very clear that the way to determine unjust enrichment is by examining the benefit to the defendant that was conferred or that was obtained as a consequence of the behavior of the defendant not the costs to the and they're not always it well there is a very narrow situation in which those costs candidly should be and that's the situation where essentially what's happened is that the defendant simply stolen the idea of the products every feature and then used them to compete directly against the plaintiff in a particular situation and candidly that was the assumption that ethics expert operated on and when he developed his model which was the basis for the damages request and the only expert evidence on damages in this particular case you took the entirety of the r and d costs that epic incurred over a ten year period and then  manipulated them to a certain extent depending on whether he could connect them up to a particular document only documenting frankly where we have any evidence that there was in fact use made by  happened as it plays out well it turns out that there is no evidence whatsoever in this records undisputed that none of the software in either med mantra or in the deed a product or any other product appears to exist that has come from any of epix information so there's no software there's no source code that's conceded that there was no source code take and so the question is what is a sensible way to go about evaluating typically what happens is an expert is told work on a certain a set of assumptions and develop a model of damages and he did that and then you find out that the model of damages doesn't fit the particular liability theory that's been proved at the case what do you do that you modify the model of damages you start over you look for other ways to try to figure out what's reasonable way to value the benefit in the hands of t c s of what we know that t c s is done now if all you're looking at and it's at the end of the appendix of the blue brief is is that fourteen page document the comparative analysis i defy you to come up with any rational basis by which that that document in the hands of t c s has any value approaching one hundred and forty million dollars of the be clear that's precisely what the jury was asked the benefit of t c s his use of the comparative analysis and the number one hundred and forty million dollars well you don't need the software to create that comparative analysis there's no evidence of the software being embedded in it as just commonly recognized that document could certainly be used in theory as a marketing piece as a comparative or it could be used in an effort to try to negotiate with epic to perhaps bring the two companies together in some kind of a joint enterprise to provide services to kaiser but what you can't do is come up with any basis on which that one hundred that that single document gets you two hundred and forty million dollars in cand the expert credit and he said point blank you know the way i understood my task was i was to value what this cost to epic and if the players could make any proof of any use of any information then all of that value flow directly it's a t c s and the judge said that's not your call and frankly that's not the law and he's dead right about that and that's why that one hundred and forty million dollar number is simply way too speculative doesn't support the theory of the expert in this particular case has to be set aside now the district judge there as the cross appeal to the district judge also set aside one hundred million dollars because that was for other confident use of other confidential information to be expressed very strong skepticism that there was actually any proof of any use of any other confidential information and even if you can speculate as to some ways that this could have been used is there some improvement to med montra some improvements at the v a even if there's nothing in the software is there something they learned about the u s market no that was testif to by their expert indeed the expert didn't identify anything with respect to the one hundred million dollars he simply said there was two hundred million dollars tied to that tied to the fact of song you know evidence that that one hundred million dollars number it is literally plucked by the jury out of the air and and imposed on us and the and the judge recognizes i want to be clear i'm not apologizing i mean not i am apologizing for what t c s did it made mistakes but we're not saying that you get a free pass when you make a mistake had a very aggressive injunction and goes against them for two years this very serious monitoring and they could have put forth a theory of why a theory of damages based on actual use access to the information they were in the business of providing access to information and they license it under certain circumstance that could have been a theory of damages in this case you'd maintain that there are two different markets there and decide on undeniably two different markets so they don't overlap or they don't over estimate of the hours and the time spent on the research and development we don't challenge that so it's flom and i think and part of the reason we never challenge it was i think we all long assumed at some point that epic would tie in exactly which of those things were in fact used and it provided some form of benefit to t c s he never did that so if there was no reason to try to nd guess how you own it why you start off with a three billion dollar number what's clear to me is that the whole purpose of this exercise was to get a very very large n front of the jury and then even by manipulating it down in the kind of classic experts mumbo jumbo way of manipulating the math i'm going to go back to  things it's pretty clear to me that that at the end of the day all they wanted was a very big number there were much more reasonable numbers that could have been used they chose not we didn't say that they hadn't proved damages that they couldn't prove damages i think the right one is to see our current jurisprudence i think the right one to say is that you have to enter judgment now for the defendant because the plaintiff simply did not prove any action and there was no bed all at all there was no basis on which to for the jury to make a finding of any number under these circumstances is precisely what our expert testified to he didn't say that there weren't theories out there he just said planners chose their persuaded you on compensatory damages and the two elements of it that i think the court should focus on st of all wisconsin has what it least from our perspective is a strange rule but none the one nonetheless one that it's entitle to have which says that you don't get punit damages and in an unjust enrichment type of a case