two appeals one issue involves rule fifty judgments as a matter of law where there is a to novo standard don't think that's controversial we have a directed verdict to use the old parlance in a do some to breach claim under state law and then we have a j n o v again in the old parlance on a statutory troops in which case finally there is the attorney fees issue issue which is a appeal from the other side which is a question of use of discretion as the as the standard and i won't say a lot about that i don't like to a correct this is a case where the trial judge continuously said that the evidence was a coin toss a close case could go either way and those those comments i think inform us about the discretion not to award attorneys fees and i think they also inform us on the rule fifty decisions because cases that are close calls coin flips that could go either  way to me it seems to forty years of doing this are the kinds of cases that are supposed to go to and stay with the jury you know an inducement to breach a claim to plaintiffs my clients introduced suggests that ocean air offered seventy percent of the profit to the husband to form the competing enterprise but when i wrote of the record that said i mean the record says the husband made the offer ocean air just said no problem all evidence seemed to say the husband was trying to convince everybody else to do the same thing and went ocean air i don't know what evidence contacts ocean air and says i'd like to do this and this is what i want to get into hard to seem like ocean air induces anybody if they just say ok and i can't find anything well they did agree to the to the profit split ok so you're saying that the district court should have said on a directed verdict and i'll use your words circumstance of the i mean if i looked at inducement and looked at the evidence that you must produce on inducement i don't think agreement would meet the elements the record does reflect it it was mr kaplan who suggested that there be this arrangement for international distribution and a joint venture to do it no i don't know it seemed to me that it was in fact the husband of the one you want to sue made the offer made the initial contact and made the offer with an e mail on nine twenty eight of two thousand and eleven subsequently made that offer after they discussed it one the jury could have presumed and i think they would have though nobody said anybody else made the offer the best i can find is i go ok no problem there was a discussion about a joint venture an offer was made it was accepted we thought that's the best evidence you have on the to use your doors if i look at the judgment notwithstanding the verdict and i'm looking at what evidence there is there and this i think is the important part because the district court let this go to the  what is the alleged trade secret trade secret are customer lists is it the christmas card list is it that is one of the two lists is that work e mail address book  circumstances of those lists the fact that they were not generally known to the public well now just a minute i got to find out where the lists are my worry is that you're trying to make a trade secret out of her knowledge or knowledge in i mean her own knowledge herself cannot be a trade secret really got well we're only talking about what lis i mean if it's a cell phone nobody asked for that back i guess i'm trying to figure out what that is so if you say it's a christmas card and the work e mail what's the economic value of the christmas card list in the hands of another employee with out relationships and spece specific specialized knowledge of these customers it may not have value which is why this is the worry that i have is that seems to me the district court focused after the trial on what is the list and he said christmas card list it's an email address book and it isn't but brenda knows herself and therefore i don't think it really is a trade secret and your argument always was that what brenda thinks or what brenda knows makes a trade secret and i can find no law to suggest that's true that is not an argument i think that's a bit of a straw man that has been created here we're we're looking at the more life case which is the controlling law i think it's fair to say in in  california on this which says that a customer list can you know of itself the intrinsic there's one circuit law on that you all have a well but if i look at california law it's got to be more than a just a list of names and addresses well even more like it suggests that it does have to have value under the circumstances independent economic value right but it's more than just to say just the name and addresses i mean the bottom line is the actual potential information they're looking at more life looking at california's civil code thirty four twenty six one is that there's got to be something more created by the list itself right i mean that the fact of the list is a fact of an existing relationship but there is anything more described on that christmas list than names and addresses there's no there's no customer specifications for example customer preference or was there in your life the list the so called lifted list and more life was a shoe box for business cards the extra factor here that is in more life and it is in this case independent of the list is a personal relationship with that list which was a company list and again the history of specialized the doing business with people on this list if the list had value why do you allege that it was worthless after brattle left the company well i suppose it's the proverbial cat out of the bag she used it and there was unjust enrichment and the just the risk but if it's worthless after she leaves then the live this secret has more to do with her and her knowledge than it has to do with the list well i'm not sure we ever said anywhere that it was worthless we did not try to  proletarian junction i was denied on a technicality of standing as to who won't be the trade secrets that was subsequently remedied but i don't believe we have or said it was worthless it still has value using i look i'll look very carefully at what you alleged but information on this list is not publicly available there was no evidence that any of the information on the list was publicly available there was an allegation that one could figure out the names on this list and that was specifically was so it can be learned otherwise without great expense no the jury and jury question  just a minute can it be learned otherwise without great expense