robert carrick op i'm here for the petitioner mr clark your honour's this case arises out of a denial of an anti slapp motion decided under california law and the issues that we have raised in our brief point to substantive and significant deficiencies in the opposition to our anti slapp motion by an eis or bush notably initially is the absence of any admissible evidence of a trade secret there were plenty of opportunities for anheuser busch to do so and it failed to do so and instead of submitting evidence this page thirteen this document that this is this alleged trade secret what other evidence besides that declaration of that sort would you have expected them to put in i would have expected them to submit under seal a copy of the document itself and there are procedures under the california you know foreign trade secrets act and under the eastern district local rules that would have permitted that to happen and to keep the secrecy and privacy of that document intact it's so critical to the company's operations i don't understand why that's not an acceptable form of proof i understood your honor and i think i understand the question in that context as i look at it though i go back to the hearsay rule i mean aren't we talking about creating an exception of the hearsay rule and and that's where i can't get past personally for on an intellectual level because i do have a kid you know do we have case law that says in a trade secret action you know we're talking about let's say a document yet unless you produce the document itself you are you cannot you know satisfied your burden on that point i do have two cases in particular your honor one of them is an unpublished california court of appeal decision bought of the one with the other i don't bother with that i'm not going to look at that what do you have in terms of published to the eleventh circuit court of appeals issued a decision that i cited on page seventeen of my opening brief the peat case which specifically held that a declaration prepared at the request  describe a trade secret was comprised of quote classic hearsay and was an adequate in order to prove the existence of a trade secret and that was the most direct case law i could find on point the other issue do you address kind of the argument that i have seen from and his or bush the argument that was proposed by the trial court judge in this order is that miskin or because she had personal knowledge of the content of this document that that that should be sufficient to establish the fact that it is a trade secret again my concern with that is don't we open up the possibility of an exceptionally broad previously and enunciated recife exception to the hearsay rule which simply says if you have personal knowledge of hearsay statements then it admissible in that case wouldn't we all but eliminated the existence of the hearsay rule altogether for example i testify as as a witness about what somebody else told me but i have personal knowledge of that because i heard it well this is a unique situation it's not about people talking to each other it's about the keeper of records and so that's kind of a confined circumstance as opposed to opening it up to every conversation that may take place in the fear system correct and i actually look for case law that would support a b s position i personally was unable to find something that specifically said hey in the context of a trade secret because of the nature of what we're talking about somebody who is a custodian of the record or has intimate personal knowledge of the document or trade secret can go ahead and testify and in terms of a declaration for purposes of an analyst now look at situations we get testimony from or declarations from custodian of records all the time they're not necessarily knowledgeable about each and every piece of information that went into those documents but as a caretaker of those documents they attend to the fact that they are ordinarily in regularly kept in there composed in a particular manner and the are safeguarded so why is this so different that's a good question and i'm afraid i'm going to base this on my experience with california law as opposed to federal law so if i if i miss state something on that regard it's when i think about this for example i an active civil procedure code sections and specifically authorize and allow for the introduction of evidence from a custodian of records to authenticate the records and i don't know if federal law has a similar provision so i can't i guess in this context procedurally i can answer that question under federal right but why isn't this analysis today it's not exactly the same but why isn't this close enough to assuage any here's a concern and i think it actually goes to the original call of your question as i understand it which is is the custodian of record actually just authenticating that these are genuine documents that are being introduced into evidence or is a custodian of record providing testimony his or herself about the content of those documents i guess that's where i see the distinction and again to the extent i'm working from california law maybe different in the federal courts you know page thirteen we talk about th one of the thoughts is this this is not the child of the matter this is just for the purposes of determining whether or not and how the bush had a reasonable possibility a probability of prevailing so we're not at the point where we and declining to admit evidence so in that context why is this impermissible well i think given the concerns it sounds like we're starting to go into the argument of planned parenthood given the concerns about the anti slap action itself the california law requires that the plaintiffs in bringing an action and defending against an anti slapp statute actually provide in its burden is to show to the court some admissible evidence that that demonstrates that it has a prima fascia case in this case a case for misappropriation of trade secrets for example and one of the essential elements of that case is the actual existence of a trade secret watcher's why i'm spending so much time focusing on whether or not this trade secret exists and whether or not and his or bush has met its burden in establishing the existence of a trade secret sufficiently for purposes of defeating the anti slop action in that regard i think it goes right into my next point as well which is about whether or not or bush sufficiently protected the the secrecy of this document page thirteen it's submitted evidence of the fact that it has take control over the electronic distribution of page thirteen but the record has unrefuted evidence of the fact that this document was printed out and posted on bulletin boards throughout its facility that were readily and easily available to thousands of third parties visitors guests every year and there was no there's no evidence that  proffered that that disputes that testimony so i think