veterinary orthopedic implants inc or v o y and this case is about whether or not the un read acted amended complaint filed by dieppe you should remain sealed or unsealed and whether the district court made it clearly erroneous fact finding that certain trade secret information was not trade secret based on a false legal premise that such information is typically not trade secret and then abused its discretion by ordering the unsealing of those tr secrets and what happened here is that after the case had been proceeding for about eight months and significant fact discovery had occurred thousands of documents produced to  complaint and in its amended complaint and included information such as the confidential relationship that b o y shared with its manufacturer and also cut and pasted documents that it obtained from v o y and discovery documents that were produced by b o y under the protective order in this case and that were identified as highly confidential or let me just ask you if you're of a defendant was ordered and sealed by i'm also not aware of the opposite and i'm not aware of a situation where a complaint is amended to insert the other party's confidential information i didn't begin to but you're also not aware of the what in the affidavit well your honor there are no cases one way or the other there are no cases ordering the ceiling or the unsealing of a defendant's identity because as far as i know this this circumstance has not occurred before where i plaintiff using the defendant's confidential information amends its complaint to add that confidential relationship into the complaint and and that's a relationship that could not have been determined through any publicly accessible information and in fact in this situation we have a party to puke who was aware of not only b o y but was aware of the other defendant and could never put two and two together until they were provided with the confidential information in discovery under a protective order so there was no ability even by depew who had a desire and a motivation to be able to reverse engineer this information from public sources nothing from the internet nothing from public shipping documents or invoices or anything else this amendment was based soley on confidential documents well i'm not sure that i understand what why that's necessarily determined do you agree that if the manufacturer identity was not a trade secret that there's no basis for sealing well your honor other than the fact that it's also confidential but if you lump trade secret and confidential together then i would agree if to pew could have obtained this information publicly or knew about it through some other means on its own then it certainly could have sued to manufacture all the plays yes you're on  i having difficulty understanding how the manufacturer identity can be a trade secret when there was no obligation on the part of the manufacturer to keep the relationship secret there was no agreement with the manufacturer to do that there's no indication of a custom that would achieve that result though it seems to me you have a situation in which you haven't protected the information  by preventing the manufacturer from disclosing well your honor i would disagree with that for a number of reasons st off the law is clear that there's no requirement for a contract and certainly a confidential i'm sorry i didn't hear that what is what a fact here i think jet that the manufacturer as a matter of custom or otherwise was under some obligation not close the relationship well your honor there are several facts that indicate that the st one being that the products are not marked with the manufacturer's information nor is the packaging and i would remind your honor that this is not a human product but rather a veterinarian product the manufacturer does not include any information on its website to indicate a relationship with v o y or that it makes these products so it is keeping this one there is a confidential identifier in its e mails to the manufacturer so the course of performance and the course of dealing between these two parties indicate that both of them keep this information confidential and quite honestly part of it is proving the absence of something in this case there is no public information that shows that there is a connection between these two parties and again was the most motivated to find this connection to pew was aware of the manufacturer and that is indicated for example in the amended complaint to copyright another legal privilege in it cetera so that is the identification on a communication between v o y and the manufacturer that they are treating their communications with the manufacturer as confidential sure label it invoices confidential well the manufacturer does not label its invoices confidential but they are private communications between the manufacturer and v o y there is no way to get those in voices other than to get them from the internal files of one party and the other and there was no way that anyone could do that other than under the protection of the protective order to protect the border as the only reason why dip you was able to get this information and discovery and certainly your honor we don't want to create a situation where the public cannot trust protective orders where  trust protective borders keep going off on a tangent the question i have is what is the indication that the man you back your view the relationship is confidential you said the invoices are not marked confidential what is the indication that the manufacturer viewed the relationship as confidential well the indication your honor is that they don't make it public they treat it as confidential they don't put it for example on their website they don't tout the fact that they have a relation if with the allied they don't put on their website the products that they make for  o why they don't advertise that they have this capability as shown for example and these products that it makes for vo why the evidence is the absence of publicity by the  manufacturer what motive let me what motive does the manufacturer have to keep the relationship confidential well the motive that the manufacturer has is only in maintaining the good relationship it currently has with the l i and continuing business or or other items and of course the manufacturer is certainly not here to suggest that there's an issue  confidential exactly the opposite modibo the manufacturer who would like to do what it is you're afraid of well and and interestingly on or to that point they may have a motive to do the opposite but they don't do the opposite and so that's clear evidence that