[00:00:00] Speaker 04:
This is 23-1291, Interstate Medical Licensure Compact Commission versus Bowling, and this is Bolandonk.

[00:00:12] Speaker 04:
You may proceed.

[00:00:14] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:16] Speaker 01:
My name is Elizabeth Bollendonk, and along with my co-counsel, Ms.

[00:00:19] Speaker 01:
Ashley Stevens, I represent Ms.

[00:00:21] Speaker 01:
Wanda Bowling.

[00:00:22] Speaker 01:
Ms.

[00:00:23] Speaker 01:
Stevens and I are students appearing under the Student Practice Act, supervised by our professor, Matthew Cushing, who's here at the table with us today.

[00:00:31] Speaker 01:
The parties have briefed many issues in this case, but since we only have 15 minutes for today's argument, we've chosen to focus on just two.

[00:00:37] Speaker 01:
I'll be addressing the breach of contract claim, while my co-counsel will focus on Ms.

[00:00:41] Speaker 01:
Bowling's libel counterclaim.

[00:00:43] Speaker 01:
We'd like to rest on our briefs for the remainder of the issues.

[00:00:46] Speaker 01:
We'd also like to reserve two minutes for rebuttal.

[00:00:49] Speaker 01:
As to the contract claim, summary judgment should not have been awarded to the Commission for two main reasons.

[00:00:54] Speaker 01:
First, the Commission did not properly establish all of the required elements of a breach of contract claim.

[00:01:00] Speaker 01:
And second, the District Court erred by making factual findings as to the amount of damages to award to the Commission.

[00:01:08] Speaker 01:
Ms.

[00:01:09] Speaker 01:
Bowling's contract with the Commission did not establish in any of its texts any obligation for her to return her login information to the Commission upon her termination.

[00:01:17] Speaker 01:
And furthermore, the login information at issue protected such a minute amount of information that the Commission was not actually harmed by her retention of that information.

[00:01:28] Speaker 01:
The login information at hand here only protected three accounts, her PayPal account, her GoDaddy account, and her G Suite account.

[00:01:35] Speaker 01:
For both her PayPal account.

[00:01:36] Speaker 05:
Is the information in the G Suite, the GoDaddy, and forget the other one, is the data within those databases itself intellectual property?

[00:01:49] Speaker 01:
Your Honor, it's a little tricky here because the data that was protected by each of those three logins varies greatly.

[00:01:56] Speaker 01:
First, for her PayPal account, the information there was

[00:02:01] Speaker 01:
hardly anything.

[00:02:02] Speaker 01:
PayPal was simply used to make payments between the commission and other parties, and the account had a balance of zero dollars in it.

[00:02:09] Speaker 01:
There was no information there that the commission needed.

[00:02:11] Speaker 01:
There was no intellectual property.

[00:02:13] Speaker 01:
As for the GoDaddy account, the account at Ischia was the one that Ms.

[00:02:17] Speaker 01:
Bowling had used to purchase IMLCC.net several years prior to her termination, which the commission was not using and had no plans to use.

[00:02:25] Speaker 01:
They used imlcc.org, and then after her termination, purchased imlcc.com.

[00:02:31] Speaker 01:
There is no business record of them hoping to use imlcc.net.

[00:02:34] Speaker 01:
So again, no intellectual property of the commission.

[00:02:37] Speaker 05:
But you haven't necessarily argued, have you, that the data itself that's in these databases is itself not intellectual property.

[00:02:50] Speaker 05:
You're focusing on the login and the passwords.

[00:02:53] Speaker 01:
Correct, Your Honor.

[00:02:54] Speaker 01:
The login and the passwords themselves were not intellectual property either for a couple of different reasons.

[00:02:59] Speaker 01:
First, login information is a term of the art.

[00:03:03] Speaker 01:
It needs to be given its plain meaning under cases like Anthony v. United States and Renfant v. New York Life Insurance Company that says plain meaning of words is looked to first.

[00:03:13] Speaker 01:
Intellectual property means something of a creation of the mind that falls into one of four categories.

[00:03:19] Speaker 01:
Only patents, trademarks, copyrights, and trade secrets are intellectual property.

[00:03:24] Speaker 01:
This is well established, even documented in places like Black's Law Dictionary and Webster's Dictionary.

[00:03:29] Speaker 01:
Her login information could not have been any one of these four categories, nor has login information ever been held to be one of these four categories.

[00:03:38] Speaker 05:
sort of, in my generation, a key.

