damages it was their choice we did not force them into it there were theories of damages they could have pursued against dr koharski in particular which would have created a lot less fewer problems for example they could have pursued a reasonable royalty at their ease saying here's what we can prove that you took in here's what a reasonable value valuation what a reasonable royalty would be on that particular technology they could pursued a lost profits there and saying you took this and it caused us to lose profits that would work under either one of these theories because after all even if you are you know even if we have a the interim corporate issues that will come back to you you're always going to be liable for your own personal actions even if you are a corporate employer officer a director you're always going to see for example responsible for your own fraud so they had a theory of damages such as reasonable royalty or lost profits that could be directly traceable to what dr coles did we wouldn't have the issues that we have currently in this case the problem of course is those kinds of measures and damages would be measured probably in the thousands of dollars or tens of thousands of dollars in qu lab wanted to measure of damages that got you to the millions or tens of millions and thus they overreached for a couple of theories of damages that are not supportable you know if you do this argument did you make to the jury i did next certainly made  sounds as if this is exactly the argument you made to the jury with some some effect obviously but that's right that part of it certainly is we certainly did not argue the specific legal issues that are what we're now coming to for example is one problem here again it goes to the proof in that the mr braddock their expert witness had a specific model for how he was going to calculate this and he based it on s x p and he testified sides if they have for example a theory that single tickets next company avoiding costs that could that could that would have been conceivable theory of course we would run into the same into a corporate conspiracy theory issue that we would have with single tech because that is p but they didn't make that argument the argument was that here's what s x p avoided because they were over the point for example to what s x p actually did the things that they went through the same thing course is true of the  trade secrets does not help it on the demolition tell me why not to set your answer well i mean certainly if if the damages had been something that legally would be applicable to  the destroyed documents relevant to these other ventures and therefore showing with the cost might have been was not possible if the if that's a again that's an argument that was never made in the trial court by the plaintiff there is that their damages theory was purely based on thousand dollars and didn't write that that particular testimony that you're referring to mr brack talked about was was was the he was referring back to what he had done when he was that quote levels making it back mr brett to use that test that he and some of the other s x p people talked about forming a company called plots that you'll hear that referred to but that if he never did anything there's no evidence or allegation that unity ever came into being blessed never came into existence the later entity which was years later was single tech and that was a separate company that was based in wisconsin which never actually came into being it came into being that never again operations so there are those of the two entities could have made profits from those entities for example he could be he could have but again the damages theories and i move i move for summary judgment moving lemony moved every different way i could on this  partnerships and what they held as the principle of one limited partnership to conspire with the principle of the other a limited partnership i'm not sure why it has to do with anything the this this idea has been tossed out it correct  responsible for their own criminal actions just as tough a coup whoriskey is on the on these individual client you can get you can go after him after him individually for his own in this case torts if you can prove a theory of damages attributable to his own personal tort but in this kind of this situation when you have an operating business and you're trying to say that our damages are the profits of this business especially after he left those profits will generate until at earliest nine months after he was gone from that company to say that he's liable for that is an entirely different matter what they're citing from the record i mean this is purely a factual challenge at this point right not a legal challenge certainly i'm not sure which one you mean well in other words saying to for the the jury misses it i'm caught quite sure whether you're saying there is no evidence that the the who harkey personally profited by avoidant costs or whether you're saying that the jury had two different theories one of which was in firm and therefore both of them fail that both things of them but i don't think you preserved air on them on the sharing of intellectual property from his past work and another he explained that the cost of a particular trading approach should be avoided because quote we tried doing it back in two thousand and five and it did not work that that's all the action group correct however how does that tie to damages because nothing ever actually happened because they never actually did form the venture they've never actually did avoid cost he did talk to them about what he'd done i did not my two main arguments that i'm attempting to make today is that still to this day i have no idea what the trade secret was that my company was accused of using and taking i didn't come from a plant lab i'm not a computer co designer and when the expert was brought up on to the stand the expert was asked ok with this here where is the trade secret he answered with well it's in the details and he didn't have any other experts were presented that up during the trial and gave general concepts of code or file names or different items at which point in time i believe it was at some point my right to be able to see whether or not what they were accusing me of having have anything to do with trade secrets no what you found that was destroyed was the portals that hook up to the mainframe when we got our discovery requests they were asking for all the information never asked for the portals so the portals was just  silk and i and there's a chase to do that would have been on those horrible then i still have a right to request ok what is the trade secret that's not in the public domain that would have been on that level it was then i would have been able to make the argument at some point in contacts and so there was no detail at any point in time because coming from that industry i could tell it's physically impossible for me to have ever