2016 UT App 43

THE UTAH COURT OF APPEALS

CDC RESTORATION & CONSTRUCTION, LC,

Appellee,

v.

TRADESMEN CONTRACTORS, LLC,

Appellant.

Opinion

No. 20130097-CA

Filed March 3, 2016

Third District Court, Salt Lake Department

The Honorable Royal I. Hansen

No. 080908435

Sarah L. Mathews and Stephen M. Enderton, 

Attorneys for Appellant

Richard F. Ensor and Michael C. Barnhill, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.

TOOMEY, Judge:

¶1 Tradesmen Contractors, LLC appeals from a jury verdict 

in favor of CDC Restoration & Construction, LC. The jury found 

that Tradesmen misappropriated CDC’s information. We affirm.
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BACKGROUND1

¶2 CDC specializes in concrete repair and coatings. Between 

2003 and 2005, it had a contract to perform concrete repair and 

restoration work at a refinery owned by Kennecott Utah Copper 

Corporation (Kennecott). As part of this arrangement, CDC and 

Kennecott entered into a Preferred Provider Agreement (PPA). 

The PPA was a confidential document that, among other things, 

set forth the rates for CDC’s work, the pricing information for 

CDC’s hourly employees, and for the hourly, daily, weekly, and 

monthly rates for various pieces of equipment. 

¶3 Paul Carsey began working at CDC in 1992 and served as

a foreman during the time of CDC’s work for Kennecott. In the 

course of his duties, Carsey regularly delivered sealed envelopes 

that contained confidential information. But, although he was 

informed that information related to CDC’s projects was 

confidential, Carsey never signed a confidentiality agreement.

¶4 At the beginning of January 2006, Carsey gave Ralph 

Midgley, CDC’s co-owner, two weeks’ notice of his intent to 

resign from CDC. Carsey explained to Midgley that he was 

‚burned out‛ and ‚tired of working at Kennecott.‛ He told 

Midgely of his plan to earn a living by buying, refurbishing, and 

selling houses instead. Unbeknownst to Midgely, Carsey had 

already become a co-owner and director of a new competing 

company, Tradesmen, with Kenneth Allen. 

 

1. ‚In reviewing a jury verdict, we view the evidence in the light 

most favorable to it, and recite the facts accordingly. We present 

conflicting evidence only to the extent necessary to understand 

the issues raised on appeal.‛ Ortiz v. Geneva Rock Prods., Inc., 939 

P.2d 1213, 1215 (Utah Ct. App. 1997) (citations and internal 

quotation marks omitted).
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¶5 Allen was a subcontractor for Kennecott who acted as the 

project supervisor overseeing CDC’s work there. In this role, 

Allen received CDC’s invoices for its projects and verified that 

its rates conformed to those specified in CDC’s PPA. 

Consequently, Allen received and had access to CDC’s pricing 

information. Although Allen had worked as a contractor at 

Kennecott for twenty-eight years, he met with Carsey and other 

potential business associates sometime in mid-2005 to discuss 

forming a company to perform work at Kennecott. Allen 

stopped working at the refinery in December 2005. The same 

month, he finalized his ownership interest in Tradesmen and

instructed another partner not to disclose to Kennecott his status 

with Tradesmen.2

¶6 In late 2005, Kennecott opened a competitive bid process 

on a project known as E-Bay (the Project) at its refinery. 

Kennecott invited a pre-bid walkthrough of the Project site on 

Monday, January 9, 2006. Together, Midgely and Carsey 

participated in the walkthrough on behalf of CDC. Tradesmen 

also had two representatives participate in the walkthrough. 

When Midgley asked questions about Tradesmen, Carsey 

responded that he had ‚never heard of them.‛

¶7 After the walkthrough, Midgley and Carsey developed 

CDC’s bid and assessed the equipment needs and the amount of 

time and labor that would be required to complete the Project. 

Although Carsey had ‚a better grasp‛ on what needed to be 

done and had expertise in estimating labor and equipment 

needs, the two ‚combined *their+ knowledge‛ in ‚debating out 

what it took to do *the Project.+.‛ Once Midgley and Carsey 

made these calculations, Midgley formulated the bid by taking 

 

2. In November 2005, Allen wrote an email to a Kennecott 

employee in which Allen purported to have little information 

about Tradesmen. 
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those figures and entering them into a spreadsheet with the 

labor and equipment rates. The rates used in the spreadsheet 

matched the pricing information in CDC’s PPA. Before 

submitting the final bid on Friday, January 13, Midgley 

increased it after Carsey told Midgley that more labor hours 

were needed. 