they are treating this as confidential and i would also point out that there's no legal requirement for them to for v y to have had a contract with the manufacturer but instead the requirement is only that below i take reasonable steps to keep its information confidential and i realize reasonableness in its actions is informed by the fact that the manufacturer has not in the decades that they've ha relationship made any of the information related to that relationship public it hasn't publicized that it does work would be a lie it hasn't publicized that it makes the specific products y acquires from it there's nothing on any website or any other public source and the manufacturer certainly could do that for its own motivations for its own advertising it chooses to think that the district court erred in their interpretation of that communication which was seventeen year old confidential internal e mail produced in discovery under the protective order and nowhere in that e mail does it show that it was derived from publicly available information so it certainly is not evidence as the district court suggest that the information about the relationship with the manufacture is readily ascertainable it doesn't indicate how that individual if they did ascertain that information so to it to point to that confidential internal single seven year old e mail as evidence that the information is public or readily ascertainable is clearly wrong before you finish let me ask you a question about the other information as to what you claim are trade secrets your declarations here don't address anything other than the manufacturer identity as being a trade secret so if i understand it you didn't supply the district court with any evidence that the other information that you say is a trade secret is in would in fact injure you if it weren't disclosed correct well that's not true your honor to the point that that those internal communications for one thing also disclosed the relationship with the manufacture which is part of what yours are answering my question your declaration don't discuss information other than manufacture identity correct that may be correct or honor that they don't but the documents themselves were identified as confidential and that was not an issue that other category well your honor i don't mean in discovery i mean before discovery and the e mails that are cut and pasted into the amended complaint had the amended complaint would have that same indicia of confidentiality ok but no declaration the disclosure of that information would injure you correct that's correct your honor other than what you pointed to ok interrupt the time is short can i just start you where we ended with your friend and judge di question about this other highly confidential information the district court never discussed so why is it not really necessary for us to read the end it for him to actually discuss that whether or not there was sufficient evidence put in is one matter but in the absence of any discussion isn't remained it least likely if  necessary for that matter for those matters i don't believe you're under the protective order that appendix five or seven to for the court has the right to reserve the question of whether something should be sealed and in fact in section six the protective order is the burden of the dozen a party to why it was confidential and trade secret information and so there was no showing made by the defendant that anything other than the identity of the manufacturer was trade secret or that it harmed it nor was there any analysis there was no factual showing on that issue so the court did what the court should have done which is appropriately focused couldn't you make your allegations under rule eight without including that information in the document and i think maybe in the record below the district court also raised that question yes your honor we believe it was a put that information to the complaint one because we didn't believe that it was confidential and two we think it actually shows a pattern of behavior between the parties that they are colluding to knock off the scent of product careening from knock off our product and we did feel that was appropriate to lead in the complaint i should also note that there was a remedy available to the defendants in this matter if they thought that was somehow in appropriately present in the honor except one point to the point you were making earlier they've raised this issue as i understand it in blue and i don't see any mention of it by you all in there's reason to think the reason for that your honor is because we want to strip this down to its actual limited issue which is that the idea that they can hide the identity of a serial copier of our products he doesn't have enough respect for the national system even show up is yeah but not i'm talking about just they rate this right i do disagree they were just and they preserve the argument about the other highly confidential information in blue and that you failed to address that in any way shape or form in rent we did address that in the sense that we pointed out that we did not take a position on this in from the district court in the briefing in other words we don't take the position either way whether the district court's decision was correct or incorrect as to the other information because it's not relevant to us in terms of the progress of the case but i thought you were saying a few minutes ago that it is important for you to make allegations of collusion and copying so i'm not sure the i understand exactly what you're saying are you are you saying that the e mails don't have to be included but you have to say the same thing in terms of how engaged in is that the idea what we said is is that we believe that the there was we were not opposed to the ceiling of the e mail communications we were opposed to the concept that the manufacturing relationship could be headed and that was what our goal was as part of process of moving the case of the district court and in the statements that counsel is making he's pointing to automatic e mail footers that are put put on e mails and saying that shows this confidential the alexander decision the fillets decision that they quote says you can't to norm jorgensen who they've admitted under oath they have no confidential relationship with whatsoever no agreement with no business relationship with and he says the manufacturers the products this fiction that they're presenting that any of this information is confidential it's quite clear that just such questions are just didn't buy it he didn't find it supported by the facts it's contradicted by a