contesting both the scope as well as the basic finding your honor that this is a situation in which there is no evidence of a actual proven trade secret that was actually misappropriate or used by any of the appellant's let me ask you a question on that point i want to make sure i have a basic understanding before we get into a more detailed discussion of trade secrets you know i remember my high school chemistry you know when when i hear formula that's what i think of when i think of  you know doing a chemical reaction formula right where you know whatever sodium chloride the other entries on the periodic table now if i'm understanding your case correctly that's not what we're talking about here we're talking more about what are the components of a formula more like what do we put into a recipe am i thinking about it the right way you're directly on point your honor what we're talking about here is and in its simplest terms cooking oil but it's more than just cooking oil right i mean there are there's there's formulations you've asserted that some of what a mallet does and i by the way my saying that the  define a trade secret as information that the owner has taken reasonable steps to keep other people from knowing and that has economic value by virtue of the fact that i think the way it puts it is information derived independent economic value an actual or potential value from not being generally known and not being readily ascertainable about that's the definition and certainly judge  looked at the record well you know your honor where did mallet ever defined which particular formula it claimed that my clients misappropriated they don't instead what they point to are one hundred and twenty five pages of material of the one of the formulas is a formula for a vigil right ok so i'm going to give you a particular scenario and tell me if this scenario had occurred here would you deem vegetal the trade secret ok that's you're with me right yes ok so i'm going to read a list of them if i'm reading too fast tell me and then think about it and tell me whether in that scenario if i limited access to the computer system to only those people who needed the formula to make it if i do not share products situation sheets with the public if i require customers who request c of a's to sign a confidentiality or a non disclosure agreement if i test to see whether vegetal it could be reverse engineer if i train employees on the the need to maintain secrecy if i never allow employees to discuss using personal e mails or personal electronic devices and last if i provide detailed information to the court on the exact amount of time and money expended in developing the formula for vegetables would you agree that if all of those items that i have just the scotts had occurred that here as well it is a fact that all those things that you just provided a list were not in the evidence in fact the evidence was quite to the contrary people with firsthand knowledge testified that eventually the formula was well known in the industry and in fact was acquired by now a well known no not just a moment mr hicks when you say it's country evidence now now you get into the merits of whether that the judge was clearly erroneous or not but we're not but now we're not talking about whether there is no evidence and that in fact goes to the question of jurisdiction because you've asserted there's no jurisdiction in this case do you maintain the assertion that there's no jurisdiction even the defined trade secret acts is explicit in granting jurisdiction your honor position is that we asserted as actually from the beginning that there is no evidence of a trade secret because now it has not specifically defined what it constitutes it's trade secret and to this day they have not defined what they what they consider they have not offered  failed send the recipe and there's no jurisdiction that's the legal position you're taking that's our position in terms of p s a you haven't heard any do you have any authority for that now you know it's true that they have to identify their traits used if you have any authority for the assertion that if they don't send in a document that says here's the trade secret you know two students full of that three students full sugar but there's just no jurisdiction to consider the case we believe that that is the minimum requirement definition has not yet been addressed by the courts but i believe in a situation directly in this case here where there is no diversity of jurisdiction you know they have another revenue doesn't have to be diversity jurisdiction if there's his industry for everyone including mallett to get their competitors products and reverse engineer them in their laps that's what they that's how this market works everybody obtains everybody else's products and in reverse engineers other identical products from other competitors yes yes identical identical everybody goes around and tries to basically market their products to the customers and the customers make the decision as to whether or not they want to use the products from now on as well those two from certainly are certainly people certainly people want to reverse engineer if they can that i mean that's that's recognized a legitimate thing right reverse engineering we we don't frown on that but here the assertion is that your clients didn't reverse engineer they just stole it so if a company chooses to steal information engineering when assuming that the other aspects of a definition of trade secret were met that is that it had independent economic value from being kept secret does the fact that deal with my hypothetical please i think the fact that it can be reversed engineer even if it's proven to be shown that it was a death under the pennsylvania supreme court decisions which indicate that reverse engineering is a  indicates that it's no longer a trade secret at that point we'll stick with the d t s say ok stick with the defend trade secrets act that defend trade secrets act says if it's readily ascertainable then maybe it's not a stock trade secret but  assume that it's not readily asked shamble takes it takes real skill and hard work and some luck to do just reverse engineering is it the fact that it was stolen mean the fact that ultimately you might be reverse engineered it's still a trade secret i think the fact that it can be reversed engineered even if stolen removes it from the d t s saying and also want to pass me a trade secret act because it's readily available readily available and can be her center near it's not a trade secret and on top of that this information was publicly available and has been known for years i mean there are numerous patents out there some of which have been even provided any and filed by a mallet itself there