good morning you may please the court joseph ready for freeman investment management i'd like to focus on the primary most glaring error in the district court's decision to throw this case out on summary judgment for lack of particular in every trade secret case plaintiffs of course need to identify the trade secret issue and we are in agreement here that we are here on summary judgment and there is de novo review and this normal summary judgment case we'd be looking to the evidence to see if there's a genuine issue of material fact such that this case should've been thrown out and the jury should have decided whether or not the trade secret is identified with sufficient particular here there is no evidence from anyone at any time suggesting the trade secret was not particular enough to those in the trade my friends use the imax decision from this court which did grant summary judgment but i think you just said it in the negative and my understanding is it's your burden to prove that it is a trade secret and to show on summary judgment when there are seeking summary judgment you have to show you had enough evidence to create a genuine issue of material fact i am having trouble figuring out what you've identified sufficiently to show us that there really is a question that any of this is a trade secret yes but i was referring to the particularity so i think let's just talk judgment standard we're on summary judgment we have to see whether there is a genuine issue of material fact what evidence do you have to show us that there really is a dispute about whether you've shown any trade secrets yes well i believe you're referring now to the confidentiality aspect of the trade secret i'm actually referring to how we know that any of this is not in the general public knowledge not known before not unique enough to really count as any kind of secret i mean i look at the list and i think this sounds very general and not like something that you've shown experts have said was totally new and no one knew before do you have any expert testimony that says that your list is stuff that wasn't in the public domain yes our experts there's two experts presented by the plaintiffs in this qatari and mr porton and there are e r thirteen fifty nine and e r six six six in there you can see excerpts of their expert report what did they say because i don't remember your brief citing those expert tell us what those say they specifically say that it's not generally known and that they went through the evidence to show that russell did in fact get these ideas from freeman did you cite that in your summary judgment papers of course we did where did you do that i'll give the citations i want to my rebuttal for for that but that wasn't the premise of the district court's decision but it doesn't matter because we're on to noble review so we have to figure out is there really a dispute here that needs to go to trial and maybe this court said the wrong thing or what it does sort of doesn't matter at this point we have to look at the record and summary judgment and say whether this case needs to go to trial or not well i do think that the  primary ground of confidentiality there was evidence in conflict there was evidence that this information was conveyed in confidence and was tracked treated as such and that there were oral agreements at least with each recipient who was logged i think each recipient who received any of this information was logged by mr freeman and mr johnson all in the record and they never would have thought that russell would take this information and then use it there was no volatility index as defined in these trade secrets that was public use that was publicly available everyone agrees that russell first came out with a volatility index which emphasized the i have the expert report of professor qatari e r thirteen sixty five what does it say on that point he says i reviewed the trade secret identification which sets forth the trade secrets similar to in the in the paper in my opinion that those numbered paragraphs in the trade secret identification accurately reflect the subject matter and teachings of the paper from the evidence i reviewed and from my experience it is my opinion that those paragraphs describe knowledge that was not generally known to the public or more importantly or to those who could benefit from it prior to freeman's disclosing the vs i paper to russell that is e r thirteen sixty five paragraph sixty from our expert who is no doubt an expert professor cathari and did you make an argument about that paragraph in your summary judgment paper that's what i would get you  that on the bottom that was not the issue that was before there just a quote that that the dispute was about but i understand then overview and you're looking for some alternative grounds for a firm and it appears which is what my friend is really pressing in his brief concern we had however was the identification because we never could get past it jennifer cation and if you read the transcript of the district court she was very concerned primarily about the identification of the trade secret and that particularity and they led her to believe that the particularities standard was a determination of law relying heavily on the imax decision by this court i don't believe that's true while there are summary judgment cases that determine the trade secret has not been particularly identified those cases are cases where the evidence is such that it is impossible for defendant to defend themselves and the own able to participate in discovery or render opinions we never had any of those issues in this case we closed discovery there were no motions to compel and in fact the only motion they brought with regard to this issue was that the trade secrets were not identified pursuance of the california civil code the magistrate judge said no the california civil code doesn't trump the federal rules of civil procedure you need to show violations on the rule twenty six there was no such motion that these trade secrets were not identified and improperly disclosed under the federal rules of civil procedure so we continued through discovery both sides had experts their expert interestingly never said in his expert report he didn't know what the trade secrets where their experts never raised any doubt what the trade secrets were and so we got to the oral hearing before the district court on summary judgment and the district court court put herself in the rather uncomfortable position of trying to determine for herself whether she understood the