Source Production & Equipment Co., Inc. et al v. Schehr et al
Filing
312
ORDER AND REASONS: ORDERED that Defendants' 140 Motion for Summary Judgment on Plaintiffs' tradesecret misappropriation claims for failure to specify the trade secrets is GRANTED as to the trade secrets identified by letters (j), (l), ( m), and (n), and those claims are DISMISSED WITH PREJUDICE. The motion is otherwise DENIED. FURTHER ORDERED that Defendants' 162 , 163 Motions for Summary Judgment on Plaintiffs' trade-secret misappropriation claims for failure to prove misappropriation are GRANTED as to the trade secrets identified by letters (a), (f), (g), and (i) and Plaintiffs' claims under DTSA, LUTSA, and LUTPA related to those trade secrets are DISMISSED WITH PREJUDICE. The IsoRad Defendants' 162 is DENIED as to Schehr with respect to the trade secrets identified by letters (b) and (h). FURTHER ORDERED that IsoRad's 162 Motion for Summary Judgment on Plaintiffs' trade-secret misappropriation claims is GRANTED, and Plaintiffs 9; DTSA, LUTSA, and LUTPA claims against IsoRad, as related to trade secrets, are DISMISSED WITH PREJUDICE. FURTHER ORDERED that the IUSA Defendants' 163 Motion for Summary Judgment on Plaintiffs' trade-secret misappropriation claims is G RANTED, and Plaintiffs' DTSA, LUTSA, and LUTPA claims against the IUSA Defendants, as related to trade secrets, areDISMISSED WITH PREJUDICE. FURTHER ORDERED that Schehr' 155 Motion for Summary Judgment on Plaintiffs' trade-secret mis appropriation claims for failure to prove damages is DENIED with respect to alleged trade secrets (b) and (h). The motion was rendered moot as to all other Defendants because the Court found that there is no evidence that they misappropriated any of Plaintiffs' alleged trade secrets. Signed by Judge Barry W Ashe on 9/30/2019. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOURCE PRODUCTION &
EQUIPMENT CO., INC., ASPECT
TECHNOLOGY LIMITED,
SPECMED, LLC, SPEC MED
INTELLECTUAL PROPERTY, LLC
AND SPEC INTELLECTUAL
PROPERTY, LLC
CIVIL ACTION
NO. 16-17528
SECTION M (1)
VERSUS
KEVIN J. SCHEHR, ISOFLEX USA,
ISOFLEX
RADIOACTIVE
LLC,
RICHARD H. MCKANNAY, JR., AND
JOHN DOES 1-10
ORDER & REASONS
Before the Court are several motions filed by defendants Kevin Schehr and Isoflex
Radioactive, LLC (“IsoRad”) (together “IsoRad Defendants”) and/or Isoflex USA (“IUSA”) and
Richard H. McKannay, Jr. (together “IUSA Defendants,” and collectively with the IsoRad
Defendants,
“Defendants”)
seeking
summary
judgment
on
plaintiffs’
trade-secret
misappropriation claims for failure to specify the trade secrets at issue,1 failure to prove
misappropriation of any purported trade secrets,2 and failure to prove damages.3 Plaintiffs
Source Production & Equipment Co., Inc. (“SPEC”), Aspect Technology Limited (“ATL”),
Specmed, LLC (“Specmed”), Spec Med Intellectual Property, LLC (“SMIP”), and Spec
Intellectual Property, LLC (“SPI”) (collectively, “Plaintiffs”) respond in opposition.4
Defendants and Plaintiffs filed several replies in further support of, or opposition to, the
1
R. Doc. 140.
R. Docs. 162 & 163.
3
R. Doc. 155.
4
R. Docs. 142 & 186.
2
1
motions.5 On August 15, 2019, the Court held oral argument on the motions. Having considered
the parties’ memoranda, the evidence in the record on summary judgment, counsels’ statements
at oral argument, and the applicable law, the Court issues this Order & Reasons.
I. BACKGROUND
This matter concerns the alleged theft of trade secrets and breaches of fiduciary duty and
contract by a business’s former employee. The Court summarized the factual background of this
case in a prior ruling on Defendants’ motion to dismiss certain claims raised in Plaintiffs’ first
amended complaint:6
Source Production & Equipment Co., Inc. (“SPEC”) and its affiliates bring this
trade-secret misappropriation and unfair competition action against Kevin J.
Schehr, Isoflex USA, Isoflex Radioactive LLC, and Richard McKannay, Jr.
SPEC is a supplier of industrial and medical radiography equipment and
radioactive isotope materials. Schehr is a former executive officer at SPEC.
According to the complaint, Schehr began working for SPEC in 1995 and held
various positions at the company until his termination in July of 2016. Plaintiffs
allege that over the course of his employment, Schehr signed several
confidentiality agreements regarding SPEC’s trade secrets. These trade secrets
include technologies used to manufacture containers for shipping radioactive
material.
According to the complaint, Schehr unsuccessfully attempted to acquire an
ownership interest in SPEC in 2012 and 2014. Plaintiffs further allege that
Schehr’s resentment toward SPEC and its owner, Richard Dicharry, following
these attempts prompted Schehr to engage in conduct intended to undermine
SPEC and benefit Schehr and others affiliated with Schehr. To this end, Schehr
allegedly made several misrepresentations to Dicharry that he knew to be false,
caused SPEC to default on the terms of a sale agreement, negotiated business
contracts against Dicharry’s wishes, filed for and claimed ownership rights to
patents developed using SPEC’s resources, and provided false financial
information in order to inflate his personal bonuses, among several other alleged
transgressions.
SPEC terminated Schehr’s employment on July 10, 2016. Plaintiffs allege that
after his termination, Schehr did not immediately return his company-issued
laptop, despite SPEC’s demand that he do so. Plaintiffs further allege that once
5
R. Docs. 173, 232, 226, 229, 280, 290, 293 & 298.
This matter was initially assigned to a different section of this Court but was realloted to this section upon
confirmation of the undersigned.
