[00:00:00] Speaker 00:
The first case for argument this morning is 24-1751, Applied Predictive Technologies versus Market Dial.

[00:00:08] Speaker 00:
Mr. Goroff, am I pronouncing that correctly?

[00:00:11] Speaker 01:
You are indeed, Your Honor, and thank you.

[00:00:12] Speaker 01:
Please proceed.

[00:00:13] Speaker 01:
Good morning, Your Honors.

[00:00:14] Speaker 01:
David Goroff for Applied Predictive Technologies, or APT.

[00:00:17] Speaker 01:
Let me begin with USA Power One, because it shows the kind of compilation secrets efficient

[00:00:22] Speaker 01:
to survive summary judgment under Utah trade secret law.

[00:00:26] Speaker 01:
And neither the district court nor defendants here address why APT's three compilations at issue deserve less protection.

[00:00:32] Speaker 01:
There, the defendant received three binders of information comprising USA Power's vision for a power plant.

[00:00:40] Speaker 01:
These included reports showing the plant's recommended configuration,

[00:00:43] Speaker 01:
expected cost performance and water usage, a marketing study, engineering drawings, a project description, and financial projections.

[00:00:52] Speaker 01:
So here, APT provided significant probative evidence showing its three compilations, each meet the definition of trade secrets under both DTSA 1839-3 and the Utah Uniform Trade Secret Act.

[00:01:06] Speaker 01:
They contain business information that APT took

[00:01:09] Speaker 01:
APT took reasonable steps to keep secret, and that derived economic value by not being generally known or readily ascertainable by another person.

[00:01:17] Speaker 01:
And that person, in turn, could obtain economic value.

[00:01:20] Speaker 02:
Can you show us where in the opposition to summary judgment that APT really did identify what was the information that was not readily ascertainable that derived independent economic value?

[00:01:36] Speaker 02:
When I flipped through the summary judgment opposition, which really just referenced a series of interrogatory responses, it was less than clear to me that the string sites and those rather generic interrogatory responses matched up with what the requirements are for identifying a trade secret.

[00:02:02] Speaker 01:
So I think you'd find it in detail, as you see in the record.

[00:02:08] Speaker 01:
You mean the string sites that you would have to dig through?

[00:02:11] Speaker 01:
No, I disagree with that, Geronti.

[00:02:12] Speaker 02:
I mean, you have the response.

[00:02:14] Speaker 02:
So then it comes down to what you said in the opposition to the summer judgment motion.

[00:02:19] Speaker 01:
It comes down to the evidentiary record, which includes the expert reports of Kirsch and Tompki, as well as their supplemental reports.

[00:02:27] Speaker 02:
But you certainly wouldn't expect a district court judge to just go digging through the entire record and figure out for herself just exactly where the boundaries are of your trade secret that you wish to protect.

[00:02:40] Speaker 02:
It'll depend also on what the attorneys do to guide the judge through

[00:02:49] Speaker 02:
the morass of the record to actually pin down exactly what is, with some clarity, the trade secret and what is the information that derives an economic value from not being readily ascertainable.

[00:03:03] Speaker 01:
But again, if you look at the response to the statement of facts, it's replete with direct and robust citations to the Kersh report, to the Tompki report, to the supplemental reports, to FTIs, forensics evidence showing the misuse of the PCB partner's capabilities.

[00:03:23] Speaker 02:
So I guess theoretically, is it your view that

[00:03:26] Speaker 02:
when you're put to the test and you're being asked to identify your trade secret, it's OK in your brief to just do a long string site and say, get to work.

[00:03:41] Speaker 02:
It's in there?

[00:03:42] Speaker 01:
No, I think when you look at a summary site.

[00:03:44] Speaker 02:
OK, so that's right.

[00:03:45] Speaker 02:
So then, therefore, the brief itself has to actually

[00:03:49] Speaker 02:
come forward behind the curtain and articulate something.

[00:03:52] Speaker 01:
And I think it does.

[00:03:53] Speaker 01:
I think there's a factual section of the brief.

[00:03:55] Speaker 01:
There's an accompanying response to the statement of fact.

[00:03:59] Speaker 01:
One of the important things here is under Bimbo Bakeries versus Sycamore, in the 10th Circuit, the burden is not on APT to show what wasn't in the public domain.