trade secret the problem with that approach is the trade secrets were not really written for her they're written for those in the trade and those in the trade fully understood what the trade secrets were and even the imax a situation if we look at that case in its entirety the imax decision which really is the ninth circuit leading case on this subject makes it very clear that the particularity requirement is through the eyes of those in the trade i thought though that this record is concerned was that to the extent you distilled down the principles that you claim are the trade secrets they were described as such a level of generality that you couldn't show but they weren't known generally within the industry and so that was the problem she was looking to you to say you're going to give me something a lot more specific than this if you're going to be able to claim trade secret protection is that that's what i understood that this records concern well that's as i think that's close enough and i think she was concerned what she thought was a lack of specificity no doubt and from there she thought she couldn't do her work including analyzing the other issues however the problem is it was not specific enough for her was the problem it was specific enough for everyone else involved in this case including the x rays out there i mean so it does seem like there was some to me it's like a tangent this reasonable particularity are sufficient particularity to me the question is did you have evidence that you had trade secrets that were stolen and i read in the district court to be using some of this language from california law but essentially to be saying you're giving me  trade secret and then it seems like your response should have been what you just said to us look our expert is in the industry and he says it's a trade secret but i don't see the anything that indicates you did that but maybe i just didn't see it yes and and you're right but i clarify when the judge says this is gobbledygook which is the premise of your question godley gook to whom and what did we cite back to her we cited specifically the testimony that the expert mr wagner we their technical expert at e r six thirty three six thirty four six thirty six thirty seven that he fully understood the trade secrets and specifically he said he understood trait that gets to like whether everyone knows what you're talking about but that doesn't mean they're secret i mean this is the thing she says about chocolate cake or whatever i mean we can all know we're talking this about the sky being blue but that doesn't mean it's a secret well i disagree with your characterization of her opinion she raised the chocolate cake to show the lack of meaning to the word emphasis so i disagreed she was not talking about chocolate cake because she felt it was well known no she was using it to show that the trade secret must be a percent in order to defined the trade secret and so she said when you bake a cake i need to know how much chocolate not emphasize chocolate flavor that was her analogy but that analogy was soley soley to show that the trade secret was not particularly defined nothing to do with the issues of confidentiality and everybody knows how to bake a cake no if you look at her opinion on things twenty two she specifically uses that to show the in the industry were already focused on that if you got if you can drop down to a tighter level of specificity then maybe we got something to work with but you're staying up here and if that's all you've got there's nothing secret about that i don't see why it's not wrong again because she was saying it because it lacks specificity she wanted a percentage to the word emphasis and we explained that has to be the dominant or greatest or the driving characteristic of the index or the fun collection and there's no doubt in this case that's exactly what russell did this hypothetical right but maybe they did it because everyone understood that's what you do how do we know that that secret nobody did that nobody until they met with fr nobody made volatility the dominant or emphatic characteristic of a collection of funds in fact when they were considering volatility it was never hire never greater never emphasize more than any other factor so that's not true they got that idea from freeman freeman told them to emphasize make volatility great and so it's a relative concept and what concerned the district court on the making of the cake is that there was no percentage that mr holcombe give her because the percentage could vary depending on the other qualities or other characteristics in the collection of find it fifty percent could be enough forty five could be enough if all the other characteristics are only five percent and that's the concept she didn't understand the percentage is relative it is an emphasis on volatility not precise formula and i see i'm into my time and i would like to reserve those two minutes if i may thank you very much ok thank you very much let's hear from for the  that has confronted the issue is that a plaintiff has the burden of identifying its trade secrets with particularity and and that that sufficient particularity obligation means identifying it sufficiently to separate your alleged trade secret from information that is generally known to the trade and to those specifically knowledgeable enough or are you saying something different than the regular summary judgment standard and if you are why is that not a california rule of procedure that's different from federal procedure and so doesn't apply here your honor i believe that the imax decision actually was relying on california the california trade secrets act and the other circuit sort of address the issue have been relying on other state statutes but in the context of rule fifty six all have indicated all the courts that have confronted this issue have indicated that this is a threshold requirement and it's a threshold requirement because you can't move on to the other inquiries if you don't know the trade secret with sufficient particulary to can't begin it seems like a plaintiff needs to have evidence that they have a trade secret and it was in friends etc that's the normal summary judgment standard are you saying something beyond the normal summary judgment standard no your honor i do believe it's a summary judgment standard just think it has a particular flavor in the trade secrets context because it often does arise that the plaintiffs has invoked generalized descriptions whether it's referring to a whole group of documents or