6
2
the laptop was returned, a forensic analysis revealed that Schehr emailed a
number of SPEC’s confidential and proprietary files to his personal email
accounts. According to plaintiffs, the analysis also showed that minutes after his
termination, Schehr attached two external hard drives to the laptop and
subsequently deleted 5,086 files from the laptop. Plaintiffs allege that Schehr
continues to possess other storage media belonging to SPEC, including thumb
drives and CDs.
Finally, plaintiffs allege that both before and after his termination, Schehr
conspired with Isoflex USA and McKannay, the managing director of Isoflex
USA, to establish Isoflex Radioactive. Plaintiffs allege that in creating Isoflex
Radioactive, defendants misappropriated plaintiffs’ trade secrets and confidential
information. This misappropriation, according to plaintiffs, will allow Isoflex
Radioactive to compete with plaintiffs in the market for radioactive materials.
In their amended complaint, plaintiffs assert against all defendants claims for
violations of the federal Defend Trade Secrets Act (“DTSA”), the Louisiana
Uniform Trade Secrets Act (“LUTSA”), and the Louisiana Unfair Trade Practices
Act (“LUTPA”), as well as for conversion. Against Schehr individually, plaintiffs
assert claims for violation of the Computer Fraud and Abuse Act (“CFAA”),
breach of legal duty, breach of contract, and fraud.
Source Prod. & Equip. Co. v. Schehr, 2017 WL 3721543, at *1-2 (E.D. La. Aug. 29, 2017)
(footnotes citing record omitted).7
The list of trade secrets that Plaintiffs claim Defendants misappropriated has evolved
over the course of this litigation. On February 18, 2019, in their latest recitation of the purported
trade secrets at issue, Plaintiffs claim that Defendants misappropriated:
a)
The process for mixing and producing the insulation material utilized in
Plaintiffs’ Aspect Containers;8
b)
The dimensional tolerances for the components utilized in the Aspect
Containers;
…
f)
Plans, drawings, and research regarding the development of a new
radiography system, sometimes referred to as the “RDD JTube
Radiography System”;
7
The Court granted the motion to dismiss as to Plaintiffs’ conversion claim against IUSA, IsoRad, and
McKannay, as well as Plaintiffs’ conversion claim against Schehr to the extent they sought to recover the value of
their trade secrets; and otherwise denied the motion. Source Prod. & Equip. Co., 2017 WL 3721543, at *7.
8
Aspect Containers are Plaintiffs’ proprietary product for shipping radioactive material.
3
g)
Plans, drawings, and research regarding the development of the Se-120
device (based upon intellectual property related to the former “Viking”
radiography system sold to SPEC by Gilligan);
h)
Methods and processes for producing medical High Does Rate (“HDR”)
Afterloader Sources;
i)
Methods and processes for producing and encapsulating a Selenium
product called “SPECalloy”;
j)
The composition and process and procedure related to the manufacture of
a wear-resistant connector for source assemblies;
…
l)
Plans, drawings, and research for the design and development of a mini
hotcell;
m)
Confidential information regarding SPEC’s financial condition; and
n)
Confidential information regarding SPEC’s business relationship with
Qualitek.9
Up to that point in time, Plaintiffs had identified some of the purported trade secrets that
appear on the list, but not others. Plaintiffs filed their initial complaint on December 16, 2016,
and filed their first amended complaint on April 4, 2017.10 In their first amended complaint,
Plaintiffs allege there are several features of their Aspect Containers that are not disclosed in
public filings, and thus are trade secrets that, if known, would allow competitors to quickly and
cheaply fabricate, and obtain government approval for, similar containers.11
9
In their first
R. Docs. 140-10 & 148-4. At oral argument, Plaintiffs’ counsel conceded that Plaintiffs have abandoned
their claims related to the following purported trade secrets identified in the February 18, 2019 document: (c)
shielded metal arc welding (SMAW) and gas tungsten arc welding (GTAW) techniques and processes specifically
used in the manufacture of Aspect Containers; (d) methods and processes of heat treating S-tubes; (e) research
regarding the development of a new radiation survey system; and (k) plans, drawings, and research regarding the
development of a two-part, non-welded source assembly.
10
R. Docs. 1 & 33.
11
R. Doc. 33 at 11-12.
4
amended complaint, Plaintiffs specify that their trade secrets include the items identified above
by letters (a), (b), (f), (h), and (i).12
On January 19, 2018, the IUSA Defendants propounded their first set of discovery
requests on Plaintiffs, which included interrogatories asking Plaintiffs to specifically identify
each trade secret they contend was misappropriated by McKannay or IUSA.13 In their February
28, 2018 response, Plaintiffs claimed that they could not provide the requested detail without a
protective order, and then reiterated the same purported trade secrets identified in the first
amended complaint, while adding the newly-identified purported trade secret (g).14
On June 21, 2018, the IsoRad Defendants propounded their first set of discovery requests
on Plaintiffs, which included interrogatories asking Plaintiffs to specifically identify each trade
secret they contend was misappropriated by Schehr.15 Plaintiffs responded on August 6, 2018,
listing the same purported trade secrets as stated in their February 28, 2018 responses to the
IUSA Defendants’ interrogatories, but did not provide further detail regarding the alleged
misappropriation.16
On February 8, 2019, the parties attended a discovery conference with the magistrate
judge at which Defendants expressed their frustration with Plaintiffs’ failure to identify with
specificity their purported trade secrets. The magistrate judge ordered Plaintiffs to “identify with
particularity
for
the
defendants
the
specific
misappropriated.”17
12
Id. at 11-13.