[00:04:11] Speaker 01:
It was on market dial and defendants as move-ins to show what was.

[00:04:16] Speaker 01:
And they failed that burden.

[00:04:17] Speaker 01:
They were never held to that burden.

[00:04:20] Speaker 01:
Bimbo is 2017 Westlaw 3089011.

[00:04:23] Speaker 01:
It's from July 20, 2017.

[00:04:24] Speaker 01:
So some of what you are putting on

[00:04:27] Speaker 00:
I mean, there's some citations.

[00:04:28] Speaker 00:
The district court relied on BIMBO very heavily as well, in addition to other cases.

[00:04:33] Speaker 01:
No, it did not rely on that, Your Honor.

[00:04:35] Speaker 01:
It relied on the BIMBO trial court appeal in the 10th Circuit, the 39th, 4th.

[00:04:40] Speaker 02:
But ultimately, the burden is on the plaintiff to identify with some clarity what it claims to be its trade secret.

[00:04:50] Speaker 02:
Is that not right?

[00:04:52] Speaker 02:
That's certainly a burden on the plaintiff at summary judgment, Your Honor.

[00:04:56] Speaker 02:
And here, there was a conclusion that there was a failure of proof on the plaintiff's part to come forward and explain and identify what its trade secret is.

[00:05:08] Speaker 02:
I mean, the problem here is there's no government register we can all go to.

[00:05:13] Speaker 02:
and see what applied believes is its trade secret.

[00:05:18] Speaker 02:
I mean, at the beginning of a litigation, the plaintiff gets to make up what it wants to assert as its intellectual property right.

[00:05:28] Speaker 02:
There's no register to go to.

[00:05:29] Speaker 02:
And so therefore, it's really incumbent upon the plaintiff, when it's asserting a trade secret right, to come forward

[00:05:37] Speaker 01:
open up its kimono and explain itself as to what is the boundaries of the trade secret.

[00:05:52] Speaker 01:
what the data feeds, where the problem with it, if you look at the analysis, and it's all over the place in the district court's opinion, is it was asking what within these compilations was not readily ascertainable and was secret.

[00:06:08] Speaker 01:
And it was putting that burden on APT.

[00:06:10] Speaker 01:
That is impermissible under the Rivendell case of the 10th Circuit and is impermissible under the USA Power I and II cases.

[00:06:19] Speaker 01:
out of the Utah Supreme Court.

[00:06:21] Speaker 01:
So that is why the district court was struggling.

[00:06:23] Speaker 00:
The Bimbo 10th Circuit case from 2022 talks about compilations, which we've got here.

[00:06:29] Speaker 00:
And we've got compilations within compilations, which is a little more complicated than the normal trade secret.

[00:06:35] Speaker 00:
It says, a plaintiff asserting a compilation trade secret must do more than point to a broad area of technology and assert that something there must have been secret and misappropriated.

[00:06:46] Speaker 00:
Rather, it must define its trade secret so that its back-finder can determine if information claimed as a trade secret derives independent economic value from not being generally known or readily ascertainable by those who have

[00:06:58] Speaker 00:
And I completely agree with that.

[00:07:01] Speaker 01:
Remember, that's coming- That's your burden.

[00:07:03] Speaker 01:
No, that's not it.

[00:07:04] Speaker 01:
The burden of summary judgment is to come forward with-

[00:07:10] Speaker 01:
significant probative evidence of the various elements.

[00:07:14] Speaker 01:
It is not to prove the case.

[00:07:16] Speaker 01:
Bimbo comes after a trial, as does the USA Power II case.

[00:07:20] Speaker 01:
And those are the cases that the district court primarily relied upon in assessing the trade secret.

[00:07:27] Speaker 01:
But again, Your Honor, I hope Your Honors will look at the record.

[00:07:30] Speaker 01:
Because the appellate record, let's say with the partner capabilities briefing, we had expert Kirsch said, it teaches the sequence of steps for marketing.

[00:07:38] Speaker 01:
It provides the steps necessary to compete in various sectors, and it describes APT's methodology.

[00:07:43] Speaker 01:
That's appendix 5233 to 35.

[00:07:46] Speaker 02:
I'm more interested in what you want to point me to from your summary judgment opposition, which is really what you delivered to the district court.