[00:03:41] Speaker 05:
You know, if I have, let's say, a proprietary recipe, Bob Baccarat's hamburgers that I do not want anyone in the world to know, and I have a little vault, and I've got a key, and I put this secret, secret, wonderful recipe in a vault and a key, the recipe itself is intellectual property, right?

[00:04:01] Speaker 05:
Correct.

[00:04:01] Speaker 05:
And the key is, in effect, like the equivalent of a login, as if I had stored that recipe on a computer.

[00:04:10] Speaker 01:
Correct.

[00:04:11] Speaker 01:
Again, because this is login information, it's a little bit tricky because it's not a tangible piece of property.

[00:04:17] Speaker 01:
It's not something that you have the key and then you couldn't physically give me the key.

[00:04:22] Speaker 01:
Login information, in the case at hand here, is something like a sequence of numbers, letters, and characters

[00:04:29] Speaker 01:
But login information could also be like a thumbprint or a face scan, which we all now have on our phones.

[00:04:35] Speaker 01:
That's not something that could ever be transferred.

[00:04:38] Speaker 05:
But if you have that intellectual property in that vault, electronic vault, and isn't the fact that there's an equivalence between the login data, the password, and an old-fashioned key or combination, aren't you in effect still holding that intellectual property

[00:04:59] Speaker 05:
hostage because she can say, okay, uh, I'm not giving you that, that, that key, that key is not, there's nothing secret about that key, but without that key, you can't get Bob Baccarat secret recipe.

[00:05:13] Speaker 01:
Yes, your honor.

[00:05:14] Speaker 01:
You're entirely right with that analogy.

[00:05:16] Speaker 01:
However,

[00:05:16] Speaker 01:
That fact doesn't apply to the case at hand here.

[00:05:19] Speaker 01:
The login information at issue, like I mentioned, was only for three accounts.

[00:05:22] Speaker 01:
For two of those accounts, the PayPal and the GoDaddy accounts, there was nothing inside of those accounts that the commission needed access to to continue running their business.

[00:05:31] Speaker 01:
As for the third account, the G Suite account,

[00:05:33] Speaker 01:
They had access to that account all along, which was proven by them logging in and changing the password to that account on July 6, 2020, just a handful of days after her termination.

[00:05:43] Speaker 01:
They had, to continue with your analogy, a copy of that physical key the entire time and were not harmed by any of her attention.

[00:05:51] Speaker 01:
One of the main elements of breach of contract is the plaintiff here, the commission, establishing that they were actually harmed by the defendant's actions.

[00:06:02] Speaker 01:
Here, they felt no harm.

[00:06:04] Speaker 03:
Well, your argument is that under the contract, she didn't have an obligation to turn over the login information, correct?

[00:06:13] Speaker 01:
Yes, Your Honor.

[00:06:14] Speaker 03:
But she did have an obligation to certify that she had erased confidential information.

[00:06:21] Speaker 03:
And she didn't do that.

[00:06:23] Speaker 01:
Yes, Your Honor.

[00:06:24] Speaker 03:
Why wasn't there a breach there?

[00:06:26] Speaker 01:
This turns to the exact same reason.

[00:06:28] Speaker 01:
The breach of contract claim requires both establishment of the defendant's failure to perform under the contract

[00:06:35] Speaker 01:
and an establishment of actual harm felt by the plaintiff.

[00:06:39] Speaker 01:
Here, the commission also admitted that they had no way of knowing if she did actually erase any of the confidential information and just didn't let them know, which goes to the point that they felt no actual harm.

[00:06:51] Speaker 01:
There's nothing that she had done that caused them any adverse.

[00:06:57] Speaker 03:
Are they entitled on a claim like that, however, to some kind of nominal damages?

[00:07:03] Speaker 03:
Because she failed to perform.

[00:07:05] Speaker 03:
All she had to do was certify that she had erased confidential information.

[00:07:12] Speaker 03:
Interstate Medical is left wondering whether there's confidential information out there that shouldn't be out there.

[00:07:19] Speaker 03:
Why isn't that enough to state a claim for breach?

[00:07:26] Speaker 01:
Here, while Colorado does allow nominal damages for breach of contract claims, here that would be inappropriate for the exact same reasons we've already touched on today, that the commission felt no harm from her retention of any of this information, nor would they.

[00:07:40] Speaker 01:
The PayPal account had nothing in it, the GoDaddy account was for a website that the commission was not going to ever use, and the G Suite account they had access to.

[00:07:49] Speaker 01:
were never going to feel harm.

[00:07:51] Speaker 01:
The nominal damages wouldn't have been appropriate.

[00:07:52] Speaker 03:
Would the confidential information have been limited to those three accounts, or was there something else that Ms.