in that sense even if page thirteen even if miskin or his declaration was sufficient to establish the existence of a trade secret the fact that this document is in printed form is paying in all over its facility and is excessive will readily to anyone who may just walk by and pluck it off a bulletin board demonstrates that there isn't an adequate effort to maintain the secrecy of the document the first place ere go it should not be given trade secret protection has a chance of prevailing on i am first and foremost and second another but that doesn't that doesn't address the specific requirement to establish a trade secret and my question specifically with what why would plaintiffs have to show the actual content of the trade secret as opposed to the existence of a trade secret and i think that that's answered by the california uniform trade secrets act california civil code section thirty four twenty six point one that is expressly lays out the existence of a trade secret as an element of my claim as a contents of the entry of the secret that's what you're is saying that's what you were objecting to the fact that the declaration talks about the contents of the thicket but the existence of the secret is the required element and that's a great question i see where you go in the distinction which is how do you prove the existence of a trade secret without actually showing the trade secret are you required to actually prove the contents of the trade secret in order to state it calls it back or to prevail i think the answer is absolutely yes it was so give me the case authority right problem can i finish my question sorry the case authority to support your proposition that the actual content of the trade secret secret must be established pete inc the vanguard research nine seven one zero eight and sergeant fletcher inc able corp one one zero cal at fourth sixteen fifty eight one six six five and so if i read those cases they will say that the actual content of the trade secret is an element approving of trade secret i wish i could say that but i can't say that that's what i a is the fact that there is no evidence of damages that was presented by an eyes or bush in this case and it goes to both claims both claims requires an element damage be actually suffered and there was the original anti slap motion filed by us in two thousand and thirteen and the secondary renewed anti science action filed in two thousand and sixteen in the original action there was a declaration stating that the attorneys fees incurred in that related class action and the attorney's fees in this action were damages but that evidence was specifically and intentionally omitted in this two thousand and sixteen motion in fact as i cited in my reply brief the respondent when so or appellee went so far as to specifically expressly forswear any reliance on the attorney's fees incurred in the class action  damages in this case so i think as to both claims here of the breach of contract or misappropriation of trade secrets there was no evidence submitted in opposing this motion and there was an expressway book of the actual damage issue i don't think the damages incurred in this case would eat or attorney's fees incurred in this case would constitute damages in any event just one quick question where did the expressway ever occur that was  my reply it's on page six its size a pelleas further excerpts of record page one note five ok thank you thank you and your honor i'd like to reserve my last few minutes for a reply very very briefly and i will not be absent questions you take in my entire allotted time as i'm sorry you said let me know i said i will not be taking my entire and clear we have to focus on where the status procedure of sadness of this case is where deciding whether or not we are provided adequate evidentiary materials to see whether we can proceed with the case in the face of a slap motion so when what's commonly call a prank to which is our duty to show that we have legally cognize a ball and i use that term because the cases are a little vague about what can go into that basket but it has to be credible evidence so we have submitted to for instance meet the elements that we have to show for trades attempt of a trade me ask you about the scanner declaration sure i mean i think i had been at a different memory of how detailed it was and then when i looked at it again it's actually pretty bare bone why is that adequate the one sentence of any substance that says it contains a wide range of confidential information relating to hand highs or bush's brewing process including but not limited to information regarding a variety of characteristics for each of his or bush's projects that's really the sum and substance of what she says in terms of describing what's in the thing she then goes on to explain why it's so critical to the company's operations i grant you that but in terms of your opponents objection that you really haven't given the district court enough to even flesh out the substance of what's in this document why is why is he not right about that because i think that it's perfectly adequate it's not hearsay and it does describe and she does say that  is discussing the i now see and components of the brewing recipes for the more liquors she doesn't have to lay them out  have credible evidence that would allow us to go forward to a jury you know quick regrettable evidence of what that there was a trade secret that was stolen or misappropriated that you  show that you have a great secret and i thought of the show it's a great secret well that she is describing that she is the i guess for lack of a better word the custodian of record as well as the person who is familiar with it that this contains information related to and hauser bush's grueling process sees including but not limited information regarding the variety of characteristics for each of court that you don't have to when you're providing the recipe to the brewers which is what how this is used is that you have to lay that out for the court or the opponent and as you pointed out of course they stole it so they had it so they know they absolutely know what was in it and in fact gave it to the consumer class action people who then one of them i guess lost their their nerve  returned it to us when we demanded it which basically is the basis so i take i take serious dispute with the idea that the very essence of a trade secret is you want to prevent it from wider dissemination and then you can add all that you have to put in and detailed more detailed information about the document and saying that it talks about what each beer analysis and i don't know how to say and i'm not a chemist but i do drink a lot of beer does describe a speaker drink a lot of really cool whole brewing is a great big hobby now i'm sure you can go on the internet and you know get one hundred recipes for beer but they didn't do it they're keeping it under wraps in a special