¶8 Midgley believed both CDC’s PPA and its final bid were 

confidential, and he shared CDC’s labor and equipment 

estimates with only Carsey and Kennecott. In addition, Midgley 

kept the details of CDC’s bid in his locked office to prevent 

someone from having ‚an advantage *by+ trying to underbid‛ 

CDC. 

¶9 Meanwhile, Carsey and Allen were in frequent telephone 

contact when the two companies were formulating their bids. 

According to a partner at Tradesmen, Carsey gave Allen input 

on the numbers for Tradesmen’s bid the night before bids were 

due. 

¶10 CDC, Tradesmen, and another company submitted bids 

for the Project. CDC’s bid was the highest at $179,729.32,

Tradesmen’s was the second highest at $141,575.00, and a third 

company’s was the lowest. On January 23, 2006, Kennecott 

awarded the Project to Tradesmen. Dan Larsen, who had 

replaced Allen as the supervisor at Kennecott, informed Midgley 

that Tradesmen won the contract because it was ‚the lowest 

competent bidder‛ owing to the fact that Carsey worked there. 

Until this point, Midgley did not know Carsey was involved 

with Tradesmen. 

¶11 CDC brought suit against Tradesmen, Allen, and Carsey 

(collectively, Defendants), alleging, among other things, 

misappropriation of trade secrets for improper use of its labor 

and equipment rates and bid information. The trial court granted 

summary judgment to Defendants on all claims. On appeal from 

that order, this court affirmed in part and reversed in part. CDC 
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Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012 UT 

App 60, ¶¶ 60–61, 274 P.3d 317. This court affirmed with regard 

to the misappropriation of labor and equipment pricing 

information, concluding that these details are not job-specific 

and ‚not, as a matter of law, entitled to trade secret protection.‛ 

Id. ¶¶ 27, 28 n.2. Nevertheless, without opining on the merits of 

the issue, this court determined that CDC presented enough 

evidence to create a genuine issue of material fact to preclude 

summary judgment regarding CDC’s claim for misappropriation 

of bid information. Id. ¶¶ 28, 32, 61 & n.7.

¶12 The case proceeded to a jury trial. CDC argued that its 

labor and equipment estimates for the Project and its total bid 

were trade secrets. CDC further argued that although 

Tradesmen never had access CDC’s actual bid, Tradesmen 

misappropriated the pricing information and the labor and 

equipment estimates used to compute CDC’s bid. Specifically,

CDC argued that Tradesmen inappropriately used Carsey’s 

knowledge of CDC’s estimates and Allen’s familiarity with 

CDC’s pricing information to formulate Tradesmen’s lower bid 

for the Project. In contrast, Tradesmen argued it did not 

misappropriate the bid information because it had no access to 

CDC’s actual bid and because Carsey’s general knowledge about 

estimating labor and equipment needs for projects is not a trade 

secret. 

¶13 At the close of CDC’s case-in-chief, Tradesmen moved for 

a directed verdict, arguing CDC failed to provide any competent 

evidence showing that its bid information was a trade secret and 

that Tradesmen misappropriated and used CDC’s bid. In 

opposing the motion, CDC argued the bid was a trade secret 

because it resulted from a collaborative effort and circumstantial 

evidence showed Tradesmen used the bid information. The 

court denied Tradesmen’s motion, ruling that enough 

circumstantial evidence created a question for the jury on CDC’s 

claim. 
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¶14 Although Tradesmen proposed jury instructions stating 

that the standard for a trade secret is ‚whether the information is 

generally known and readily ascertainable to‛ Defendants 

‚based on [their] knowledge and experience,‛ the instructions 

submitted to the jury omitted this language but tracked the 

statutory language used in Utah’s Uniform Trade Secrets Act. 

