the outlook contacts that he downloaded off of his r g b phone after the his employment ended to reach out to that customer and to solicit sales more than just an announcement of hey i've worry about the district court house what is the what is the damage well there are two cases what is the damage i don't want to know about case law where i look on the record to find the damage the damage is seven and then you find the name and email address of the exhibit use purchasing agent that was taken from an r g b phone at your one thousand three hundred and twenty nine and the outlook contacts and you see that mr castle consummated sale yes there was and how much is a damaged claim by r g b well that is where we don't need to specify an amount of damages it's there's almost there in the sale records there's an almost twenty five thousand dollars sale that was made as a result of this reach out and this contact but in terms of the standard for the application of in terms of the application of the standard for what meets the element of a claim for damages this is where the district court applied the wrong standard the case thought pedders and then relied on later in and in a supplemental authority that i submitted in a twenty eight j letter eighty eight motors case the way that you the burden to to make an appropriate claim for damages is on the plaintiffs to show that these misappropriated trade secrets were used to solicit a sale and that the sale in fact happened and then it's very clear that the law is that the burden shifts to the defendant to show that a portion of that specific sale was not attributable to the use of that trade secret and that is very clear and there's no case law cited in the briefing of the responde knew who he came in contact with the absence of the confidentiality agreement suggests to me he was perfectly free to contact these people and tell them hey i've changed jobs i'm now working for this other company and if i can ever be of service i'd be happy to do so right and there's more than that in the record that there's more than that is hey we have great pricing we can sell to you the customer you was a sale customer the puffing about his new job and he really likes the boy stories working now but there was nothing to prevent him from doing that puts aside just for the moment the use of the the phone and the use of the contact information that was in but these were customers that he had physical contact with correct that he had physical contact in which job when he was with r g b some of them you know so the exhibit you customer is one that was on the two thousand and eleven customer list from r g b is that correct correct and that customer had not worked with not seal since one thousand nine hundred and ninety eight and the evidence that that was a still customer and that the current contact information that was taken from the r g b outlook contacts was used to call that customer because and then he needed to submit a new it had been so long he had to submit a new credit application to do business with firm had nothing to do with the decision to institute litigation under the various statutory claims correct that's correct that's all i want to thank you he said and that's anyone other than the boroughs declaration what's the evidence and what were the plane to do to maintain these post the outlook and the other customer list is confidential to keep certain information confidential and that would include any confidential information or trade secrets and there is case law that says that those efforts through the employee handbook even absent a specific information i believe that he does and i would argue that that is a question of fact if you look in detail at that customer list which is also in the record you'll see over one thousand five hundred names not just distributors but also those direct b ok well there is there's no evidence that well let me put it this way the only evidence to the contrary that the respondent has submitted to refute that and in a summary judgment all inferences have to be taken in favor of the nonmoving party are these declarations of mr castlebury and mr burroughs that just say this information is widely known in the industry do you want to save your remaining time yes i do your on thank you thank you claims against mr castlebury and those claims fail on three different fronts because r g b has failed to meet three essential elements of the case of those claims the existence of a trade secret misappropriation and damages and in the interest of time i'll just touch on a couple of those today talk about what we do know your client did take a cell phone that belonged to r j be with him correct he did although direct correct he did and the never returned it was never requested to be returned by art and he never returned it he never returned it by this cry and that cell phone contained information about r j these customers correct it contained his outlook contacts just as anybody his phone would including his personal and business ones that he had entry and their information about our jeebies customers correct correct their email some customers contact e mail and phone numbers what is your evidence that the underlying litigation was brought in bad faith well as the court focused on below one is the complete lack of trade secret information that was allegedly taken and then a complete lack of damages who made the decision that the customer list constituted a trade secret for the purpose of knew or its officials knew that this customer was did not amount to a trade secret when the litigation was ensued as a matter of law i do not have evidence because i was not party to the congressman's reality is look in all of these cases where you don't have a non compete which would have in washington we don't have a non compete and somebody takes compiled information as opposed to simply going out and contacting a prior customer isn't there at least a foundation that that information is trade secret in its compiled form because that doesn't mean you know nobody said here where you could kind of work backward from every company in the industry who might buy that stuff and then you