Volt Power L L C v. James Eric Deville

Filing 37

MEMORANDUM ORDER granting in part and denying in part 13 Motion for Preliminary Injunction. Signed by Judge David C Joseph on 4/27/2021. (crt,Roaix, G)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
VOLT POWER, LLC

CIVIL ACTION NO. 1:21-CV-00395

VERSUS

JUDGE DAVID C. JOSEPH

JAMES ERIC DEVILLE

MAGISTRATE JUDGE JOSEPH
PEREZ-MONTES
MEMORANDUM ORDER

Before the Court is a MOTION

FOR

ENTRY

OF

PRELIMINARY INJUNCTION (the

“Motion”) [Doc. 13] filed by Plaintiff, Volt Power, LLC (“Volt Power”). A hearing on
the Motion was held on April 21, 2021. For the following reasons, the Motion is
GRANTED IN PART and DENIED IN PART.
BACKGROUND
Volt Power is a company that provides services to power companies, such as
performing safety audits, conducting post-storm equipment assessments, and
providing assistance with government permitting. [Doc. 1 ¶¶ 13, 15]. On March 5,
2018, Volt Power hired Defendant, James Eric Deville (“Deville”), as its Division
Manager of Joint Use. [Id. ¶ 22]. However, Deville’s employment with Volt Power was
short-lived. On December 23, 2020, Deville unexpectedly gave Volt Power two-weeks’
notice of resignation and thereafter immediately began working for a competitor,
Shelton Energy Solutions, LLC (“Shelton Energy”), in its Joint Use Division. [Id. ¶¶
30, 33].
On February 15, 2021, Volt Power filed a Verified Complaint and Request for
Preliminary and Permanent Injunctive Relief (the “Complaint”) [Doc. 1], asserting
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nine causes of action against Deville, including: violation of the Defend Trade Secrets
Act (DTSA), specific performance, breach of contract, violation of the Louisiana
Uniform Trade Secrets Act (LUTSA), violation of the Louisiana Unfair Trade
Practices Act (LUTPA), unjust enrichment, breach of fiduciary duties, fraud, and
injunctive relief. [Id.]. Specifically, the Complaint alleges that, prior to his
resignation, Deville: (i) solicited employees in Volt Power’s Joint Use Division to leave
the company and work for Shelton Energy; (ii) used at least two portable storage
drives to access and misappropriate several files on his work computer that contained
Volt Power’s proprietary and confidential information; (iii) engaged in a fraudulent
billing scheme to obtain a higher revenue bonus; and (iv) attempted to solicit at least
one of Volt Power’s clients to become a client of Shelton Energy. [Id. ¶¶ 8, 9, 10, 11].
Currently pending before the Court is a Motion for Entry of Preliminary
Injunction [Doc. 13] filed by Volt Power on March 17, 2021. In its Motion, Volt Power
moves this Court for a preliminary injunction ordering: (i) Deville and any third party
with whom he has shared Volt Power’s proprietary information to cease using and to
return such information; (ii) Deville to provide verifiable forensic evidence that Volt
Power’s property was not disseminated to a third party, and if it was disseminated,
to prove that the property has been permanently purged from electronic devices and
storage accounts; and (iii) Deville and any third party with whom he has shared Volt
Power’s proprietary information to allow Volt Power’s selected forensic provider to
conduct a full forensic inspection of electronic devices and storage accounts most