[00:07:56] Speaker 02:
that where in those pages did you summarize this is it, this is our information that we are asserting to be our trade secret that has independent economic value and here's why we believe it has independent economic value.

[00:08:14] Speaker 02:
from not being readily ascertainable by proper means.

[00:08:17] Speaker 01:
I mean, exhibit 144 is the partner capabilities briefing.

[00:08:20] Speaker 02:
I understand you have a document called that, but at the same time, IDX had a 43 page summary of some software package.

[00:08:30] Speaker 02:
And in that particular opinion, the court said, no, you can't do that.

[00:08:34] Speaker 02:
You've got to be a little more clear about what is the publicly available information in there, the not publicly

[00:08:42] Speaker 02:
available information.

[00:08:43] Speaker 02:
You can't just throw an entire document like that at the court and expect the court to figure it out.

[00:08:49] Speaker 01:
There's a dispositive difference between IDX and the facts here.

[00:08:52] Speaker 01:
IDX, first of all, isn't a compilation case.

[00:08:54] Speaker 01:
Second of all, it involved the creation of a 43 page summary of litigation

[00:09:00] Speaker 01:
after the fact.

[00:09:01] Speaker 01:
So it was never used or seen by the opponents.

[00:09:04] Speaker 01:
Here we have admitted misuse.

[00:09:07] Speaker 01:
The partner capabilities briefing, as the FTI forensics evidence showed, was used by MarketDial to create its modules.

[00:09:16] Speaker 01:
And the SDG, the Standard Deployment Guide, was used by MarketDial for a Lululemon presentation.

[00:09:23] Speaker 01:
And the data feeds, they offered free services to

[00:09:28] Speaker 01:
a gas station client that APT had spent years developing its customized feeds with so that the client would breach its agreement and provide to them those

[00:09:42] Speaker 01:
that customized fees, and then did this with other clients as well.

[00:09:46] Speaker 00:
But how does that answer the question about whether there's a trade secret here?

[00:09:50] Speaker 00:
I mean, if the evidence that they were using something that you claim was what you had initially is relevant, but it doesn't answer the question that's dispositive here, which is whether you've identified with some particularity what you claim to be.

[00:10:05] Speaker 01:
Again, the court knew what we identified.

[00:10:07] Speaker 01:
The court analyzed it from the wrong perspective.

[00:10:10] Speaker 01:
The court said, I'm not going to look at the PCB as a whole.

[00:10:13] Speaker 01:
That is what Rivendell in the 10th Circuit, that is what USA Power 1 instructed the judge to do.

[00:10:20] Speaker 01:
The judge did not do that.

[00:10:21] Speaker 01:
The judge says, show me where they're in.

[00:10:28] Speaker 03:
Perhaps there is at least a genuine dispute of material fact about whether if one carefully looked at all of the materials that you put in the record that there's a trade secret there.

[00:10:42] Speaker 03:
But we also think that you completely failed to make clear to the district court at summary judgment what that was.

[00:10:50] Speaker 03:
What are we supposed to do?

[00:10:52] Speaker 01:
I think you have to do what I don't agree that that's the same.

[00:10:55] Speaker 03:
I understand.

[00:10:56] Speaker 03:
But hypothetically, if I think, look, I will give you that it's there, but I will also tell you I don't think you set it out for the district court, do I affirm or do I reverse?

[00:11:08] Speaker 01:
I think you reverse.

[00:11:10] Speaker 01:
Why?

[00:11:10] Speaker 03:
Because I think the court has an independent duty to look at the record.

[00:11:14] Speaker 03:
So now I have to go back.

[00:11:16] Speaker 03:
as a fact finder and evaluate the mass of evidence that you've failed to summarize adequately for the district court?

[00:11:23] Speaker 01:
Not as a fact finder, Your Honor.

[00:11:25] Speaker 01:
The question is, on de novo review, there is no deference to the district court.

[00:11:30] Speaker 01:
There's been no fact finding here.

[00:11:32] Speaker 01:
So you have to look at what the district court did, both in terms of the law that it applied, which we know is wrong, because it redid the bit by bit analysis that's forbidden.

[00:11:42] Speaker 01:
And you have to look at the conclusions the district court drew with respect to the record.

