won't touch on every point and i certainly invite questions from the court as we go along to help focus the argument they trade secret claim should have been dismissed first and foremost because the oregon uniform trade secrets act controls the trade secret claim and in that control it does away with the claim the confidentiality agreement between the civic foods and predecessor to some rich who group defines what is needed to make some riches pricing and margin data documents that it wanted confidential quote confidential information that it didn't do that and because of that the party's contract controls the confidentiality we've we've cited this in our brief in particular in our reply brief the uniform act establishes the degree of confidentiality that's required there is no dispute that the information in question was not not so marked and there is just another aspect of th information under the oregon trade secrets act even assuming that the contract doesn't control her must be that which is subject to efforts that are reasonable under the circumstances to maintain it secrecy the disclosure need be entirely reasonable requires that in order to be a trade secret information must be subject the subject of efforts which are reasonable under the circumstances there were no efforts made when you made efforts to keep information generally when this have to go an opportunity claim that been added later which would have been subject to claim preclusion had the summary judgment been granted but they have no opportunity the knowledge that trader joe's was phasing out its half gallons with west grade a former supplier and wanted to bring in happy allan's from someone else that knowledge also was not a trade secret because the only evidence is that the inquiry when it was made by trader joes was first of all made to pacific my client not to sun rich was made in the presence of representatives from our having to terminate the contract they forced us to do what we did we weren't able to continue our relationship with trader joe's and we lost our profits its contract claim nor was there any evidence of any enrichment by pacific of this that's a result of this which claimed it did not once mention the any pro creation of trade secrets but beyond that the exclusion of the later report the december nineteenth report from evidence which is what the court should have done would not the kenyon report is later pending report was not admissible should have been excluded and he should have been required to testify from his first report and the basis for a new trial on trade secrets exhibit seven hundred four open disclosure  shown to the jury that first like it was indeed making these disclosures when it was claiming at the same time that these were confidential information as to the procedural aspects of this the no foundation argument i think it's a nonstarter because the that claim to should have been dismissed because there was no evidence that first of all the breach of contract was for failure to bargain in good faith over the pricing for the nonfat coffee and chocolate flavored drinks there was no evidence that that we needed to bargain over tho only way to modify the contract was in writing signed by both parties no evidence that there was a modification as a result the breach of contract which was the failure to bargain over pricing in good faith for these three new products was not a breach of the improper and this needs to be sent back again for a trial i've touched on the instructional aspect i won't go further on that that's the basis for a new trial on the contract claim and unless the court ask questions with regard to the attorney represents a marriage group with me at counsel table a serious trouble was also on the briefs there are two appeals as mr westwood alluded to the court that are present for argument today the first relates to heal from a jury verdict that was  provision that final order i believe was issued on november five two thousand and five are your just briefly with respect to mr west was arguments concerning the verdict all of what i've heard today is essentially this challenge to the breach of the requirements provision of the hacking agreement and then an allegation that sort of foods had misappropriated and used to its advantage some riches trace secrets which were comprised of pricing information and knowledge of an opportunity to sell a new product that was not yet of the public domain yet the trader joe's customer that we've reached in our materials in our brief your honor we addressed pacific foods argument large cross examination pacific's chief financial officer testified that he understood pricing and new product opportunities to be something that is secret and is kept secret by his company course in our relationship with our manufacturer and that is my client's relationship of different ideas are communicated to them in the course of ordinary business because we hire them i think contract manufacturer to produce the goods that we still do our customer with our brand name  protected from general disclosure and dissemination was that in writing anywhere it was not your honor and that is the fatal points with respect mr west which first argument relating to the confidentiality agreement there were no of secrets information f l f in fact that trial pacific was unable to find any documents offered none as exhibits and could offer no testimony that specific ever received a tangible document or other material item that contained a rich trade secret pricing information and new product opportunities were always discussed according to the evidence in an oral fashion there is no requirement under the confidentiality agreement that i preface or products itself in the packing agreement where is the definition of product products in the  goes to the nature of the close in confidential relationship that the pair of parties shared at the time we had two weeks of evidence that spent a lot of the course in the jury's time helping the jury understand what this relationship was what it met with respect to  as applied in this particular instance says is that if the party refuses to disclose information that is sought in discovery that party is precluded from using that information as evidence at trial in this case in the record  the presumptive damages would be the difference between the selling price of the product it did not sell and the replacement product itself the evidence that pacific produced in discovery was that the replacement products that began selling after our product left its manufacturing facility were back more profitable than the jury necessarily find that your client reached and that would be the other other ground your honor is moving away from the merits and simply looking at the question of justification under the loss of her decision at stake for this to be a state court case in oregon a whatever obligation that pacific might have had to continue manufacturing under this agreement that had a five year since i have the burden on that your honor of probably be in my best interest to do you speak about it at least just briefly you are the your honour's the other appeal that's before you today which reason least from my perspective more interest and more weight would be our appeal from the court's nov five two thousand and five order on our attorneys visa application we had to go around food that was supposed to fit the summary judgment stage we had our contract claims that survived the trial and we got our trade secrets claim which i should point out was a claim that was deleted initially in the first complaint and also in the complaint and then we had a honor the district court asked us to a portion of the kinds of fees that we are the fees that we would recover to the trade secrets claim and that is our first assertion or assignment of error with respect to that order with reason this is our heels that there was an eighty percent reduction from the reduced amount that we submitted with our second application just for history we had about one point five million or one point one million dollars the claim relating to this for your five year ca claims are not appear to be sufficiently limited to the trade secret claim looking at the way of the material that we submitted of course it was limited to the trade secrets plane and the other two categories of fees that we're entitled to recover under oregon law generic vs i believe comes to us from the hensley opinion and in hensley the court did that and it recognized the trial counsel spends most of it time working on the everyday activities of the case those activities can not investigation discovery that related to claims that were in common with the trade secrets claim and there can be no denying that they had commonality because that is why judge perry preempted those claims that summary judgment hearing also other assignment of air your honour's has to do with the court's failure to explain how it's allegation in the second page of its opinion relating to the presumed or assumed generalized time  hard to believe that i cannot tell the court in all honesty that there were documents that i can point to i think the burden our would have been on this effect on some rich to establish that to the documents that he did provide that had any pricing information contained that  i then also would want to add that we still got a dismissal of the trade secrets claim however that nation out because of the fact that there was no reasonable effort made to conceal the confidentiality of the information that clearly documented li was produced by sun rich or its predecessor to two other parties mr west why is it the definition of product broad enough to cover the other flavors