in the world right by definition we like judge greenway reference the periodic table but listen the question is is the formula for eventually about there is the formula for other things that they say are proprietary and secret information like their internal manuals or production the way they manage production internal information that they keep secret regarding pricing those sorts of things to things that judge bassoon listed those aren't patents are in print publications are they sometimes the nation is and some of it also has been provided to customers and so has been i would call that publicly available but the is the percentage formula that that mallet is using today for its customers currently now according to mallett the general formula is generally known but the precise formulas that they have customized over the years for  particular customers is not known but there's no allegation in this case and there is no evidence in this case that we have used that formula or that we even know what the formula is for them if it was if all of this was readily available public information why did your client solicit this information  answer first off we deny that we still let you know my client solicited any information the information that mr bundy testified to was information that was generally available information regarding various products and how they are to be used and the information says that he was asking for that information just of determine what the general knowledge would be in order to help the seller take with regard to asking providing information in terms of figuring out if they want products does he need to purchase and the like but he never and there's no evidence we've ever use any formulas amount in fact we offered repeatedly to have our products tested with now its products to in fact show that the products are not the same that the formulas are not the same that the being greedy answer different where you had a question i do and thank you so much so i we've been focusing on trade secrets and the misappropriation of trade secrets assertion so let's put that aside for a moment and  i want to know your position on the the breach of contract now and the clear claim is that your clients disclose well it's burnell information and the assertion is that mr bowers shared many e mails including clay concerns and complaints that sharing of internal information and those pacific allusions to sharing e mails doesn't that support the breach of contract so separate and apart from trade secrets for a moment when there be a basis for an injunction just on the breach of contract well with regard to that i would argue no your honor st off the context in which that information was provided by mr bowers was being shared with a co sales person a time you know if that time in two thousand and nineteen american pay and was a actually a marketing partner and in fact that's where out acquired many of the customers that it's now claiming are it's own they actually acquired it from the bunny organization and mr bowers was basically talking to a fellow sales organization that was also supporting mallett and  basically talking about the fact that customers were complaining about the product the information he shared was already known to bundy because of their status of working as a co salesperson for management and was not confidential information that that mr bowers ha shared moreover the if you look at the contractual basis and i'm glad you brought this up with regard to both mr k and mr bowers as we sit here today there are no restrictive covenants in place with regard to either of and you know part of the problem here is and we that's these are part of the here she said we raised early on was a mallet was aware that all of this information was a mistake i's possession in two thousand and eighteen when she like when she was like you know when she resigned and now when i look at judge bassoons order what i read are things like highly sensitive materials about how mela produces markets and sells its release agents which is pretty broad vague and then i read thirteen or so things that she calls quote protected materials mallets formulas customer purchase orders identification of customers having difficulty internal discussions of major promise internal discussions of how mt would address the problems internal discussions of preferences mallets completed organic certifications i have no idea what that means supply sources pricing and volume data information about equipment now you know how how how how does one know what the trade secret is in those very broad descriptions where is there anywhere in the record where the judge says where you say on behalf of your clients not you you know what i'm saying like metaphor like where your clients say these these are our categories of information in the border he then science to have the records showing precisely what makes not a formula and what you tell us tell us now because i have you know i'm having some trouble i mean i have a i don't candidly there was there so there's a lot of bad action here it looks like which clearly judge bassoon thought was more than troubling you know that and walked out with a whole bunch information and the notion that none of that was secret it was all public and that and that the folks that on the defense side were just could easily reverse engineer it but instead they chose to hire these people i mean i understand your side of this piece now i understand i think why judge bassoon found it disturbing the behavior that the defendants and gage didn't and yet i'm still wondering as mr hicks is indicating what exactly is the trade secret so certain on the formula and although there is no legal support that would require mallet to introduce its formula as it did just that and those poor us don't just included the general ingredients for a mallet product if you look at those documents in iraq or what they do is identify the products the precise on mt of ingredients in each formula and then very specific specific information on the degrees in which their heated the method in which they're mixed the time that they are mixed the order in which they are mixed the viscosity the gravity there is no information in that thirteen thousand page record that any one of these foreigner was was ever disclosed to the public ever well well that won't be difficult  that's a difficult proposition well let me ask you this question if i'm understanding your your last statement some of what you're alluding to are products specifications sheets right and the assumption by your adversary is that some of those products specification sheets were on the website now you would agree with the proposition that if a product specification sheet is on the website that's an