[00:11:48] Speaker 01:
And here, if you look at the record, I don't think there's a question that there's trade secrets here, that the PCB, that the SDG and the data feeds are extremely valuable.

[00:11:58] Speaker 01:
They were used for value by market dial.

[00:12:00] Speaker 03:
So even if you failed to do what you needed to do to explain all that to the district court, we should

[00:12:07] Speaker 03:
we should nonetheless let you do it now and tell the district court it got it wrong?

[00:12:15] Speaker 01:
Again, I will argue that that's not what happened.

[00:12:18] Speaker 01:
But I would say yes.

[00:12:19] Speaker 01:
I think that is your duty as a reviewing court.

[00:12:22] Speaker 01:
You have to look at whether you're getting a just result as opposed to here, which is really a decision that kind of rewards theft and that didn't hold them to their burden.

[00:12:32] Speaker 02:
That response.

[00:12:34] Speaker 02:
It sounds a little disrespectful to the district court.

[00:12:37] Speaker 02:
It sounds almost like you get to do a complete do over.

[00:12:42] Speaker 02:
And if you do a truly skeletal presentation at the district court level and the district court sees your skeletal presentation says, well, this is just plainly not good enough.

[00:12:53] Speaker 02:
It's not clear enough.

[00:12:54] Speaker 02:
It doesn't give me enough details.

[00:12:56] Speaker 02:
There's no meat on this bones.

[00:12:58] Speaker 02:
It's just a skeleton.

[00:13:00] Speaker 02:
And then you get to on.

[00:13:02] Speaker 02:
a sec, do a second try at the, at the appellate level and now provide us with a much more bespoke tailored presentation of what the actual aspects of the trade secret are.

[00:13:16] Speaker 02:
And then we say, so therefore the district court erred in ruling otherwise.

[00:13:21] Speaker 01:
Your honor, you have a duty of de novo review.

[00:13:23] Speaker 01:
You're in the land of hypotheticals because that's not what happened.

[00:13:26] Speaker 01:
I know I am in the land of hypotheticals and that's the hypothetical I want you to address.

[00:13:31] Speaker 01:
Right.

[00:13:31] Speaker 01:
And so again, the court has an independent duty to examine the record.

[00:13:36] Speaker 01:
In this particular case, you had more than 200 exhibits.

[00:13:40] Speaker 01:
You had a response to more than 200 statements of facts that our client made.

[00:13:46] Speaker 01:
And in that response, you had a limited page length that the parties had.

[00:13:52] Speaker 01:
You had to crunch a lot of information in.

[00:13:55] Speaker 01:
The information was there.

[00:13:56] Speaker 01:
If you look at the district judge's opinion, the district judge understood what was being asserted.

[00:14:01] Speaker 01:
It just did not analyze it through the proper standard of law.

[00:14:06] Speaker 01:
And so I do believe it's this court's obligation, whether there's a legal error and a factual record that demonstrates legal error, to reverse.

[00:14:17] Speaker 01:
I don't think that's disrespectful.

[00:14:18] Speaker 01:
I think that's the duty of an appellate court, actually.

[00:14:21] Speaker 00:
OK, we're well into our rebuttals.

[00:14:23] Speaker 01:
I do understand, and thank you, Your Honors.

[00:14:36] Speaker 04:
Good morning.

[00:14:36] Speaker 04:
Good morning, Your Honors.

[00:14:37] Speaker 04:
May it please the court?

[00:14:39] Speaker 04:
This court should affirm summary judgment in this case, because at the district court level,

[00:14:46] Speaker 04:
APT failed to identify a trade secret sufficient to allow a jury to apply the statutory standards.

[00:14:56] Speaker 04:
As this court recently stated in Alifax versus Alcor, APT not only failed to describe the alleged trade secret with sufficient detail, but also failed to identify its proper scope.

[00:15:12] Speaker 02:
So.

[00:15:14] Speaker 02:
Your opposing counsel says that

[00:15:16] Speaker 02:
The entire PCB document was a compilation trade secret.

[00:15:22] Speaker 02:
And so the district court just right out of the gate made a...

[00:15:29] Speaker 02:
a serious error in asking the question of what is inside the PCB that is the trade secret when, in their view, it's the entire PCB document.

[00:15:41] Speaker 02:
So can you speak to that?

[00:15:43] Speaker 04:
Sure.

