the misappropriation of which we have direct evidence which is an e mail from a former employees you know how much how much each of them earned that the revenue the revenue the revenue they created not just their earnings of how much business they  a trade secret on a new york law it's a trade secret under their contract with us and what and and it's pacifically down a fight as such where the epic confidential confidentiality agreement which is in the appendix a page starting a page two seventeen paragraph two paragraph ten two defines confidential epic information and i will concede it is extremely broad by the way however i would note that if you look at their former employees agreement they revenue in for me what it says is let me get the exact phrase wrong or marketing or finances or other business information in any form now the beginning of the  starts confidential information means any information of epic including but not limited to and then there's a long list but specifically marketing and finance or any other information about that we can see it is a broad cause we c done commend the court to the cause in their new contract without discovery which is also in the record and is actually considerably broader than even our confidentiality clause could you could you explain what the what and with some greater precision what exactly comp value of that figure for each of the departing employees was what by virtue of it secrecy why did that provide but why was that particular competitive value  client these are gross sales revenue figures for agents such as realtors all the time for themselves and i'm having difficulty understanding why the disclosure of that kind of gross figure unnecessarily competitive value just information we don't want others to know information we don't want others to know part of the answer i think it would be although this is not within the four corners if you look at christopher wyler's testimony in the injunction hearing which the district judge actually cited in the dismissal order he says i would expect people would do this i wouldn't like it if they did that i wouldn't want them giving that information up now this is all discovery c e o but i can see complaint doesn't allege that it's anything other than the dollars that they each enter into words they didn't disclose client names or any specific such as that well that's the second divest the information they took with them and that we don't have direct evidence that they disclosed we do not concede that they didn't disclose that they disclosed any client names it alleges that they took it with  they gave it to discovery we have circumstantial evidence that discovery induced them to take it now we are at the planning stage and i believe it's a fair answer we they were induced with their sit out year with lavish compensation they were deuced with one of the first things they demanded at all discovery and judge i believe this gets to your question as well one of the first things these former employees demanded of all discovery and may two thousand and sixteen in that same e mail with the with the disclosure of the revenue information was indemnification because they knew they were going to get sued when interesting things about this case is that their peers that then compliance with the non compete they sat out for you i mean were they supposed to wipe out from their memories in their minds  grant you that at this stage of the case if the court allows this case to go forward on the amended complaint it's probably going to be much more of a damages case and all the discovery we've done and supported the limited discovery we've got in support of the injunction will obviously be much broader but we're talking about information in their possession we also know and we pleaded judge chen that within a month or two after they left these employees got together and started preparing spreadsheets and all sorts of information this is during the sit out here and they called it the hordes of four horsemen plan they were preparing their business plan during the year when they weren't supposed to be doing anything to compete with d t i while working for oil discovery in the only reason they were prepar yes where because they were preparing to compete with us if they had to do the work to compete they couldn't go out and compete without planning they were planning to compete and the only reason i stopped was because we issued the cease and desist order now what i would do to get back to  your question the threshold question here we don't want the people in this business don't want discovery doesn't want these key employees in the small business putting out their revenue information because that makes them a valuable choice to be cherry picked off which is that you know for a competitor to know that an employee's doing a good job yes that makes them for us in this in the small business i know discovery will tell you the same thing they don't want that information out there now that these folks are working for them because the even broader i agree it's harsh but people are well compensated and if they get ample consideration for giving up the right to do what other folks would like to do with respect to compensation it was noticeable to me that you provided alec you made allegations about bonuses and salary range and yet we don't have any context for that we don't know how much they were being paid in their current employment so it's a little hard to tell whether these are large figures or small figures the large figure your  they had demands for about two hundred thousand dollars a year in flight salary the large figure was what they were paid during the sit out year they were paid to do nothing but my point is that it is difficult to attach