[00:00:00] Speaker 04:
Schneider versus Beam Technologies, number 241136.

[00:00:05] Speaker 04:
And counsel, you may proceed.

[00:00:09] Speaker 00:
Good morning.

[00:00:10] Speaker 00:
May I please record?

[00:00:12] Speaker 00:
In the context of a trade secrets misappropriation case, ownership means rightful possession.

[00:00:21] Speaker 00:
This is why nearly every court that has interpreted the Defend Trade Secrets Act and the Colorado Uniform Trade Secrets Act has identified possession, not ownership, as the first element of a claim.

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Critically, in the summary judgment order, the district court held as follows.

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Quote, there is a genuine dispute of material fact as to whether Mr. Snyder's possession of spreadsheet number four arose from improper conduct, and the court cannot resolve factual matters at the summary judgment stage.

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This is in Appendix 5, page 1338 to 1339.

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The court made this factual determination in the context of defendant's MSJ under the unclean hands doctrine.

[00:01:13] Speaker 04:
Counsel, do you agree that ownership is an element of the claim?

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So yes, in the context of a trade secret claim, the first element is possession.

[00:01:33] Speaker 00:
And I think that's because ownership is an overarching theme that sometimes gets misconstrued and has been misconstrued by the defendant in interpreting the statute.

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First, there's the idea of ownership as it applies to who may bring a trade secret claim.

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then there's the idea of ownership in the context of what constitutes a trade secret, i.e.

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is this something that is a trade secret?

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In the context of who may bring a misappropriation claim, the Defend Trade Secrets Act is clear.

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it defines the term owner under 18, sorry, 18 USC 1839-4.

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The term owner is the person or entity in whom rightful legal or equitable title or licensing the trade secret is repost.

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Similarly, in the Colorado Trade Secrets Act, the statute defines a claimant.

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It does not say that only an owner can bring a claim.

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It says a claimant can bring a claim.

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And in Gates Rubber, the 10th Circuit already held that the first element of a trade secrets claim under the Colorado Trade Secrets Act is possession.

[00:02:44] Speaker 04:
Now, the court... Counsel, can I just ask on the federal statute, which uses the word legal and equitable title,

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What does that mean in this context?

[00:02:59] Speaker 00:
Yeah, so it is our position that legal and equitable title means rightful possession.

[00:03:04] Speaker 00:
And in the context of this case, I think... It means lawful possession.

[00:03:08] Speaker 00:
It means lawful possession.

[00:03:09] Speaker 04:
It means that you have the right... Well, the statute doesn't say that, does it?

[00:03:15] Speaker 00:
So the statute says, I mean, it says person and entity in which rightful, legal, or equitable title.

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That is a little bit ambiguous in the context of determining what is equitable title.

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But when you look at trade secrets cases, if you look at DTM research, advanced food systems, the idea behind

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the value of a trade secret is not that there's one person who has the entire bundle of rights.

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Only the owner owns a trade secret.

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Trade secrets can be transferred.

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They can be sold.

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They can be gifted.

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They can be consented to.

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They can be collaborated among.

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And there can be a lot of different individuals who can have a possessory right in a trade secret.

[00:03:57] Speaker 04:
So I just want to make sure I'm following.

[00:04:00] Speaker 04:
Legal and equitable title is the phrase used in the statute.

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And you're arguing that that's the same thing as lawful possession.

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And you're basing that on courts that have interpreted legal and equitable title to be lawful possession.

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Is that right?

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That is our possession.

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And the 10th Circuit has signaled agreement with the overarching principle that you just exposed.

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And they expressed that agreement in ICE Corp.

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And in ICE's court, the 10th Circuit specifically identified how you can address legal and equitable title possession as it relates to the first settlement of a trade secret claim and an employer-employee relationship.

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And the court specifically noted that there are two ways that a district court can analyze this.

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First is under the party's contracts.

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If an employer hires an employee to come work for the company, they can certainly enter into a contract which dictates ownership over certain trade secrets, if there are trade secrets.

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And those contracts would govern the issue of ownership, legal inequitable title, or possession.

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The second issue is the hire to invent doctrine.

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And defendants misconstrue the hire to invent doctrine in their brief.

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But the idea behind the hire to invent doctrine is not that somebody has

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participate in the creation of the trade secret.

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In fact, it's sort of the opposite.

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The idea is that if an employer hired someone specifically to create a trade secret, the employer owns the fruits of that labor because that is the purpose behind what their employment was designed to do.