wealth of evidence let me give you another example if you go very strict standard for suing compliance and he was absolutely within his rights and appropriate to not feel any of this because there was no factual showing that anything other than a name with a complaint cause any harm whatsoever the defendant now it is a fair point that someone should not just be putting things in the complaint to embarrass individuals a fair point the congress and the and the federal courts of recognize that and it's called i've had a lot of cases this week but i don't have any recollection of the district court judge giving us any analysis with respect to the other highly confidential information so we all want to defend his prerogative to do what he needs to do with the district court judge but we need to have some basis for evaluating that decision right they don't matter how to do it i'm sorry so sorry your honor there's a propagation the way i did not in the in the in the in the order to the category of information that they're seeking to seal this creation of the other confidential information if there is no factual if there is no factual showing b that information was harmful to them they failed under the romero standard and the court said under their own narrow standard separate from whether it was confidential that he believed nothing in this quarter nothing in the complaint rose to the level of of romero's standard that would prevent the complaint from being made and so if you're answering the questions the court have to literally list every single e mail and say yes no maybe so i don't believe that that's a fair standard for a district court i think that the judge's opinion and apple is also informative which is an apple we were talking about individual documents that were not part of the complaint we're not alternately exhibit uses trial they were just attachments and in that situation the court i think appropriately went through each of the documents and said yes or no on confidential because there was underlying showing yes or no at the ceiling because there was a factual underlying showing that there was a harm associated with that it is the defendant's burden to show that there was a harm on this other confidential they remain utterly silent on it in their papers and the fact that this court that the district court has to separately deal with the harm that was not even identified and other confidential information i don't believe that's appropriate under the standard of review and the th circuit which talks about complaints being apex public interest if they wanted to overcome the apex of public interest and it was their burden to put it in evidence separate from the identity being confidential and they failed to do it from a rd party who their executive admits has no relationship with them and in that document they said we heard that uses the manufacturer that e mail is not confidential it's not confidential it doesn't say confidential whatsoever there's a forwarding of that e mail to me and the c e o of this company rehearses the response in which they acknowledge the identity of the manufacturer and say they use other manufacturers as well your friends argument seems to be that we look at is the absence of them affirmative way to show they intended to make it a problem rather than what i think the district court relied on was there was no indication that they were going to keep it confidential if you understand my question do you want to respond i do that is not the law in the th circuit the law and th circuit is that you must you must establish that it was not known that it had an economic value and that reasonable efforts were made were kept and so the fact the actual relevant question under the lead under the florida standard for trade secret is was it known yes or no wasn't known because the manufacturer advertising that it makes literally the exact style of play that issue here swiss play and so i disagree with the standard that my brother presented to the court the standard is an objective inquiry of whether it was known or not not that people take affirmative steps to try to keep it from being known or do people take negative steps to not care about whether it was known that's a separate prong of the trade secret analysis honor and i'm going to try to very quickly just comment on some of the stuff that my colleague has mentioned from back to front he just comments about the standard being known or not known the standard is whether something is publicly kno or reasonably ascertainable and there's nothing in that e mail to indicate that it was publicly known or reasonably ascertainable it's a confidential single e mail from seven years ago and further mr she's be in accurately said that there was an acknowledgement back to the rd party which is simply nowhere in that e mail there's nothing saying tell the rd party that this is correct or incorrect rather they were talking about the partnership between the people and this is not just some random e mail that was received by the company this is part of an ongoing dialogue the title of the e mail is follow up it's not just someone sending you an e mail saying hey i heard this and certainly part of the problem here is that there is a potential for mischief between parties when someone discloses something under a protective order and that party is then free to put that information into a complaint and by doing that make it public it's it's an end run around the protective order and so certainly the pew could have made allegations without cutting and pasting confidential information into the complaint and it was absolutely a confidential communication between that rd party and v o y as indicated by that e mail and the fact that that is not a public document that's a confidential internal document and i would like to address the internal the website comment that mr she's being made because it is absolutely false that it discusses swiss plates it talks about c n c swiss manufacturing which has nothing to do with the v o y product and there's nothing on that web site that talks about vilas products it generically talks about orthopaedic plates which are tens of thousands if not more plates out there in the world and stainless steel plates even more than that none of that can connect the manufacturer to  y and i would also head that this comment about swiss plates was not even in diffused brief and i would only go back to judge dykes question to mention that in the record at tw fifty seven during our notice back and forth with the court as our discussion of the other documents that had been cut and pasted into the complaint and i heard the bell