[00:15:44] Speaker 04:
Case after case, Your Honor, says that simply pointing to a document or documents is not enough.

[00:15:50] Speaker 04:
I would reference your honor to Brigham Young University versus Pfizer, Utah Medical Products, Double Eagle Alloys, Quest Solutions, TLS Management.

[00:16:00] Speaker 04:
All of those cases say that simply pointing to a document is not enough.

[00:16:06] Speaker 04:
And that's exactly what an entire document can, in fact, be a trade secret.

[00:16:12] Speaker 04:
Can it not?

[00:16:13] Speaker 04:
A document can contain a trade secret.

[00:16:20] Speaker 04:
I would agree with that.

[00:16:22] Speaker 04:
But it's incumbent upon APT to identify the information within that document that constitutes the trade secret.

[00:16:32] Speaker 04:
And what APT wanted to do here, and Judge Parrish asked several pointed questions at oral argument to APT about this very issue, APT simply wanted to submit the document, just put the document in front of a jury, and ask the jury to assess the document as a trade secret.

[00:16:51] Speaker 04:
She asked, for example, quote,

[00:16:53] Speaker 04:
So your contention then is that the document itself is the trade secret, not any of the individualized information contained within the document.

[00:17:04] Speaker 04:
NAPT's answer was, quote, right.

[00:17:07] Speaker 04:
That's at appendix 7654.

[00:17:11] Speaker 04:
So the PCB, or the Software Deployment Guide, cannot be a trade secret simply because it's a document, even if it's marked as confidential information.

[00:17:25] Speaker 00:
Can I ask you two quick questions?

[00:17:26] Speaker 00:
Sure.

[00:17:26] Speaker 00:
Your friend rested a couple times on Rosendell, which is, I think, a 1994 Utah case.

[00:17:32] Speaker 00:
Rivendell?

[00:17:32] Speaker 00:
Rivendell.

[00:17:33] Speaker 00:
Sorry.

[00:17:33] Speaker 00:
Can you respond to that?

[00:17:34] Speaker 04:
Sure.

[00:17:35] Speaker 04:
Rivendell is actually a tense circuit case.

[00:17:38] Speaker 04:
I don't believe it came out of Utah.

[00:17:40] Speaker 04:
I want to say Oklahoma, but I'm not 100% sure about that.

[00:17:43] Speaker 04:
Let me address two points about the Rivendell case.

[00:17:47] Speaker 04:
So first of all,

[00:17:49] Speaker 04:
APT claims that Judge Parrish went against Rivendell by analyzing the secrets bit by bit.

[00:17:58] Speaker 04:
But in fact, Judge Parrish did not analyze the secrets only bit by bit.

[00:18:03] Speaker 04:
She had two entire sections of her summary judgment order that were dedicated to evaluating APT's compilation claims.

[00:18:14] Speaker 04:
And she correctly found that APT's, quote, abstract post hoc groupings were not sufficiently identified to allow submission to the jury.

[00:18:25] Speaker 04:
She also evaluated each of the alleged trade secrets at issue as compilation trade secrets.

[00:18:33] Speaker 04:
The second point I would make about Rivendell is that Rivendell was not

[00:18:37] Speaker 04:
a trade secret identification case.

[00:18:41] Speaker 04:
The trade secret in Rivendell was clearly identified.

[00:18:46] Speaker 04:
It was identified as a computer program that drew upon eight specifically identified information databases to make a set of six specifically identified calculations.

[00:18:59] Speaker 04:
So the Rivendell Court never addressed the question of whether the plaintiff had adequately identified a trade secret.

[00:19:10] Speaker 00:
Let me ask you two more quick questions.

[00:19:12] Speaker 00:
This case was brought under the Utah Trade Secret Act and the federal?

[00:19:16] Speaker 04:
That's correct.

[00:19:17] Speaker 00:
And generally, the Utah is a little less

[00:19:23] Speaker 00:
we have fewer requirements.

[00:19:25] Speaker 00:
We're a little looser in identifying a trade secret than the federal statute.

[00:19:32] Speaker 04:
So that's a great question.

[00:19:35] Speaker 04:
Your Honor, I would submit that there might be a subtle difference in terminology

[00:19:41] Speaker 00:
But I think even the district court kind of acknowledged that even using the Utah thing, which is slightly less, so she was careful to review it under the Utah.

