[00:00:00] Speaker 03:
The next case will be Double Eagle Alloys versus Hooper.

[00:00:06] Speaker 03:
Good morning, Your Honor.

[00:00:07] Speaker 03:
May it please the Court, my name is Jason Taylor and I represent Plaintiff Appellant Double Eagle Alloys, also known as DEA.

[00:00:19] Speaker 03:
The dispute at the heart of this case is precisely why state and federal trade secret laws were enacted.

[00:00:24] Speaker 03:
This is a case about a successful company who in the years leading up to the present dispute

[00:00:30] Speaker 03:
hired, trained, and imposed trust in certain employees.

[00:00:34] Speaker 03:
These employees later abused that trust by using the information that they learned while employed at Double Eagle to unfairly compete against the company.

[00:00:46] Speaker 03:
Specifically, this is a case about how Double Eagle's inside sales manager, Michael Hooper,

[00:00:51] Speaker 03:
over the series of months conspired with defendant Ace to misappropriate DEA's most sensitive customer information.

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They did that in order to enter into the highly competitive pump shaft quality known as PSQ metals industry.

[00:01:11] Speaker 03:
It's a case about how in the weeks leading up to Hoover's formal resignation, he secretly downloaded 2,600 files of DEA's most sensitive information.

[00:01:21] Speaker 03:
That has been known in this case as the March download.

[00:01:25] Speaker 03:
Amongst that download was DEA's PSQ specifications, customer drawings, and pricing information.

[00:01:33] Speaker 04:
The specifications are the specifications that you gave to TC, correct?

[00:01:38] Speaker 04:
Not the specifications that were given to you?

[00:01:44] Speaker 03:
I think you might be confusing customer drawings with specifications.

[00:01:46] Speaker 03:
No I'm not.

[00:01:48] Speaker 04:
So with the specifications, I understand that you gave to your machining company a cumulative

[00:01:56] Speaker 04:
list of the alloys, the proprietary ranges, and when you refer to your DEA's specifications, that's what you're referring to.

[00:02:07] Speaker 03:
That's correct.

[00:02:07] Speaker 03:
Okay.

[00:02:08] Speaker 03:
Okay.

[00:02:09] Speaker 03:
And then the final, and then pricing information.

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Within that pricing information is detailed quotes, cost sheets, and margin information.

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These are the trade secrets at issue in this case.

[00:02:21] Speaker 03:
When Mr. Hooper left DEA and joined ACE immediately, within two days of working at ACE, he took that flash drive that contained that March download, plugged it into the ACE computer and uploaded it to their cloud system.

[00:02:35] Speaker 03:
Then that uploaded the entire March download into ACE's database.

[00:02:39] Speaker 01:
Was the entire March download trade secret?

[00:02:44] Speaker 01:
Not entirely.

[00:02:45] Speaker 01:
Most of it was wrong.

[00:02:46] Speaker 01:
And the district court, that's the district court's problem, is that, with your case, is that, as the court put it, you never separated the wheat from the chaff.

[00:02:58] Speaker 01:
And from your answer there, I'm gathering that you're thinking it's almost all wheat and maybe it's some insignificant chaff.

[00:03:05] Speaker 01:
It is almost all wheat and insignificant chaff.

[00:03:07] Speaker 01:
But it's not explained to the district court why that is.

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It's just given, you just gave broad categories.

[00:03:15] Speaker 01:
of information and the district court said not my job to sort through this voluminous record and determine what are trade secrets or not seems reasonable tell me why not well your honor with respect to the district court we obviously disagree with that position the march download contained the universe of documents that was misappropriated within the march download we identified

[00:03:39] Speaker 03:
by category the specific documents that comprise our trade secrets.

[00:03:45] Speaker 01:
But there are differences amongst the whole collection of the download as far as which are treated confidentially, which have already been released, which

[00:03:55] Speaker 03:
There is, and that's why you have to look at each of them separately and individually.

[00:03:59] Speaker 01:
You being the district court?

[00:04:01] Speaker 01:
Up to the district court to do that, or it's up to you to explain?