[00:08:00] Speaker 03:
Bowling had done that could have involved some confidential information?

[00:08:06] Speaker 01:
Those three accounts were the only accounts at issue, Your Honor.

[00:08:10] Speaker 01:
Furthermore, the contract does not require anywhere else in it outside of the allegation of login information being intellectual property for login information to be returned.

[00:08:20] Speaker 05:
It only requires... Well, the contract says that intellectual property is owned by the commission, right?

[00:08:28] Speaker 01:
Yes, Your Honor.

[00:08:29] Speaker 05:
And so isn't that implicit?

[00:08:31] Speaker 05:
I mean, if this, let's say, going back to my silly analogy,

[00:08:35] Speaker 05:
If my secret recipe is Bob Bacharach's property, and I put that in a contract, and you get it, well, maybe the contract doesn't say that if you equip Bob Bacharach's wonderful hamburger company that you get to keep it.

[00:08:49] Speaker 05:
But if the contract says it's my property, isn't that implicit that you have to return my property?

[00:08:56] Speaker 01:
Your Honor, the best way to explain this further is to continue using your analogy that the safe that holds your recipe

[00:09:03] Speaker 01:
was not a safe that Ms.

[00:09:05] Speaker 01:
Bowling had access to with her login information that's being discussed here today.

[00:09:09] Speaker 01:
The safes that Ms.

[00:09:11] Speaker 01:
Bowling's login information protected, or her keys that she had, those were essentially empty safes, or safes that the commission already had access to.

[00:09:20] Speaker 01:
There was no secret recipe inside one of the safes.

[00:09:23] Speaker 04:
Yeah, I want to ask you about damages, but I want to make sure how you've allocated your time with co-counsel.

[00:09:29] Speaker 01:
We were hoping to be transferring time shortly.

[00:09:33] Speaker 04:
Just quickly go through your damages and then turn it over to your colleague.

[00:09:37] Speaker 01:
Thank you.

[00:09:38] Speaker 01:
Damages should not have been awarded to the commission in the way that they were because

[00:09:43] Speaker 01:
the district court made factual findings as to the amount to award.

[00:09:47] Speaker 01:
They did correctly limit the amount of damages by removing many of the invoices that the commission put forward.

[00:09:53] Speaker 01:
However, they made a blanket statement that Ms.

[00:09:56] Speaker 01:
Bowling was responsible for all of the line items on the remaining damages with the Thrive Group invoices.

[00:10:03] Speaker 01:
However, those invoices could have been for work that was completely external to her retention of login information.

[00:10:11] Speaker 01:
So a jury should have been involved in deciding how much responsibility she had in those damages.

[00:10:17] Speaker 01:
I'd like to relinquish the rest of my time to my co-counsel.

[00:10:20] Speaker 04:
Thank you.

[00:10:33] Speaker 00:
Thank you, Your Honors, and may it please the Court.

[00:10:35] Speaker 00:
Ashley Stevens for the petitioner.

[00:10:37] Speaker 00:
As to the counterclaims, we will rest on our briefs, except for libel, where we have just one simple point to make.

[00:10:43] Speaker 00:
The district court erred in granting summary judgment in favor of the commission.

[00:10:47] Speaker 00:
Under Colorado law, qualified privilege is an affirmative defense.

[00:10:51] Speaker 00:
And rule 8C is clear.

[00:10:53] Speaker 00:
Affirmative defenses must be raised in all pleadings.

[00:10:56] Speaker 00:
Otherwise, they are deemed waived.

[00:10:58] Speaker 00:
The commission failed to raise its qualified privilege, thus waiving it.

[00:11:02] Speaker 00:
But here, the district court overlooked the waiver and raised the defense to espante, to rely on, without proper notice, to approach a litigant to grant summary judgment.

[00:11:12] Speaker 00:
This was an error, and as such, we respectfully requested this court reverse and remand for further proceedings.

[00:11:18] Speaker 00:
Your Honors, nowhere in the commission's responsive pleadings nor in its dispositive motion do we see any mention of qualified privilege.

[00:11:25] Speaker 03:
Well, Counsel, didn't the court also rely on substantial truth for its libel ruling?

[00:11:32] Speaker 00:
It did, Your Honor, but to that point, there is at least one statement that the District Court acknowledged was false, that the Commission made in regard to Ms.

[00:11:39] Speaker 00:
Bowling, and that's when the Commission accused her of holding hostage the tangible property of the Commission.

[00:11:46] Speaker 00:
There was simply no evidence in the record to support this assertion, and the District Court agreed.