Additionally, an instruction informed the jury that ‚it is the law 

[of the case] that CDC’s *PPA+, pricing information, and 

equipment rates to perform the E-Bay Project are not trade 

secrets.‛ 

¶15 The jury ultimately found against Defendants. In 

accordance with the verdict, the trial court entered judgment in 

favor of CDC, awarding it $161,974 from Allen, $171,974 from 

Carsey, and $982,455 from Tradesmen. Tradesmen appeals.3

ISSUES AND STANDARDS OF REVIEW

¶16 Tradesmen first contends the trial court erred in denying 

its motion for a directed verdict. ‚We review the trial court’s 

grant or denial of a motion for directed verdict for correctness.‛

Francis v. National DME, 2015 UT App 119, ¶ 22, 350 P.3d 615 

(citation and internal quotation marks omitted). ‚Accordingly, 

we will sustain a directed verdict if[,] after examining all 

evidence in a light most favorable to the non-moving party, 

there is no competent evidence that would support a verdict in 

the non-moving party’s favor.‛ Id. (alteration in original) 

(citation and internal quotation marks omitted).

¶17 Second, Tradesmen contends the trial court submitted 

erroneous instructions to the jury. ‚Whether a trial court 

properly instructed the jury is a question of law, which we 

 

3. Although all three Defendants are listed on the notice of 

appeal, only Tradesmen has filed appellate briefs in this matter. 
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review for correctness.‛ Jensen v. Intermountain Power Agency, 

1999 UT 10, ¶ 16, 977 P.2d 474. 

¶18 Third, Tradesmen contends the trial court erred in 

allowing the admission of certain evidence under rules 402 and 

403 of the Utah Rules of Evidence. ‚Trial court rulings on the 

admissibility of evidence generally entail a good deal of 

discretion, and we review those rulings for an abuse of 

discretion.‛ Francis, 2015 UT App 119, ¶ 20 (citation and internal 

quotation marks omitted).

ANALYSIS

I. Directed Verdict

¶19 Tradesmen contends the trial court should have granted 

its motion for a directed verdict on the ground that there was no 

competent evidence of misappropriation of bid information that 

could support a verdict in CDC’s favor. Under Utah’s Uniform 

Trade Secrets Act (the UTSA), a prima facie case of 

misappropriation has ‚two essential elements: existence of a 

protectable ‘trade secret’ of a plaintiff and demonstration of 

‘misappropriation’ by a defendant.‛ InnoSys, Inc. v. Mercer, 2015 

UT 80, ¶ 24, 364 P.3d 1013 (quoting Utah Code Ann. § 13-24-2

(LexisNexis 2013)). We address Tradesmen’s contentions as to 

each element in turn.

A. Trade Secret

¶20 Tradesmen contends there was no competent evidence 

that CDC’s bid information was a trade secret. Under the UTSA, 

a ‚trade secret‛ is information, such as a formula, technique, or 

process that: 

(a) derives independent economic value, actual or 

potential, from not being generally known to, and 
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not being readily ascertainable by proper means 

by, other persons who can obtain economic value 

from its disclosure or use; and 

(b) is the subject of efforts that are reasonable 

under the circumstances to maintain its secrecy.

Utah Code Ann. § 13-24-2(4).4 The trial court would be ‚justified 

in granting a directed verdict only if, examining all evidence in a 

light most favorable to [CDC], there is no competent evidence 

that would support‛ a finding as to both components of the 

trade secret definition. See Merino v. Albertsons, Inc., 1999 UT 14, 

¶ 3, 975 P.2d 467. 

i. Independent Economic Value

¶21 Tradesmen contends that CDC’s bid information and 

labor and equipment estimates cannot be considered trade 

secrets with independent economic value. In particular, 

Tradesmen argues ‚CDC failed to present any evidence that 

differentiated the knowledge and experience of . . . Defendants 

and CDC’s purported trade secret.‛ According to Tradesmen, 

the hours and equipment estimates that went into CDC’s bid 

‚came directly from Mr. Carsey’s knowledge and expertise, 

which as a matter of law cannot be a trade secret.‛ 

¶22 The Utah Supreme Court has explained that ‚‘*a+ unique 

combination of generally known elements or steps can qualify as 

a trade secret, if it represents a valuable contribution attributable 

to the independent efforts of the one claiming to have conceived 

it.’‛ USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 43, 235 P.3d 749 

(quoting Microbiological Research Corp. v. Muna, 625 P.2d 690, 696 

 

4. Because the relevant statutory provisions have not changed 

since the events in question, we cite the current codification of 

the Utah Code.
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(Utah 1981)). Further, information may qualify as a trade secret 

‚if extensive effort is required to pierce its veil by assembling the 

literature concerning it and thereby uncover its parts.‛ 

Microbiological Research, 625 P.2d at 696 (citation and internal 

quotation marks omitted). By contrast, ‚*i+f this can be readily 

done by one who is normally skilled in the field and has a

reasonable familiarity with its trade literature, the secret may no 

longer be entitled to protection.‛ Id. (citation and internal 

quotation marks omitted).