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And the employer therefore owns that trade secret.

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Now, in this context, Mr. Snyder was not hired to create

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the spreadsheets.

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There is no evidence to the contrary.

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There is also no evidence that Mr. Snyder agreed to any sort of contract indicating that he did not have an ownership right in the spreadsheets.

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And in that circumstance, at least under ICE Corp, which just should follow, Mr. Snyder had rightful possession.

[00:06:07] Speaker 04:
Well, counsel, Mr. Snyder would have the burden on that issue, wouldn't he?

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what he was hired to do or what he wasn't hired to do.

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Who has the burden to advance facts on that question?

[00:06:28] Speaker 00:
Correct.

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He would have the burden.

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He would have the burden.

[00:06:31] Speaker 04:
Did he do that in district court?

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I'm not quite sure.

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Do you mean, did he establish a burden of the district court level?

[00:06:44] Speaker 04:
Well, I'm asking whether.

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So I understand your argument.

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When he was working for Guardian, he was hired to do certain things, but he wasn't hired to create the spreadsheet.

[00:06:59] Speaker 04:
Yeah, that's correct.

[00:07:00] Speaker 04:
And did he make that showing in the district court?

[00:07:08] Speaker 00:
Yes, he does, Your Honor.

[00:07:09] Speaker 00:
The evidence that was presented at the District Court level was that Mr. Snyder was hired to sell Guardian's product.

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He was not hired specifically to create or cultivate a trade secret or create or cultivate a client list.

[00:07:24] Speaker 00:
And that evidence was not really disputed at the District Court level.

[00:07:28] Speaker 01:
Counsel, can I ask you about another provision in the

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definitional section of the statute, and that is of trade secret itself.

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In other words, is there a dispute here whether or not this data was a trade secret?

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Because in 3A, it requires the owner of the trade secret to quote, taken reasonable measures to keep such information secret.

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The Colorado statute has similar language, not identical.

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Did Mr. Snyder here take reasonable measures to keep the information secret?

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I mean, he emailed it to Beam.

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He'd made no efforts to call it back.

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He did nothing to protect it at all.

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So why is this even, this data, even a trade secret?

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So he did take reasonable measures.

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And this was something that the district court agreed with us on at the district court level, or at least it did not agree with defendants that reasonable measures were not taken.

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Our client protected the trade secret from any decimation before his employment at BEAM.

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Then once he was employed at BEAM, he specifically only provided

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individual portions of the trade secret that he intended to share.

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Once he realized that he had accidentally provided the entire portion, it was too late.

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The trade secrets were already being uprooted to being CRM and there was nothing he could do at that point.

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But I think bringing up that section of the statue is critically important because that's where defendants misconstrue the term ownership.

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If you think about what a trade secret is, in this case, Mr. Snyder pained lawful possession when he took that with him.

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But the statute says that the owner of the trade secret must take reasonable measures to protect its secrecy.

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So ownership in this context really has to do with

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it's a spreadsheet secret.

[00:09:13] Speaker 00:
So when Mr. Snyder took the spreadsheet and he had it and he lawfully possessed it, if someone stole it from him, he had the misappropriation claim for that person who stole it from him.

[00:09:23] Speaker 00:
So long as the owner, the original owner, Guardian, keeps it secret.

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If Guardian were to disemmite and say, I'm going to give this spreadsheet and put it on the internet,

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Mr. Snyder would no longer have a trade secrets claim because it wouldn't be defined as a trade secret.

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It's not who can bring the claim.

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It is what is a trade secret.

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Or if Guardian were to say, you know what, we're going to get rid of our contract that says all of our client contacts are ours and only ours, and we're going to let every single one of our employees have access to it, then Mr. Snyder would no longer own a trade secret.

[00:09:59] Speaker 00:
But that's not what happened here.

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And that's why defendants are complaining the issue.

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And that's where the district court is confiding the issue, because it's confiding the idea of the owner taking reasonable measures and bringing that over into the possession element.

[00:10:13] Speaker 00:
And really, in order to bring a trade secret claim, all you need to show is golf or possession.

[00:10:18] Speaker 00:
Consider this scenario.

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It is undisputed where a defendant cannot reasonably argue that a trade secret cannot be gifted.

[00:10:29] Speaker 00:
If my daughter were to become an attorney and I gave her all of the trade secrets that I've used in the practice of law and said, you know what?