[00:04:04] Speaker 03:
Well, the appropriate standard is we have to identify the trade secrets with reasonable definiteness in which the fact finder and the defendant can understand what the trade secret is.

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And in the 10th Circuit, there's not a bright line test or rule about what language needs to be used to do that.

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So you need to look at them individually.

[00:04:22] Speaker 03:
Unfortunately, we don't contend that the district court utilized that standard.

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We believe that the district court had a higher standard on what with respect to how you identify a trade secret.

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And so with respect to whether we sufficient.

[00:04:36] Speaker 00:
What was the district court's higher standard?

[00:04:42] Speaker 03:
in his order said that the plaintiff must describe boundaries of trade seekers in a manner that would permit, one, to understand whether trade secret protection is claimed with respect to individual files or a combination thereof, evaluate whether the information in whole or combination is publicly available, and three, enroll on motions in limiting and evidentiary standards.

[00:05:05] Speaker 03:
Isn't that black letter law?

[00:05:07] Speaker 03:
It's not, Your Honor.

[00:05:08] Speaker 03:
The Tenth Circuit says as far as identification, you just have to identify it with sufficient definiteness in which the fact finder and the defendant understand what's at issue.

[00:05:20] Speaker 01:
Well, let me ask it this way.

[00:05:21] Speaker 01:
Other cases say that too, don't they?

[00:05:23] Speaker 01:
I'm sorry, Your Honor.

[00:05:24] Speaker 01:
Other cases say the same thing.

[00:05:25] Speaker 01:
About?

[00:05:26] Speaker 01:
As far as the reason for having to identify, particularly

[00:05:29] Speaker 01:
is for those reasons so that you can evaluate.

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Is this a trade secret?

[00:05:34] Speaker 03:
Well, it's almost a two-step process, Your Honor.

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You need to identify it with sufficient particularity so the defendant and the fact-finder knows what's at issue.

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And then you have to evaluate the trade secret itself.

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And we have a problem with the standard that Judge Russell employed there as well, because

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That standard was a higher standard.

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In fact, he was going to a standard of

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focus, hyper focus on secrecy.

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How much of this stuff had been leaked out in one form or fashion.

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And that's not the standard.

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The standard is what reasonable measures were taken to protect the trade secrets.

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So the focus is on what steps did the trade secret holder employ to keep those secrets safe.

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It's not dispositive whether anything in particular ever was

[00:06:28] Speaker 03:
disclosed, that's not the analysis.

[00:06:31] Speaker 00:
But we have to know what specifically the trade secrets are that you're talking about.

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Correct.

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And our contention is when you look at each of the trade secrets individually, we did accurately describe it.

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When you look at them individually, let's take the first one that Judge Baccarat identified, specifications.

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There are a limited number of specifications in the March 22 download.

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We attached to our summer judgment briefing the actual specifications for two of the alloys at issue.

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So we've identified them.

[00:07:02] Speaker 03:
That's not a general category.

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Those are the specifications.

[00:07:06] Speaker 03:
Also relevant in the case law is whether the defendant understands what the information is.

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The defendant has a competing business that employs and utilizes specifications.

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There is no confusion about what specifications are and whether we are contending they are trade secrets.

[00:07:24] Speaker 03:
The second category is custody.

[00:07:25] Speaker 04:
Before you get to the second category on the specifications, let's just assume for the sake of argument that it is

[00:07:35] Speaker 04:
highly confidential of what value are DEA's specifications to TC to any other competitor like ACE or any other company.

[00:07:49] Speaker 04:
Because as I understand your explanation of the specifications, it's the sum total of all of the products that Double Eagle needs to fill your orders.

[00:08:02] Speaker 04:
Any other competitor is going to have a variety of customers.

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Some may be buying from the same customer base that you have.

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Some may be different.

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Their proprietary ranges may be different.

[00:08:18] Speaker 04:
So how would it be of any economic value

[00:08:21] Speaker 04:
or even to save a step for Ace or any other supplier just to know what DEA specifications are.

[00:08:28] Speaker 03:
The value is that this equipment is very expensive and there are very long lead times to acquire it.

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So if you have specifications which can only be garnered by developing a large customer base, you can buy more efficiently in economies of scale.