you have to have a situation where there is in fact actual actual injury to the plaintiff that gives rise to a compensatory award and in that situation it's punitive damages and there is obviously no actual injury that was caused to epic under these circumstances you say they're not competitors they're they lost no business they they still have all the same from just the notion of the ratio between compensatory years and unity is the court should step back and recognize that the magnitude the size of the compensatory award in this case honored forty million dollars for for two businesses whose entire revenue stream during this period is about three and a half one million dollars so wildly out of whack with what you need in order effectively deter behavior under these circumstances that the court  statement that epic narrative stan ridges theory to t c s is use of confidential information detail than exhibit twenty nine and shoot me thirty nine the comparative analysis by doing a comparative analysis of epix products against cost to create the software and then we said and they have to pay for all of that and then they come back and say well ok judge you don't like that very why because it's not connected going back through and saying that there are certain connections between information that's and user web and within that you know that is the basis for that for the one line i entries it's still not a use of you don't need software to do that and there's no evidence of the use of software we may have picked up the names of those sub processes from user web and put them in there but there but the fair value of of those entries is not at all let's dip it in the cost of the software creation is not a fair proxy for the value of a series of entries on an outdated market understand well yeah there is a number yet there but the reason you get a big number is because in this i came in and said look we're going to take all of our development costs that's going to that which is a huge no that's billions of dollars and then we'll narrow it down to a two it looked lower time because they knew you were going to put three  million they might affection with history might have been employed at more than you did but you shouldn't and and they recognise that so they went in with four hundred and eighty million dollars and that's the baseline and again that's the cost of some portion of this of  focus had been much more on what i think it should have been which was you know what is the real value of what uses that had been proven the numbers would have been significantly smaller and candidly i doubt very seriously that we would be here so is the bottom line  there's no way to do it now no i understand it but under these circumstances could you of course you could you could sit down and get an expert on marketing who could tell you that if you have the if you have the kind of alice how you can use it  value it would have to you and what what you may have saved and you could maybe even try to connect that to some of the other information that was obtained you can always come in and say look what you what the effect of this was is that you got the benefit of access we we you pay royalties for the benefit of access they could put any of those theories on and of course they did get an injunction in a very and important injunction because candidly a lot of the scare that they put to the jury was it's on the shelf we're going to be afraid we don't you know we're going to live in fear and you should take that into account the judge said no no no no you can't take that into account would disappear it could could you ever use projected sales off of past performance i'm just trying to get a handle on product started selling it you know then then probably the measures of damages of both be what you lost and your profits and you should also discords everything that you got as by way of profits the problem is we didn't there's no evidence they didn't connect the dots to say how to get use them what's the value of the use and they've done that it would had a number but that number would not have been seven hundred million it would have been fo you judge me please the court let me start just by answering judge man in your question about the numbers there was no five hundred million dollar number presented to the jury the number that mr britton testified to was two hundred million dollars on which the jury awarded one hundred and by the trial judge through the application of wisconsin statutory cap something that we're not challenging one thing that i think was lost in the argument we just heard is that we had a jury trial we had a jury sworn to apply the law to listen to the evidence to make decisions to follow the instructions and they did that and while t c s now wishes the argument would the result were different what they've done today is really rehash the arguments they raised and failed in front of the at trial epic proved the t c s used epix confidential information in trade secrets that t c s benefited from that use in a number presented by several witnesses not just the experts and the trial court agreed the jury so found the trial court agreed judge connelly in the post trauma motion said that epic presented evidence from which a reasonable jury could infer its trade secrets and confidential information were used and he identified the ways in which it was used to develop t c s as us entry strategy they were using this to develop an entry strategy and divvied up we presented evidence in the laboratory module is how they did it to mentions d v d a he also mentions that they use this information to discern dead ends to avoid and to repair the comparative analysis and to improve their med montra process so they used it and we know they used it because the jury found that the special iraq atory presented to the jury has a question on it asking did they use the confidential information in an improper way in the jury answered yes an element of the tort claims was use the jury found that the at the material was improperly used by t c s that's a given and it's not appeal based on credible evidence the jury further found the value of that use mr martin testified as to the ways in which the information was valuable mr britton quanah quantified it and i will address that as i move on so the jury verdict was correct but it also cannot be challenged under the standard of review political to jury verdicts t c s is essentially challenging a finding of fact they're saying well maybe the damages were one million or two million or five million that's a jury argument they didn't make it below and they can't make it here so let's  talk about a use evidence a trial showed systematic use showed that over one hundred thousand times t c s improperly accessed our confidential information they