no no because it is what i want to buy when mormon testified that rental houses are well known within their industry and all you've got to do contract well he testified to potential customers or can be found in public information this was not a list of potential customers these were the actual customers prior customers of the business of my clients that is not a list a compilation that is generally known jury question number four specifically on the affirmative defense is this readily ascertainable can be reconstructed the evidence was really in on that point not one customer from the list was identified or found in any of the respectfully flute the burden of proof and put the burden on my clients to prove that it was not readily publically ascertainable and that was a that was are i understand your argument list now he knows who the customers are because he delivers too it's a different case and it's not this case and i know with you that that there would not be cause of action against that fellow we had everything in can't take the list she took it and she used it but she had some parts of the list on her cell phone she was working from home that access to this comfort customer information from a whole you knew she was working from home she had it on her cell phone her personal e mail and all we got are names of addresses on a list which i guess was protected because it was password protected but nonetheless she had all this stuff or a lot of it i don't know how much because i tried to glean from the record on much she had on her own e mail and you never asked for it back on her own get on a roll cell phone well i think it's the record is unclear exactly what was on the cell phone we never obtained i know that the e mail was company e mail it was what she was using she was using a company information and that was a list that should not have been taken did you ever tell her not to use the cell phone not to put the information on her cell phone there's nothing in the record that says anything about the soju ever tell or that information was confidential certainly there are there are there are policies in the right what policy their company policies i know tell me when  lee dealt with her you've dealt with her husband i've got one of those and one of those situations but with her what did she sign the non computer agreement and because i couldn't find it curiously not in the record though there is nothing in the record about that well there were policies of which she was aware there's nothing that she signed as that is true but the the policies were there and the jury found that it was fertile i guess the jury found i want to talk to your opponent about that but the worry that i have is that yes yes trade secret is a question of f however if there are no facts which would suggest it's a trade secret or if there are no confusing facts or no facts that disagree with one another then on summary judgement one can find is a question of law and that's what the district court finally did saying i have given you ever benefit of the fact you've proven and there's nothing that's confusing or even a fact which with which you disagree and i've determined it's a judgment notwithstanding the verdict because there's no evidence the judge had to reverse in correctly and erroneous leave the burden of proof in order to get there on the uniform of the defense of whether the list the information was readily ascertainable the jury found that it wasn't generally known and that it was secret that  value and that it had been misappropriated and used only way that the judge could reverse that was to get the burden of proof wrong on the jury question number four counsel on  new jersey in the damages received in that case were not to put at two of the damages sought in this case here against ocean error for inducing his br trial it this but it's a twisting of the facts that coin toss discussion took place my recollection and i could be wrong it took place after the motions for summary judgment were all heard court may recall from reviewing the record that all parties made summary judgment motions and they were all denied and at some point the court made that distinction or comment or for cation now we all know that we had a trial and a lot more information came side having the evidence in and the district judge says to himself i'm not going to make that determination but he waits for the evidence to see if there is any there for did you ever would ask for a  saying at the time of summary judgment and i don't think that's a big deal because at the time a summary judgment he's giving every evidence to the other side and he said there'd be no summary judgment so i don't think there really weighs very heavy when he gets the fifty a motion he's again suggesting that the way it comes in and the testimony given has significance and the case he's looking at really makes that evidence quite important and so he's going to send it to the jury i worry is that the way you fashion the jury instructions the way it seems that you the judge put the jury instructions to the jury knowing that trade secret is ultimately an issue of fact she explains all the law to them he lets them then determine the significance of testimony as he suggested after the fifty a motion and it seems a little bit it seems like he would you'd look at the standard or review for a fifty b motion he's forgot the standard or a view he's now making those determinations on his own rather than deep down suggesting is there any evidence to sustain it understand your point i believe the judge sees essentially gaining conclusion after specially after listening to witnesses ryan morman who works for regarding the fact that my client had a stellar reputation this industry there was no information as customer less that had independent economic value because it was nothing in those custom alysa provided her with a substantial competitive advantage substantial competitive advantage in this case target of our economic well there you the second the second rung of the men for a trade secret is it have independent value economic value and the that believe it's more life that in order to have independent economic value that information's got to be more than just information has got to provide a substantial economic advantage well the problem comes in i know where you're going but the problem comes he's already had a fifty a motion and he said much of this is going to depend on the witnesses testimony and what they say and then the fascist jury instructions very carefully to