R. Doc. 140-4 at 10.
14
R. Doc. 140-5 at 6-7.
15
R. Docs. 140-6 at 6-7; 146-7 at 8.
16
R. Doc. 140-8 at 4-7; R. Doc. 140-9 at 4-7.
17
R. Doc. 132.
13
5
trade
secrets
plaintiffs
claim
were
Plaintiffs produced the February 18, 2019 identification of trade secrets list (quoted
above) in response to that order.18 This list added for the first time alleged trade secrets (j), (l),
(m), and (n).19 Plaintiffs stated that they believe Schehr was in possession of the purported trade
secrets due to his file-downloading activities after his termination.20 Generally, Plaintiffs think
that Schehr has used or will use the purported trade secrets because IsoRad has technical
drawings for a radioactive material transport container intended to compete with Plaintiffs’
Aspect Container.21 These drawings were produced to Plaintiffs in discovery on January 9,
2019.22 Plaintiffs surmise that Schehr has shared the purported trade secrets because, they insist,
he is incapable of operating 3D CAD software and “Plaintiffs do not believe that he could have
created the drawings acting alone.”23
II.
PENDING MOTIONS
After receiving Plaintiffs’ February 18, 2019 list of trade secrets, Defendants filed the
pending motions for summary judgment on Plaintiffs’ trade-secret misappropriation claims. In
the first motion, Defendants argue that Plaintiffs failed to timely identify their trade secrets with
specificity.24 Plaintiffs oppose the motion arguing that they have sufficiently identified the trade
secrets at issue.25 Plaintiffs attach to their opposition a chart constituting an updated list of trade
secrets in which they identify by Bates number, for the first time, SPEC documents that
purportedly contain the alleged trade secrets.26
18
R. Doc. 140-10.
Id.
20
Id.
21
Id.
22
Id.
23
Id.
24
R. Doc. 140.
25
R. Docs. 142 & 186.
26
R. Doc. 142-4.
19
6
In their other motions for summary judgment on Plaintiffs’ trade-secret misappropriation
claims, Defendants argue that Plaintiffs failed to prove that Defendants misappropriated, used, or
shared the purported trade secrets, and failed to prove damages associated with the alleged
misappropriation.27 Plaintiffs oppose the motions arguing that there are disputed issues of
material fact that preclude summary judgment on these issues.28
As evidence of
misappropriation, Plaintiffs specified for the first time the documents that Schehr downloaded
after his termination that Plaintiffs claim contain their trade secrets.29
III. LAW & ANALYSIS
A. Summary Judgment Standard
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which the party will bear the burden of proof at trial.” Id. A
party moving for summary judgment bears the initial burden of demonstrating the basis for
summary judgment and identifying those portions of the record, discovery, and any affidavits
supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the
moving party meets that burden, then the nonmoving party must use evidence cognizable under
Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324.
27
R. Docs. 155, 162 & 163.
R. Docs. 142 & 186.
29
R. Doc. 186-1.
28
7
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
The
substantive law identifies which facts are material. Id. Material facts are not genuinely disputed
when a rational trier of fact could not find for the nonmoving party upon a review of the record
taken as a whole. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Equal Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50;
Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a
court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court
must assess the evidence, review the facts, and draw any appropriate inferences based on the
evidence in the light most favorable to the party opposing summary judgment. See Tolan v.
Cotton, 572 U.S. 650, 656 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir.
2001). Yet, a court only draws reasonable inferences in favor of the nonmovant “when there is
an actual controversy, that is, when both parties have submitted evidence of contradictory facts.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625
(5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
8
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
B. DTSA and LUTSA
Plaintiffs assert claims against Defendants under both the federal and Louisiana trade
secrets statutes, DTSA and LUTSA, which are substantially similar. To prevail on a DTSA
claim, a plaintiff must prove: (1) the existence of a trade secret; (2) a misappropriation of the
trade secret by another; and (3) the trade secret’s relationship to a product or service used or
intended for use in interstate or foreign commerce.30 18 U.S.C. § 1836(b)(1). Similarly, to
prevail on a LUTSA claim, “‘a complainant must prove (a) the existence of a trade secret, (b) a
misappropriation of the trade secret by another, and (c) the actual loss caused by the
misappropriation.’” Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396,
403 (5th Cir. 2000) (quoting Reingold v. Swiftships, Inc., 126 F.3d 645, 648 (5th Cir. 1997)).
1. Identification and Existence of Trade Secrets
To prevail on a trade-secret misappropriation claim the plaintiff “‘must identify the trade
secrets and carry the burden of showing that they exist.’” Mfg. Automation & Software Sys., Inc.
v. Hughes, 2018 WL 3197696, at *14 (C.D. Cal. June 25, 2018) (quoting MAI Sys. Corp. v. Peak
Comput., Inc., 991 F.2d 511, 522 (9th Cir. 1993)).31 DTSA defines a “trade secret” as:
all forms and types of financial, business, scientific, technical, economic, or
engineering information, including patterns, plans, compilations, program
30
DTSA went into effect on May 11, 2016. See Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, §
2(e), 130 Stat. 376, 381-82. Thus, Plaintiffs’ DTSA claim covers only misappropriation that occurred after that date.
31
These cases interpret California’s Uniform Trade Secrets Act (“CUTSA”), Cal. Civ. Code §§ 3426, et
seq., which is substantially similar to both DTSA and LUTSA.
9
devices, formulas, designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible or intangible, and whether or
how stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing if –
(A) the owner thereof has taken reasonable measures to keep such information
secret; and
(B) the information derives independent economic value, actual or potential,
from not being generally known to, and not being readily ascertainable
through proper means by, another person who can obtain economic value
from the disclosure or use of the information[.]
18 U.S.C. § 1839(3). LUTSA’s definition of “trade secret” is nearly identical.32 “A trade secret
‘is one of the most elusive and difficult concepts in the law to define.’” Tewari De-Ox Sys., Inc.
v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 613 (5th Cir. 2011) (quoting Lear Siegler, Inc.
v. Ark-Ell Springs, Inc., 569 F.2d 286, 288 (5th Cir. 1978)). “Whether something is a trade
secret is a question of fact.” CheckPoint Fluidic Sys. Int’l, Ltd. v. Guccione, 888 F. Supp. 2d
780, 796 (E.D. La. 2012) (citations omitted).
a. Plaintiffs’ Identification of Trade Secrets
Although it is not necessary for a plaintiff to disclose in detail in a complaint the
allegedly misappropriated trade secrets, the plaintiff must plead sufficient facts to put the
defendant on notice of what is alleged to have been misappropriated. Yeiser Research & Dev.