¶23 Whether information is ‚generally known and readily 

ascertainable‛ is not merely ‚whether the information is 

generally known and readily ascertainable to the general public, 

but, based on the defendant*‘s+ knowledge and experience, 

whether the information was known or ascertainable to [the 

defendant+.‛ USA Power, 2010 UT 31, ¶ 44 (alterations in 

original) (citation and internal quotation marks omitted). This 

standard ‚takes into account the relevant experience and 

knowledge of the specific defendants.‛ CDC Restoration 

& Constr., LC v. Tradesmen Contractors, LLC, 2012 UT App 60, 

¶ 24, 274 P.3d 317. ‚There must be a delineation between the 

general knowledge and experience of the employee and the 

trade secrets of the employer.‛ Microbiological Research, 625 P.2d 

at 697. Specifically, our supreme court has recognized there is a 

‚distinction between . . . an employee, who leaves one employer 

and uses his own faculties, skill and experience in the 

establishment of an independent business or in the service of 

another, and [an employee] who uses confidential information, 

secured solely through his employment, to the harm of his 

previous employer.‛ Id.

¶24 We conclude that CDC offered competent evidence from 

which the jury could find that its bid information and labor and 

equipment estimates derive independent economic value from 

not being generally known or readily ascertainable. Tradesmen’s 

argument centers on an alleged lack of differentiation ‚between 
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the knowledge of Mr. Carsey and the variables which CDC 

argued were the critical parts of its bid.‛ Although the evidence 

showed that Carsey had knowledge and expertise in estimating 

labor and equipment needs for projects and that he played an 

important role in calculating CDC’s estimates, Midgley testified 

that he and Carsey walked through the Project site together and 

used their ‚combined knowledge‛ in putting together the 

estimates which Midgley then multiplied by the pricing 

information to calculate CDC’s actual bid.5 Thus, even if Carsey 

was capable of estimating the needs for the Project on his own, 

CDC offered evidence that Carsey’s knowledge of CDC’s exact 

estimates came directly from working with Midgley to calculate 

estimates on CDC’s behalf. Viewing the evidence in the light 

most favorable to the jury’s verdict, the trial court correctly 

determined CDC presented sufficient competent evidence that—

even taking into account Carsey’s relevant experience—its bid 

information and labor and equipment estimates were not readily 

ascertainable by others.

ii. Efforts to Maintain Secrecy

¶25 On appeal, Tradesmen contends that ‚CDC failed to 

provide any evidence that [it] used reasonable efforts under the 

circumstances to maintain the bid information’s secrecy as 

required under Utah law.‛ ‚*T+o preserve an issue for appeal*,+ 

the issue must be presented to the trial court in such a way that 

the trial court has an opportunity to rule on that issue.‛ 438 Main 

St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (second 

alteration in original) (citation and internal quotation marks 

omitted). This requires parties to raise it in a timely manner and 

with supporting evidence or relevant legal authority. Id. ‚Where 

the grounds upon which a motion is made before the trial court 

 

5. Unlike the pricing information, CDC’s labor and equipment 

estimates were job-specific. 
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differ from the grounds argued on appeal, appellate courts will 

generally dismiss those arguments as unpreserved.‛ State v. 

Gonzalez, 2015 UT 10, ¶ 24, 345 P.3d 1168.

¶26 In supporting its motion for a directed verdict before the 

trial court, Tradesmen argued that the evidence could not show 

that CDC’s bid information was a trade secret, focusing only on

the first component of the trade secret definition. But Tradesmen 

did not support its motion with a specific argument that the bid 

information was not the subject of reasonable efforts to maintain 

its secrecy, which is the second component of the trade secret 

definition. As a result, Tradesmen did not give the trial court an 

opportunity to rule on the issue, see 438 Main St., 2004 UT 72, 

¶ 51, and its argument on appeal regarding CDC’s efforts to 

keep the bid information secret is a new argument and therefore 

unpreserved, see Gonzalez, 2015 UT 10, ¶ 24.