used anything that was a traitor to the plant labs because i had a complete structural disadvantage i could have plant labs trade secrets the secret code of what makes to create work if i attempted to place those trades they have a three hundred million dollar massive computer system that can execute those while in front of me so there's no way i could have made money in  on that and i explained that also to the jury which i think impacted what the trees final decision was and so the problem was when the other expert came out and was asked is it here and he goes no it's not it's in the details you have that witness disagree with each other and at some point in time it's their responsibility to present to me this is what you took from us so that i can at least go fight it out to see if it's somewhere in the public domain i even provided my  know to be you know i mean maybe i'm maybe you you don't have to know what illegal drugs you're conspirator is participating in as long as you're taking part of the money from something whether it's or marijuana at a particular time it doesn't matter if you're conspiring to an end that is not allowed in the law absolutely and that what it should put time wouldn't we have to identify it as meth or marijuana or something illegal to the satisfaction of the jury and they're not even contesting that they're not even challenging the stealing of trade secrets you were the c e o of the company that used to trade secrets at don't in too harsh his opening brief the says this case is really about damages and we agree this appeal is really about damages but we believe it is also about something else which is a significant mischaracterization of what the question presented to the jury really was in an effort to wiggle out of the nature of joint and several liability under conspiracy law in texas the the conspiracy at issue and then ultimately with got leskie to form singleton and he is using the financial information in the which is all trade secret information in order to solicit investors for both of those entities now the argument was made well that it doesn't matter because it never got conspiracy with other it persons and acts done individually as well in terms of use of the trade secrets but he was in a conspiracy the conspiracy that the jury had the evidence the jury had before them throughout that whole three one act play time period and the other significant mischaracterization that we're getting out of this argument is that braddock's damages the court was limited to just what essex p did and that is true with regard to the lost profits section or what as securities operations work but if you look closely at the report itself that is not how it's written relative to the cost of development side of the equation the cost of development side of the equation which is that paragraph twenty six of his report is a calculation that's a proxy he as he describes it for the cost savings of the defendants generally now he he points to some testimony during trial where he tried to get him to say ok have you tried to carve this up by individual and ultimately braddock says no because it was my understanding this was a conspiracy the point of his testimony being i wasn't trying to divide this up the cost of developing a proxy is quite labs cost of development once the individual has the trade secret in their hand that it took fifty four million dollars to develop that's the cost of development measure of damages the determine and not true to revaluate but they seem to have decoupled themselves from europe oh well we well you said like you say i think the proper standard is we're not supposed to get into trying to go through the mathematics of what the jury did but what the jury could have easily done from the evidence and said ok the standard here is not as he's trying to portray it looking in hindsight what did they actually profit from that use of the trade secret if you look at what the court's discourse and globe ranger as what you say is it's not a hindsight vision it's what did the thief think he was getting what that was the value of this to the thief in particular with regard to the type of you see put it the jury could have looked at the damage was the doctor for your brief makes there were arguments on that but one of them is this the timing thing that at some point of time he is working individual at some point of time he was conspiring but he's me organ also is the conspiracy story even before he they left quietly and they were taken trade secrets they lay were had to plan to to to further this in various ways not all of which may have been worked out the evidence of when he was acting individually he's terminated on the ninth and he starts act ever actually i think it's time they deliver you know not terminate in the night on the thirteenth like four days later he's starting to access model engine seven point nine on his laptop at looking at it and repeatedly hacks then into quite lapsed computers to get a bunch of configuration files using another employee's you know number who's not one of the v p n code he's not one of the conspirators in the in the issue that's presented to the jury i got him angry at the beginning of this the evidence we presented to the jury was he's collecting everything and he gets the model engine the brain of the code he gets the configuration files he gets the technology side of the code he didn't consolidates it in you i can give you record cites for all this bridge really in pathways reports if you want to run through it consolidates all this along with simply forty seven thousand files before he starts talking to god leskie about let's try and pursue something together that was all individual misappropriation was the evidence when we first talked well what the evidence of this is the sort of first meeting of the minds in terms of when did they actually start putting something together that we're going to try and form a business is may twenty fourth what we call the wish list   mail that he sends and that's a record sixteen for fifty one and that's where now he's actually sitting down and making a plan and that what the jury was clearly within his province to determine was well ok that's where now he's actually starting to conspire he's done he's not doing this on his my own anymore this is not individual activity now he's started to conspire with the folks to do something to misappropriate and this is where some of the other defenses really break down to if you look at what the conspiracy was in that from that frame of reference from what the question was that was actually submitted to the jury he didn't withdraw prior to any kind of unlawful act of objective being pursued or any of that what the exact phrases some of the cases used by the city of an overt act in furtherance of the conspiracy he had already started you know downloading stuff well they needed something to trade through they needed in the entity to trade through and so ultimately they