could come up with the same thing but i don't see how it's in bad faith when a guy walks out the door puts it on his telephone downloads it now to its credit the new company says hey we don't want you to use that but what's in what's in bad faith about given washington law on confidential customer lists that makes that somehow a violation well i guess a couple points one if you look at this list it's just so bare bones compared to anything you see in the case law that hol that a compilation could constitute a trade secret here it really is just a list of one thousand five hundred or so companies the cities in which they're located not even street addresses phone numbers that are on the internet and then already outdated indication of when the last sale had been made so let's say that exhibit you because sure going through everything that's what has been a den of fight is that there was potentially a customer that was on the compiled lists that mr castlebury contacted and made a completed sale and i'd appreciate hearing your comments on that yeah absolutely well as counsel acknowledged here today and as has been acknowledged in the  stake here what the allegedly confidential information is it's the identity of that company and publicly available basic phone number that could be found on the internet so that was something that still obviously already had as to this particular customer regardless of how long ago that sale had been made this is a company they were aware of and there's no indication that that mr castlebury somehow provided secret information that led to that sale so they haven't pointed to any sales that are linked to the actual alleged trade secret information which is what the district court recognized the day judge beckman concluded the they hadn't prove compensable damage correct that's correct and that's sort of the heart of the summary judgment and i would agree yes that in the lack of a trade secret i think are the two points that judge packman really focused upon and even if it was a trade secret you still need the damages for investigation do you know of anywhere in the record that documents those damages i'm very glad you brought that up your honor that's the point i wanted to make today because i'm preparing for the argument i realized that to my knowledge i can find anything in the record indicating actual evidence that they had expended five thousand dollars or more on investigation costs it's a bare allegation in the briefing with no citation to testimony or evidence to that effect so there's no nothing in the investigation or alleged investigation was into the desk top that mr castlebury had left at r j b not into the cell phone which has been sort of the focus their new focus of that calf a claim and so any alleged acknowledge there's no evidence linking the self one drive account to any e mail account or linking the phone to the actual you know computer back at r g b it's more a matter of the his personal email address so he was still employed with r g b and so it was sitting there he never actually printed it or anything like that he just it was sitting there on his email to my understanding so that's the format it took  counsel for r j be brought up the burden of proof on damages and i just like to briefly touch on that and i think we're both in agreement that the petraeus case applies here but we're reading it differently so r g b would have us stop the analysis at the point of just demonstrating the nab still made sales to certain customers and then you know says that that should be it that proves their their damages but in fact their burden is to show that revenue was obtained through the transfer of a trade secret and again that's a showing they have not made here so prior to the time when the defendant would have any obligation to show that a particular sale was not linked it was not an actual loss to the plaintiff the plaintiff bears the burden of showing that that sale was in fact to due to a trade secret and that's where our j p fails  here as to the attorney's fees issue we counsel didn't have an opportunity to get into the to that as much but in the briefing r g b has put a lot of emphasis on the correct test to establish bad faith and and so i wanted to address that as well counsel is reading the precision versus rivera case to be a definitive bad fa test that the washington courts district court should have a plied again it does not establish the type of cases says that in that instance it cannot be said the plaintiff was fully aware that it suit was essentially frivolous given that there is no other evidence of bad faith on the plainest behalf the court finds in order fees in the case is not appropriate so it's really looking at the circumstances of that case and also indicating there are various ways in which bad faith could be found so in this looking for a method to analyze it and and chose a very reasonable one that other courts have adopted as well and i think actually it could be argued that the application of the gemini test is actually higher threshold to show bad fa than what r j b would be applying because it has two prongs not just that the claims are baseless but also that there's a finding of improper motive or person or purpose the nd prong and so the court really was taking a hard look at the squelch competition where there is no non computer agreement and preclude mr castlebury from continuing to pursue his livelihood in the industry due to personal animus learnedly try to do that i mean that's where that's every case somebody walks out of a company and they compete in the same industry and they had this customer list that he downloaded a lot of times they won't even know that they don't so why why wouldn't that be a reasonable basis to bring us given his conduct well in here we have you know an added layer where there was the the friendship between the two that went awry and mr back had a personal anim baseless and the nd prong being the improper purpose or missiles in their baseless it took me a long time to sort out what what it might or might not be i didn't see evidence either way about how long it might take to compile such a list and put together