referring to lists of documents or or categories of materials or sometimes just referring to as in imax dimensions  intolerances were courts have said on summary judgment by the time we get to this stage you must have identified your trade secrets with particularity because we the court your honor judge may come to mean to interrupt your problem judge and the district judge who's judge is making the points you're just making and they have what four hundred ninety two trade secrets they're alleging plus and they say ok we would we think they all are trade secrets but nevertheless will focus your honour's attention on it or not and i think they supplement that later with a specific list merits which happens to have this same phrase that i think that she found too generalized which was emphasizing volatility and so those are actually embedded in virtually all the other a trade secrets that they identified later but but let me just back up just for a moment because the court actually found two independent but related reasons for finding that the plaintiff had met their burden on summary judgment one was relying largely on the on the logic of the idea x decision out of the seven circuit was you can't as a matter at summary judgment a trade secrets case you can essentially designated an undifferentiated mass of material and then ask the court or the defendant to hunt through the details that that's another form of sufficient particularity it's actually a different strain and then the then the vague and indeterminate kind of concern that she had about the term emphasizing volatility but that was actually her principle holding that was something that we pressed in our summary judgment papers that it was that they were not meeting their burden because that's essentially what they did they took every single piece of information that was conveyed in the white paper and in some e mail discussions and and essentially labeled all of it as their trade secrets in fact the principle of freedom investment john freeman said i can't really put my trade secret in a box it's not this ingredient it's not that ingredient i can't put it in a box and their trade secret identification held fast to that description so that was the principle holding that when you when a plaintiff offers an undifferentiated mass of information offers categories of documents says things in their trade secret fall back ok we don't agree with your honor we'll lose at least under the standard you on a specificity we still think we make it with this list of many why doesn't she have to address then policy the rule is you need to put the defendant on notice of what you have you need for the court to understand what it is you're alleging so so courts have actually said that's it if you fail that first test you can't pass on to this sort of alternative well let me drop back your honor no your concern that i overwhelmed the the defendant with four hundred ninety two plus trade secrets referring to broad categories of materials but now that you say so let me pick again because at that point that the discoveries done weren't summary judgment so you get to pick out eight then here i'll give you an example trade secret for forty three is a graph it's a graph comparing their supposedly volatility style index to a to a public source portfolio managers quality index and offering some comparisons this is literally been cherry picked out of an undifferentiated mass of information and then at that point at summary judgment have never identified this before as a trade secret that they would press either by itself or with seven other discreet trade secrets that's the unfairness that i think the jewish report was talking about when they said this is too late now now the district court did actually address  trade secret sixty which as i said has this term emphasizing volatility and it's said separate and apart from you've given me all this information some of which it's obviously not a trade secret that violates the basic rule of i but separately even if i look very closely a paragraph sixty i don't understand what the trade secret is you talk about emphasising volatility it's undisputed in the record that russell eight months before had trade and from what russell r t has it it captures too much it doesn't tell me enough as judge walker said if they drop down a level maybe we have something to talk about but at this level of abstraction emphasizing is like telling you that an ingredient needs to be emphasized and so it doesn't provide so she actually ruled on on on both prongs so to that extent she even though she wasn't required to under idea x and many other cases she dropped down and looked at this trade secret particulary want one of the years with one of them but it happens to have the same term the same talismanic phrase that they basically said is throughout all of their trade secrets so for that reason your honor i think that it is it is a fault at the summary judgment stage for both reasons for both offering four hundred ninety two straight secrets that have broad categories of information and even when you isolate the specific formulation they've offered they cannot offer enough sufficiency and why doesn't this paragraph sixty in the expert report that says that wasn't know anywhere else in the public and is secret why doesn't that created a fact because your honor even the the expert never expert essentially invokes the same broad general  sweep that the trade secret identification does he doesn't differentiate he doesn't actually go through and say as your honor rightly pointed out that it's the plane aspersion to do to say this is different from the information that's otherwise available in the industry and otherwise not known to russell he never does that in his expert report he simply says i've looked at all these four hundred ninety two trade secrets i've looked at everything it looks like they taught russell some things that that i don't see any evidence russell knew but but again that's sort of taking it all as a mass and i think which actually were their discussion at summary judgment of this and why there was an adequate opinion or did you make that argument against this was that even at issue it was an issue because as i think you were referring to this earlier because when the plaintiff responded to our summary judgment motion they simply said defendant has not answered each and every one of these four hundred ninety two trade secrets they haven't offered any evidence that they are not common knowledge or art or that excuse me that they are