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In other words, if you know the range where you buy certain

[00:08:48] Speaker 03:
alloys with certain properties, you can then buy it in advance, inventory it, and know that when that next sale comes along, you have product that will satisfy your various customer specifications.

[00:09:01] Speaker 04:
Yeah, but why would Acecare, unless they want to buy up all of the 718s so that DEA can't fulfill its customers,

[00:09:12] Speaker 04:
Is that what you're saying?

[00:09:14] Speaker 04:
Well, no, your honor.

[00:09:15] Speaker 04:
Well, except for the buying up, you know, monopolizing the market, I still don't understand why ACE would care what the sum total of your products are.

[00:09:28] Speaker 03:
Because they were a new entry, they were a new competitor into that market.

[00:09:33] Speaker 03:
And so they didn't have PSQ customers in which to gather all that information.

[00:09:38] Speaker 03:
If they use our specifications, they can order to those specs, and there's evidence that they ordered to our spec.

[00:09:45] Speaker 03:
the DEA spec, so that allows them to basically jumpstart themselves into the market.

[00:09:51] Speaker 01:
Didn't they already have specifications a year before?

[00:09:54] Speaker 03:
Part of our contention is that, remember in the record, there's a lot of crossover between our employees and theirs, and that the language in their specification is identical to ours.

[00:10:06] Speaker 03:
One of our contention is that that information is actually our information that they've utilized for themselves.

[00:10:12] Speaker 01:
Is there a meaningful difference between your specifications, their specifications, Baker Hughes' specifications?

[00:10:19] Speaker 03:
There's a meaningful difference.

[00:10:21] Speaker 03:
Baker Hughes is a customer.

[00:10:22] Speaker 03:
That's their own specification.

[00:10:24] Speaker 03:
We will use Baker Hughes and all the other customers to compile the DEA specification.

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So that's the value of ours, is that we're collecting all of the different customers, Baker Hughes being an important one.

[00:10:38] Speaker 03:
But theirs is only for their particular use.

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Ours is broader than that.

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The difference between ours and theirs is that they use ours.

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Our contention is they didn't go through the cost and expense of developing this customer base.

[00:10:51] Speaker 03:
They just used our information and are benefiting it without incurring the cost.

[00:10:57] Speaker 00:
You claim in your opening brief that, quote, the district court failed to give Double Eagle an adequate opportunity to fully present its evidence in support of its claim.

[00:11:09] Speaker 00:
If that's what you thought, why didn't you introduce new evidence?

[00:11:14] Speaker 00:
when the district court gave that opportunity when he asked for supplemental briefs.

[00:11:20] Speaker 03:
That's a fair question.

[00:11:21] Speaker 03:
The court wanted us to respond based on what was in the record.

[00:11:26] Speaker 03:
They said we could ask for leave.

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It's not certain that we would get it, but that we could ask for leave.

[00:11:32] Speaker 03:
We believe that what's in the record when you actually look at each one of those categories, those three categories, was sufficient when the actual standards were applied.

[00:11:41] Speaker 03:
Our contention with

[00:11:43] Speaker 03:
The failing to the district court is they essentially acted as the jury in this case by using a higher standard for both identification and the evaluation of the trade secret to go to the ultimate issue.

[00:11:58] Speaker 03:
I'm starting to run low on time.

[00:12:00] Speaker 03:
When the court was so focused on the secrecy and pointing to different points about whether something had become public or not, that's not the analysis about whether there's a dispute of fact as the trade secret.

[00:12:15] Speaker 03:
It's whether reasonable measures were taken and whether it was readily ascertainable.

[00:12:20] Speaker 03:
When you apply those standards in the relevant case law, we feel like Judge Russell overreached on the determination.

[00:12:30] Speaker 04:
Philips, I think you had a question.

[00:12:33] Speaker 04:
No further questions?

[00:12:38] Speaker 04:
Robert, why don't you stop this clock?

[00:12:40] Speaker 04:
I just had a question about the pricing specifications.

[00:12:48] Speaker 04:
On appeal,

[00:12:50] Speaker 04:
Or the pricing information.