were setting this up to be the in to do the trades and needed investor they have a capital to draw or do they need outside capital they need outside capital to do it that's why when you look at the restatements lists of what's commercial use improper use of a trade secret one of the things it talks about soliciting customers here it was it's a little different it's a listing investors but it's still the use they're using the financial performance information and the financial requirements information of quite lab that they took on the alpha nova file that was stolen which was years of performance information and financials about in order to determine what they need to run the strategy that they'd stolen from them and to get investors into because it's your trading money without money you can't he can't get out of the game find in an opinion by judge boyle in a footnote a reference to an eastern district of pennsylvania opinion where the course specifically said they enter a corporate conspiracy rule does not apply when as here the defendants conspired prior to the formation of the corporation to form a corporation for the purpose of injuring the plaintiff that's c albert sautter company versus richard three sixty  and call it a corporation not on this specific point and if you look at the lamont decision the judge ellison referred to it does say in there in that case what it happened was the individuals were conspiring and then they formed two separate companies to operate those  conspiracy into separately and the court said you can't form a conspiracy or form a corporation and avoid individual liability by doing it through the corporation not true there they weren't two individuals in one corporation they were two individuals before he left well it depends on whether or not you look at it as the point in time where he says he's leaving or the point in time where he actually is no longer an interest hold her because he's got his cap back and gotten his code out of  if it's the former there isn't any because they really haven't started trading yet if it's the latter then there's about four million dollars worth of profits that they gained over that two thousand and eight to two thousand and nine timeframe before he actually pulls out you tell me was most my question is the benefit for you on this appeal of the ruling homes for lucian any time you see in that brief there is no evidence of couldn't destroy that stuff because they grabbed it is this whole big pattern of what he was doing and we have his bragging that he had made fifty million dollars now they say well that wasn't a reference to a six p but that's not what  the e mail or the business plan issues as it just talks about having made that much money before with got less and in fact if you look at when he says fifty million dollars it does make you wonder because the actual profits that radek identifies missing this point that is made in globe ranging really strong which is we're not going to have the damages in a trade secret case limited to just what the actual profits are that th misappropriate are makes or the actual cost to misappropriate or manages to achieve if he does it good if he does it correctly instead the issue is what he could have reasonably expected and give you the quote out of the court and the reason for that is because the court says we're not going to essentially reward the defendant and punish the plaintiff for the fact that his gamble turned out to be a bad one if you steal is a trade secret and you can't make money off of it or you can't really use it that well so the issue is really what is almost like an opportunity cost is is you know what's the value to him of what he took in terms of what he's going to use it for in one of those measures as a proxy is the cost of developing it for the for the plaintiff in the first place the jury's allowed to use them in keeping in mind that the court recognizes this is a approximation only and approximations are allowed in trade secret cases and keeping in mind that the court has said repeatedly now that we have to have under texas law a flexible and imaginative approach to this because tracy it's also hard to quantify now that they quote the southwestern opinion where the texas supreme court did have an issue with the damages there but the difference there is in the southwestern opinion there was a very specific market amount that had been identified as the value of the trade secret and it wasn't being used and there is no way it's when there is something very clearly specifically i position that it can't be so speculative there you know it needs to be more precise but the point the court was making there was well that we had a very specific market that you identified here and that's not the case here not all the cards and in fact he references this reasonable royalty issue and argues all this stuff about confusion because of the reference to the way that the jury charge was set up and if you look  terms of the reasonable royalty issue that he does identify it and describes why he's not applying so it can't be applied here so really the only thing that the jury had to apply was this development cost type theory so that you know we're really just talking about that as they're the starting benchmark in the damages issue where within that benchmark thank you thank you s development in other words the mere fact that i go and steal a trade secret from somebody and put it migrate on the have it on my computer or have it sitting in my kharaj whatever that is not give rise to and avoided cost theory unless i actually develop something that should be common sense if i'm not avoiding any costs you know in the lab put on evidence and took them a hundred million dollars or whatever it was to create their trading platform and your fellow moves into the market you know get a little capital and start competing even if he didn't if that didn't transpire exactly as he expected it seems to me that he's has avoided cost but this argument is i don't understand where your argument would go because at best it's of the clock amount of damages and not to the existence of damages actually i think it goes to the existence the in this case and this is the first time this this is litigations been going on in one form or fashion for ten years this is the first time that i've heard any of those ten years that there's some suggestion that dr koharski was doing something prior to s x p today that's the first time i've heard that was i development that's been shown actual development was as a sex be in single tick they were the companies and there certainly i've never heard this argument before that somehow he was off on his own developing something at any point in time i heard every so often his own stealing things i'm sorry and there were even i heard this morning it was all for his own stealing trade secrets and then two or three months later going to with a coconspirator so we'll have to listen to it again to be sure