any meaning to those numbers without knowing what compensation structure they were coming from and yet the complaint is devoid of such allegations pardon me if i hesitate to answer because i want to be sure that i'm answering directly the direct answer is that it doesn't matter what they were being that someone with that kind of temptation in possession of valuable trade secret information in addition to the revenues might be tempted to use it and we show that we were making preparations to use i see my time's expired and to my  may please the court brian wilson for the pallies discovery l l c and christopher wyler the district court's decision should be affirmed because even after an amended complaint extensive fact an expert discovery and a three day evidentiary hearing i never pleaded plausible claims of wrongdoing against al discovery or mr wyler d t i does not dispute that if a document heavily relied upon in a complaint contradicts the complaints allegations as allegation should be disregarded d t i does not dispute that it never objected to the trial court considering the term sheet or the l discovery employment agreement in resolving the motion to dismiss those concessions or fail to nearly all the claims on appeal after the legal conclusions and the allegations that can contradict those writings are set aside there's very little alleged against all discovery mr wyler here payment of signing bonuses with as judge kearney pointed out no context for what these employees were earning before an indemnity agreement that was not a blanket as d t i suggest but had specific carve outs in the event these employees violated any of their d t i obligations some meetings and agreement to set up document review centers in washington d c in canada those do not rise to the level of plausible coins with respect to the trade secrets i think we'd it eventually established that the one and only thing that i'll discover is alleged to have received is the historical revenue information how much these four salesman who worked for three big companies earned over a period of time there are no allegations in the complaint that would lead one to conclude that these are trade secrets there are no facts for example where are the allegation that during the sit out there and they met putting together a business plan they were preparing for a violent want why are those allegations not enough in your two reasons your hon or first preparing to compete is not a breach of this non computer agreement that's what joe drake of held in denying the motion for plumeri injunction second i think more importantly all discoveries nowhere near any of those allegations the post d t i conduct by the employees that starts on paragraph one ninety five there's no allegation that all discover even knew about that and those are the only out police here with respect to the sales figures i was as i wondered what your views were on the district court's conclusion that it's in this industry practice for discovery providers to ask potential hires for their past revenue figures on what basis could he conclude that a motion to dismiss the well your honor if it's something that could be subject to judicial notice it's it's pretty common sense i think under it paul the fact that a trial court's allowed to use its judicial experience and common sense in resolving a motion to dismiss that's certainly a fair inference that was not disputed by i but even if the court were to disagree with that there are no facts pleaded about how d t i use that information in its business or how it had any competitive advantage the only reason the d t i seems to be using this information for is t people they can't go and look for a new job under the rogers casey case that's not a permissible use of trade secret law likewise as as we heard from d t i this morning you cannot count tracht to make something a trade secret trade secret has to meet certain legal requirements otherwise i guess duty i would have contracted that every single thing about their existence was a trade secret and then they could sue them for theft of trade secrets that's simply not the law here but you also speak to the  had briefed the original motion to dismiss at the end of that argument asked the parties if they wanted to argue the motion to dismiss declined we stood in our papers they then filed their amended complaint which they already had leave to do and then after that the court did issue its order and so because of that discrepancy we went to d t i before we brief the final motion to dismiss and we said are you going to amend again are you going to seek to leave there was a pretty motion teleconference which judge rakoff requires and they said no we're going to stand on our amended complaint we're not going to seek leave because that was not transcribed to put that in docket entry seventy nine my doctor declaration and you'll see it referenced at the end of the district court's cited in their response they against they said nothing about moving for leave to him and they didn't even include that sort of generic statement seeking leave that this court said and tanner right is an adequate so they knew the problems and we think your honor that was quite intentional because at this point in time they had incredible discovery they had depositions documents they had a complete forensic review of all of mr wyler's devices all of the former employees devices looking to see if anything had been transferred not that they thought about it not that they were tempted but they actually done it and they saw there was nothing and so the silence you see in the amended complaint and the failure to request further leave it's because under their obligations to the court they could not have pleaded that all discovery