computer protected program that only various people have access to it i don't know what else one would do to say people on the internet who put their home remedies are grandma and grandpa's baram at a out probably don't do that and there's no reason why they couldn't try to do it and maybe achieve the status this is a highly confidential protected  brewing document so i don't see that their argument to me their argument is basically bordering in fact and on and on not frivolous but certainly not was a lot of legal legal authority in their argument the second argument that it's hearsay is just nonsense it's not the case there are cases that talk about this and in fact miskin are under under seventy one is that involved an attempt to put the document in at trial as opposed to here where we're talking about a very pleasant every stage whether we can go forward and even begin discovery and this case and so that's my main my main issue with that and i am familiar with the case i am not really familiar with the on published opinion nor have i read the cases that were cited to the court  from that string cited in the published opinion so i guess that's that's what i say you judge that this qualifies for the criteria that are set forth defining what makes a trade secret and the california uniform trade secret act definition of it so i don't think i think that their argument in favor of  can i can i ask you about the damages point yes so your count your opponent is right that the declarations that he referenced i think they're pretty much identical except for the one paragraph talking about attorney's fees incurred is left out yet he says that you all made a very deliberate and explicit waiver of any claim i guess in this action to recover those attorney's fees that were referenced in the twenty thirteen declaration is that that's correct it is critical case for blaming other damages and other sources of damages to satisfy the damages requirement ok so what particularly that this is a and junction faction and that it will hang on but before we get to other in terms of monetary relief you are what the district court here if i remember correctly did it was it just took judicial notice actually of the twenty thirteen declaration and said that's good enough because you all were talking about you know more than seventy five thousand dollars in attorneys fees but yes it sounds like you have now you're abandoning that as any basis for recovery monetary damages in the action as of today is that correct i can't say that i won't say that but he says he is very very preliminary stage work but he referenced a specific i can't remember what it was  was a declaration ok so why you and you you i thought you said yeah that's true he's right as that was that address a different issue that we were concerned about at the time having to do with the application of litigation privilege central application of ok well i'm just trying to figure out if you can tell me if monetary damages ends up being irrelevant but in terms of monetary damage what actual proof did you put on on the second go around whatever actual proof did you put befor the district court to show that you were entitled to recover some form of monetary relief is nothing that the declaration of the skinner i believe or marilee can't remember her last name please pardon me  talks about a page thirteen being worth more than seventy five thousand skinners she says that yes and that would be yet for that person for that point but i want to stress to you but ok but the fact that it's or seventy five thousand dollars i mean they didn't deprive you of ventilation yeah but they didn't deprive you of it you still have it yes so you have to put on evidence of damages that you've suffered by the fact that they've now disclosed and you well relying we are relying on the reputational damage and what evidence is you put on to support that you can't just rely on the allegations in your complaint anymore you've got to put on proof some form of proof lies so i assume that is that will be the case no but you have to do that now a probability a reasonable probability of damage proceed to whatever you know the next stage of the case and in that contract section apart portion less damages i presume it's nominal damages contract violation so the answer to your question was that we are not we have not put on evidence of monetary damages  i think that the existence of the widespread publicity and multiple consumer class actions filed as a result of cause tremendous amount jokes so cal so is it your position that at this stage of the proceedings you're not required to to establish a reasonable probability of recovering a particular amount of damages yes sir thought monetary damages absolute was sufficient and i don't think i let me just say i think is absolutely sufficient nor do i think that in the case where a  food product or consumer large well known consumer product is basically defanged fundamental i that the necessity case where there was a clear staffed by lation of the california criminal penal code and we've cited penal code for eighty four and for eighty seven and for ninety nine see that there would be slapp saturated and the case premier medical management systems fee california insurance guarantee association one thirty six cal at forth for sixty four and it states quote plaintiffs must demonstrate that the complaint is both legally sufficient and supported by prima fascia showing of facts to sustain a favorable judgment and that's exactly the question that i asked you specifically was case authority to support the proposition that the  the trade secrets click case must prove the content of the trade secrets as opposed to merely the existence of a trade secret because that was the argument that you had me that's fair that's fair and i think your point is well taken do they necessarily have to show the content of the trade secret i don't think that they would have to but they have to be able to produce admissible evidence of the existence of a trade secret which is where i got to the argument that i made in this case originally that that they didn't do that here the issue of damages versus injunctive relief was something that caught my attention first of all if damages are expressly forsworn we have a diversity issue in this case which hasn't come up until right now because this is a diversity case i don't think he foreswore damages he just said at this juncture that showing that the existence of damages without an amount and the need for injunctive relief met the burden at this junction and that's the last point i wanted to address your injunctive relief there has to be an immediate need for injunctive relief were five and a half years past the original filing date of this complaint there is absolutely no evidence in the record that this document was disclosed final case on calendar for argument today it's interior glass systems versus united states