took trade secret documents over six thousand times they took the programming guide for the central aspect of epix business called chronicles it's a database that epix business runs up they download the program now we're not seeking damages in the part of a analysis for that use that's that's something separate our damages are very focused to what we could show they used the evidence a trial showed that this was purposeful that mr reddy the number two person in the med montra organization who in violation of all good practice also was involved in looking it up at the kaiser business put somebody from his team on the kaiser business so he could know what's going on whose kaiser business it referred to that was some sort of a mutual arrangement the qur'an company penn kaiser was a client of epic and kaiser needed t c s his computer services to make our system work and we were nervous about that because t c s is a competitor and we allowed them to do it on a written contract that prohibited them from doing exactly what they did here they asked for permission or user with information we said no they stole it anyway so there was purposeful systematic invasion of our trade secrets by p c s mr reddy sought out somebody who could compare the systems he reached out to a man named  forgot to do the analysis we don't know much about yelp or got it he disappeared before trial t c s says he doesn't work for them anymore and they cannot even give us an address for him but we know what he did he reached out to subject matter experts s m e s these are referred to in exhibit thirty nine s m e in the m doesn't stand for marketing subject matter experts who came in and looked at epics software and compared it to what t c s did in med mantra and that produced exhibit thirty nine and other documents and it didn't end there we showed that that information was used in presentations to the senior management  to help them hone their us entry strategy exhibit one hundred and fifty nine presented to the jury shows that they had identified key gaps in functional areas that's exactly what the comparative analysis did key gaps in the functional areas to be addressed d which is a us denver based business we probably caught them before they did everything they wanted to do but yes they did use this as just calmly said they used it to develop a laboratory model model for their principal us health care customer to now we wish we had more evidence of this we wish we could connect the dots between what we proved they did and what use they made of it the difficulty in connecting the dots is that while we were out there doing our business t c s was a racing the lines between all the dots they engaged in as found by the trial court systematic efforts to conceal what had happened here so for example could we determine who used user web well we know mr gonchar on there is testimony about this shared his credentials for the asking but we don't know with whom ok could we look at the computer records to show who used gosh arounds credential to access the information that was destroyed those proxy logs were destroyed well testimony show that most of the illegal entry was done by violating the procedures in the clean room they were supposed to keep these two businesses separate and they did so we looked for the two computers in the clean room that they used to violate the procedures there were hard drives on those computers opes they were destroyed the evidence was not preserved this is what t c s does for a business for their living there are global computer consulting business they allow the critical evidence to be destroyed well can we look at what the med mantra people did with the information they took to do that you have to just go look at what the men mantra people did none of the med mantra computers were forensically imaged nothing was saved now should t c s have known when the insider mr dna sent a whistleblower report to the management of t c s that this improper thing was going on and they were using our information to improve med montra which he had seen with his very eyes preserved the med mantra documents absolutely and based on their failure to do that and their systematic destruction of evidence the court allowed the jury to draw an adverse inference from the fact that evidence that should be there was missing and frankly if rather bold for t c s to hughes epic of failing to prove aspects of its case when our ability to prove our case was systematically hampered by their actions ok so having proven use having proven the destruction of documents that would have allowed greater proof did we prove actual benefit the answer is yes there was testimony from strong martin and from expert britain and it demonstrated the following epic based its claim on its r and d costs now the suggestion is we just put a big number in front of the jury not at all the evidence is that over its time in business epic is spent three and a half one billion dollars and developing the secrets and software that were accessed here we did not claim three and a half one billion dollars o well st we excluded all development cost before two thousand and five why because it didn't have any impact on the things they stole no we excluded it because our accounting system was upgraded in two thousand and five that beginning in that date allowed the cost of development to be linked specifically to the product of development before two thousand and five it would have just been an estimate so we excluded the preacher two thousand and five r what next did we do then we limited it to the development cost that went into the things that were taken and used and this comes mostly from the testimony of sterling marks it's not just based on an expert mr martin reviewed the six thousand dollars documents that we could prove they took and there more that we couldn't prove and identified every module in our system to which those documents related and identified the modules in our system where what they took provided a substantial amount of the of the basis the trade secret know how for that module that limited the claim from the post two thousand and five are indeed down to a smaller number than mr britain identified the costs from the cost accounting system identified with those specific elements and then he apply further deductions he ducked at the cost of software coding because while they stole some documents they didn't steal the source code he did ducted apply to deduction for depreciation it was called half life in the testimony and through those approaches took this three and a half billion dollars number down to an f one billion to four hundred and eighty million to three hundred and six million to what was presented to the jury which was two hundred million and he testified that that information anchored the