mimic what the california law suggests it has to be and then he says you know we'll let the jury decide because everybody's testimony is going to make a difference and the jury then says yeah there value yeah there's reasonable efforts to keep it secret and yeah it wasn't readily available based on the testimony of the witnesses it seems then at that point he is really weighing the evidence he's previously said the jury has to weigh and that's the worry that i have here in that if that's what he's doing that's not a motion for judgment not withstanding the  this is scott this seems to be if he's really going to say this depends on testimony and whose ever testimony you believe then at that point the jury must have believed your opposition's witnesses and not yours that's probably true and i don't understand why given the nature and the and contradicted character of the evidence  that the information is publicly available that any of us in this room could go on a computer right now and find out every film production in the state of idaho if they wanted to honor so i thought i'd go because we don't have any to be read his briefs he would say but when we ask you what you looked at or what independent sources were you didn't have any you couldn't give any you couldn't look at in the independent the only thing you could look at is the list for sending out this gigantic email to all these people you didn't look on the internet to get it get in look at anything else all you did is look at the list the christmas list that you got that's what is argument is that's what his argument is and he's dead ban information about customers that could not be obtained through readily available sources in the information or fortnight entitled to protection on a couple that was something else that came up at the time of trial and i brought this up in the rule fifty  motion which is quite important you know we live in an age where is mr burton i want you to address judge this question i know we've taken you will over time but but you know it's ten minutes so ok well i'm sorry let me let me just finish with this fancy question  when you said devoid of evidence i don't think he was weighing the evidence number one number two the reality is that on the morning the day that mr pull or send out e mails to customers she had a call company that she explained that she had left the company she's on her own no that was a call that was unsolicited it came directly to her that's one contradicted he immediately mr benar chameleon went on a google group called cord news nine one one and put out the information on the internet about ten minutes later that miss santini was in her own business now and made a point of mentioning in that group that contains thousands of people that she's the best point to point in the business which means essentially she's the best freight forwarder in the business from getting  materials from los angeles let's say to idaho or wyoming or whatever to a remote location if it's lighting equipment or cameras or whatever if you and that was exhibit one twenty two or mr bed that was troubling when twenty two response has been robust she was research referring to some course metaphor but the bottom line is she did not say the prove the court record in this case she did not send out an email until about five hours later it was already on the internet people already calling her it was out in the industry it was there because a third party who had nothing to do with this at all it doesn't have anything to do with trade secrets announces it is important it is true and everybody started calling her and writing or emails and congratulating her on her new business and that's it then she sent the emails out personally you know i wasn't there at the time but i don't think that miss pl are had to send out one single email to anybody i think she's that good as she's out well known in the business and has judge fees pointed out in his order and i'm paraphrasing that train with a left the station anyway given who she is and how well known she is in the industry and that information that was in the customer list provided no substantial competitive advantage whatsoever according to the facts of this case and according to what i just told you in terms of the word getting out to the industry tha demonstrated that their true motive in this case is not a concern over a trade secret but their true motive was to prevent miss polarise from utilizing her reputation and her relationships that she had developed over twenty years in her career in another capacity which is directly contrary to california law and public policy promoting employed mobility and supporting competition of employees how do you distinguish this case from more life just seems to me that there's a descent and more life and it just seems to me it's a fairly troubling opinion that we would have a shoebox full of business cards that we could be that could be classified as a trade secret i think in more life  evidence of additional information first of all the market in more life was different than the market that we face here in more life it was this is the situation of the roofers everybody's got a roof there's a subcategory of commercial roof owners who need regular maintenance and don't want to do a replacement roof and the regular maintenance is obviously a helpful thing to them because they don't have to replace their roofs as frequently the kind of like the route cases in more life the company knew who these people were and they had more life it had a lot of evidence and the investment of the company put into through telemarketing through sales calls through a number of different members that the company had expended money and resources to identify who these people were so the identity of the people was a subsection of a much greater category of people in who it and in that list there was a proprietary interest because the company who owned the list had invested such substantial resources in the development of the list and the knowledge of the list that is entirely different than the case that we have here in this case the evidence was very clear that that these individuals were available their identities were available through public resources through internet resources the judge named them in their list and we've named them in our brief and so has has  anyone anywhere at any time could have identified these individuals it's a very small market it's also a market that is approached daily by various vendors and the vendors are competing in an open