affair tical to any notion of trade secret white you to agree with that no trade secret so there have to be some of the one hundred and twenty four dollars formulas that you're alluding to that would have to fall within that category am i wrong about that you are wrong about that only because specifications are something different and to complicate matters something even distinguishable from that are what mr hicks referred to as the safety data sheets those are the those are the sheets that mislead high who testified in her deposition were available online and then save the data sheet provide information what to do if a user or work for instance to get it will nest in your face  findings that the that judge jordan just alluded to were from paragraph forty one of the conclusions of law of judge pursuit right so that the problem that we're having is those discuss categories some of which are under no circumstances to be a trade secret so for instance when there's a reference to the supply source for product ingredients well we know we we we have rd circuit precedent that says the identify the of supply source for profiting radiance is not a trade secret you're familiar with that so that can't be right to the extent that she referenced that correct that's right and ok now she also mentions in that litany of you know product formulas and what we're talking what what what what each of us is asking about and i think that judge jordan's characterization i totally agree with some of this does look fishy but we're all struggling with this notion of what's the trade secret in that paragraph forty one is reference to product pricing there are two dollars references to price but we're talking about commodities and commodities constantly fluctuating so if we're talking about historical pricing data that can't possibly be a trade secret right i would agree that the general care the general categories of information that you're referring to and not trying to pursue an included in her order in are not themselves don't make this specific information  in her order give it to us in her order you're saying in her order she justifies this by identifying specific traits secrets and we're asking y it's in there somewhere it's that you know the spaghetti sauce the good stuff it's in there just trust me it's in there doesn't isn't our law very clear that injunctions have to be narrowly tailored to prevent the irreparable harm and that if they're overbroad they're unsupportable because overbroad injunctions prevent people from doing lawful things that i don't disagree with that but just bassoon identified matters incorporated the findings of fact in conclusions of law inter order and those findings of fact very clearly articulated by bates numbers what the trade secrets are it talks about analyze malad specific customer information and reach a different conclusion well actually maybe what they're to ask in and mr hicks will speak for himself as to say it would be helpful to know beyond that broad statement customer information what exactly you're talking about because there's a whole lot of customer information that no one would think is a trade secret right there at the address you know the the the the the product mix that they may have bought in the past which might be publicly available there are things that might be confidential and there are things that might not be and that leads to another question which is is your position that anything that's considered confidential is a trade secret it's additionally confidential but we're not necessarily saying one of those you know they're not the sort identical terms right track ok so sometimes when judge decide i don't want to make it she superb judge i don't want to make her an offender for a word but when she says things like this is protected material you know something could be confidential it could be protected by contract or by not compete but that doesn't make it a trade secret right standard she looked at the formulas are not publicly available that mallet protects them their trade secrets and their confidential but the problem is it's it's written in a way that is too broad and wholesale right when we restarted up our discussion on paragraph forty one and i do want to get back to where and in the in the opinion you find a specific reference to trade secrets now in the protective materials that judge jordan has alluded to and i have as well there's a litany and you and i have already established that some among that let me  possibly be a trade secret i don't want to go over that again but you have mentioned that these one hundred and twenty four formulas and others are trade secrets and both you have judge jordan myself and asked you where does where where is that specifically identified in the findings of fact or conclusions of law now i'm confident you know you know these backwards and forwards so help us because we need that in order to make a decision and if and if you want some agreement on this notion that there are trade secrets we need to know the specificity because at the at the moment my review doesn't  show the specificity that you say is here so help me on that so impeach him or paragraph eight of her order the court specifically adopts the contents and record sorry to interrupt you eight of the findings of fact or eight of the conclusions of eight of these the findings of fact and conclusions of law and order it's the same document yes but there's a separate numbering plaintiff's proposed findings have four thousand four hundred and sixty so what you're saying is she adopted your proposed climax forty four to sixty and if you go to your findings forty four and sixty and we look at everything you reference that's everything she reference and that specific it's in the district court it's more than just isn't there somewhere because of the balloonist rocker and the adoption of findings of fact and references in incorporation and it may take you a step or two to get there but with that the the information including mine be these numbers the specific trade secrets are identified by the district court and they were misappropriating well let me ask you this if i can turn to this for a moment we've we've given you your extra time but i do have additional question my colleagues might have more questions to the bond here was five hundred thousand dollars if i read the record correctly that was a number that your site suggests that based on  the potential harm would know in fact we do ask them to estimate that because the injunction the measure of the injury is going to be pegged at that bond they're not going to be able to get more out of you than the aunt and so we do want to know what's the harm the potential harm to the defendant i think that's the law and you can accept