B. Misappropriation

¶27 Tradesmen also contends CDC presented no competent 

evidence to show misappropriation of CDC’s bid information. 

Specifically, Tradesmen argues that although CDC’s ‚evidence 

may in some manner show that [Tradesmen] had the 

opportunity to use CDC’s bid information, it does not in any 

meaningful way evince that *Tradesmen+ actually used CDC’s 

information in preparing [its] own bid.‛ We are not persuaded.

¶28 Under the UTSA, ‚misappropriation‛ is defined as 

follows:

(a) acquisition of a trade secret of another by a 

person who knows or has reason to know that the 

trade secret was acquired by improper means; or 

(b) disclosure or use of a trade secret of another 

without express or implied consent by a person 

who:
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(i) used improper means to acquire knowledge 

of the trade secret; or 

(ii) at the time of the disclosure or use, knew or 

had reason to know that his knowledge of the 

trade secret was:

(A) derived from or through a person who 

had utilized improper means to acquire it;

(B) acquired under circumstances giving rise 

to a duty to maintain its secrecy or limit its 

use; or 

(C) derived from or through a person who 

owed a duty to the person seeking relief to 

maintain its secrecy or limit its use; or

(iii) before a material change of his position, 

knew or had reason to know that it was a trade 

secret and that knowledge of it had been 

acquired by accident or mistake.

Utah Code Ann. § 13-24-2(2) (LexisNexis 2013). ‚Improper 

means‛ under the act includes ‚theft, bribery, misrepresentation, 

breach or inducement of a breach of a duty to maintain secrecy, 

or espionage through electronic or other means.‛ Id. § 13-24-

2(1).6 This can be inferred by circumstantial evidence. See CDC 

Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012 UT 

App 60, ¶ 30, 274 P.3d 317 (citing USA Power, LLC v. PacifiCorp, 

2010 UT 31, ¶ 50, 235 P.3d 749).

 

6. The UTSA defines ‚person‛ to mean ‚a natural person, 

corporation, business trust, estate, trust, partnership, association, 

joint venture, government, governmental subdivision or agency, 

or any other legal or commercial entity.‛ Utah Code Ann. § 13-

24-2(3) (LexisNexis 2013).
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¶29 Contrary to Tradesmen’s contention, CDC presented 

competent evidence to support a finding that Tradesmen 

misappropriated CDC’s bid information. In particular, CDC 

presented evidence that showed Tradesmen used CDC’s bid 

information and labor estimates to underbid CDC, knowing that 

the information was ‚acquired under circumstances giving rise 

to a duty to maintain its secrecy or limit its use . . . or derived 

from or through a person who owed a duty to [CDC] to maintain 

its secrecy or limit its use.‛ See Utah Code Ann. § 13-24-

2(2)(b)(ii)(B)–(C). For example, evidence showed that Carsey was 

aware of the secrecy surrounding the bid information and the

bidding process.7 CDC also offered evidence that Carsey

concealed his knowledge and involvement with Trademen, even 

while he and Midgley worked together to develop CDC’s bid, 

which showed that Carsey knew CDC’s estimates of the amount 

of time, labor, and equipment required to complete the Project. It 

also provided evidence which demonstrated that Allen had 

access to CDC’s pricing information. Finally, CDC presented 

evidence that Carsey and Allen were in frequent contact and 

worked together on Tradesmen’s bid before it was due, and that 

Tradesmen ultimately submitted a bid lower than CDC. This 

evidence tended to show that Tradesmen had access to all the 

information it needed to figure out CDC’s actual bid and how to 

underbid CDC. Even though CDC may not have presented 

direct evidence of use, it presented sufficient circumstantial 

 

7. Although this court affirmed the dismissal of CDC’s breach of 

fiduciary duty claim against Carsey on preemption grounds, 

CDC Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012 

UT App 60, ¶¶ 50–53, 274 P.3d 317, the jury could still consider 

whether Carsey had a duty to maintain the secrecy of CDC’s 

labor estimates in evaluating whether Tradesmen 

misappropriated CDC’s information, see Utah Code Ann. § 13-

24-2(1), (2)(b).
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evidence from which a jury could conclude that Tradesmen used 

CDC’s bid information without authorization.