LLC v. Teknor Apex Co., 281 F. Supp. 3d 1021, 1043-44 (S.D. Cal. 2017) (citations and
quotations omitted). “A plaintiff ‘should describe the subject matter of the trade secret with
sufficient particularity to separate it from matters of general knowledge in the trade or of special
32
LUTSA defines a “trade secret” as:
information, including a formula, pattern, compilation, program, device, method, technique, or
process, that:
(a) derives independent economic value, actual or potential, from not being generally known to
and 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.
La. R.S. 51:1431(4).
10
knowledge of those persons skilled in the trade.’” Mfg. Automation, 2018 WL 3197696, at *14
(quoting Imax Corp. v. Cinema Techs., Inc., 152 F.3d 1161, 1164-65 (9th Cir. 1998)). To that
end, “[t]he identification must clearly refer to trade secret material.” Dow Chem. Can. Inc. v.
HRD Corp., 909 F. Supp. 2d 340, 346 (D. Del. 2012) (citing Imax, 152 F.3d at 1167). Such a
“pleading requirement … prevents a plaintiff from taking unfair advantage of the [Uniform
Trade Secrets Act] and proceeding on a flimsy basis at the outset of a litigation only to tailor its
identification of trade secrets to the discovery it receives.” Yeiser Research, 281 F. Supp. 3d at
1044 (quotation omitted).
Of the ten allegedly misappropriated trade secrets that Plaintiffs currently claim are at
issue, five – identified by letters (g), (j), (l), (m), and (n) – were not referenced in the first
amended complaint. Plaintiffs first identified alleged trade secret (g) as being at issue in January
2018.33 Although Plaintiffs waited until more than a year into the litigation to reveal that they
claimed the plans, drawings, and research regarding the development of the Se-120 device as a
misappropriated trade secret, the parties engaged in discovery for more than a year after that
revelation, until March 2019. Thus, Defendants have had plenty of time to develop issues related
to the purported Se-120 trade secret through the discovery process.
In contrast, Plaintiffs identified alleged trade secrets (j), (l), (m), and (n) for the first time
on February 18, 2019, one day before Defendants’ expert reports were due, and just one month
before the close of discovery.34
This eleventh-hour-trade-secrets identification is highly
prejudicial to the Defendants who did not have sufficient time to explore through discovery any
issues concerning these alleged trade secrets, nor to have those issues addressed by an expert.
Such a late identification of purported trade secrets amounts to trial by ambush and is exactly the
33
34
R. Doc. 33.
R. Doc. 102.
11
type of tailoring of trade-secret identification to discovery that earlier identification is designed
to prevent. As a result, Defendants’ motion for summary judgment for failure to identify trade
secrets with specificity (R. Doc. 140) is GRANTED as to alleged trade secrets (j), (l), (m), and
(n), and Plaintiffs’ trade-secret claims as to those items are DISMISSED WITH PREJUDICE.
b. Existence of Trade Secrets – Secrecy
Information qualifies as a trade secret only if it is secret. 18 U.S.C. § 1839(3); La. R.S.
51:1431(4). Public disclosure obviously destroys secrecy and trade-secret protection. See, e.g.,
Johns Manville Corp. v. Knauf Insulation, LLC, 2017 WL 4222621, at *6 (D. Colo. Sept. 22,
2017).
Thus, it is axiomatic that information that is part of a patent or published patent
application, even a foreign one, cannot be protected as a trade secret. MetriColor LLC v.
L’Oreal S.A., 2018 WL 5099496, at *5 (C.D. Cal. Aug. 15, 2018) (quoting Bladeroom Grp. Ltd
v. Facebook, Inc., 2015 WL 8028294, at *3 (N.D. Cal. Dec. 7, 2015)); Attia v. Google LLC,
2019 WL 1259162, at *5 (N.D. Cal. Mar. 19, 2019) (finding that trade secrets were extinguished
as of the date that the patent applications were published), appeal docketed, No. 19-15771 (9th
Cir. Apr. 17, 2019); 1 MELVIN F. JAGER, TRADE SECRETS LAW § 6:6 (2019).
It is undisputed that alleged trade secrets (i) and (g) are the subjects of published patent
applications pending in the United States, and alleged trade secret (f) is the subject of a patent
pending in Europe.35 Plaintiffs acknowledge that the information disclosed in these patent
applications is not eligible for trade-secret protection.36 But, Plaintiffs argue that they are
claiming trade-secret protection related to matters that are not disclosed in the patent
applications.
35
36
Agreement of Plaintiffs’ and Defendants’ counsel on the record at oral argument.
Statements of Plaintiffs’ counsel on the record at oral argument.
12
To identify what those allegedly undisclosed trade secrets are, Plaintiffs point to eleven
documents that Schehr downloaded after he was terminated from SPEC.37
Most of these
documents include technical information about the RDD J Tube – alleged trade secret (f), Se-120
device – alleged trade secret (g), and SPECalloy – alleged trade secret (i). However, Plaintiffs
do not present the Court with any comparison of the publicly-available information, on the one
hand, and the documents obtained by Schehr, on the other, to explain or demonstrate how those
documents contain information amounting to trade secrets that are not disclosed in the patent
applications. As such, Plaintiffs do not clearly refer the Court to tangible trade-secret material,
but rather refer the Court to documents they allege, without further identification, to contain
trade secrets that may not be disclosed in the patent application. See Imax, 152 F.3d at 1167
(holding that trade-secret claimant failed to identify allegedly secret information about patented
projector system undisclosed by patent).
A plaintiff must do more than identify a technology or document allegedly containing a
potential trade secret “and then invite the court to hunt through the details in search of items
meeting the statutory definition [of a trade secret].” IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d
581, 583-84 (7th Cir. 2002). This is especially true in a case such as this one where the tradesecret claim involves sophisticated, highly technical issues that the district court or jury, on its
own, is unlikely to have the expertise required to discern exactly what constitutes a trade secret.