[00:11:51] Speaker 00:
So the District Court's deciding that the Commission is entitled to affirmance on the basis of truth, Your Honor,

[00:11:58] Speaker 00:
has been disproved by this one instance right here.

[00:12:01] Speaker 03:
Is that all though that would be left in terms of your argument?

[00:12:05] Speaker 03:
The rest of the claim is gone.

[00:12:08] Speaker 03:
It's just on that statement.

[00:12:10] Speaker 00:
No, Your Honor.

[00:12:10] Speaker 00:
And to be frank, the evidence on this point is going to be disputed.

[00:12:14] Speaker 00:
And as such, we believe the dispute is best resolved and remanded to trial court.

[00:12:18] Speaker 00:
But there is another instance where the commission made statements and published these statements on its official website for the world to see that Ms.

[00:12:25] Speaker 00:
Bowling refused to acknowledge the email correspondence that contained a contract extension.

[00:12:31] Speaker 00:
This simply is not true, Your Honors.

[00:12:33] Speaker 00:
Ms.

[00:12:33] Speaker 00:
Bowling did, in fact, respond to that email.

[00:12:36] Speaker 00:
And she copied a member of the personnel committee requesting their input before she rendered her own decision on whether she wanted to accept the contract extension put forth by the commission.

[00:12:46] Speaker 03:
This is in some ways an off topic, but it's part of the libel category.

[00:12:54] Speaker 03:
Is interstate medical, what is the nature of this organization?

[00:12:59] Speaker 03:
Is it government?

[00:13:00] Speaker 03:
Is it quasi-government?

[00:13:02] Speaker 03:
Is it private corporation?

[00:13:04] Speaker 03:
What is it?

[00:13:06] Speaker 00:
It functions like a governmental agency.

[00:13:09] Speaker 00:
It's a nationwide medical organization that has the same, it does function like a government agency in a sense, quasi-governmental.

[00:13:18] Speaker 03:
Can a government agency be sued for libel?

[00:13:23] Speaker 00:
Your Honor, a government agency may be sued for libel.

[00:13:28] Speaker 00:
I believe you're leading to the malice standard here.

[00:13:31] Speaker 03:
Well, no.

[00:13:31] Speaker 03:
I'm just asking if a government agency can be sued for libel.

[00:13:35] Speaker 00:
Yes, a government agency may be sued for libel if the statements made are so defamatory, as we have claimed here in this case, that they have maliciously impugned upon the professional reputation of the party at issue.

[00:13:46] Speaker 00:
And that's what happened here, Your Honors.

[00:13:48] Speaker 00:
The commission's statements labeled.

[00:13:50] Speaker 03:
But she didn't sue any individual.

[00:13:52] Speaker 03:
The counterclaim isn't against the directors, just against the organization.

[00:13:56] Speaker 00:
That's correct, Your Honor.

[00:13:57] Speaker 00:
It's simply against the Commission as a whole.

[00:14:00] Speaker 00:
Your Honors, in line with this Court's

[00:14:03] Speaker 00:
Dersprudence and Richardson v. Ernst Group, as well as Safeway Stores, the first, fourth, seventh, and D.C.

[00:14:09] Speaker 00:
circuits have all held the same thing.

[00:14:11] Speaker 00:
When a party files a motion for summary judgment and they fail to include any applicable affirmative defenses, those defenses are waived, and a district court cannot resurrect those defenses to benefit the party that neglected to raise them in the first place.

[00:14:25] Speaker 00:
That is exactly what happened here in this case, Your Honors.

[00:14:27] Speaker 03:
And as such... Do we have any discretion to resurrect them?

[00:14:36] Speaker 00:
Well, under this court's jurisprudence in Safeway Stores, no.

[00:14:39] Speaker 00:
As a matter of law, the district court cannot, Sue Esponte, raise a waived affirmative defense.

[00:14:44] Speaker 03:
I didn't ask about the district court.

[00:14:46] Speaker 03:
I was just wondering if we had any leeway there.

[00:14:48] Speaker 03:
But Safeway says no.

[00:14:50] Speaker 03:
Is that what you're saying?

[00:14:51] Speaker 00:
Yes.

[00:14:51] Speaker 00:
This court in Safeway Stores clearly stated that it cannot happen.

[00:14:55] Speaker 00:
And noting that my time is quickly expiring, I'd like to briefly conclude.

[00:14:59] Speaker 04:
OK, thank you.

[00:15:00] Speaker 00:
Your honors, for the reasons presented today and those presented in our briefs, we respectfully ask that this court reverse and remand for further proceedings.

[00:15:08] Speaker 00:
And I'd like to reserve the remainder of my time for rebuttal.

