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Babcock Power Inc. v. Kapsalis

United States District Court, W.D. Kentucky, Louisville

March 29, 2017

BABCOCK POWER, INC., et al. PLAINTIFFS
v.
STEPHEN T. KAPSALIS, et al. DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, United States District Court Senior Judge

         This matter is before the court for consideration of two motions of the defendant, Stephen T. Kapsalis (“Kapsalis”), for summary judgment on all claims against him (DNs 119, 281). He urges that the plaintiffs, Babcock Power, Inc. (also referred to as “BPI”) and Vogt Power International, Inc. (collectively referred to as “Vogt, ” unless individual designation is otherwise required), have failed to adduce evidence that they suffered damages as a result of any of the alleged wrongful acts of the defendants (DN 119), and that even if damages evidence was adduced, Vogt cannot establish the remaining elements of its claims. Kapsalis also alleges that Vogt has failed to identify its alleged trade secrets with specificity (DN 281).[1] The court also has before it a motion to hold Kapsalis in contempt of court for purported violations of a preliminary injunction put into place by Judge John G. Heyburn II on December 23, 2013. (DN 143). Magistrate Judge Collin H. Lindsay held an evidentiary hearing on the issue of contempt, and the parties filed proposed findings of fact and conclusions of law addressing the issue. This court determined that these matters should be considered in conjunction with one another, in the interest of judicial economy.

         Before granting a motion for summary judgment, the Court must find that “there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[W]here the moving party has the burden-the plaintiff on a claim for relief or defendant on an affirmative defense-his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotations and emphasis omitted).

         The Court must view the evidence in a light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must show that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence ... of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         As an initial matter, the court also notes that the parties cite Kentucky law on substantive issues uniformly as to the issues raised in the pending motions.[2] The parties have not addressed the choice of law provision in the Babcock Power Inc. Employee Non-Disclosure, Non- Solicitation, Non-Competition and Assignment Agreement which provides that “This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without giving effect to its conflict of laws principles.” DN 27-1, p. 5, ¶ 13, PageID #165.

         The court deems the choice of law question abandoned. “Choice of law does not limit the court's subject matter jurisdiction, therefore it is normally waivable.” Viscofan USA, Inc. v. Flint Group, No. 08-CV-2066, 2009 WL 1285529 (C.D.Ill. May 7, 2009), citing Vukadinovich v. McCarthy, 59 F.3d 58, 62 (7th Cir. 1995); Schneider v. Canal Ins. Co., No. 98-CV-5368(JG), 1999 WL 689476, *8 (E.D.N.Y. Sept. 1, 1999)(stating that conduct indicating the parties' consent to apply a body of law can consist of cases cited and relied upon the parties in their briefs, and their apparent decision not to raise the choice-of-law issue). Accord, LeSaint Logisitics, LLC v. Electra Bicycle Company, LLC, 146 F.Supp.3d 972, 976 (N.D.Ill. 2015)(applied Illinois law rather than California law designated by choice of law provision but found to have been waived, as “the parties rely extensively, if not exclusively, on Illinois law.”). See also In re Trade Partners, Inc. v. Investors Litigation, MDL Docket No. 1846, 2008 WL 2757835 (W.D.Mich. July 8, 2008)(“In Meridia Products Liability Litigation, the Sixth Circuit held that plaintiffs who had directed the district court to In re TMJ II, instead of engaging in choice-of-law analysis, had waived the choice-of-law issue [concerning various choice-of-law clauses].”); Meridia Products Liability Litigation v. Abbott Laboratories, 447 F.3d 861 (6th Cir. 2006)(Court of Appeals found choice-of-law issue waived where the parties did not raise the argument and the court relied upon law brought to the court's attention by the parties); Womack v. Wal-Mart Stores, Inc., No. 16-1547, 2017 WL 715898 (6th Cir. Feb. 23, 2017)(Review of conflicts issue denied where plaintiff did not raise argument below and, in fact, cited only Michigan cases on summary judgment).

         In any event, the court is untroubled by the parties' application of Kentucky law in this instance, as (1) Vogt, a Delaware Corporation, has its principle place of business in Louisville, Kentucky (First Amended Complaint (“FAC”), ¶ 3, DN 84, PageID #1239); (2) Kapsalis is said to reside here and did so during his tenure with Vogt (FAC, ¶¶ 6, PageID #1239, Kapsalis 10/14 Depo., Vol. I, pp. 75-76); and (3) Many of the alleged wrongful acts are said to have occurred at Vogt toward the end of his employment there (FAC, ¶¶ 25, 27, 30, 31, 32, 35, PageID #s 1243-1245). Additionally, we glean from the face of the cover letter that the contract of employment with Babcock/Vogt was either emailed or mailed to Kapsalis. The address listed on the cover letter is identified in the FAC as his home address in Prospect, Kentucky. FAC, ¶ 6, PageID #1239. Kapsalis executed the agreement and returned it to Michael LeClair at BPI as a condition of employment. FAC, ¶¶ 12, 17, PageID #s 1240-1241; DN 254, Ex. B, PageID #s 28479-28486. Thus, it appears that the contract was executed and allegedly breached, in part, in Kentucky.

         The court will apply Kentucky law in evaluating the substantive issues raised in Kapsalis' motions.

         I. Background[3]

         Kapsalis was hired by BPI as Chief Operating Officer in 2009. Shortly thereafter, Kapsalis was transferred to the position of Chief Executive Officer (“CEO”) of Vogt, a wholly owned subsidiary of Babcock. This matter arose from Kapsalis' resignation on April 11, 2013 from his position of CEO of Vogt, and acceptance of a position as President and CEO of Express, a competitor of BPI and Vogt. The degree to which Express competed with BPI and Vogt is disputed. The parties do agree, however, that Vogt has had significant success in the industry in certain areas which were not the primary focus of Express during the time Kapsalis worked for Vogt. An issue of paramount importance to Vogt in this case is its ability to preserve its share of the utility size Heat Recovery Steam Generator (“HRSG”) market.