See Imax, 152 F.3d at 1167. It is the plaintiff’s burden to prove that a trade secret exists and
identify what information is known to the trade and which is not. IDX Sys., 285 F.3d at 383-84
(“unless the plaintiff engages in a serious effort to pin down the secrets a court cannot do its
job”). Plaintiffs have failed to carry that burden as to alleged trade secrets (f), (g), and (i).
Therefore,
37
Defendants’
R. Doc. 186-1 at 5-4.
motions
for
summary
13
judgment
on
Plaintiffs’
trade-secret
misappropriation claims (R. Docs. 162 & 163) are GRANTED as to alleged trade secrets (f), (g),
and (i), and Plaintiffs’ trade-secret misappropriation claims as to those items are DISMISSED
WITH PREJUDICE.38
c. Existence of Trade Secrets – Dimensional Tolerances
Plaintiffs identify the dimensional tolerances for the components utilized in the Aspect
Containers as alleged trade secret (b) above. As evidence of misappropriation, Plaintiffs contend
that Schehr downloaded four proprietary design drawings that show the shape, dimensions, and
dimensional tolerances, along with some materials of construction, of the container
components.39 In light of this contention, the Court will broadly read the term “dimensional
tolerances,” as included in Plaintiffs’ list of identified trade secrets, to encompass all of the
information shown on the drawings. Defendants argue that the container’s dimensions, shape,
and materials of construction are not trade secrets because they are publicly disclosed or easily
ascertainable through reverse engineering.40 Further, Defendants argue that Plaintiffs proffered
expert, Lawrence R. Jacobi, admitted in his report that Defendants did not copy Plaintiffs’
dimensional tolerances.41
Although some of the shapes, dimensions, and materials of construction used in the
Aspect Containers may be in the public domain, the combination of characteristics together can
constitute a trade secret. Mike’s Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 410-11 (6th
Cir. 2007) (“A trade secret can exist in a combination of characteristics and components, each of
38
Defendants argue that alleged trade secret (a) – the process for mixing and producing the insulation
material utilized in Plaintiffs’ Aspect Containers – does not constitute a trade secret because the mixing instructions
are published by the manufacturer of Kaolite. Plaintiffs argue that the trade secret is their special way of mixing the
Kaolite that differs from the manufacturer’s instructions. There is no need to discuss whether Plaintiffs’ recipe for
mixing Kaolite is a trade secret because Plaintiffs have not proved that Defendants misappropriated such
information. See Section III(B)(2)(a), infra.
39
R. Doc. 186-1 at 5.
40
R. Doc. 290 at 6-10.
41
R. Doc. 280-7 at 7-8.
14
which, by itself, is in the public domain, but the unified process, design and operation of which,
in unique combination, affords a competitive advantage and is a protectable secret.”) (quoting
3M v. Pribyl, 259 F.3d 587, 595-96 (7th Cir. 2001)); Catalyst & Chem. Servs., Inc. v. Global
Ground Support, 350 F. Supp. 2d 1, 9 (D.D.C. 2004) (“[I]t is widely accepted that a trade secret
can exist in a combination of characteristics each of which, by itself, is in the public domain, and
even if all of the information about those characteristics is publicly available, a unique
combination of that information, which adds value to the information, may qualify as a trade
secret.”) (citations and quotation marks omitted), aff’d, 173 F. App’x 825 (Fed. Cir. 2006).
Moreover, “it is well settled that detailed manufacturing drawings and tolerance data are prima
facie trade secrets.” Mike’s Train House, 472 F.3d at 410 (citing A.H. Emery Co. v. Marcan
Prods., 389 F.2d 11, 16 (2d Cir. 1968)).
With respect to Defendants’ argument about reverse engineering, “[a] process or device
may be a trade secret … even when others can gain knowledge of” it by studying the product or
other publicly-available information. Berge v. Republic Nat’l Inc., 2018 WL 2267095, at *2
(N.D. Tex. May 17, 2018) (citing Phillips v. Frey, 20 F.3d 623, 629 (5th Cir. 1994)). “Although
trade secret law does not offer protection against discovery by fair and honest means such as
independent invention, accidental disclosure, or ‘reverse engineering,’ protection will be
awarded to a trade secret holder against [misappropriation] by those to whom the secret has been
confided under either express or implied restriction of nondisclosure or by one who has gained
knowledge by improper means.” Phillips, 20 F.3d at 629 (citations omitted).
In this case, Plaintiffs allege that Schehr improperly downloaded, after his termination,
four drawings that constitute trade secrets.
Even if certain information contained on the
drawings is in the public domain and other aspects can be reverse engineered, the compilation in
15
the drawings can constitute a trade secret and Schehr allegedly obtained the documents in an
improper manner. Thus, with respect to alleged trade secret (b), Plaintiffs have identified a
potential trade secret that was allegedly misappropriated.
d. Existence of Trade Secrets – HDR Afterloader Sources
Plaintiffs contend that Schehr downloaded three documents containing the methods and
processes for producing medical HDR Afterloader Sources, which is identified alleged trade
secret (h).42 Those documents appear to contain such information, and there is no evidence
demonstrating that the contents of these documents were publicly available. Therefore, to
withstand summary judgment, Plaintiffs have met their burden of showing that the documents
may contain trade secrets related to the HDR Afterloader Sources.
2.
Misappropriation of Trade Secrets
Once a plaintiff establishes that it has a trade secret, the plaintiff must prove that the
defendant misappropriated it to maintain a cause of action under DTSA or LUTSA. 18 U.S.C. §
1836(b)(1); Computer Mgmt. Assistance, 220 F.3d at 403. DTSA defines “misappropriation” as:
(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 –
(i) used improper means to acquire knowledge of the trade secret;
(ii) at the time of disclosure or use, knew or had reason to know that the
knowledge of the trade secret was –
(I) derived from or through a person who had used improper means to
acquire the trade secret;
(II) acquired under circumstances giving rise to a duty to maintain the
secrecy of the trade secret or limit the use of the trade secret; or
42
R. Doc. 186-1.
16
(III) derived from or through a person who owed a duty to the person
seeking relief to maintain the secrecy of the trade secret or limit the use of
the trade secret; or
(iii) before a material change of the position of the person, knew or had reason
to know that –
(I) the trade secret was a trade secret; and
(II) knowledge of the trade secret had been acquired by accident or
mistake[.]