[00:10:38] Speaker 00:
These are yours.

[00:10:39] Speaker 00:
Good luck with your own practice.

[00:10:41] Speaker 00:
Go ahead and use them.

[00:10:42] Speaker 00:
She should have a valid possessory right in those trade secrets.

[00:10:46] Speaker 01:
Can I ask you, though, another question about the record?

[00:10:49] Speaker 01:
Yeah.

[00:10:49] Speaker 01:
As I read Mr. Snyder's position, it was that

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At some point beam offered to pay him quote off the books and give him some type of employment title in exchange for the spreadsheets.

[00:11:02] Speaker 01:
Is there any evidence in the record that supports that this offer was made beyond Snyder's testimony saying that's what happened.

[00:11:10] Speaker 00:
No, Your Honor.

[00:11:11] Speaker 00:
That was a conversation between Beam's CEO and Mr. Snyder.

[00:11:17] Speaker 00:
It came out in the deposition testimony, but Mr. Snyder was offered $60,000 off the books if he were to provide the spreadsheets to Beam.

[00:11:32] Speaker 00:
The only way that came out was in the form of testimony.

[00:11:34] Speaker 01:
Okay.

[00:11:35] Speaker 01:
So doesn't that also maybe undercut

[00:11:37] Speaker 01:
his argument to whether or not he lawfully possessed the data in the spreadsheet because, you know, the inference is if it's going to be off the books transaction, there's a recognition between Beam and Snyder that he was going to give them something that he shouldn't be giving them because he shouldn't have it.

[00:11:54] Speaker 00:
Well, respectfully, Your Honor, that would be a factual dispute.

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And that's not appropriate for adjudication summary judgment stage.

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I disagree with you.

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I think you could certainly make that argument.

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But that's going to be for the trier of fact to determine.

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And really, I mean, this is a summary judgment motion.

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And at this stage, construing the facts in favor of my client, which the court must do, the evidence indicates that Guardian gave him the spreadsheets.

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If you construe the facts and the right ones favorably to my client, they gave it to him.

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He had been an employee at Guardian for 10 years.

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He did not have to sign any sort of agreement.

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They consented to his projection.

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And he had a right to do what he wanted with this spreadsheet.

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So under that standard, and especially in light of the court's holding,

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There is a genuine dispute of material facts with respect to whether or not Mrs. Snyder rightfully obtained them.

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Summary judgment cannot be reconciled with that finding.

[00:12:53] Speaker 04:
Counsel, you have a federal claim under the Defend Trade Secrets Act, and you have a state claim under the Colorado trade secret statute.

[00:13:05] Speaker 04:
Do both statutes treat ownership in the same way?

[00:13:10] Speaker 00:
Yes, Your Honor.

[00:13:11] Speaker 00:
It is our position that they do.

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Ownership is treated so under the Colorado statute, a claimant may bring a claim for damages, not an owner.

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A claimant may bring a claim for damages.

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That is more broad than owner in the fact that the drafters use owner later on in the statute to define a trade secret, but use claimant to say who can pursue damages is instructor.

[00:13:33] Speaker 04:
Well, one reason I'm asking this is that it seems that under the Colorado trade secrets, ownership would be a matter of state law, wouldn't it?

[00:13:47] Speaker 04:
And under the federal statute, I'm not sure whether it's federal or state law.

[00:13:51] Speaker 04:
And that's why I'm wondering if there's some daylight between the two.

[00:13:57] Speaker 00:
Yes.

[00:13:57] Speaker 00:
I mean, I think normally I would agree.

[00:14:00] Speaker 00:
But the problem is, not really the problem, but the intent behind the Colorado Uniform Trade Secrets Act was, and this is CRR 774109, this article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among the states enacted.

[00:14:24] Speaker 00:
So the drafters of the Colorado Uniform Trade Secrets Act were specifically trying to comport with the Uniform Trade Secrets Act.

[00:14:32] Speaker 00:
I've got about 10 seconds.

[00:14:34] Speaker 00:
I want to address the second issue, which is the 7 or 2 order.

[00:14:37] Speaker 00:
This is very quick, very brief.

[00:14:39] Speaker 00:
The district court did not allow my client to present evidence of a factual application of why loss earnings are appropriate in this case.

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Instead, the defendant simply argued that lost earnings were not available under the legal claim.

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That argument was incorrect, which the district court noted, and my client was never given the opportunity to present evidence supporting his lost earning damages.