[00:12:51] Speaker 04:
On appeal, you said that your cost to TC and your target margins were highly confidential.

[00:13:04] Speaker 04:
I didn't see anything like that in your briefing in district court.

[00:13:09] Speaker 04:
So the district court, presumably, would be reasonable based on what was presented to Judge Russell.

[00:13:17] Speaker 04:
in saying that, well, you certainly identified a number of things that go into your pricing, but not necessarily identifying any of those components that were confidential.

[00:13:31] Speaker 04:
When you presented to us, we certainly have the benefit of your argument about which of those components are confidential.

[00:13:39] Speaker 04:
your cost and your target margins.

[00:13:43] Speaker 04:
How do you respond to that?

[00:13:44] Speaker 03:
Well, I believe we submitted testimony from our sales manager who we spoke to that issue that was part of our summary judgment briefing.

[00:13:53] Speaker 04:
So it is in your briefing in district court of what's confidential?

[00:13:57] Speaker 04:
It is, Your Honor.

[00:14:00] Speaker 02:
Okay.

[00:14:00] Speaker 02:
Proceed, Your Honor.

[00:14:03] Speaker 02:
morning may please the court my name is ryan ray i have here with me co-counsel david ross and we represent the appellees ace alloys and michael hooper this court should affirm the district courts

[00:14:19] Speaker 02:
grant of summary judgment because as your honor has noted and as the district court aptly put it, double eagle here did nothing to distinguish the wheat from the chaff in this download.

[00:14:33] Speaker 02:
Instead what it did for almost five years in pursuit of very broad and very vague categorical description of

[00:14:44] Speaker 02:
certain types of information in this download.

[00:14:48] Speaker 02:
And what that allowed Double Eagle to do was to get very broad and almost unlimited discovery into every aspect of ACE's business.

[00:14:58] Speaker 02:
But I would submit the district court was entirely correct to say

[00:15:02] Speaker 02:
Summary judgment was the stage in which that was no longer sufficient.

[00:15:08] Speaker 02:
Summary judgment was the time in which the claim trade secrets or confidential information had to be described with sufficient definiteness to allow the court to apply the criteria for protection and to determine the fact of a misappropriation.

[00:15:29] Speaker 02:
And that's from the TLS case we cited.

[00:15:32] Speaker 02:
I believe it's quoting the restatement of unfair competition in a number of other cases.

[00:15:38] Speaker 02:
that when you have these broad categorical descriptions that would essentially encompass the entirety of what double-legal does, that's not enough to do the things the district court identified, and those are not too high a standard for the very authority

[00:16:00] Speaker 02:
that I just cited, and the court there says courts interpreting the Uniform Trade Secret Act, that's the law in Oklahoma, have uniformly followed this requirement that we've got to have it.

[00:16:12] Speaker 04:
Mr. Ray, can I, sorry to interrupt you.

[00:16:13] Speaker 04:
Please go ahead.

[00:16:14] Speaker 04:
You finished your thought.

[00:16:15] Speaker 04:
No, please, Your Honor.

[00:16:16] Speaker 04:
I just had a question about the specifications and how you apply that to the argument that you just made.

[00:16:22] Speaker 04:
So when Double Eagle says that all of our specifications that we give

[00:16:28] Speaker 04:
to you know for 718 for whatever it is whatever psq to tc our machining company all that's confidential it doesn't matter what kind of product it is when we tell our supplier what we want them to provide so that we can satisfy the entirety of our customers

[00:16:49] Speaker 04:
Irrespective of what type of product it is, why is it that you did not understand, I think I understand what they're talking about.

[00:16:59] Speaker 04:
That may or may not be a trade secret, but I certainly understand what they're talking about.

[00:17:03] Speaker 04:
And I don't know how it would be beneficial to say, well, the 750 specification is confidential, but the 718 is not.

[00:17:12] Speaker 04:
Why did you not understand that?

[00:17:15] Speaker 02:
What I would say to this, Your Honor, is the district court did talk about some, again, specifications were described categorically, but the district court did say and talk about specifications and say that those are readily ascertainable by proper means in this case by anyone in this industry.