[00:19:53] Speaker 04:
Yeah, she suggested that there might be a little daylight between the Utah standard and the federal standard.

[00:19:58] Speaker 04:
And let me tell you where that comes from.

[00:20:01] Speaker 04:
It comes from Justice Durant, who in USA Power said,

[00:20:07] Speaker 04:
Utah has no particularity requirement, because if there is a particularity requirement, it's for the legislature to decide that.

[00:20:15] Speaker 00:
That power one or power two?

[00:20:16] Speaker 00:
That was power two.

[00:20:17] Speaker 00:
OK, because your friend relied repeatedly on power one.

[00:20:22] Speaker 00:
I think the District Court more extensively relied on Power 2.

[00:20:25] Speaker 04:
Yeah.

[00:20:25] Speaker 04:
And Power 1, again, was not a trade secret identification case.

[00:20:29] Speaker 04:
The point of Power 1 was that a compilation of public information can be a trade secret if it's compiled in a uniquely valuable way.

[00:20:42] Speaker 04:
That was the import of Power 1.

[00:20:44] Speaker 04:
Power 2 actually teaches it.

[00:20:46] Speaker 04:
It says there's no particularity requirement.

[00:20:48] Speaker 04:
But immediately following that pronouncement, it says twice, the trade secret at issue, however, must be identified in a manner that allows the fact finder to determine if a trade secret exists under the statute.

[00:21:05] Speaker 00:
Are they going to have another chance on this?

[00:21:07] Speaker 00:
I mean, did they see this coming?

[00:21:10] Speaker 00:
And now that they have kind of a roadmap from the district court judge in terms of what she's looking for to be identified with particularity, is there going to be another opportunity for them to come up with something else?

[00:21:23] Speaker 04:
Well, I might be a little bit confused by your question, Honor, because I think the opportunity to come forward was at summary judgment.

[00:21:31] Speaker 04:
That was the moment where SEC versus Gen Audio says that is, using crass words, the put up or shut up moment for APT to come forward and to identify their trade secret in a manner that a jury could apply the statutory standard.

[00:21:48] Speaker 00:
Yeah, but now they may know what they didn't know before, which is, at least with this district court, is required in terms of particularity.

[00:21:58] Speaker 00:
And maybe they could do it on another try.

[00:22:01] Speaker 04:
No, again, maybe I'm just not quite understanding Your Honor's question, for which I apologize.

[00:22:08] Speaker 04:
But their opportunity to come forward with a trade secret identification was at summary judgment, Your Honor.

[00:22:14] Speaker 04:
And as Judge Chan pointed out,

[00:22:17] Speaker 04:
The key piece of evidence that this court should review is APT's summary judgment opposition.

[00:22:24] Speaker 04:
And I would even throw into that their response to interrogatories, especially interrogatory number one.

[00:22:32] Speaker 04:
And when you take their summary judgment opposition together with interrogatory one, and you review those documents, and then you do it in light of

[00:22:45] Speaker 04:
The court stand this court standards in alifax encoded development, the 10th Circuit standards in double eagle alloys, and even the Utah Supreme Court standards in USA power.

[00:22:58] Speaker 04:
It leads to the conclusion that APT failed to adequately identify a trade secret such that a jury could apply the statutory standards to the information.

[00:23:11] Speaker 04:
Because we didn't know what the information was.

[00:23:15] Speaker 04:
Take the PCB for example.

[00:23:18] Speaker 04:
In their interrogatory response and in their summary judgment opposition, APT identified strategies for effectively using test and learn, but didn't reveal what those strategies were.

[00:23:33] Speaker 04:
They identified elements of the test and learn software without identifying what the elements were.

[00:23:43] Speaker 04:
They talked about methods for choosing control groups, but never revealed what the methods were.

[00:23:50] Speaker 04:
And they talked about how Test and Learn chooses the number of locations without explaining the how.

[00:23:58] Speaker 04:
And this court has said, in both Alifax and COTA, it is insufficient for a plaintiff to simply identify a what

[00:24:08] Speaker 04:
without explaining the how.

[00:24:11] Speaker 00:
And this was all about compilation trade secrets, correct?

[00:24:15] Speaker 00:
Predominantly.