[00:15:04] Speaker 00:
So the court should also overrule the 7-2 motion under sports racing and follow the framework that was laid out by the district court in Shepherd.

[00:15:12] Speaker 04:
This is your expert testimony.

[00:15:14] Speaker 00:
Yes, correct.

[00:15:17] Speaker 04:
Thank you, counsel.

[00:15:27] Speaker 03:
Please, the court.

[00:15:29] Speaker 03:
My name is Donald Lake, and I stand here today representing Beam Technologies, the APOLE.

[00:15:33] Speaker 03:
There are two issues that were decided by the district court that are at issue here today.

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First is a partial summary judgment order, wherein the court found that there was no genuine issue of material fact that Mr. Snyder did not own a database known as the Guardian Siebel

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customer database and referred to colloquially throughout the case as spreadsheet number four, which is a subset of the complete database.

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The complete database, which was undisputably created at Guardian by Guardian by people other than Mr. Snyder.

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Mr. Snyder contributed a de minimis amount to the entire database of 60,000 brokers.

[00:16:11] Speaker 03:
He actually could not identify at summary judgment briefing or at oral argument exactly how many individuals he might have added to but he thought it might be less than 10 at oral argument to a total of 60,000 of brokers in that database.

[00:16:29] Speaker 03:
The court decided on this factual record and a few other facts which I can get into in a moment that essentially there was no issue, material issue of disputed fact that Mr. Snyder did not own

[00:16:40] Speaker 03:
the Guardian Siebel database.

[00:16:43] Speaker 02:
Do you agree that it turns under section 1839, at least on the federal claim, on whether the plaintiff was in lawful possession of spreadsheet number four?

[00:16:57] Speaker 03:
Absolutely not, Your Honor.

[00:16:58] Speaker 03:
And there are two issues here.

[00:17:01] Speaker 03:
First, well, I believe that lawful possession is a part of it, but ownership is what was argued at the district court level.

[00:17:10] Speaker 03:
To reiterate.

[00:17:11] Speaker 02:
But isn't that the definition of ownership under 1839-4?

[00:17:15] Speaker 02:
Someone with legal or equitable title in great secret.

[00:17:21] Speaker 03:
Title.

[00:17:21] Speaker 03:
But title and possession are not the same.

[00:17:23] Speaker 02:
Even equitable title?

[00:17:24] Speaker 03:
Even equitable title.

[00:17:26] Speaker 03:
If I give my pen to Mr. Snyder's counsel and say, please hold this, or if Mr. Snyder takes my pen off the table and says, may I use this, I say, sure.

[00:17:36] Speaker 03:
He doesn't own that.

[00:17:37] Speaker 03:
He doesn't have equitable title to that.

[00:17:39] Speaker 03:
He's in possession of it.

[00:17:40] Speaker 03:
It's lawful because I let him borrow it.

[00:17:42] Speaker 03:
But it doesn't mean that he has lawful possession of it.

[00:17:44] Speaker 04:
And this actually... Did the district court specify what it considered ownership to me?

[00:17:51] Speaker 04:
And if it did, what did it say?

[00:17:53] Speaker 03:
The district court didn't define ownership.

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What the district court did is it considered the parties very specific arguments, factual arguments, about whether ownership existed.

[00:18:04] Speaker 03:
And the question of possession, the reason why I say it's not an issue here is because it wasn't argued before the district court.

[00:18:11] Speaker 03:
At no time did Mr. Snyder argue that because he lawfully possessed these spreadsheets, therefore he had ownership at the district court level.

[00:18:22] Speaker 03:
That's not in the record.

[00:18:23] Speaker 03:
What is in the record is that there is a very short

[00:18:27] Speaker 03:
a deposition excerpt where Mr. Snyder says that Guardian knew he emailed, he couldn't explain how they knew he emailed himself these spreadsheets, and he couldn't tell anyone who he told emailed these spreadsheets.

[00:18:45] Speaker 02:
If he says that on page 137, did you have permission from Guardian to forward the spreadsheet to your Hotmail account, answer, yes.

[00:18:59] Speaker 02:
Who gave you the permission?

[00:19:01] Speaker 02:
I don't remember.

[00:19:03] Speaker 02:
So are you saying that we should assess the credibility of his

[00:19:09] Speaker 02:
of his deposition testimony because he didn't know these details?