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likely to contain evidence of Deville’s use or disclosure of such information. 1 Deville
opposed the Motion on April 7, 2021. [Doc. 20].
At the hearing conducted on April 21, 2021, Volt Power presented testimony
from Christine Carling, Volt Power’s Division Manager of Joint Use; Martin Siefert,
an expert in digital forensics; Deville; and Derek Staedtler, Volt Power’s Vice
President of Operations for the southwest region. Deville introduced testimony from
William J. Green, an expert in digital forensics, and Michael B. Carbo, Shelton
Energy’s Chief Financial Officer. He also testified on his own behalf.
Thereafter, the Court orally granted in part and denied in part the Motion and
discussed the scope of the injunction on the record. The Court issues this
Memorandum Order expressing its reasons for granting a limited preliminary
injunction and outlining the scope of the injunction.
LAW AND ANALYSIS
A preliminary injunction is warranted if the movant establishes four elements:
(i) a substantial likelihood of success on the merits; (ii) a substantial threat that
failure to grant the injunction will result in irreparable injury; (iii) the threatened
injury outweighs any damage that the injunction may cause the opposing party; and
(iv) the injunction will not disserve the public interest. Big Tyme Investments, L.L.C.
v. Edwards, 985 F.3d 456, 463–64 (5th Cir. 2021). “A preliminary injunction is an

In the Motion, Volt Power also included a request for the Court to enjoin Deville from
performing any work on behalf of Shelton Energy or on behalf of any other competitor of Volt
Power. At the hearing on April 21, 2021, in response to questioning from the Court, Volt
Power denied that it sought this relief. Accordingly, the Court struck this request from the
Motion.
1

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extraordinary remedy that should not be granted unless the party seeking it has
clearly carried the burden of persuasion on all four requirements.” Id. After
considering the facts and claims at issue in connection with each of these four
elements, the Court finds that the weight of the evidence presented at the hearing
and applicable law warrant the issuance of a limited preliminary injunction.
I.

A Substantial Likelihood of Success on the Merits
“To show a likelihood of success, the plaintiff must present a prima facie case,

but need not prove that he is entitled to summary judgment.” Daniels Health Scis.,
L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013). Here, the
Court finds that Volt Power has presented sufficient evidence to establish a prima
facie case under LUTSA.
To recover under LUTSA, the plaintiff must prove the existence of a trade
secret, the misappropriation of the trade secret by another, and actual loss caused by
the misappropriation. Brand Servs., L.L.C. v. Irex Corp., 909 F.3d 151, 156 (5th Cir.
2018). At the hearing, Volt Power introduced testimony that Deville transferred at
least one piece of confidential, proprietary information from his work computer onto
a personal USB thumb drive prior to his resignation – namely, an excel spreadsheet
with Volt Power’s bid financials (“the bid financials spreadsheet”) generated for one
of its clients.
“Trade secret” is defined as information that “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

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its disclosure or use, and is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” La. Rev. Stat. Ann. § 51:1431(4). Several
witnesses, including Deville, testified at the hearing that the bid financials
spreadsheet contains pricing information that is confidential to Volt Power and
valuable by virtue of its confidentiality. Significantly, only a few designated
employees had access to the spreadsheet. Shelton Energy’s CFO, Michael B. Carbo,
even acknowledged that his company considers similar spreadsheets and documents
related to pricing confidential. Thus, Volt Power has proven the existence of a trade
secret.
Next, LUTSA, in pertinent part, defines “misappropriation” as the “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.” La. Rev. Stat. Ann. § 51:1431(2)(a).
Both parties’ digital forensic experts testified that Deville transferred various
electronic files from a folder on his Volt Power work computer onto a personal USB
thumb drive before he resigned. Testimony further revealed that the bid financials
spreadsheet was in the folder of documents that Deville transferred. Though Deville
ultimately admitted that he transferred the bid financials spreadsheet onto his
thumb drive when confronted with forensic evidence, he denied intentionally copying
the spreadsheet – stating instead that he was only interested in making sure he
retained copies of his 2019 personal tax returns. Because additional evidence
demonstrated that Deville opened and viewed work-related documents on his Volt
computer immediately after transferring them to his thumb drive, the Court does not

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find Deville’s testimony credible in this regard. At a minimum, Deville had reason to
know that the spreadsheet was transferred to his thumb drive, which, notably, he
claims cannot be located now. Volt Power has established Deville’s misappropriation
of the bid financials spreadsheet.
Finally, the Court finds that Volt Power has met its burden of demonstrating
an actual loss because Deville, in quick succession: (i) copied the bid financials
spreadsheet to his thumb drive, (ii) deleted the spreadsheet from his Volt work
computer, and (iii) left Volt Power for a similar position at a rival company, Shelton
Energy. Therefore, Volt Power has proven a substantial likelihood of success on the
merits, meeting the first requirement to obtain a preliminary injunction.
II.