18 U.S.C. § 1839(5). LUTSA’s definition of “misappropriation” is nearly identical.43 Further,
the DTSA defines “improper means” as including “breach or inducement of a breach of a duty to
maintain secrecy.” Id. § 1839(6)(A).
To sustain a trade-secret action under LUTSA’s “‘use’
prong of the statutory definition of ‘misappropriation,’ a plaintiff must necessarily demonstrate
that the defendant received some sort of unfair trade advantage.” Omnitech Int’l, Inc. v. Clorox
Co., 11 F.3d 1316, 1325 (5th Cir. 1994). Whether a trade secret has been misappropriated is a
question of fact. Pontchartrain Med. Labs, Inc. v. Roche Biomed. Labs., Inc., 677 So. 2d 1086,
1091 (La. App. 1996).
43
“Misappropriation” is defined as:
(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:
(i) used improper means to acquire knowledge of the trade secret; or
(ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the
trade secret was:
(aa) derived from or through a person who had utilized improper means to
acquire it;
(bb) acquired under circumstances giving rise to a duty to maintain its secrecy or
limit its use; or
(cc) 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.
La. R.S. 51:1431(2).
17
a. Acquisition by Improper Means
The genesis of Plaintiffs’ trade-secret misappropriation claim is Schehr’s downloading of
files from his SPEC-issued laptop immediately after his termination.44 In his affidavit, Schehr
admits that on July 10 and 11, 2016, he downloaded many documents from that laptop onto an
external hard drive but claims that most of those documents were personal in nature.45 Schehr
states that, after his termination, he did not have access to the database on which SPEC saves its
work instructions and production drawings.46 On July 13 or 14, 2016, Schehr gave the laptop to
his prior counsel who made a copy of the laptop on another external hard drive and then returned
the laptop to SPEC on July 18, 2016.47 Both hard drives have remained in defense counsel’s
possession since July 2016.48
In the course of discovery, Schehr produced documents to Plaintiffs that were
presumably downloaded by Schehr from his SPEC-issued laptop on July 10 and 11, 2016.
Steven Johnson, SPEC’s technical director, states in his declaration that he reviewed the
documents Schehr produced and matched them to Plaintiff’s purportedly misappropriated trade
secrets.49
Johnson identifies three documents containing the methods and processes for
producing medical HDR Afterloader Sources (listed as alleged trade secret (h) above), and four
documents constituting production drawings of the Aspect Containers (listed as alleged trade
secret (b) above).50 Both DTSA’s and LUTSA’s definitions of “misappropriation” include the
44
Plaintiffs do not allege that any of the other Defendants downloaded Plaintiffs’ trade-secret-containing
documents. Rather, Plaintiffs’ trade-secret misappropriation claims against IsoRad, IUSA, and McKannay are
premised on their alleged collective use, together with Schehr, of the alleged trade secrets downloaded by Schehr.
45
R. Doc. 162-5 at 3-4.
46
Id. at 4.
47
Id. at 5.
48
Id. at 5-6.
49
R. Doc. 186-1.
50
Id. at 5. Johnson also identifies documents Schehr produced that relate to alleged trade secrets (f), (g),
(i), (j), (l), and (n) above. The Court will not discuss these documents because Plaintiffs’ claims related to these
categories are dismissed for other reasons.
18
acquisition of a trade secret by someone who knows or has reason to know that it was acquired
by improper means.
Schehr’s production of these documents in discovery raises genuine
questions of fact regarding whether he acquired them by improper means by downloading them
after his termination.
With respect to alleged trade secret (a) – the process for mixing and producing the
insulation material utilized in Plaintiffs’ Aspect Containers – Johnson cites a single document
downloaded by Schehr.51 The referenced document is an email string that does not contain
Plaintiffs’ allegedly secret recipe for mixing Kaolite. Therefore, Plaintiffs have not carried their
burden of demonstrating that Schehr misappropriated SPEC’s process for mixing and producing
Kaolite.
As such, Defendants’ motions for summary judgment on Plaintiffs’ trade-secret
misappropriation claims (R. Docs. 162 & 163) are GRANTED with respect to item (a) as to all
Defendants, and Plaintiffs’ trade-secret misappropriation claims as to that item are DISMISSED
WITH PREJUDICE.
b. Disclosure or Use
i. HDR Afterloader Sources
Plaintiffs alleged that Schehr must have disclosed to the other Defendants the information
related to the HDR Afterloader Sources because McKannay wrote a letter to the president of
AccuBoost discussing IUSA’s interest in developing the technology and stating that IUSA has
the knowledge to manufacture the product. Plaintiffs contend that the knowledge McKannay
alludes to must be their trade secrets.52
At oral argument, Plaintiffs’ counsel admitted that Plaintiffs have no evidence that any
Defendant made commercial use of their purported trade secrets related to the HDR Afterloader
51
52
Identified as Bates number Schehr.0992.101878-97.
Id. at 9-10.
19
Sources. Further, in his letter to AccuBoost’s president, McKannay specifically states that IUSA
does not have information regarding, or interest in using, Plaintiffs’ intellectual property to
develop the HDR Afterloader Sources. There is no evidence before the Court refuting this
statement. Because Plaintiffs’ trade-secret misappropriation claims against IsoRad, IUSA, and
McKannay are premised on use, and there is no evidence of use with respect to the HDR
Afterloader Sources, IsoRad, IUSA, and McKannay’s motions for summary judgment (R. Docs.