[00:17:35] Speaker 02:
And I think there's a few reasons that's true.

[00:17:37] Speaker 02:
Number one, as the court's noted,

[00:17:39] Speaker 02:
Those are given to vendors in the industry.

[00:17:43] Speaker 02:
The information is ascertainable from customer specifications to some degree.

[00:17:48] Speaker 04:
So, okay, sorry.

[00:17:51] Speaker 04:
I don't want you to lose your train of thought.

[00:17:55] Speaker 04:
But so you're saying that, well, OK, let's say I want to enter this business.

[00:17:59] Speaker 04:
So I can go and figure out what every one of Double Eagle's customers are.

[00:18:05] Speaker 04:
I can go and ask for all of the customer drawings, assuming that they provide me 100% of their customer drawings.

[00:18:12] Speaker 04:
And then I could maybe employ an engineer like DEA presumably did to say, OK, for this proprietary range of alloy,

[00:18:21] Speaker 04:
for customers A, B, and C, and I can add those to the proprietary ranges for customers D, E, and F, and I can ultimately go through, I assume, maybe hundreds of thousands of dollars, and figure out what it is that caused them to tell TC, just do this.

[00:18:46] Speaker 04:
That's a lot of work, assuming that all the customers provide it.

[00:18:51] Speaker 04:
And maybe that's not even confidential, but why isn't that sufficiently specific?

[00:18:59] Speaker 02:
A few things I'd say in response to that, Your Honor.

[00:19:02] Speaker 02:
I think one of the most significant ones is there was evidence in the record that these ranges that Your Honor's referring to are included with material test reports.

[00:19:11] Speaker 04:
All of the proprietary ranges were the MTSs?

[00:19:14] Speaker 02:
The proprietary ranges that were identified in deposition by the corporate representative of Double Eagle was supposedly the most important, and this is really the proprietary information.

[00:19:24] Speaker 02:
Every bit of that,

[00:19:25] Speaker 02:
is on material test reports to the company.

[00:19:29] Speaker 02:
Yes, that accompany these alloys.

[00:19:30] Speaker 02:
So Double Eagle turns these loose in the marketplace and when you receive it, you have to receive information that makes sure you're getting what the alloy is.

[00:19:40] Speaker 02:
And on that, we attached those in the record, it shows these exact ranges.

[00:19:46] Speaker 02:
They're in the marketplace.

[00:19:47] Speaker 04:
Yeah, assuming I'm a customer and I provide the material test report.

[00:19:51] Speaker 02:
And there's evidence, your honor, that ACE Alloys had in fact purchased alloy that was from Double Eagle that had a Double Eagle material test report with it that revealed all of this information.

[00:20:03] Speaker 02:
It's in the marketplace and readily ascertainable by those in the industry by proper means by just buying the product.

[00:20:12] Speaker 02:
To some degree, these specifications

[00:20:14] Speaker 02:
the information in them it has to be there for the alloy to be the alloy that you're purchasing and everyone in the industry knows what that is and then we have double eagle disclosing the specifications in the marketplace accompanying the products when they are released so they're they're they were in fact ascertained by ace alloys through completely proper means is it your position then that these can't be trade secrets the way that the

[00:20:43] Speaker 01:
customers and manufacturers and so forth interact?

[00:20:47] Speaker 02:
I would say, Your Honor, that the information, if it is disclosed in the marketplace without limitation, especially in a sales business, that kind of information can't be a trade secret as a matter of law, and I think that's the core rule of this Court's decision in Staffington.

[00:21:05] Speaker 01:
So you need a confidential agreement, a confidentiality agreement at every step with every deal.

[00:21:11] Speaker 02:
I don't believe that's true, your honor, but if you choose to disclose certain information into the marketplace, into the stream of commerce, you've lost the ability to claim trade secret protection over that.

[00:21:25] Speaker 01:
Even if you have a confidentiality agreement?

[00:21:28] Speaker 02:
If, well, and what I would say is as to most of the type of information we're talking about here, the district court properly noted that there was no evidence in the record that there was a confidentiality agreement that prevented the disclosure of the types of things we're talking about.