got anything else they knew it and so therefore they did not seek leave to amend and so really now they're like the plaintiff in gallup against cheney that didn't seek leave in the trial court and then came to this court and said hey that was an error we should have had leave to amend the court here recognize it's never error for a district court to decline or request for a leave that was never made there simply was no request because we think there could have been no request with respect to the so called evidence the trial court relied upon there's really nothing the d t i can point to besides the term sheet and the all discovery employment agreement again those were put to the court on the motion to dismiss there was no objection from d t i no claim that this was turning into summary judgment will will this ruling clude say in two years these individuals have come they've been working for discovery and all of a sudden a client relationship is blossoming with a former client of the d t i will this really preclude them from coming back and charging that that was the result of misappropriation of information if they have actual facts and keep in mind these three plaintiffs specialize in forensic services so that if they have actual facts that there is misappropriation then sure they could bring a claim a claim would be right but that point was not ripe now because there has been no misappropriation after the fact correct your honor that the fact that i mean denny's and the people that they dealt with customer lists are very suspect i mean there's nothing that it's the data fighting the agreement as to being specifically trade secret that they've identified that's forever off limits for them is  correct your honor i mean the of course people will know the clients who they've dealt with it's in their head they're not obligated to try and get their go get a lot of me that interest the d t i has is served by the non compete they have a full treats it does your honor and on these facts that are pleaded there's no reason to think that this is likely to be a trade secret this is an aside what happened to the arbitrations the arbitration based on what's on the docket they were compelled to arbitration i know in the agreements those are confidential proceedings there has been no return to the district court so you're as we raise another of alternative grounds to affirm as well we have to stand on our papers on those unless the court has questions on that or anything else we respectfully request this court affirmed thank you thank you with such time as i have and like to address the procedural posture because it's critical to the major flaw in that it's district court's order in the district courts dismissal order the court specifically relied on testimony a the injunction hearing to rule but the information we were talking about in my opening has not protected the information as a matter of law as a matter of law but the test i'm finding in the p i order was as a matter of fact and it was based on a former employees testimony and mr wilders testimony to which i've already made reference there is no support cited in the order and no support argued here for the proposition that this information is not protected as a matter of law instead what five that a court cannot rely on injunction hearing testimony to want to motion to dismiss now once that keystones removed once the entire basis for finding we don't have a protective trade secret in the information that was actually disclosed to help discovery by the former protected trade secrets it alleges that it was disclosed in violation of the confidentiality agreement how do you respond to the argument that that's not enough for parties to agree that something is a trade secret you still have to shell that it is  law my answer is that's a question of fact new york law is also as we cite in our brief that whether something is a trade secret or not is a question of fact that's how the trial judge truth what about revenues generally i mean this is not a question about you have an alleged that they disclosed client and he's and you've had up you had depositions and other things you it would seem that i would seem to think that you would have been more specific if you knew you saw an injunction to stop them was taken from us in violation of the confidentiality agreement client in a delicate and just for all we know because remember this was this this was we were an injunction stage that i sit out here has ended and we have no idea what's going on no but at that time we were only seeking injunction relief to stop them from giving this valuable information to al discovery so far all we lost that  amended complaint and the judge relied on testimony from the p r hearing to dismiss the amended complaint and that her alone requires reversal because once you remove the notion that they didn't supply protect protected secrets then you will completely differently on them taking information from us that's a different question from whether you pled with specificity the for mission that was disclosed which in the amended complaint i think that's what the judge took you to task meeting with mr wyler they had this meeting with mr wyler they discussed possible employment that's not that's alleged in the complaint that is apparently not disputed and then they sent them a two thousand and sixteen e mail to mr wyler and to an l discovery investor with the revenue information after their meeting we specifically allege that in the complaint and we specifically allege that was protected information and the only way we act as to that knowing the fact of the disclosure of  us in our business that we do not wish to be disclosed to our competitors and we allege that's what it is ok thank you thank you