[00:19:14] Speaker 03:
No, and actually the court specifically addresses that, and the court says that she does not address the credibility of Mr. Snyder's testimony at that deposition, but rather weighed it in contrast to the overwhelming testimony that Mr. Snyder, at his own insistence,

[00:19:30] Speaker 03:
did not create this Guardian spreadsheet?

[00:19:33] Speaker 02:
Yeah.

[00:19:33] Speaker 02:
So let's say he didn't create.

[00:19:37] Speaker 02:
Let's say Guardian said, OK, well, Mr. Snyder, you're going to be a salesperson.

[00:19:44] Speaker 02:
We have this wonderful database of all of these brokers.

[00:19:49] Speaker 02:
We call it spreadsheet number four.

[00:19:51] Speaker 02:
Here it is.

[00:19:52] Speaker 02:
You can have it.

[00:19:53] Speaker 02:
And they say, well, you know,

[00:19:57] Speaker 02:
You know, it's COVID.

[00:19:58] Speaker 02:
I like to work from home.

[00:20:00] Speaker 02:
And so I want to email it to my Hotmail account.

[00:20:04] Speaker 02:
Can I do that?

[00:20:05] Speaker 02:
Yes, you can.

[00:20:06] Speaker 02:
So you're saying that even if we are to assess the claim for misappropriation of trade secret under lawful possession, that even though he lawfully possessed it, even though they permitted him to do it, he didn't create it.

[00:20:25] Speaker 02:
They just let him have it.

[00:20:28] Speaker 02:
I'm just not sure that I understand why, whether or not he created the entries matters on lawful possession.

[00:20:36] Speaker 03:
So I raise the creation issue because of the conversation from ICE Corp about Hired to Invent and creation as an indicator of lawful possession.

[00:20:45] Speaker 03:
But getting back to your Honor's question, Judge Bachrock, the fact that Mr. Snyder testifies that he was permitted to email himself this Hotmail database in February of 2016

[00:20:58] Speaker 03:
does not mean that he was in continued lawful possession of that database after his employment with Guardian was terminated in August of 2016.

[00:21:07] Speaker 02:
And I saw an excerpt of one sentence on page 12 of your summary judgment brief, where you said that.

[00:21:14] Speaker 03:
Yes.

[00:21:15] Speaker 02:
I never saw the preceding sentence relating to that, the subsequent sentence.

[00:21:21] Speaker 02:
And I thought that's what you were going to argue on your summary judgment motion.

[00:21:25] Speaker 02:
But other than that one sentence, I never saw where you argued that his right to lawful possession expired once he was terminated from Guardian.

[00:21:38] Speaker 02:
Now, you did argue about this letter that Guardian had, and you walked that back.

[00:21:48] Speaker 02:
Do you regret it?

[00:21:49] Speaker 02:
That you don't have any evidence that he signed it?

[00:21:52] Speaker 02:
And that was clearly hearsay.

[00:21:55] Speaker 02:
So where, other than the one sentence, did you ever argue on summary judgment that his right to lawful possession expired upon his termination from guardian?

[00:22:05] Speaker 03:
Well, Your Honor, I would refer actually back to Judge Matheson's comment earlier that it's Mr. Snyder who has the burden

[00:22:10] Speaker 03:
Oh, really?

[00:22:11] Speaker 02:
So under Solitex, you have an obligation as a claimant to identify, let's say, to create a genuine issue of material facts on elements A, B, C, and D, even if the defendant only argues A, B, and C. Why, as a plaintiff, would you present evidence to the district court on element D if the defendant hasn't challenged that element?

[00:22:35] Speaker 03:
Because there's only a single element here.

[00:22:38] Speaker 03:
And the element is ownership.

[00:22:39] Speaker 03:
And that's what was argued.

[00:22:40] Speaker 03:
And that's what was discussed.

[00:22:42] Speaker 02:
But you argued it based on misappropriation of trade secret, which was the email to his Hotmail account.

[00:22:52] Speaker 02:
And that's what he responded to.

[00:22:54] Speaker 02:
And he pointed to the evidence on 137.

[00:22:57] Speaker 02:
If you didn't argue that that right to lawful possession expired,

[00:23:03] Speaker 02:
upon his termination from guardian, I don't know why he would have ever fought to present evidence that, well, that right continued.

[00:23:11] Speaker 03:
The district court certainly didn't seem to understand your argument that way, and nor did I. And then we get back, excuse me, this brings us back to the question of ownership versus lawful possession and what was actually argued at the district court level.