[00:21:48] Speaker 02:
And what I think the district court also properly recognized is look,

[00:21:52] Speaker 02:
If there's 2,600 files here and all these things are described categorically, is it theoretically possible that something in some of it might meet the criteria?

[00:22:07] Speaker 02:
Perhaps so, but what you never had here was Double Eagle going down and specifying exactly what it was really at any point in time.

[00:22:19] Speaker 02:
prior to the entry of judgment.

[00:22:22] Speaker 02:
And as to the issue, they claimed on appeal that summary judgment was entered sua sponte.

[00:22:31] Speaker 02:
And frankly, that's just plainly not accurate.

[00:22:34] Speaker 02:
And I want to explain what really happened here.

[00:22:37] Speaker 02:
So in 2023, both parties moved for summary judgment.

[00:22:42] Speaker 02:
We responded to their motion and actually said and cited to the court

[00:22:47] Speaker 02:
The authority that says, we're requesting that you enter summary judgment on some of the things we're saying in this response.

[00:22:55] Speaker 02:
And that was on file.

[00:22:58] Speaker 02:
They filed a reply brief to that.

[00:22:59] Speaker 02:
That was on file for close to a year.

[00:23:02] Speaker 02:
The court ended up below ordering some additional discovery.

[00:23:06] Speaker 02:
Those briefs were stricken, but in very similar summary judgment briefs were filed in 2024.

[00:23:12] Speaker 02:
We made the very same argument.

[00:23:14] Speaker 02:
And so I think that was clear notice.

[00:23:16] Speaker 02:
But then Judge Russell, on June 4th of last year, entered a specific order.

[00:23:23] Speaker 02:
And he said, I am considering granting summary judgment on several grounds.

[00:23:29] Speaker 02:
And one of them was that the trade secrets and the confidential business information had not been described with sufficient defineness or enough particularity.

[00:23:41] Speaker 02:
And really what Double Eagle said, and he gave them a chance to file a supplemental brief, and they could seek leave of court if they thought additional evidence was necessary.

[00:23:53] Speaker 02:
They didn't seek leave of court.

[00:23:55] Speaker 02:
They didn't suggest the need to further develop the claims.

[00:23:58] Speaker 02:
They didn't ask for leave to submit additional evidence.

[00:24:02] Speaker 02:
They didn't do any of that.

[00:24:03] Speaker 02:
And they didn't object to the procedure really at all.

[00:24:06] Speaker 02:
They essentially just said, well, summary judgment's not proper.

[00:24:09] Speaker 02:
And what they cannot do now on appeal is say, well, wait a minute.

[00:24:13] Speaker 02:
We really wanted to be able to further define this claim.

[00:24:18] Speaker 02:
We wanted to be able to submit further evidence in support of this claim.

[00:24:21] Speaker 02:
The time to do that was at the latest when the district court said, file supplemental briefs on that.

[00:24:30] Speaker 02:
And they didn't make those arguments.

[00:24:32] Speaker 02:
And we would submit that, whether it's forfeiture or waiver,

[00:24:35] Speaker 02:
They've lost the opportunity to now claim on appeal that that procedure was somehow improper or that they really needed additional ability to pursue some part of that claim.

[00:24:50] Speaker 02:
But what we really had here is, yes, were categories of information described.

[00:24:59] Speaker 02:
And I think it's important to keep in mind there were significant amounts of things.

[00:25:03] Speaker 02:
Some of these exhibits in the summary judgment that are attached to their summary judgment briefing below

[00:25:09] Speaker 02:
They were very long, 10, 12, 20, sometimes more pages that didn't necessarily always relate to each other.

[00:25:19] Speaker 02:
And now what they're willing to say on appeal was, well, maybe there's one specific part of one of these documents that could perhaps constitute a trade secret.

[00:25:30] Speaker 02:
But they didn't make that specification below.

[00:25:35] Speaker 04:
Is that fair, Mr. Ray?

[00:25:38] Speaker 04:
You know, there were a lot of spreadsheets, and I have to admit, to understand it, my old eyes probably would need a magnifying glass and an interpreter to understand it.