benefit to t c s to what they took and judge connelly agree so this is not a situation where we have an expert running amok we have a focused analysis tied to the extent we could to what we could number many of those arguments would be great arguments presented to a jury if they wanted to argue to a jury that two hundred million wasn't the right number that the only value they took was a marking value and that was five million they could have presented evidence there wasn't and factually the trial court the st factually they stipulated that the comparative analysis wasn't based on publicly available they stipulated it was based on our conference the trial court granted a motion in limine a the prohibited them from arguing that comparative analysis was created from publicly available information or information known to others and based on their failure to reduce prove they made a strategic choice they presented the jury with a binary choice epic argued for two hundred million they said well maybe you got to deduct thirty percent because the cost in your last but they presented no other damage for you they didn't presented damage witness to say the numbers are less they made a strategic choice and the jury after hearing all of the evidence which i've just scratched the surface and decided that epic had proved it's evident that proved its case and awarded the number that was left before him it was supported by substantial evidence and judge calmly found the same now they suggest that you counter factually if t c s didn't steal this information and behave differently maybe the measure of damage should be what it would have cost them to develop the some other way in other words had they had to pay for what they took rather than take it what would they have paid for it well we submit that's not supported by the law nd we submit that provides a really perverse incentive and jury instruction in this case presented the theory of development cause the jury was instructed they could award development costs and that's not appealed and and in their appeal brief t c s acknowledges as wisconsin law supports that development costs are development costs can be a proxy for the benefit of the defendant and and that's as i said amply supported by the law  yun case talks about the damages that apply for wrongfully obtained benefit the pro pack case of this court explains that value to the defendant and value to the plaintiff overlap the kind of two sides of the same coin and that's the reason why the court allows this proxy measure the restatement supports that view and and counsel relies on the link which case that the linguist case is an interesting case it's from this court it's not  interesting wisconsin law in the holding in the case the the ruling of the court is that it was fair for the trial court to exclude certain evidence about the contract the parties had negotiated and fail to the discussion about damages is dicta and the language that council relies on about cost really has nothing to do with the issue in that case or frankly the issue in our case case the holding in lindquist that comes closest is the discussion that you should look to the benefit to the defendant and with that we agree we suggest though the law allows us development costs a says and that's what happened here the jury awarded compensatory damages if you look at the jury verdict form there's a line for compensatory damages and it says one hundred and forty million dollars and under wisconsin law damages of this type are allowed to be compensatory damages to hold otherwise would violate wisconsin law that the more serious argument i think they raise is this due process excessiveness argument and the the more i thought about that it occurred to me that what the trial court upheld here was treble damages the jury found actual compensatory jory damages of one hundred and forty no the law the law is that unit of damages in a ratio single digit ratio like we have here do not violate the constitution that's what the campbell case said the other is underlying many of the arguments in this case it's kind of the elephant in the room the damages here are very large absolutely the damages are large and that attracts a lot of attention to t c s has a complaint about that they had a look in the mirror a multibillion dollar business their profits in the year before the verdict were three and a half one billion dollars now i'm not saying they should be punished because they are not absolutely the jury applied the law the law was propped the jurors properly instructed in the trial court applied the law in the post from actions but the fact that the verdict is large and the amounts are large here is just a consequence of what t c s it says you can look at t c s t c s has benefits as simple no and accept forty and in doing that you can include the development cost saved by the misappropriation of effects trade secrets or confidential information if those were in fact actually used by t c s now broad statements that they may have been used by t c s doesn't get you there certainly doesn't get you to the kinds of numbers we're talking about let's look at the specific one hundred and forty million dollars what's that in iraq a three benefit of t c s is use of the comparative analysis my friend speaks a lot about the comparative analysis but he did not deny that there is no evidence that anywhere in there is any software that's been used or that's been embedded in that that's not to say it couldn't have been found it's just to say that it isn't and when he talked about the other uses and he's talking about the divvied and others none of that has any do with the comparative analysis that would only be role frankly to the one hundred million dollars which the district judge himself set aside he tries to say well but don't worry about all of that because what ultimately happened is we didn't have access to the information that would allow us to know whether or not that ferment montra or was used for it to be and again here is this is the record six hundred and nineteen the testimony is absolutely clear t c s made a source code available for inspection epic chose not to look at it t c s produced the entire contents of its two version control systems which reflected the entire development history for med mantra and divvied a lot of products and they chose not to do anything with  they just simply threw up their hands said we're going to go with the basic theory that was what their experts said i'm entitle to identify all of the r and d monies that were quote saved and if i can find any use whatsoever and that document that the comparative analysis eight use and we get all of those damages and that's how you end up with a number and i'll end with the comment about the expert to be the case is taken under advisement