¶30 In sum, CDC’s evidence that its bid information was a 

trade secret that Tradesmen misappropriated was sufficient to 

withstand a motion for a directed verdict. Accordingly, we 

affirm the trial court’s denial of Tradesmen’s motion for a 

directed verdict.

II. Jury Instructions

¶31 Tradesmen next contends the trial court erroneously 

instructed the jury regarding the law of the case in two ways. 

First, Tradesmen contends that even though the court instructed 

the jury that CDC’s PPA, pricing information, and equipment 

rates are not trade secrets, it inadequately advised the jury on 

this issue because it ‚waited until the presentation of jury 

instructions to provide any direction to the jury as to the law on 

trade secrets and the law of the case.‛ Second, Tradesmen, citing 

CDC Restoration & Construction, LC, 2012 UT App 60, ¶ 24, 

contends the court should have added the following language to 

the instruction defining a trade secret:

As to the standard for [whether information 

derives independent economic value], it is not 

whether the information is generally known and 

readily ascertainable to the general public, but 

based on the defendants’ knowledge and 

experience, whether the information was known or 

ascertainable to them. 

Tradesmen further argues it was prejudiced by the omission of 

this language because ‚the jury was entirely misled as to the 

law‛ in that ‚the law of the case doctrine mandated that the jury 

consider the interplay of the Defendants’ knowledge and 

expertise in their determination as to whether the bid 

information constituted a trade secret.‛ 
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¶32 A jury instruction that accurately states the law is not 

erroneous. See State v. Gallegos, 849 P.2d 586, 590 (Utah Ct. App. 

1993). As long as ‚the jury instructions as a whole fairly instruct 

the jury on the applicable law, reversible error does not arise 

merely because one jury instruction, standing alone, is not as 

accurate as it might have been.‛ Jensen v. Intermountain Power 

Agency, 1999 UT 10, ¶ 16, 977 P.2d 474 (citation and internal 

quotation marks omitted). Accordingly, ‚[f]ailure to give 

requested jury instructions constitutes reversible error only if 

their omission tends to mislead the jury to the prejudice of the 

complaining party or insufficiently or erroneously advises the 

jury on the law.‛ Martinez v. Wells, 2004 UT App 43, ¶ 26, 88 P.3d 

343 (citation and internal quotation marks omitted).

¶33 At the close of evidence, the trial court gave the jury all 

the instructions, including Instruction 30, which explained that 

‚it is the law that CDC’s *PPA+, pricing information, and 

equipment rates to perform the E-Bay Project are not trade 

secrets.‛ Tradesmen argues that by issuing this instruction at the 

end of trial—rather than when CDC presented evidence 

regarding the PPA, pricing information, and equipment rates—

the jurors were ‚in an untenable situation because they had no 

clear understanding of what [CDC] was required to prove under 

the law.‛ But Tradesmen ignores that its own counsel informed 

the jury in opening statements that ‚the law of this case is that 

*CDC’s+ pricing information, which is to be kept separate from 

the actual bid, is not a trade secret.‛ Additionally, at the time of 

the PPA’s admission into evidence, the trial court indicated that 

a jury instruction related to the PPA would be forthcoming. 

¶34 Furthermore, Tradesmen has presented no authority to 

support its contention that the court should have diverted from 

its routine practice of instructing the jury at the close of 

evidence. And, it has not shown that Instruction 30 misstated the 

law or was otherwise inaccurate. See CDC Restoration, 2012 UT 

App 60, ¶ 27. Instruction 30 clearly informed the jury that it 
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could not consider as trade secrets the PPA, pricing information, 

and equipment rates. We therefore do not agree with Tradesmen 

that the court inadequately advised the jury on the law of the 

case.

¶35 We also disagree with Tradesmen’s contention that the 

trial court erred when it declined to include Tradesmen’s 

proposed language for the instruction defining a trade secret. 

Even though Utah case law has expounded upon the statutory 

definition of a trade secret, the court was not required to include 

additional language in the instructions, because the instructions 

tracked the statutory language and correctly stated the law. 

Accordingly, we are not persuaded that the jury instructions 

were inadequate or misled the jury as to the law.