[00:15:14] Speaker 04:
Let's hear from the commission.

[00:15:15] Speaker 04:
Mr. Masters.

[00:15:25] Speaker 02:
Good morning, your honors, and may it please the court.

[00:15:30] Speaker 02:
Please identify yourself.

[00:15:31] Speaker 02:
I am Richard Masters, and I'm the general counsel for the Interstate Medical Licensure Compact Commission.

[00:15:38] Speaker 02:
And getting to the question, what type of entity that we are, we are a creature of statute, including all of the member states, including Colorado, which have enacted the compact legislation.

[00:15:52] Speaker 02:
And there's some 40 states that are currently

[00:15:56] Speaker 02:
members of the Compact Commission.

[00:15:59] Speaker 02:
It does define itself as an interstate agency and we are classified under Section 115 of the Internal Revenue Code as qualifying as a governmental agency by virtue of the statutory language creating the Compact Commission.

[00:16:16] Speaker 02:
And you can be sued for libel?

[00:16:20] Speaker 02:
It's not clear to me from the research, but certainly

[00:16:26] Speaker 02:
We don't believe there was a liable claim here that was substantiated and, as was pointed out in one of the questions, the defense of truth was raised and substantial truth would apply even to the

[00:16:47] Speaker 02:
area that they are claiming goes beyond that standard and that's the question of holding information postage, so to speak.

[00:17:00] Speaker 02:
I don't know if that specific word was used, but certainly it's still our belief that this information

[00:17:06] Speaker 02:
has never been erased, and we don't know to this day what exactly is on the computers that are still owned by it.

[00:17:14] Speaker 05:
But you don't, you have argued that there's any damage from the failure to certify, the failure to, from the failure to certify erasure of all confidential information.

[00:17:26] Speaker 02:
When the lawsuit began, we had expended approximately $82,000 putting in place what I believe at the very least

[00:17:35] Speaker 02:
would be a mitigation of damage because we couldn't do anything about getting those bills worth back.

[00:17:43] Speaker 05:
Well, let me answer it a different way.

[00:17:45] Speaker 05:
The district court found that there was $896 that had nothing to do with this, and you haven't crossed the field.

[00:17:52] Speaker 02:
We have not.

[00:17:53] Speaker 02:
Frankly, we wanted this over.

[00:17:55] Speaker 02:
I'm standing here today, I can't tell you that I necessarily agree

[00:18:00] Speaker 02:
with all of the reasoning with regard to the damages, but I will say we filed the suit to get our data back.

[00:18:07] Speaker 02:
It really wasn't about the damages.

[00:18:09] Speaker 02:
She didn't even answer the complaint.

[00:18:12] Speaker 02:
She filed five counterclaims for all sorts of tortious conduct.

[00:18:16] Speaker 02:
and things that I don't believe have been substantiated either.

[00:18:20] Speaker 02:
So we don't want to extend this in any way, shape, or form and did not feel it was in our best interest to take a cross appeal.

[00:18:30] Speaker 05:
Is it fair to say that you, at least in your briefing, have not argued that there were any damages from the theory to certify that all of the confidential information had been erased?

[00:18:44] Speaker 02:
I don't think we have conceded that all of that's been erased or that there's not damage or the potential for future damage.

[00:18:52] Speaker 02:
And that's what worries us.

[00:18:53] Speaker 02:
We don't know what's there.

[00:18:55] Speaker 02:
And she hasn't even certified that it's been erased.

[00:18:59] Speaker 02:
So I think we've got a continuing problem with this case until and unless we get some kind of a certification

[00:19:08] Speaker 02:
and or whatever data that she might have.

[00:19:11] Speaker 02:
Do you agree that it's limited to those three accounts?

[00:19:15] Speaker 02:
Those three accounts are the ones that we wanted the passwords and the administrative rights to.

[00:19:21] Speaker 02:
It's not correct in my view to represent to you that I am an expert in technology.

[00:19:30] Speaker 02:
But we did have two expert witnesses consisting of the technology manager that

[00:19:38] Speaker 02:
replaced Miss Bowling, as well as the executive director, actually in depositions that she took, as well as another contractor for technology that worked on these accounts, who all made comments about the

[00:19:53] Speaker 02:
standards of practice in cases where a technology contractor has been terminated and then fails to give back data that whether it's defined as intellectual property or related materials, which I think is important to note, the contract that she admitted she signed and admitted had these responsibilities not only used the term intellectual property but materials and

[00:20:21] Speaker 02:
any copies containing, reflecting, incorporating, or based upon the confidential information.