[00:23:28] Speaker 03:
And that's why I was going back to Judge Matheson's point earlier, which is that

[00:23:32] Speaker 03:
Mr. Snyder's misappropriation chain claims under both the DTSA and the Colorado UTSA were challenged based on a lack of ownership.

[00:23:41] Speaker 03:
The definition of a trade secret in both requires ownership.

[00:23:46] Speaker 03:
The ownership was not defined by the district court, but the district court did evaluate both statutes and found that ownership didn't reference lawful possession, that ownership is what's created.

[00:23:58] Speaker 03:
OK, why was that?

[00:24:00] Speaker 03:
That's because both parties in their briefing in document 97 for Beam and document 105, and I'm sorry, I don't have the appendix references handy, but the motion and the response that ownership is what's the sine qua non of a trade secret.

[00:24:17] Speaker 03:
And so without possession being raised by anyone, the question of possession

[00:24:23] Speaker 03:
was construed by the district court as a possession of ownership.

[00:24:28] Speaker 02:
So if we, let's say hypothetically, if we reject that, if we say, no, ownership under the Defendant Trade Secret Act in the CUTSA is the equivalent of a right to lawful possession, do you lose the misappropriation claims?

[00:24:49] Speaker 03:
No, Your Honor, because

[00:24:51] Speaker 03:
The misappropriation claims, as they were argued, we claimed that without ownership, as it was being defined and used by the parties, then he couldn't succeed on the claims.

[00:25:06] Speaker 03:
Excuse me, my brain glitched for a second.

[00:25:10] Speaker 03:
But then what we did was we said that he's deduced no evidence with respect to ownership.

[00:25:14] Speaker 03:
Ownership may be defined in particular ways by the statute, but the phrase in the statutes is owner.

[00:25:21] Speaker 03:
And so we argued he is not an owner of these trade secrets.

[00:25:25] Speaker 03:
Trade secrets are not.

[00:25:26] Speaker 03:
So let's actually play out one of these hypotheticals.

[00:25:31] Speaker 03:
So if Mr. Snyder owns, sorry, possesses, right, during his employment and has access to Guardian's broker list, he then goes to Beam Technologies and he emails the entire thing, lock, stock, and barrel.

[00:25:46] Speaker 03:
over to Beam, he meant to only email pieces of it, okay, but under no circumstances did he email anything with a confidentiality designation and on argument, Councilman suggests, that once the cat was out of the bag, the bell was rolling, he couldn't do anything about it, he didn't try to claw it back, he did nothing.

[00:26:04] Speaker 03:
So, here's the question.

[00:26:07] Speaker 03:
If the statutes, both of them, require that an owner maintain confidentiality,

[00:26:13] Speaker 03:
in order for a trade secret to exist, does Mr. Snyder's destruction of that confidentiality mean that Guardian no longer has a trade secret that it can assert against any other third party?

[00:26:25] Speaker 03:
The result in allowing a possessor to do whatever they want with a trade secret would defeat the owner's capacity to protect their own trade secret, and then we're left with a situation where

[00:26:41] Speaker 03:
Really, it's a Mobius strip.

[00:26:42] Speaker 03:
We're trying to sort out.

[00:26:44] Speaker 04:
Counsel, can I just jump in?

[00:26:46] Speaker 04:
Yes.

[00:26:47] Speaker 04:
Are we at reasonable measures at this point?

[00:26:50] Speaker 03:
Your Honor, the Court didn't reach reasonable measures because the Court found that there was no ownership.

[00:26:56] Speaker 03:
And so I'm just, I'm stringing out a hypothetical to rebut the proposition that Beam should have brought anything other than ownership to the Court's attention.

[00:27:07] Speaker 04:
referenced a few times now what was argued in district court.

[00:27:13] Speaker 04:
You haven't used the word, but are you saying that Mr. Snyder has waived his lawful possession and ownership arguments that are being presented now?

[00:27:25] Speaker 03:
I'm saying, Your Honor, yes, and lawful possession in this circumstance

[00:27:34] Speaker 03:
A was not established and B was not addressed.

[00:27:39] Speaker 04:
Did the district court ever address the lawful possession issue?

[00:27:45] Speaker 04:
No, no.

[00:27:48] Speaker 01:
Council, can I turn to the expert issue?

[00:27:51] Speaker 01:
Yes.