III. Evidentiary Rulings

¶36 Finally, Tradesmen contends that under rules 402 and 403 

of the Utah Rules of Evidence, the trial court should not have 

admitted CDC’s PPA into evidence. In particular, Tradesmen 

argues that because CDC’s labor and pricing information is not 

entitled to trade secret protection as it was readily ascertainable 

information, the court should have excluded CDC’s PPA. 

Tradesmen contends that the PPA containing pricing 

information was not relevant, because it ‚could not lend any 

credence to the issue of whether [Tradesmen] misappropriated 

*CDC’s+ bid or to the issue of *Defendants’+ credibility.‛ 

Tradesmen further contends that the PPA should have been 

excluded as unfairly prejudicial because the PPA ‚mis*led+ the 

jury into believing that [Tradesmen] improperly took and used 

CDC’s pricing information even though . . . such information 

was not as a matter of law a trade secret.‛ 

¶37 Rule 401 of the Utah Rules of Evidence provides that 

evidence is relevant if ‚it has any tendency‛ to make a fact of 

consequence ‚more or less probable than it would be without 

the evidence.‛ Utah R. Evid. 401. This presents ‚a very low bar 
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that deems even evidence with the slightest probative value 

relevant and presumptively admissible.‛ State v. Richardson, 2013 

UT 50, ¶ 24, 308 P.3d 526 (citation and internal quotation marks 

omitted). Under rule 403, a court may ‚exclude relevant 

evidence if its probative value is substantially outweighed by a 

danger of . . . unfair prejudice, confusing the issues, misleading 

the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.‛ Utah R. Evid. 403. We bear in mind that 

‚*t+rial courts have wide latitude in making determinations of 

relevance, probativeness, and prejudice.‛ Diversified Holdings, LC 

v. Turner, 2002 UT 129, ¶ 38, 63 P.3d 686 (alteration in original) 

(citation and internal quotation marks omitted).

¶38 We conclude that under rule 401, the PPA was relevant to 

CDC’s claim that Tradesmen misappropriated its bid 

information. Tradesmen’s argument appears to be that because 

the PPA, pricing information, and equipment rates are not trade 

secrets in and of themselves, any information about the PPA was 

irrelevant to the question of whether the bid information was a 

trade secret. This argument is not well taken. The PPA was still 

relevant to CDC’s claim because it contained the pricing 

information that was a key component of the overall bid 

information. When considered in light of the evidence that Allen 

had access to the PPA, the PPA tended to make it more probable 

that Tradesmen had access to CDC’s pricing information and 

combined that information with Carsey’s knowledge of CDC’s 

labor and equipment estimates to calculate CDC’s actual bid. 

¶39 We also conclude that the trial court did not exceed its 

discretion in declining to exclude the PPA under rule 403. The 

only unfair prejudice that Tradesmen contends resulted from the 

admission of the PPA is that the jury might have been confused 

about whether the PPA itself was a trade secret. But any possible 

confusion was addressed by the jury instruction informing the 

jurors that ‚CDC’s *PPA+, pricing information, and equipment 

rates to perform the E-Bay Project are not trade secrets.‛ Indeed, 
CDC Restoration & Construction v. Tradesmen Contractors

20130097-CA 18 2016 UT App 43

at the time of the PPA’s admission into evidence, the court told 

the jury to expect an instruction related to the PPA.8

Furthermore, CDC’s closing arguments highlighted that the PPA 

was not a trade secret. As a consequence, Tradesmen has not 

shown that the probative value of the PPA was substantially 

outweighed by the danger of unfair prejudice or that the court 

exceeded its discretion in admitting the PPA.

CONCLUSION

¶40 The trial court did not err in denying Tradesmen’s motion 

for a directed verdict on CDC’s claim for misappropriation of 

bid information. Tradesmen has not identified any errors in the 

jury instructions and has not established that the trial court 

exceeded its discretion in admitting evidence. Accordingly, we 

affirm.

 

8. Alternatively, Tradesmen argues that if the PPA was admitted, 

it should have been ‚admitted only in conjunction with a 

cautionary instruction as to the law of the case.‛ But Tradesmen 

does not explain how a cautionary instruction would have 

differed from the instruction that the court actually gave, and we 

have already rejected Tradesmen’s claim that the trial court 

erred in not issuing Instruction 30 at the time the court admitted 

the evidence. See supra ¶¶ 30, 33.