[00:20:28] Speaker 02:
So the court looked at that language and believed that that was certainly sufficient grounds to justify finding that there was a breach of contract and the

[00:20:42] Speaker 05:
I want to make sure I'm following you, because you're talking about two different things, the failure to return the intellectual property, the passwords, and login.

[00:20:51] Speaker 05:
And then you're referring to a distinct provision involving the confidential information.

[00:20:55] Speaker 05:
So you're not talking about the passwords being part of the confidential information.

[00:21:02] Speaker 02:
Well, I think the court opinion

[00:21:04] Speaker 02:
indicates that.

[00:21:06] Speaker 02:
And I agree.

[00:21:08] Speaker 02:
I think the court was correct in stating that if you look at the language of the contract, it's broad enough to include even things that they're now saying might not technically be defined as intellectual property.

[00:21:19] Speaker 02:
And I believe that's the opinion of our expert witnesses, Mr. Dale Watts, Mr. Marshall Smith, and Mr. Dan Roby.

[00:21:30] Speaker 02:
And those are in the record.

[00:21:35] Speaker 02:
at volume 2, pages 174 through 180.

[00:21:40] Speaker 05:
I guess what I'm really trying to ask you about is the contract actually refers to intellectual property and related material.

[00:21:51] Speaker 05:
Right.

[00:21:53] Speaker 05:
And I kept waiting for you in your brief to argue, well, passwords in login information may not be intellectual property, but they're certainly related material.

[00:22:02] Speaker 05:
Exactly.

[00:22:03] Speaker 02:
I never saw you argue that.

[00:22:05] Speaker 02:
Well, we thought that was implied.

[00:22:07] Speaker 02:
But I should have been more specific.

[00:22:13] Speaker 05:
I'm just telling you, I was expecting you to argue that.

[00:22:17] Speaker 05:
But I don't know that we can adjudicate an argument.

[00:22:19] Speaker 05:
Right.

[00:22:20] Speaker 05:
We're not anybody's lawyer.

[00:22:21] Speaker 05:
I understand.

[00:22:22] Speaker 05:
We're just adjudicators.

[00:22:23] Speaker 05:
But that there is a separate provision about related material that's incorporated in the confidential information.

[00:22:29] Speaker 05:
Right.

[00:22:30] Speaker 05:
And that's really kind of what

[00:22:31] Speaker 05:
you have argued.

[00:22:32] Speaker 05:
So how does the passwords and login information that this bowling created, how do the passwords and login constitute material that have been incorporated into the confidential information?

[00:22:47] Speaker 02:
Well, my experts that I've pointed out... How did they do it?

[00:22:51] Speaker 02:
that there's a technology platform that these passwords or administrative rights are needed to get into.

[00:22:59] Speaker 02:
And we can't get into our accounts because we don't have the administrative rights or the passwords which weren't given to us.

[00:23:06] Speaker 02:
And we have had feedback, and one of our witnesses, I think Mr. Watt, talks about this in his deposition, that any time they try to activate, I think it's the GoDaddy account,

[00:23:20] Speaker 02:
there's some kind of a phone number that is connected with Ms.

[00:23:24] Speaker 02:
Bowling that is contacted.

[00:23:27] Speaker 02:
And then there's apparently some need for a further verification that we can't get.

[00:23:32] Speaker 02:
So we're still troubled by the posture that we're in now.

[00:23:37] Speaker 02:
And that's one of the principal reasons we filed a suit.

[00:23:40] Speaker 03:
So just to sort of boil this down.

[00:23:43] Speaker 03:
OK.

[00:23:45] Speaker 03:
On the confidential information.

[00:23:47] Speaker 03:
Yes.

[00:23:49] Speaker 03:
She hasn't certified a racer.

[00:23:54] Speaker 03:
And you have been harmed in what way from that?

[00:23:59] Speaker 02:
Where's the harm?

[00:24:01] Speaker 02:
Well, again, we don't have a complete accounting for what she has on her computers related to these accounts, but we believe that some of it may well be related to

[00:24:12] Speaker 02:
the licensure information that's necessary to process multi-state licenses under the compact.

[00:24:19] Speaker 02:
So that's the function of what we do is to allow physicians to apply for licensure in any of the member states.

[00:24:27] Speaker 02:
And then we have data that is protected about each of those physicians.

[00:24:32] Speaker 02:
And we think some of this is implicated in the accounts.

[00:24:36] Speaker 02:
that we've never been able to get information on or be informed as to what information is stored, if any, on her computers.

[00:24:47] Speaker 04:
How does the evidence support the $950-some of damages awarded here?