such a list is there anything in the record about that about how long it would take to compile it well of course r g b is saying we added names to this list over the course of many years of our business but let's st answer my question is there anything in the record that you from either side how long it would take to compile such a list i don't believe so your honor i'm not made because my my difficulty with this is in all these cases of course you say well i'm in the industry it's no secret who's in the steel industry in the world all i do is i go on the internet and i figure it out and i write down the names and towns and stuff but if you compile that do you acknowledge that under some circumstances a customer listing even without pricing information could be considered a trade secret i think under certain circumstances it could but i don't think those circumstances are met here it really is just such a bare bones list it would just be a matter of adding a company to the list every time you make a sale there is nothing in it that reason publicly israeli military could have why does he need the list he doesn't know you well he you know that to himself because of tracking commissions that's on the record he was not emailing it himself to take to nab steal or anybody else he was trying to mark off which customers he believe commissions have been diverted into a you know landed on a customer or reflected in exhibit you how he landed on that customer i believe it was somebody he had worked with while he was at r g b i don't think that's in dispute some of these customers are overlapping customers between r g b and napster but again he had no non compete agreement and and he had an established relationship with them was john's what's wrong with this castleberry fails to show that the lawsuit was more to be motivated by a vendetta beck's disappointment over the resignation of a valued employees understandable beck became much more concerned as any employer would when he discovered evidence that castleberry lied about his plans to have the ghost relist and started contacting r g b customers for a competitor what's bad faith about bringing a lawsuit the reason you have discovery is figure out the damages i mean doesn't you have  claim at this point for one thing there are some facts that are not supporting the record like mr castlebury lying about whether he was going to go elsewhere at the same email they rely on the record for that actually has mr castle telling mr back i've contacted other steel pipe companies so he's very upfront about where he was going but to also address your question you know even if at the very beginning of the case there wasn't bad faith and i i believe there was but even if that weren't the case as the case progressed and discovery progressed as the court in its order on the motion to compel said i have not seen any evidence of damages a year and a half into the case and it seems to be  speculation so the court itself was saying that at that at some point mr back should have come to that conclusion that this was in fact baseless and he said not to maintain the case which is another sign of that that right may be that at had i gave you a live advance notice of a question i was going to ask you about cafe is where do i look on the record to see investigation costs linked to the computer as opposed to cellphone good question i'm glad you repeated it  my notes are so messed up here i may not have gotten back to that so evidence record page seven hundred and forty two on the declaration of richard person counsel links there declares that more than five thousand dollars record i want to make one other correction i said that when your honor asked me what damages they suffered as a result of these sales to customer you i said twenty five thousand dollars  actually made five thousand dollars and failed as a result of that specific contact ultimately was twenty five thousand dollars so i wanted to make a couple more comments i think your honor was right on the right track in discussing the customer lists as a compilation that is one of the very essential elements of a trade secret is that it be a compilation it was in this case not just any compilation but is there any evidence on the record here i  think your colleague said she didn't know anybody worth before somebody actually said well here is how much it would cost to recreate this to make a compilation such as you have that's right and i would i would argue that it can't be done it's this doing it over this many years if we had to recreate this we there couldn't recreate it or it would take this much time or whatever is there any such evidence along those lines well no sir no not not the kind that you are talking about now but if you  look at the list you see the different nuances to it the fact that it covers twenty eight states was compiled over forty eight years and the other thing that i would also argue is that we have  counsel very definitely omitted talking about the specific nature of the outlook contacts that were downloaded to this from the cell phone to a new cell phone those outlook contacts contain the names and the specific phone numbers of specific people who are decision makers within those those particular contacts so although the customer list may have been more bare bones as coun described it the outlook contacts were not they actually had information and that information is what led mr castlebury to customer you and i would just say the an over arching manner counsel kept referring to the claims as having no evidence to support so i would emphasize that here all inferences have to be made in favor of the  nonmoving party thoughts r g b and all of these including the credibility issues that counsel briefly spoke about they are questions of fact and those are for a jury to decide certainly one of the fundamental importance is of our judicial system is to allow credibility to be assessed by your peers so the judge in making that determination was in cracked in granting summary judgment thank you thank you thank you for the argument this morning r j the wholesale versus castleberry is submitted reynolds we saw a submitted on the br