162 & 163) are GRANTED with respect to alleged trade secret (h), and such trade-secret
misappropriation claims are DISMISSED WITH PREJUDICE.
ii. Aspect Container Drawings
Plaintiffs contend that Schehr disclosed the Aspect Container production drawings to the
other Defendants, and that all of the Defendants used the drawings in concert to create
production drawings of a radioactive material transport container that will compete with
Plaintiffs’ Aspect Container. Plaintiffs contend that Schehr must have used, and shared with the
other Defendants, Plaintiffs’ purported trade-secret drawings because Schehr is incapable of
creating the container drawings on his own.53
Plaintiffs support this argument with the opinions of their purported nuclear engineering
expert, Lawrence R. Jacobi.54 Jacobi reviewed 58 drawings, along with a six-page design criteria
document, produced by IsoRad that were created by Schehr.55 Jacobi states that the drawings are
all marked “draft,” but in his opinion the “the drawings suggest a level of dimensional precision
that is incompatible with conceptual-stage, first draft drawings [because] [t]he degree of detail in
these drawings suggests a more mature design.”56 Jacobi opines that, because he thinks the
53
R. Doc. 140-10.
R. Doc. 280-7.
55
Id. at 7.
56
Id.
54
20
transport container depicted in IsoRad’s drawings has the same dimensions as Plaintiffs’ Aspect
Container and because IsoRad does not have test reports and design analyses for the materials
selected to support its “mature” design, “IsoRad had a template of a mature design, perhaps one
that had been misappropriated from SPEC.”57
Jacobi includes charts in his report that compare side-by-side the dimensions of IsoRad’s
container and the Aspect Container. Although the numbers are different, Jacobi opines that the
dimensions of the two containers are “virtually identical.”58 Jacobi also opines that IsoRad’s
“top plate-square” is “virtually identical” to Plaintiffs’ “slant-ring” because they “share similar
geometry and dimensions.”59 Jacobi opines that “there are no publicly available SPEC drawings
or specifications that could have provided the degree of detail required to replicate the Aspect 12
container and inner shields” and “[i]t is not reasonable that the design for [IsoRad’s] container
can go from conceptual design to production drawings in less than 6 months.”60 Jacobi admits,
though, that the dimensional tolerances of the component parts of the two devices are different.61
Jacobi’s opinion that IsoRad’s container designs are evidence of trade-secret
misappropriation is based on the flawed premise that IsoRad’s container designs are mature
production drawings. There is no evidence in the record to support this assumption. Indeed, it is
contradicted by IsoRad’s deposition testimony that the drawings are preliminary, not finalized
production drawings, which explains why there are no test reports or design analyses.62 Further,
Jacobi’s opinion that IsoRad’s container drawings must have been misappropriated because they
are “virtually identical” to the Aspect Container drawings is belied by a comparison of the
57
Id. at 8-9.
Id. at 9-15.
59
Id. at 13 (emphasis added).
60
Id. at 17.
61
Id. at 7-8.
62
R. Doc. 290-2 at 13.
58
21
publicly-available information on eight other radioactive material transport containers, which
shows that all such devices have microscopically similar dimensions.63 There is nothing so
strikingly similar about the IsoRad drawings and the Aspect Container drawings to suggest that
trade-secret misappropriation was the only way that IsoRad could have created its drawings
considering all of the publicly-available information about similar devices.
Jacobi’s opinion is thus grounded on a faulty premise – namely, that IsoRad’s drawings
are mature designs – as well as the faulty assumption that Schehr retained a copy of Plaintiffs’
drawings notwithstanding his uncontradicted sworn statement that he did not.64 “[T]he factual
predicate of an expert’s opinion must find some support in the record, and … mere ‘theoretical
speculations’ lacking a basis in the record will not create a genuine issue of fact. … Moreover,
where an expert’s opinion is predicated on factual assumptions, those assumptions must also find
some support in the record.” Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1051 (Fed.
Cir. 2001) (citing Penn. Dental Ass’n v. Med. Serv. Ass’n, 745 F.2d 248, 262 (3d Cir. 1984);
Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990)). Because Jacobi’s opinions are
predicated on facts and assumptions that are not supported by the summary-judgment record,
they are not sufficiently probative as to create a genuine issue of material fact. Borges ex rel.
S.M.B.W v. Serrano-Isern, 605 F.3d 1, 8 (1st Cir. 2010). There is no evidence to support
Plaintiffs’ allegation that Schehr and the other Defendants used Plaintiffs’ drawings to create
IsoRad’s.
Therefore, IsoRad, IUSA, and McKannay’s motions for summary judgment on
Plaintiffs’ trade-secret misappropriation claims (R. Docs. 162 & 163) are GRANTED with
respect to the alleged trade secret (b), and such trade-secret misappropriation claims are
DISMISSED WITH PREJUDICE.
63
64
R. Doc. 280-11 at 5.
R. Doc. 162-5 at 5.
22
3. Damages
DTSA and LUTSA both provide for damages and injunctive relief. As to damages, both
statutes provide that a plaintiff may recover damages for the actual loss caused by the
misappropriation of the trade secret, as well as damages for any unjust enrichment caused by the
misappropriation of the trade secret that is not addressed in computing damages for actual loss.
18 U.S.C. § 1836(b)(3)(B)(i); La. R.S. 51:1433.65 For a plaintiff to recover damages on a tradesecret misappropriation claim, “[t]he defendant must have actually put the trade secret to some
commercial use [because] [t]he law governing protection of trade secrets essentially is designed
to regulate unfair business competition, and is not a substitute for criminal laws against theft or
other civil remedies for conversion.” Univ. Computing Co. v. Lykes-Youngstown Corp., 504
F.2d 518, 539 (5th Cir. 1974).
A court may also grant injunctive relief, either in lieu of or in addition to damages, to
prevent an actual or threatened misappropriation of a trade secret on terms that the court deems
reasonable. 18 U.S.C. § 1836(b)(3)(A); La. R.S. 51:1432. DTSA further specifies that a court
cannot enjoin “a person from entering into an employment relationship, and that conditions
placed on such employment shall be based on evidence of threatened misappropriation and not
merely on the information the person knows,” nor can an injunction “otherwise conflict with an
applicable State law prohibiting restraints on the practice of a lawful profession, trade, or
business.” 18 U.S.C. § 1836(b)(3)(A). Indeed, a former employee necessarily uses in his new
employment his memory, experience, expertise, and skills developed during his former
65
DTSA permits a plaintiff to recover exemplary damages in an amount not more than two times the
amount of any general damages awarded if the trade secret is willfully and maliciously misappropriated. 18 U.S.C.