Substantial Threat of Irreparable Injury
To satisfy the second element, Volt Power “must demonstrate that if the

district court denied the grant of a preliminary injunction, irreparable harm would
result.” Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011). Generally, harm is
irreparable when there is no adequate remedy at law. Id. “Finally, a showing of
‘[s]peculative injury is not sufficient; there must be more than an unfounded fear on
the part of the applicant.’ ” Id.
The Court finds that Volt Power has carried its burden of proving a substantial
threat of irreparable injury if an injunction is not granted. Deville’s possession of, at
a minimum, Volt Power’s bid financials spreadsheet, impairs the Court’s ability to
grant an adequate remedy at law. Specifically, Deville’s claimed inability to produce
his USB thumb drive creates the need to ensure that Volt Power’s confidential

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information is protected, especially given Deville’s new position in Shelton Energy’s
Joint Use Division. Further, testimony at the hearing revealed that Volt Power has
lost at least one client to Shelton Energy since Deville’s resignation. Accordingly,
injunctive relief is necessary to ensure that Deville is not improperly using Volt
Power’s proprietary information, including, but not limited to, the bid financials
spreadsheet.
III.

Balance of Harms and Service of the Public Interest
Regarding the third element, the Court concludes that, for the reasons

discussed supra, Volt Power’s threatened injury outweighs any harm that the
injunction may cause Deville. The possibility that Deville – now employed by a Volt
Power competitor, Shelton Energy – is in possession of Volt Power’s proprietary,
confidential information heavily outweighs any adverse impact, if any, that Deville
might sustain.
Lastly, the injunction will not disserve the public interest because the public
has a significant interest in protecting against the misappropriation of trade secrets.
See Centurum Info. Tech. Inc. v. Geocent, LLC, CV 21-0082, 2021 WL 533707, at *15
(E.D. La. Feb. 12, 2021) (citing Aspen Tech., Inc. v. M3 Tech., Inc., 569 F. App'x 259,
273 (5th Cir. 2014) (finding that “it was in the interest of public policy to prohibit the
sale and use of M3 products containing infringing source code and that were derived
from the improper misappropriation of trade secrets”). Ultimately, the evidence
weighs in favor of granting a limited preliminary injunction in favor of Volt Power.

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IV.

Scope of the Preliminary Injunction
Given the foregoing, the Court crafts a limited preliminary injunction in this

matter as follows:
1) Deville and any third party with whom Deville has shared Volt Power’s
confidential, proprietary information or otherwise acted in concert or
participation with Deville within the meaning of Fed. R. Civ. P. 65 (d)(2)(C),
a. are enjoined from possessing and using such information,
b. shall purge the property from all electronic devices and databases,
and
c. shall return the property to Volt Power forthwith.
2) Volt Power and Shelton Energy shall agree on a third-party digital forensic
analyst to search:
a. all computers utilized by Deville in connection with his employment
at Shelton Energy; and
b. Shelton Energy’s electronic databases
for proprietary information belonging to Volt Power. Any information
obtained shall be purged from Shelton Energy’s devices and databases and
returned to Volt Power. Volt Power shall bear the entirety of the cost of the
forensic examination and any subsequent remediation.
This preliminary injunction shall remain in effect until the issuance of permanent
injunction, further order of the Court, or resolution of this matter. Volt Power is not
required to post security because the Court finds that there is no likelihood that

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Deville will suffer any financial harm during the pendency of the preliminary
injunction.
CONCLUSION
Accordingly, IT IS ORDERED that Volt Power’s Motion for Preliminary
Injunction [Doc. 13] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Motion is GRANTED with respect to the
scope of the preliminary injunction described herein. In all other respects, the Motion
is DENIED.
THUS, DONE AND SIGNED in Chambers on this 27th day of April 2021.

DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE

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