[00:24:52] Speaker 02:
Well, there was a separate invoice that we were billed for related to

[00:25:02] Speaker 02:
attempting to reconstruct some of this information or at least determine what could be done about changing our technology platform.

[00:25:10] Speaker 02:
But the invoice doesn't really break it out.

[00:25:15] Speaker 02:
I don't remember exactly how it's listed on the invoice, but the court certainly felt that it was not in the same category as those other

[00:25:29] Speaker 02:
damages that she felt had been appropriately classified prior to the lawsuit as damages that we might have incurred no matter what.

[00:25:46] Speaker 02:
I could be wrong, but I thought Ms.

[00:25:47] Speaker 05:
Bowling had argued even when she was pro se to the district court that the PayPal account had been transferred to some other

[00:25:55] Speaker 05:
commission account before, you know, long before Ms.

[00:26:00] Speaker 05:
Bowling entered into this contract to be the super administrator for both the PayPal and the G Suite account.

[00:26:07] Speaker 05:
And so she had argued to the district court that two of those three accounts really had nothing to do with her.

[00:26:13] Speaker 05:
And because that $956 was just one super invoice for all three of those accounts, there was no way to determine.

[00:26:22] Speaker 05:
And what's your response to that?

[00:26:24] Speaker 05:
Is there a flaw in that argument?

[00:26:27] Speaker 02:
Again, at least a portion of that invoice was devoted to the GoDaddy account.

[00:26:33] Speaker 02:
Yeah, the GoDaddy.

[00:26:34] Speaker 05:
But Ms.

[00:26:35] Speaker 05:
Bowling's argument is that could have been $1 or it could have been $955.

[00:26:38] Speaker 05:
Do you have any way of knowing whether it was $1 or $956?

[00:26:45] Speaker 02:
That figure is invoiced using that amount.

[00:26:52] Speaker 02:
I know we do have a...

[00:26:54] Speaker 02:
a documented invoice that was part of the data that was shared with the court.

[00:27:00] Speaker 02:
Did a witness explain the breakdown?

[00:27:02] Speaker 02:
Yes, I think Mr. Watts as well as Mr. Smith explained each one of these invoices, including the one that you're asking about.

[00:27:14] Speaker 03:
Could I come back to the libel issue?

[00:27:16] Speaker 03:
Yes.

[00:27:17] Speaker 03:
So this is the counterclaim from Ms.

[00:27:20] Speaker 03:
Bolling.

[00:27:23] Speaker 03:
I take it you'd agree that she's not a public person defamation point.

[00:27:33] Speaker 03:
She's a private person defamation point.

[00:27:36] Speaker 03:
If in the statements at issue would not be issues of public concern.

[00:27:43] Speaker 03:
Would you agree with that so far?

[00:27:46] Speaker 02:
I agree that she's not a public figure.

[00:27:48] Speaker 03:
Right.

[00:27:49] Speaker 03:
She's not a public figure.

[00:27:50] Speaker 03:
I agree.

[00:27:51] Speaker 03:
Right.

[00:27:52] Speaker 03:
And so under those circumstances, is there any argument that is the way defamation law has evolved over time that one of the elements of her claim is to show falsity?

[00:28:07] Speaker 03:
Does she need to show a falsity, substantial falsity?

[00:28:10] Speaker 03:
I know that under her claim.

[00:28:12] Speaker 03:
Truth has been an affirmative defense for a long, long, long time.

[00:28:16] Speaker 03:
Right.

[00:28:17] Speaker 03:
But some defamation claimants need to prove falsity as part of the claim.

[00:28:23] Speaker 03:
Did she need to prove falsity?

[00:28:26] Speaker 02:
I don't recall that there was proof that it was false.

[00:28:30] Speaker 02:
She simply lit.

[00:28:31] Speaker 03:
But does she have to under cover up law?

[00:28:33] Speaker 02:
I think she does.

[00:28:36] Speaker 02:
I've got several of our cases on libel.

[00:28:42] Speaker 03:
Well, we can look at that.

[00:28:45] Speaker 03:
I've got one other.

[00:28:46] Speaker 03:
This is going to be another sort of out from a field, maybe.

[00:28:49] Speaker 03:
But if interstate medical is a government entity, the way you started out, is it entitled to sovereign immunity?

[00:28:58] Speaker 02:
That's one of the reasons that we drafted the compact using the language that we use, indicating that... Well, did you argue that at all in this case, as far as the counterclaims are concerned?

[00:29:13] Speaker 02:
I don't believe that we asserted governmental immunity, but I do believe that it attaches.