common knowledge or that they were known to russell and because of our failure to take each one step by step we win i mean we get to trial that that was how the issue was framed and that's how it actually was presented to the judge same routine or was there earlier motion practice where this issue came up or was this the first time it came up at some pictures your honor we had attempted to invoke the california procedural rule that they're not entitled to discovery in school they actually sufficiently identify their trade secrets the magistrate judge in this case found that that procedural rule didn't apply in federal court we then did attempts in many different ways to use the tools under the fed rules of civil procedure to try to get a better understanding about what actually their trade secrets were we at that point had the four hundred ninety two plus trade secret designation so we served in iraq at stories we serve document requests we say we conducted depositions so the quote that i referred to earlier was an effort at a thirty six deposition with a corporate representative say here we are this deposition specifically been designated to identify to help us identify your trade secrets what is your trade secret it's a little bit a little bit of this it's a little bit of that i can put it no box so we use every tool that we could imagine as we read the case law the very first time legally that we could quote bring a motion to alert the court from that we did not believe the plaintiffs met their burden with that summary judgment that's what the id x decision says that's what the imax decision says that's what the district court said that's the procedural time at summary judgment by the time you get to summary judgment you must identify your trade secrets with particular just like you have to show a genuine issue of fact with respect to every other element of your case in order to get to trial so so that's when it was presented it was presented clearly excuse me in our motion and in our reply brief and i believe that's what judge stammered to you know was responding to she was of course also responding to the whole notion of getting to the point of summary judgment and having four hundred ninety two plus trade secrets to figure out how you would bring in the jury instructions do you for four hundred ninety two zero eight see i know the cases have used this language about particularity but at the summary judgment stage do you think it's any different than saying you have to come forward with specific evidence of the elements of your claim no i think it's it's essentially a commonsense antecedent that but is it ok or is it just exactly the same i mean i don't i'm just trying to figure out whether this this language i think what's important from california procedure is actually adding anything to the burden and the plaintiff always has in resisting summary judgment to show evidence that a jury could find for them i think your honor i think it it could easily be understood as effectively the output of the burden on summary judgment to show there are genuine issues of fact of whether a trade secret exists and whether there's value from the secrecy of the secret and so to that extent whether one calls it a corollary or a natural outgrowth of it is that in order to answer those questions you have to identify your trade seeker with sufficient particulary or otherwise would be no understanding of how the court then goes about saying do i have any factual issues about whether it's secret and if one talks about emphasizing volatility in a world where where many many people in the industry have talked about using volatility russell itself and mr and counsel concedes this russell sup was the pioneer in style indexes i mean there's an irony here that they were the ones who developed valuing growth in large cap small caps so this was their entire rubric and so they of course the evidence shows that it really is undisputed if you are nine sixty five nine sixty six had already this stability index idea that included volatility as one of the attributes and the evidence is also undisputed that they had tested pure volatility as a run up to that none of this obviously was secret and this idea of identifying your trade secrets you have to put the other side on notice and if it's too big an uncertain they're not on notice i see raised the real nub of the issue this is not the same as just showing proof of your claim this is a rule so that the defendant is not subjected to abus discovery and this rule came out of california it wasn't used that way in this case because the district court said i want to play it that way right and the district court said rule twenty six governs and there was no motion to compel that we would never given any motion they did not do anything to the court to say the trade secrets were inadequate and in fact an imax the reason my summary judgment was granted but it's your burden so they say on summary judgment they have no evidence and you have to show some evidence that is actually going to get to a jury so i still am not sure how you did that so on summary judgment did you point to this expert report was there argument about whether it was enough of course we did and that was your question i came back and rebuttal for that to eat our five five six by the way it's exhibit one  eight is the qatari expert report it is cited through out our summary judgment opposition in particular the pages i direct the court to five five six five six six five seven four and but no it was on summary judgment they raise it and by the way they since we do want to look at the motion papers i see i'm looking at your five five six where is it talking about the expert court every time you see a cite to exhibit one hundred eight so line twenty four line twenty seven those are all citations to the export but i agree we should go to the motion see what happened but they never moved on trade secret number sixty sixty was not even in their motion it was never briefe secret sixty and specificity and they never moved to compel they never even they never even briefed trade secret sixty and you're asking me if i said something about the trade secret that shows it's confidential i don't think that's fair process the process  you read their brief this sounds like an abuse of discretion case their brief is constant about gamesmanship and all of this i thought were up there on summary judgment and their brief result we were sanctioned and that's what really happened here this was a sanction that shouldn't have been this should be s