§ 1836(b)(3)(C). Further, both federal and Louisiana trade-secret misappropriation law provides for an award of
attorney’s fees if the trade secret is willfully and maliciously misappropriated. 18 U.S.C. § 1836(b)(3)(D); La. R.S.
51:1434.
23
employment, which is permitted under the law. JJ Plank Co., LLC v. Bowman, 2018 WL
4291751, at *9 (W.D. La. Sept. 7, 2018) (citations omitted).
Plaintiffs admit that they have no evidence to demonstrate that Schehr used commercially
any of the allegedly misappropriated trade secrets related to the HDR Afterloader Sources.
Further, as explained above, there is no evidence that Schehr used commercially any of
Plaintiffs’ purported trade-secret design drawings, especially considering that IsoRad’s drawings
are in the beginning stages, not final production drawings. As such, Plaintiffs have no evidence
of damages related to either of Schehr’s alleged misappropriation of Plaintiffs’ as-yet
undismissed trade secrets.
The costs Plaintiffs incurred to obtain a forensic analysis of Schehr’s SPEC-issued laptop
are not damages compensable under DTSA or LUTSA. The DTSA and LUTSA provide for
damages for the actual loss caused by trade-secret misappropriation, which requires commercial
use. Univ. Computing, 504 F.2d at 539. Forensic analysis of a computer is not a loss caused by
commercial use. Thus, Plaintiffs are not entitled to any damages, compensatory or exemplary,
for Schehr’s alleged trade-secret misappropriation.
Regardless of the availability of damages, Plaintiffs contend they are entitled to proceed
on their trade-secret misappropriation claims to seek an injunction preventing Schehr from using
any of the trade secrets that he allegedly misappropriated. It is undisputed that Schehr gave the
laptop to his attorney, who returned it to SPEC more than three years ago. Plaintiffs have no
evidence that Schehr has personally retained any material containing Plaintiffs’ HDR Afterloader
Sources trade secrets or the Aspect Container production drawings. The possible exception is
information stored on the hard drives that are in the possession of Schehr’s counsel, who has
agreed to destroy those hard drives at the close of this litigation. Because the Court cannot
24
enjoin Schehr from using his memory and experience to compete with Plaintiffs, any injunctive
relief appears, at this time, to be limited to ensuring the destruction of the hard drives in defense
counsel’s possession, to the extent they include information related to the HDR Afterloader
Sources trade secrets or the Aspect Container production drawings. Because limited injunctive
relief may be available to Plaintiffs, Schehr is not entitled to summary judgment on Plaintiffs’
trade-secret misappropriation claims related to the HDR Afterloader Sources information or the
Aspect Container production drawings for failure to prove damages, and that motion for
summary judgment (R. Doc. 155) is DENIED.
C. LUTPA
LUTPA makes unlawful “[u]nfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce[.]” La. R.S. 51:1405(A). A person
who sustains “any ascertainable loss of money or movable property, corporeal or incorporeal” as
a result of a LUTPA violation may bring a private action to recover actual damages, and if such
damages are awarded, reasonable attorney’s fees and costs. Bihm v. Deca Sys., Inc., 226 So. 3d
466, 483 (La. App. 2017) (citing La. RS. 51:1409(A)). To prevail on a LUTPA claim, a plaintiff
must prove: (1) it possessed knowledge or information not generally known, (2) communication
of this knowledge or information by the plaintiff to the defendant under an express or implied
agreement limiting its use or disclosure by the defendant, and (3) use or disclosure by the
defendant of the information to the injury of the plaintiff. Id. at 482 (citing Engineered Mech.
Servs., Inc. v. Langlois, 464 So. 2d 329, 334 (La. App. 1984)). Because Plaintiffs have presented
no evidence that any of the Defendants used or disclosed the alleged trade secrets, Plaintiffs’
LUTPA claims as they relate to trade secrets are DISMISSED WITH PREJUDICE.
25
IV.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion for summary judgment on Plaintiffs’ trade-
secret misappropriation claims for failure to specify the trade secrets (R. Doc. 140) is
GRANTED as to the trade secrets identified by letters (j), (l), (m), and (n), and those claims are
DISMISSED WITH PREJUDICE. The motion is otherwise DENIED.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment on
Plaintiffs’ trade-secret misappropriation claims for failure to prove misappropriation (R. Docs.
162 & 163) are GRANTED as to the trade secrets identified by letters (a), (f), (g), and (i) and
Plaintiffs’ claims under DTSA, LUTSA, and LUTPA related to those trade secrets are
DISMISSED WITH PREJUDICE. The IsoRad Defendants’ motion (R. Doc. 162) is DENIED as
to Schehr with respect to the trade secrets identified by letters (b) and (h).
IT IS FURTHER ORDERED that IsoRad’s motion for summary judgment on Plaintiffs’
trade-secret misappropriation claims (R. Doc. 162) is GRANTED, and Plaintiffs’ DTSA,
LUTSA, and LUTPA claims against IsoRad, as related to trade secrets, are DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that the IUSA Defendants’ motion for summary judgment
on Plaintiffs’ trade-secret misappropriation claims (R. Doc. 163) is GRANTED, and Plaintiffs’
DTSA, LUTSA, and LUTPA claims against the IUSA Defendants, as related to trade secrets, are
DISMISSED WITH PREJUDICE.
26
IT IS FURTHER ORDERED that Schehr’s motion for summary judgment on Plaintiffs’
trade-secret misappropriation claims for failure to prove damages (R. Doc. 155) is DENIED with
respect to alleged trade secrets (b) and (h). The motion was rendered moot as to all other
Defendants because the Court found that there is no evidence that they misappropriated any of
Plaintiffs’ alleged trade secrets.
New Orleans, Louisiana, this 30th day of September, 2019.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?