for the sake of argument that i'm thinking about the law and then answer my question how is the salary from the kyle and bowers a rational basis for determining the harm to the sentence from an injunction recoverable from v injunction because the twenty one million dollars proposed by appellant is moot maybe not in its majority by damages that would be recoverable so it is the court's job in assessing indeed be recoverable so help me with that notion so the business interruption in this case was calculated by the appellant who bear the burden of showing the bond amount at three hundred thousand dollars of the problem one of the problems that that i have with it is that it's not to the overlap of business with mel it's much broader than that right so there there there is a business that the engages that is not competitive or necessarily with malice and yet the injunction appears to reach that that's the problem well the amount of the bond attribute to go by appellants to employees is the severance amounts that the appellant's would pay to the employees were being out of work there was no evidence in the record or elicited through witness testimony showing that these employees had agreements that required severance that they were legally required severance it was just a one million dollar figure saying if we have to close we are going to give our employees severance of the twenty one million dollars in business debt and this is a business that that falls due because they can't cover their costs because they're out of business and your assertion is that's just not recover was ever reverse engineer and in fact the testimony from nalut witnesses are that they don't reverse engineer products and to their knowledge none of their products have ever been reverse engineer and the critical testimony here  is that bob bundy testified that mallets product could be reverse engineered to determine the ingredients and those ingredients as jeff greene would point out are publicly available there are not label having  the the means for adding it i mean if there's a difference you can have a rest day on the side of a box and have a get a lousy cake but a good cook knows how to do it in their surprise us that's not widely know i mean i think  information that mallet considers to be whether it's confidential protected or trade secret we agree with the panel that we don't know what it is they want but we've always indicated to them that they can have it back and i think it's important for the panel to understand that the information that mr presley referred to is in a box of documents that are sitting in a lot of like highest form or counsel's office and they have been sitting there for over a year and a half and they've never been asked to be returned to th and twenty and before then they were not reviewed in fact she didn't even know that she had the information in her garage these are boxes that she accumulated while she had worked for mallet and other companies over the years and they were sitting in her garage in pittsburgh or why she was working for us in columbus there is no evidence that she ever access any of this information while working for us which is why i think it's critical for the over you make it sound like it's all in a box someplace in pittsburgh but a vast store of this information she took digitally she e mailed her self huge swathes of documents she downloaded things onto u s b drives and took them with their i mean we're we're we're way past six when somebody can say it's in a box in the and she she had access to this stuff because it was digital right yes and no there was again it was energy mail account which she readily acknowledged that she had that and she was asking how do i get your information away from my personal information because i was a personal genome account that i don't have a lot of other information but with regard to the u s b he also testified that the u s bees that she was able to find were again sitting in her garage in her luggage ok assumes just for the sake of discussion for a minute here that that in that all of that stuff that she decided at the last minute you know what i just think i'm going to take thousands and thousands and thousands of internal documents from my employer will not tell and i'm leaving to go to a new competitor that in there are documents that are confidential and she was under a confidentiality agreement in their documents that would help compete and she was under not compete and then in their state probably something that would count as a trade secret soon that for the sake of discussion the fact that she hasn't looked at the box in pittsburgh doesn't doesn't mean she hasn't he gauged in a misappropriation and that the knock on effects of that the use of that information by a competitor a new competitor are a real harm to her former employer right i mean that's the injunction is designed to stop the harm to malate of what she her information taken beyond her know how but stuff that was internal for balance and now they've got it and now they're using it isn't isn't an injunction an appropriate way to try to say you don't get to keep using absolutely our i don't disagree with that but that's not what this injunction did if this injunction just simply require her to return that information to m which she's been willing to do and if been sitting in her counsel's office now for over a year and a half then the injunction would be fine but that's not what this injunction did this injunction went well beyond it is banning her from the release agent market even though her these really do constitute trade secrets as you pointed out customer names customer information customer history pricing information from two thousand and twelve or even earlier doesn't constitute trade secrets yet just bassoon and just wholesale out now if my client is reading this order and we went back to judge bassoon on this is that well wait a minute what is it you're actually barring us from doing are we not allowed to sell release agents in businesses in which mallett doesn't compete and she has said yes so my client is supposed to go through all of these paragraphs and try to figure out what constitutes a trade secret and yet when we look at it and you look through all these documents what they're referring to are the boxes that are sitting in a garage in pittsburgh or that's what she's referring to and that's not trade secret for and that's historical information that mr coyote has acquired over the twenty five actually forty years that she's been working in the in the commercial banking industry only a limited amount of time she worked  understand this is important to both sites in this case and we'll we'll get back to you as soon as we recently can't pronounce we recess court ok