[00:24:16] Speaker 00:
Yeah, it was predominant, certainly predominantly.

[00:24:18] Speaker 00:
The district court, I think, used the term, and this is about compilations within compilations.

[00:24:23] Speaker 00:
Is that a thing, or is that just, is there such a thing in the law as compilations within compilations?

[00:24:29] Speaker 04:
I've never read about compilations within compilations.

[00:24:32] Speaker 04:
But that was the problem in this case, Your Honor, is that we had 14 trade secrets.

[00:24:39] Speaker 04:
Each one itself was a compilation.

[00:24:42] Speaker 04:
and any combination of those together was a compilation, which led to this circuitous problem of what exactly is the trade secret.

[00:24:55] Speaker 04:
And within that circuitous list of compilations within compilations,

[00:25:01] Speaker 04:
We could never get beyond long lists of late generalized labels and categories.

[00:25:08] Speaker 04:
And I think we even see that in APT's appellate brief before this court.

[00:25:15] Speaker 04:
Their lists have certainly gotten longer.

[00:25:18] Speaker 04:
than they were as presented to the district court.

[00:25:22] Speaker 04:
But again, I would submit not with any better detail about the how.

[00:25:27] Speaker 04:
Again, getting beyond just the what and to the how.

[00:25:31] Speaker 03:
What do you say to opposing counsel's suggestion that even if we agree with you that maybe there's some deficiency in explanation, we have the massive record and we have a de novo obligation to hunt through it ourselves.

[00:25:47] Speaker 03:
and try to discern the how and what the trade secret is.

[00:25:52] Speaker 04:
Well, I think Judge Chan has hit on that point very well.

[00:25:58] Speaker 04:
you have to identify what it was that was presented to the district court on summary judgment.

[00:26:04] Speaker 04:
That was APT's opportunity to come forward.

[00:26:08] Speaker 04:
And if you read their summary judgment opposition like I did, and frankly, even their appellate brief, you can't help but thinking of using words adopted by this court in Olaplex, you can't help but thinking about a pig hunting for truffles buried in the record.

[00:26:28] Speaker 04:
And I think APT has left this court to do the exact same thing, asking this court to hunt through the record in search of something that resembles a trade secret.

[00:26:38] Speaker 04:
And that just simply doesn't meet their burden.

[00:26:41] Speaker 04:
And they absolutely didn't meet that burden before the district court on summary judgment.

[00:26:49] Speaker 04:
I also want to briefly address, if I have a moment, I want to address the claim that APT has relied very heavily on the alleged bad acts of my clients and I would suggest to the court that

[00:27:06] Speaker 04:
These types of bad acts exist in virtually every trade secret case.

[00:27:13] Speaker 04:
And there is no case.

[00:27:14] Speaker 04:
APT has not cited a case, and I am not aware of a case, in which you can take bad acts to somehow substitute for a failure to identify the information that constitutes a trade secret.

[00:27:27] Speaker 00:
Do you mean alleged bad acts or bad acts?

[00:27:29] Speaker 04:
I will say alleged.

[00:27:29] Speaker 04:
Thank you, Your Honor.

[00:27:30] Speaker 04:
I absolutely mean alleged bad acts.

[00:27:34] Speaker 04:
This court can assume the very worst version of all the alleged bad acts and still face the hurdle of what is the information that is alleged to constitute the trade secret.

[00:27:53] Speaker 04:
the case on which APT relies unequivocally holds that a plaintiff cannot establish the existence of a trade secret through evidence of use.

[00:28:04] Speaker 04:
That's at paragraphs 44 and footnotes 67 and 68.

[00:28:10] Speaker 04:
And the CDC case on which USA Power II relied held that misuse is not even a factor in deciding whether a trade secret exists.

[00:28:22] Speaker 04:
So I think that becomes a dead issue.

[00:28:26] Speaker 04:
The last issue that I would like to address absent question is APT's complaint that we referred to the wrong version of the partner capabilities briefing.

[00:28:39] Speaker 04:
This, Your Honors, is a prime example of APT's failure to properly and sufficiently identify a trade secret.

[00:28:49] Speaker 04:
If you look at their responses to interrogatory number one, their first response identifies the 27-page PCB and only the 27-page PCB.