[00:25:51] Speaker 04:
But they were pretty specific, both in district court and us, about the pricing information, the specifications, which is categorical, as you mentioned, the customer drawings.

[00:26:02] Speaker 04:
I mean, customer drawing is either

[00:26:05] Speaker 04:
is either a trade secret or it's not.

[00:26:09] Speaker 04:
If my customer drawing is a trade secret and Judge Seymour's does a customer drawing, I don't think anybody would say, well, one is a trade secret and one's not.

[00:26:22] Speaker 04:
So it's a category.

[00:26:23] Speaker 04:
of customer drawings.

[00:26:25] Speaker 04:
They said all the customer drawings are trade secrets in district court.

[00:26:29] Speaker 04:
They said that the pricing information, not just the prices, but the way that they go about doing it, the costs of the products, the target margins, a variety of things that go into that are the trade secret

[00:26:50] Speaker 04:
And so why are we talking about the complexity, the volume of the documents?

[00:26:56] Speaker 04:
Because the documents are not the trade secrets.

[00:26:59] Speaker 04:
It's the categories of information.

[00:27:01] Speaker 04:
And that's what they say they identify to Judge Russell and

[00:27:06] Speaker 04:
And so I have been at least accepting the distinction between content and documents.

[00:27:14] Speaker 04:
Am I wrong about that?

[00:27:15] Speaker 02:
So let me respond to those in order, Your Honor.

[00:27:17] Speaker 02:
When we talk about pricing, they never identified in the district court with any kind of particularity

[00:27:23] Speaker 02:
that we have some kind of complex pricing algorithm.

[00:27:26] Speaker 04:
Why does it have to be complex?

[00:27:28] Speaker 02:
Well, because, as the case law recognizes, pricing type information, it can rarely be a trade secret because of the fact that it is disclosed to customers.

[00:27:42] Speaker 04:
Oh, really?

[00:27:44] Speaker 04:
I'm 65.

[00:27:45] Speaker 04:
I've never had anybody tell me what their margins are.

[00:27:49] Speaker 04:
And so would you tell Double Eagle what your target margins are for every one of your customers?

[00:27:55] Speaker 02:
Well, so, Your Honor, I don't believe any target margins were identified with any kind of particularity below, but there was... Well, that's what they said.

[00:28:02] Speaker 04:
All of the target margins are one of the five components that go into their pricing information.

[00:28:08] Speaker 02:
And so in addition, your honor, I respectfully maintain that they didn't identify target margins with particularity.

[00:28:15] Speaker 02:
But even if they had, the testimony below was that it's just a markup that's made based upon an assessment of market conditions.

[00:28:24] Speaker 02:
And someone that's participated in this industry simply knows what kind of markup the market would bear.

[00:28:30] Speaker 04:
So you don't mind providing your target margins to any of the suppliers?

[00:28:38] Speaker 02:
Well, the question is not whether our client would mind.

[00:28:42] Speaker 02:
The question is whether it qualifies for trade secret protection under the trade secret act.

[00:28:47] Speaker 04:
But you're not arguing that your target margins are confidential.

[00:28:51] Speaker 02:
Our target marketers aren't at issue in the case, Your Honor.

[00:28:54] Speaker 02:
We didn't bring any kind of a claim.

[00:28:55] Speaker 02:
But I would just, in closing, I would say that if knowledge of market conditions were sufficient to rise to the level of a trade secret, it would essentially result in a lifetime non-competition agreement.

[00:29:08] Speaker 02:
And the Oklahoma case law is very clear.

[00:29:10] Speaker 04:
You continue, and Robert, I wasn't paying enough attention to the clock.

[00:29:16] Speaker 04:
I cheated you at a time, so I'm going to give you an extra minute.

[00:29:19] Speaker 02:
No problem, Your Honor.

[00:29:20] Speaker 02:
Especially under Oklahoma law, where the case law is clear that an employee can use the general knowledge of the trades that they've acquired in a particular employer, and especially where Oklahoma says non-competition agreements for employees are never allowed.

[00:29:36] Speaker 02:
under any circumstances, you can't allow these acts to be interpreted in a way that allows such broad categorical descriptions to essentially result in a lifetime embargo to change employers and do the same work.