[00:27:52] Speaker 01:
And noting that, as I understand the record, you brought a motion to exclude Mr. Adamay's testimony and now,

[00:28:01] Speaker 01:
Mr. Snyder is arguing that the district court in resolving that motion went beyond and essentially made a ruling that is much broader than just sort of the typical gatekeeper function that the district court should engage in regarding an expert.

[00:28:19] Speaker 01:
Why wasn't that error?

[00:28:21] Speaker 03:
Because the district court didn't go broader than the Rule 702 analysis.

[00:28:26] Speaker 03:
Why not?

[00:28:27] Speaker 03:
Rule 702 analysis.

[00:28:29] Speaker 03:
There are two issues here.

[00:28:30] Speaker 03:
One was Mr. Schneider provided with notice as to what the district court would be considering, and he was.

[00:28:36] Speaker 03:
And two, whether or not the district court undertook a factual analysis

[00:28:42] Speaker 03:
to determine whether or not a trier of fact under Rule 56 could conclude that Mr. Snyder was entitled to Mr. Atomy's damages.

[00:28:54] Speaker 03:
But that's not what happened.

[00:28:55] Speaker 03:
What happened is this.

[00:28:56] Speaker 03:
Mr. Atomy proposed to testify that Mr. Snyder was entitled to $1.223 million in compensation for lost wages in his initial report, changed it to lost earnings.

[00:29:09] Speaker 03:
That doesn't matter.

[00:29:10] Speaker 03:
They're the same for the purpose of the analysis.

[00:29:12] Speaker 03:
And so with related to the three misappropriation claims, misappropriation that was promissory, estoppel, there was obtaining workmen by misrepresentation, there was the fraudulent misrepresentation.

[00:29:23] Speaker 03:
What the court did in terms of an analysis is actually very similar to what was done in Auraria, which I realize is a case that Appalachia takes issue with.

[00:29:36] Speaker 03:
But the court examined the allegations of the complaint.

[00:29:40] Speaker 03:
The allegations of the complaint said that due to a misrepresentation, I was not hired, or I was hired, excuse me, but the representations turned out to be false.

[00:29:54] Speaker 03:
I was later fired, even though I brought these trade secrets to beam.

[00:29:58] Speaker 03:
But there are two things at issue here, and I'm short on time.

[00:30:02] Speaker 03:
May I answer the finished answering the court's question?

[00:30:03] Speaker 03:
Please complete your thought.

[00:30:05] Speaker 03:
Thank you.

[00:30:08] Speaker 03:
I'm trying to be concise.

[00:30:10] Speaker 03:
What the court found was that although in some circumstances, a misrepresentation claim with regard to employment can give rise to a lost earnings claim.

[00:30:22] Speaker 03:
Those circumstances, for example, a promise of a term of employment, are not present here.

[00:30:29] Speaker 03:
That was the extent of the court's findings with regard to the fact.

[00:30:33] Speaker 03:
What the court did is it determined that as a matter of law, lost earnings or lost wages are not available under the claims brought by Mr. Snyder.

[00:30:43] Speaker 03:
And as such, it would be misleading, confusing, et cetera, to the jury to hear testimony about that.

[00:30:50] Speaker 03:
Now, there's more, but I'll stop because I'm out of time.

[00:30:54] Speaker 03:
Can I have one more?

[00:30:55] Speaker 01:
Well, a quick one.

[00:30:55] Speaker 01:
I may have missed this in the record, but Snyder was fired by Beam fairly shortly after he sent the spreadsheet.

[00:31:02] Speaker 01:
I believe that was in September.

[00:31:03] Speaker 01:
He gets fired in November.

[00:31:05] Speaker 01:
Was his termination in any way relevant to any of the claims before us?

[00:31:08] Speaker 01:
Because it kind of happens in the record, but it's not explained.

[00:31:13] Speaker 03:
I don't have the appendix sites.

[00:31:14] Speaker 03:
I'd be happy to...

[00:31:16] Speaker 03:
file something on a brief with those, but the short answer is no.

[00:31:20] Speaker 03:
It was not related to the spreadsheets.

[00:31:26] Speaker 04:
Okay.

[00:31:26] Speaker 04:
Thank you, counsel.

[00:31:27] Speaker 04:
Thank you.

[00:31:28] Speaker 04:
The time has expired.

[00:31:29] Speaker 04:
The case will be submitted and counsel are excused.