[00:29:01] Speaker 04:
The 67 page PCB does not make its debut until APT's fourth supplement to interrogatory one.

[00:29:16] Speaker 04:
And even then, it's a long list of 57 different Bates number documents

[00:29:24] Speaker 04:
The 67-page version happens to be in there.

[00:29:27] Speaker 04:
Not one of those Bates numbers is explained to differentiate it in any way from the 28-page version.

[00:29:37] Speaker 04:
So this is a complete red herring.

[00:29:39] Speaker 04:
They argued it in opposition to summary judgment, and the court considered it in her memorandum.

[00:29:48] Speaker 00:
We have your argument.

[00:29:50] Speaker 00:
Thank you very much.

[00:29:50] Speaker 04:
Thank you very much, Your Honors.

[00:29:54] Speaker 00:
Will we still have two minutes of rebuttal?

[00:29:56] Speaker 01:
Thank you, Your Honor.

[00:29:58] Speaker 01:
Your Honors, if you'll look at the record, the response to statement of facts goes into great detail as to all of these three compilations.

[00:30:06] Speaker 01:
If you'll look at pages 7426 of the appendix, pages 7430 through 40, pages 7448 through 51, they discuss each of the data feeds

[00:30:24] Speaker 01:
the Standard Deployment Guide and PCB.

[00:30:27] Speaker 01:
And they also discuss their taking that.

[00:30:31] Speaker 03:
Where's your best example in there of identification of a specific trade secret that a judge could instruct a jury on to evaluate?

[00:30:41] Speaker 03:
Is this really, have you proven misappropriation of this?

[00:30:47] Speaker 01:
Just as one example, because I'm looking at a statement of fact 96, which says that no defense.

[00:30:53] Speaker 02:
What page are you on?

[00:30:54] Speaker 01:
I'm sorry.

[00:30:54] Speaker 01:
Appendix 7450.

[00:30:58] Speaker 01:
The seven data feed documents identified in APT's ROG 1 reflect APT's know-how, processes, techniques, concepts, discoveries, methodologies, tools, and data models relating thereto.

[00:31:09] Speaker 01:
which are incorporated into APT's data feeds and protected by disclosure from exhibit 112.

[00:31:15] Speaker 01:
If we go down that page in response to statement of fact number 98.

[00:31:18] Speaker 03:
These are responses to their statements of fact.

[00:31:22] Speaker 03:
That's correct.

[00:31:23] Speaker 03:
And when we get to the argument section where you're supposed to explain to the district judge what this mass of disputed facts means, where do you

[00:31:32] Speaker 03:
do something meaningful that helps the judge understand what Statement of Facts 96 means?

[00:31:38] Speaker 01:
I think there was a constraint in terms of what you could say an argument by page length.

[00:31:43] Speaker 01:
And so there was a citation to this, which the court obviously had.

[00:31:46] Speaker 01:
Is that an admission that you didn't do what I just asked you?

[00:31:50] Speaker 01:
I think the response to the Statement of Facts is incorporated in the summary judgment response and absolutely counts for that purpose.

[00:31:57] Speaker 01:
Let me also say, Mr. Call talked about USA Power One and Rivendell not being trade secret identification cases.

[00:32:04] Speaker 01:
They absolutely were in both cases.

[00:32:07] Speaker 01:
You had lower courts, which said there was no compilation trade secret.

[00:32:11] Speaker 01:
In both cases, the higher court said that's because the court below misanalyzed it, looking bit by bit when you had to look at the entirety of it.

[00:32:20] Speaker 01:
The last thing I will say is one of the requirements to show a trade secret under 1839 is the value to the other side.

[00:32:28] Speaker 01:
So the notion that Mr. Call offers that you cannot look at their bad acts

[00:32:32] Speaker 01:
is contrary to that principle.

[00:32:35] Speaker 01:
It is also contrary to what USA Power actually said, which is you can't prove ownership of a trade secret through, meaning solely through, bad acts.

[00:32:46] Speaker 01:
But you obviously can look at that.

[00:32:48] Speaker 01:
And if you want another case that does say that PAS Systems versus Dakota Group 514 F sub 2D 402 out of the Eastern District of New York is one of 10s.

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

[00:33:00] Speaker 00:
We thank both sides.

[00:33:01] Speaker 00:
The case is submitted.