there's a bit of an uphill battle you face you so if you could focus on the irreparable injury that i think would be helpful to the court start out thank you ron or when you look at this samara tino standard the court says you injury here they were they wiped out the presence of this company in seattle that's record at forty three that destroyed the ability to seek new customers it destroyed the ability to take new orders from current customers it destroyed the ability to service the customers they presently have the company also lost secrets and under the trade secret act and serious in case you get to presume irreparable injury so we believe there was irreparable injury presumed anyway and that would be the serious in case they took project knowledge right preferences and budgets and funding that's all in the record they took that that certainly would be irreparable injury they lost good will and we presented that first in the store fines declaration that was not considered but then in response to the defense by saying you're up and running with this skeleton office you must be doing well mel stephens who had been there only a month her deposition was taken after we brought our motion says no the customers are her words pissed off well the court cases say that damage to good will certainly is irreparable injury and so when you look at the cases and what we presented we definitely believe we presented more than enough evidence to show where were operable injuries but getting back to the standard here the court should have and did not assess the likelihood on the merits and if there was substantial likelihood we only have to show a possibility of irreparable injury if we showed a strong just a serious questions about prevailing on the likelihood then we would have to show the balancing issue but contrary to dimension data is briefing page four where they take completely out of context a quote from the order and they represent to this court that the trial court actually considered the likelihood on the merits that was a wrong thing did not the court at one forty one in this record expressly did not do it but if you look at the quote at page four of their brief they specifically take a quote out of context to represent to this court that the trial court actually considered likely that on the merits it never did and so why is there a likelihood of the merits here well after the t r o which was probably a reasonable decision to deny because the defendants had systematically represented to the court false statements they systematically represent of the court they didn't take any trade secrets they had no killings information whatsoever mr false specifically represented under penalty of perjury he had not aided or induced the recruitment of the scale in some coins and so maybe that decision was reasonable on the record but when the deposition show there were thirty two thousand documents taken that mr falk even though he was told not to take notebooks that ninety nine percent of which contain confidential kalends information he took them anyway even though he denied under penalty of perjury he had not taken them by the time of the preliminary injunction we had thirty two thousand documents we had notebooks taken we had blackberries that had downloaded kalends customer contacts into dimension data information and then you had kalends confidentially marked information and trade secret mark confidential information in their possession and not only that it was there but it had been circulated up and given to mr fa and even in the record when we questioned mr dunlap about about it he even admitted they could have been copied fourteen times as far as we know mr falk had all the dot he took the kalends office and he had it all circulated in there and so then you know in our view first there was a breach of his duty not to solicit we know that dimension data was told he had a duty not to solicit but then what did mr falk do he specifically disclosed information the way they'd insults solicitation he gave them target incomes he gave them he specifically know she negotiated the times when bonuses would be a lot allowed to these people he provided and this is all while he was employed at kalends he was providing budget information to dimension data so they would know how much to budget to each employee he was already working for dimension data by the time of this so for for the non solicitation piece that was a likelihood on the merits we didn't even have to prove irreparable injury when you look at the stammer keno case it says if there's one hundred percent certainty of prevailing on the likelihood of the merits you don't even have to get to three four five individuals i can tell you it's been decimated sales are way way down and their record that's developed since this injunction shows lots of sales have gone to the mentioned data that are past kayla's clients so it's definitely devastated but it's not closed it's not close no it is operated and perhaps that gets to a point that was raised by the defense they said there's no way were a privilege read because you have some type of an office going in and our position here before this court is that's not really the test should be should be applied here i mean if you look at it you asked for an injunction that basically would prevent twelve or thirteen employees who used to be your employees from as actually engaging that livelihood in seattle and yet when your company was acquired by another company  security provided in terms of employment agreements for most of those employees they were free were they not to simply walk out the door at any time which would have put you in exactly the situation that you're in that you didn't have employment agreements with them that said you can't do that your honor why isn't damages an adequate remedy to the extent that you can prove that and why wasn't the district court correct and so conclude well again the court never even addressed  doing as well i would expect it to be doing as well as all of its employees who were there at the time around and that you wrote you really wanted it in essence a legal ball and chain all thirteen of these employees and as near as i can  this is not a non competition agreement case this is an unfair competition for the great a screw up what's unfair when the district court found that your client had been if you want to use that term unfair in not making any provision for the thirteen employees who were obviously left in a in a great state of uncertainty recently their own livelihoods as a result of the acquisition of your own are at pag sixteen of this record we specifically told the court these employees can go ahead and go out to marc it all they want their livelihood they should keep it that's a page sixteen of the record but what we said is when you leave the ten percent of the market that we have here it's a three hundred million dollar market that's a record nine o two we had ten percent of the market and we're seeing go out go forth page eight sixteen take on the ninety just our trade secrets crown or it's it's the business that they have here in your proposed injunction with essentially in the what you just described is the way i read it which is basically we don't want these former employees having anything to do with now in these former employees of ours can't talk to any of these forecasters basically can't compete with us for these customers that's what you were asking i asked for that and the reason is because they have breached fiduciary duties there was a fundamental decision by your client that they if they opt to leave the employment of your client