[00:29:52] Speaker 02:
That's contrary to Oklahoma public policy, and the case law has consistently rejected it.

[00:29:57] Speaker 02:
Unless the court has any other questions?

[00:30:00] Speaker 04:
Do you have any questions?

[00:30:03] Speaker 02:
Thank you, counsel.

[00:30:04] Speaker 02:
Thank you, your honor.

[00:30:12] Speaker 03:
As part of my rebuttal, I would say that in terms of identification, ACE moved for summary judgment three times.

[00:30:20] Speaker 03:
Not once did they move on the basis of whether the trade speakers were properly identified.

[00:30:25] Speaker 03:
As to the proper identification... You were on fair notice about that.

[00:30:28] Speaker 01:
Pardon?

[00:30:29] Speaker 01:
It didn't come out of a blue sky.

[00:30:30] Speaker 03:
You were on fair notice.

[00:30:32] Speaker 03:
I'm just saying as evidence that they understood what we were talking about.

[00:30:35] Speaker 03:
They never moved on that issue, Your Honor.

[00:30:38] Speaker 03:
And to the issue about

[00:30:41] Speaker 03:
They didn't know what we were talking about.

[00:30:45] Speaker 03:
When I took their depositions, they all keep the same information secret.

[00:30:50] Speaker 03:
They keep it confidential.

[00:30:52] Speaker 03:
So did the question about whether they're going to disclose their margins?

[00:30:55] Speaker 03:
No, they're not.

[00:30:56] Speaker 03:
They protect that.

[00:30:57] Speaker 03:
And to the extent that Mr. Huber has a general awareness of what the margins are in the industry, he has a specific awareness of Devil Eagle's margins because he was our inside sales manager.

[00:31:09] Speaker 03:
In terms of whether this information is readily ascertainable, there's no evidence that any of this is readily ascertainable.

[00:31:17] Speaker 03:
Customer drawings, when Michael Hooper had an opportunity to quote one of our customers, he accessed the March 22 download to get the customer drawings that he needed in order to complete the quote.

[00:31:30] Speaker 03:
When one of the drawings wasn't available, he asked

[00:31:34] Speaker 03:
the customer, they would give it to him, and they said, no, we're not going to give it to you.

[00:31:38] Speaker 03:
And then he went to a machinist to get it that he knew that we used, and they broke a confidentiality agreement they had with us to give it to him.

[00:31:46] Speaker 03:
So when you obtain it by improper means, that's a long way from being readily ascertainable in the industry.

[00:31:52] Speaker 03:
And the same goes for our pricing.

[00:31:54] Speaker 03:
The components of our pricing, there's no evidence in the record that any of that is ascertainable.

[00:31:59] Speaker 03:
All of that is kept secret, and we take measures to ensure that.

[00:32:04] Speaker 03:
And that's the analysis that the court needs to apply, is what steps did we take to keep that information secret?

[00:32:12] Speaker 03:
Not whether, in some instance, it became public.

[00:32:16] Speaker 03:
Likewise with specifications, that's not readily ascertainable either.

[00:32:20] Speaker 03:
Mr. Ray referenced these MTRs.

[00:32:22] Speaker 03:
The MTRs give a testing result for that particular item.

[00:32:27] Speaker 03:
What the specification is is a range of items collected amongst our entire customer base.

[00:32:32] Speaker 03:
So you would have to obtain MTRs for a wide variety of customers in order to duplicate the specifications.

[00:32:40] Speaker 03:
The value of the specifications is we've developed a long history with a wide range of customers and compiled that into one document.

[00:32:47] Speaker 03:
So, again, not readily ascertainable.

[00:32:50] Speaker 03:
And I think there's a question as to our pricing.

[00:32:54] Speaker 04:
It does not need to be... I'll let you finish that thought.

[00:32:57] Speaker 03:
Thank you.

[00:32:58] Speaker 03:
The pricing, and we cited a case for the proposition, does not need to be complex, but it does need to be, you know, hold the values of a trade secret, and those elements are kept secret under the provisions that the company employs.

[00:33:12] Speaker 04:
Thank you.