[00:29:24] Speaker 03:
And the citizenship of Interstate would want to be all of its members, state members, is that how it works?

[00:29:33] Speaker 03:
I didn't see the complaint specifically alleged.

[00:29:37] Speaker 02:
It's the headquarters.

[00:29:39] Speaker 02:
The headquarters is located here in Denver and has been determined by the majority of the commission to be the place where the headquarters is authorized to be located.

[00:29:51] Speaker 03:
Is Bowman a citizen of Texas?

[00:29:54] Speaker 03:
Is that correct?

[00:29:56] Speaker 02:
I think she is a citizen of Texas.

[00:29:57] Speaker 03:
Texas is a member, isn't it?

[00:29:59] Speaker 02:
And Texas is a member, yes.

[00:30:04] Speaker 05:
Was Texas a member when the suit was filed?

[00:30:06] Speaker 02:
No.

[00:30:06] Speaker 05:
When the counterclaim was filed?

[00:30:07] Speaker 05:
No, that's been... So there would have been complete diversity when the counterclaim was filed?

[00:30:13] Speaker 02:
Yes.

[00:30:20] Speaker 05:
Can I ask a question?

[00:30:21] Speaker 05:
Sure.

[00:30:21] Speaker 05:
Sorry.

[00:30:24] Speaker 05:
On the contract, does the meaning of what is intellectual property in terms of logging the passwords, does that depend on

[00:30:34] Speaker 05:
what the parties intended in this rather unique scenario?

[00:30:39] Speaker 05:
And if so, is the resolution ambiguous, and does it turn on extrinsic evidence?

[00:30:48] Speaker 02:
Certainly, the court held that the understanding of the parties and their intentions with regard to this information

[00:30:57] Speaker 02:
were included at part of the contract.

[00:31:01] Speaker 02:
I think sometimes that's referred to as contemporaneous construction.

[00:31:05] Speaker 02:
What do the parties believe it means?

[00:31:07] Speaker 02:
But when Ms.

[00:31:08] Speaker 02:
Bowling was questioned about information, such as passwords and codes and intellectual property, she agreed that that was what the contract said and that she was subject to.

[00:31:19] Speaker 05:
Is it subject to two different plausible interpretations?

[00:31:25] Speaker 02:
I think it's clear that we wanted to protect the information.

[00:31:28] Speaker 02:
I mean, we have a duty to make sure that all this information about physician licenses is treated confidentially.

[00:31:35] Speaker 02:
And I don't think she had any disagreement with that.

[00:31:38] Speaker 02:
But to me, that's the intent of the parties.

[00:31:42] Speaker 02:
And that is the appropriate way to construe the agreement.

[00:31:46] Speaker 02:
Thank you.

[00:31:47] Speaker 04:
Thank you, counsel.

[00:31:47] Speaker 04:
Your time's expired.

[00:31:48] Speaker 04:
I think the appellants have a few seconds left.

[00:31:51] Speaker 04:
Thank you.

[00:31:53] Speaker 04:
Can you give her 60 seconds?

[00:31:56] Speaker 04:
Could you give 60?

[00:31:58] Speaker 01:
Thank you, Your Honors.

[00:31:59] Speaker 01:
I'd like to make a few quick points.

[00:32:01] Speaker 01:
First, ambiguity was never argued by the Commission for the contract.

[00:32:06] Speaker 01:
That means that under Anthony versus United States, the plain meaning of the contract must govern.

[00:32:11] Speaker 01:
As to the materials point, her login information does not need to be returned to the commission because it does not fall under the category of material that the contract requires to be returned.

[00:32:22] Speaker 01:
The contract explicitly says that only materials provided for Ms.

[00:32:26] Speaker 01:
Bowling's use by the commission needed to be returned, and she created all three accounts at issue.

[00:32:31] Speaker 01:
And finally, as to damages, for the $956 at issue,

[00:32:37] Speaker 01:
That came from three different things.

[00:32:39] Speaker 01:
It came from Launch I-STAR II, Migration Assistance and New Domaining, and Homepage Mapping and Creating Updates.

[00:32:46] Speaker 01:
Of those three things, there is some contention as to what the Commission would have needed to get done, whether or not Ms.

[00:32:51] Speaker 01:
Bulling continued to work for the Commission, and whether or not Ms.

[00:32:54] Speaker 01:
Bulling retained or returned any of the login information to the Commission.

[00:32:58] Speaker 01:
Thank you, Your Honors.

[00:33:00] Speaker 04:
Thank you, Council.

[00:33:01] Speaker 04:
You are excused.

[00:33:03] Speaker 04:
Welcome to the Tenth Circuit.