could not because they have some to do sure restraint talk to these individuals or that they shouldn't benefit from that well i know but the i'm still trying to understand i think this tone with the question was raising the scope of the injunction which would reach out and say unless these employees themselves fire later some duty contractual or fiduciary to your client what is the rationale for restraining them from if they so you're saying that the ten percent of the market that your client was based on relationships that have been developed for the benefit of your client employees who got paid to do that that's currently what they decided is in fact a trade secret i think customer identity customer history customer past history of ordering which you cite for that authority because my understanding of non competition agreements under washington law is that the state is very restrictive both as to geographic and temporal proximity as to how long and what constitutes a breach of a non competition agreement with you didn't have with anybody now again your hon well it's one of the i can certainly provide you other one of those but again it's not just the customer list even though they were down light loaded by adding to the dimension data system and it's the profit in margins discount type of information they took and remember all of this they denied having then and here's the problem when you have a trade secret and when you do have an injunction it's because once the secret is out it's not a secret anymore you know i think we understand then so what we're actually going to get the trade secret cases myself and turned them over to mr sanders to return and that's what happened to them and i've represented the employees the other employers during the depositions so that's the perspective i bring to this and exactly that's exactly how we look at these at will employees  that door opens from both sides they have no protection against being laid off and in the context of a merger which is a natural concern they don't have employment had agreements with severance none of them do this is not a situation where you have a non their business is proprietary information and then run away with that that somehow they have been given ownership interest in the proprietary information of course that of course that is what happened here and as well that's you can go to you can figure out who's buying products from them by go onto the internet you can you can pop that up that's information is publicly available next this isn't like john have goes into the computer and pulls up the customer list of a list of all the customers  what's the bottom line point you know this article that serves that she can't i mean generally you're for your you're running out and it's time so i want to know what is the bottom line you want to communicate do two things one nothing that was taken here was trade but it doesn't matter that's done what you're looking at is future harm the are they using phrase because there is a threat that they're using precincts that has to be enjoying the answer is no there's no evidence of that second the remedy that asking for isn't even the sc good morning your honour's i'm james sanders i'm here for dimension data north america ending up on a few points of the panel's obviously interested in there was an exam there was an extensive review of these employees activities before they left kalends by kalends they have possession of all these employees laptops they've done forensic reviews of these laptops they've gone to the homes of these employees and they've had their experts do a forensic review of their home computers from those reviews there's not a single shred of evidence or any improper of any effort to take any information or to leave with any well he's made the allegation in his papers that he made it here i'm talking about your posting counsel that these employees walked out with not just the customer probably not a problem under washington law but the allegation is that it was much more than that it was internal accounting information it was margin information it was  to and they say repeated over and over again so it starts to have substance of their own weight they say over and over again they walk out there that this is the big lie of this case thirty two thousand page thirty two thousand pages thirty two thousand pages the thirty two thousand pages are two c dunlap birds before he even knew to mention data was in play before he'd been contacted by him because he's an engineer he likes to have backups and he had them in his home office now at the t r o hearing we met with all of our people right after the meeting and our manager mark certainly the vice president of the west said everybody look go back and do a last suite check the back drawers of your offices the trunks of your cars and don't make any call about whether you think things confidential or whatever if it has to do with admin or kail it's you turn it into us and over that weekend these employees went back and they came up with half a box of materials including these two cd roms which of the thirty two thousand pages and they delivered it to me mission what why wouldn't you simply go to the district judge and say look your honor my clients haven't had this information they don't have that now they've never used it and success on the merits so we have a lot of merits argument before us and not a whole lot of information from the district court and that's a well i the district court was cracked and citing that there had been no showing of an imminent irreparable injury because if you have a high probability of success on the merits then you have a much lower burden to show on your approval part so what are the district court do with respect to probability of success that case i would just urge the court to study very carefully the declarations of mr serbian mr fought that were submitted along with the opposition papers the motion for the point where you know one of the one of the things that always strikes me in these cases  injunction is an immediate gravity it's something that you see in you need it right now the judgment as i understand it in this case was entered denying the injunction way back in july that's correct so now we're just a  already just to correct the record of some points of the striving made the record evidence is that there were ten employees or thereabouts operating in seattle as a may when we briefed this they have in fact we've since learned because you've asked about the current status that what they've done is they've they've put the operations of their portland and their seattle offices together and they now have exactly the same number of employees that they had before those are those bits marked as we don't know what effect but the point being you did ask well what's the current status of this they're submitted because he found that they would stand back on their opening brief again take a look at that opening brief and there are there's not a single sentence that talks about the balance of hardships there's not a single sentence that tosspot interests of third party source there's one sentence in a  contrary to the representations by counsel we are still having difficulty servicing clients we do have ill will that has generated continues to generate we continue to have irreparable injury and our damage expert actually said we have  rable injury because it's continuing of course it's continuing they took the whole team and to get back to the issue of the injunction the injunction should be focused on dimension data they took the whole team that was their plan and that plan