market for this business much as the case of continent of the a continent carcase mostly in that case it was a smaller market there was competition daily for the customers within the market the customers chose the vendor that was able to offer the best price and that's great on any given day and that's really what we face here in the freezer for the forward business there are many competitors in this business and there's many people that contact the production managers and ask them to please give me a quote on a daily basis for getting freight from point a to point b and let me know when you can get it there and how much it's going to cost and call me back and give me that information then then the customer will call brad assent honey and ask her for that same quote she will give back that quote it might even be the same quote but the customer will go with bredesen honey why because she is twenty four hours available to them she has a reputation in the industry of always getting the materials from point a to point b or of communicating with them if it can't be done that's a reputation that is not something as judge fee said that either has a small select easily known and easily identifiable base of customers does that answer your question you're on i would like to however state that i would i would like to address first of all the the question that  your honor raised about the rule fifty a and the rule fifty b my understanding and i think the case is quite i think the statute is quite the rule is quite clear that the judge does have the ability to submit the case to the jury and reserve for a later determination the legal issues if the evidence as a matter of law does not amount to a trade secret then because there is no evidence of a trade secret the judge is not required to decide that before he gives the case to the jury he may still give the case to the jury for good reasons and he made it but if the jury commits an error a serious error and the judge looks over the testimony and the evidence and says that in fact under the law there is no evidence of a trade secret the judge is then free to take that that decision back and is free to grant the rule fifty motion otherwise why do we have these rules and i well i can if they meet the standard or a view that's why i was talking to you about the sooner you are now here you are i hear your argument but he can do it if he meets the standard to do it and the standard is no evidence to sustain the perfect and in this particular case he talked a lot about the evidence and how the evidence was going to be performed and that's why i asked the question i did it because his whole his whole repertoire is this evidence can only be about who believes who in this particular case one is going to say one thing one another and in this case i'm not going to make that determination i'm letting the jury make it that independent economic value means that by virtue of the secrecy of the information it provides a competitor or the person who owns the information was a substantial business advantage there was no evidence of a substantial business advantage in knowing who these people were in fact the evidence was just the opposite ryan morman the the person at the v a radiant who took over the credit in his responsibilities after she left had many years of experience in the industry and he had the contact information that he was not able he testified that he was not able to make a sale based upon that contact information why because he could not breach the think i believe that that is what the rule is intended to accomplish or to provide an opportunity for the judge to do and that that is what happened in this case beef up before i end i would like to address address the inducement claim just very briefly your honor our position is that the induce as if that there was no inducement because the contract was breached before mr palermo ever contacted mr kaplan so anything that mr kaplan said or didn't or didn't say a by radio and of d b a he signed an agreement that says very clearly he would not directly or indirectly engage in any activity or act in any manner including as a consultant or advisor i warrant counsellor your argument is then because it was breach before it can be preached again their argument is it was breached may have been breached forty times previously but it was breached this time with your client i think that that argument i mean there is now you know i look california law that once preached a contract contract is always breached i look for california law that suggests you can breach of contract four or five times you can and it was breached uruguay what they're suggesting is you helped breach or induce the breach this time regardless of how many breaches there were i would say that my answer to that is that there is a causation with choir meant in this case want to press the attorneys fees now do you well if my time is up i won't but i would like to i think we understand we have a briefing i think we understand there but i would like to be for you to might be found that i thank you thank you  i do think the trial judge abandoned the standard of review here and engaged in some speculative fact finding and took away from the jury the province of the jury that he had given them which was to weigh the evidence the causation the elements of the claim the affirmative defenses and the case should have stayed with the jury now mr burton and miss savile we both said that quoting from the trial judge that the record was devoid of evidence that this list was not readily ascertainable also anyone could have recreated this list or identified this for us and the judge said therefore it was  a's failure that's a flip of the burden of proof and the only is one notwithstanding the everything else about the burden of proof in the standard of review the burden was placed on the defendants to prove the negative that there was that this was not readily ascertainable when that was an affirmative defense that the jury specifically dealt with already and found in dependence favor there's this notion we heard it here that the jury committed serious error what was their error they did exactly what the trial judge told them to do as as you stated judge smith the the jury instructions were meticulous the jury form was meticulous and huge very closely identical to the kassy instructions there were no errors in there the judge just disagreed with the jury's finding of fact and particularly on causation substituted his own version is own speculation improperly so under rule