         BPI is self-described as

[A] global, multi-product, energy and environmental services and systems enterprise, with active projects in more than ten countries. Through its various subsidiaries, BPI supplies technology, equipment, and aftermarket services for heat exchangers, heat recovery steam generators (“HRSGs”), steam generators, and environmental products for the power-generation, industrial, biomass, solar, and waste-to-energy markets.

FAC, ¶ 2, PageID #1239.

         Vogt is self-described as follows:

Vogt Power specializes in the design, manufacturing, and supply of HRSGs, selective catalytic reduction systems, simple cycle exhaust systems, once-through steam generators, fired heaters, waste heat recovery units and aftermarket related services. Vogt Power is recognized throughout the world as an industry leader with a foundation of engineering excellence and expertise in HRSGs and its other products and services.

FAC, ¶ 4, PageID # 1239.

         At the time of Kapsalis' initial hire in 2009, he executed an Employee Non-Disclosure, Non-Solicitation, Non-Competition and Assignment Agreement (the “Agreement”) which required, in pertinent part, that

(1) During the term of my employment with the Company and for a period of five (5) years thereafter, I will not divulge to anyone or use for my own benefit or the benefit of any third party any confidential information of the Company, its customers or suppliers, or any information received in confidence from third parties by the Company (including, without limitation, all technical designs and specifications, trade secrets, manufacturing techniques, financial data and marketing strategies)(collectively, the “Confidential Information”) learned by me as a result of any task assigned to me or work performed by me for or on behalf of the Company… and
(3)(b) During the period of my employment with the Company and for one (1) year thereafter, regardless of the reasons for my termination of employment with the Company, I will not, other than in the course of performing my duties on behalf of the Company, directly or indirectly through another person or entity…(iii) divert or attempt to divert away from the Company any business opportunity for a job, contract or other business relationship that was ongoing or actively pursued by the Company during the one year prior to the termination of his employment.

DN 27-1, PageID #s161, 163.

         During his employment with BPI and later Vogt, Kapsalis was given access to competition-sensitive and proprietary information of both Vogt and BPI, including strategic planning, marketing, sales, estimating, pricing, market analysis and other strategic and confidential information accessible only by high-level individuals in the companies. FAC, ¶ 21, PageID #1242.

         In December of 2012, Kapsalis began communicating with Express about possible employment, and was offered the position of President and CEO of Express in February or March 2013. FAC, ¶¶ 22, 23, PageID #s 1242-1243. On March 29, 2013, Kapsalis announced his resignation. His last day of work at Vogt was April 11, 2013. FAC, ¶ 28, PageID #1243.

         Vogt alleges that Kapsalis breached his fiduciary duties to the company and violated the Agreement prior to and during the first year after leaving Vogt by aggressively beginning to feather his new nest, taking proprietary and confidential documents and making contact with Vogt customers concerning his move to Express and business opportunities ahead. Vogt also alleges that Kapsalis' actions violated the Computer Fraud and Abuse Act, the Lanham Act, and the Kentucky Uniform Trade Secrets Act, and constituted common law conversion.

         Vogt sought and obtained a temporary restraining order (“TRO”) and a preliminary injunction early on in this case DN 35, PageID #486. Judge Heyburn held an evidentiary hearing on the motion for preliminary injunction and issued an opinion in which he quoted the Kentucky Uniform Trade Secrets Act (“KUTSA”) which protects as a “trade secret”

Information…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.

KRS § 365.880(4). DN 34, p. 2, PageID #481.

         Judge Heyburn determined that one of the items claimed to be a protectable trade secret, the so-called “Contact List, ” “appear[ed] to fit this definition” as it was confidential and protectable information concerning Vogt's customers “compiled…over a period of multiple decades at significant corporate cost, including multiple trips overseas. This Contact List represents Vogt/BPI's essential business play book. The inherent value is in its compilation.” DN 34, p.2, PageID #481. He found that the information was not “readily ascertainable, ” and held that

It is immaterial that Kapsalis may be able to recreate a list of business-card type information…or that such list might end up having striking similarities to the information contained in the list contested here. That Kapsalis may have much of the same knowledge, may know many of the same persons, and knows many of the telephone numbers by memory does not make the Vogt Contact List any less protectable.

Id., pp. 2-3, PageID #481-82. Judge Heyburn further concluded that the Contact List was protectable under the terms of the confidentiality clause recited above, as well. Id., p. 3, PageID #482. Upon making these findings, he entered a preliminary injunction ordering, in pertinent part:

(1) Defendant is restrained from using, disclosing, misusing, or further converting Babcock and Vogt Power's confidential, proprietary, or trade secret information, including but not limited to, customer contracts, customer contacts complied into Vogt's database after August 7, 2009, strategic plans, marketing information, pricing information, passwords, and other confidential customer information;
(2) Defendant is restrained from soliciting or otherwise initiating further contact or communications with any Babcock or Vogt Power customers for the purpose of inviting, encouraging, or requesting the transfer of accounts or business patronage from Babcock or Vogt Power.

DN 35, pp. 1-2, PageID #486-87. Paragraph (2) expired April 11, 2014, on the one-year anniversary of Kapsalis' termination of employment with Vogt. Id. p. 2, fn. 1, PageID #487.

         There has been extensive litigation over the motion of Vogt in which it seeks an order of contempt for alleged violations of the TRO and preliminary injunction by Kapsalis (DN 143). We will address that motion in due course. First, we will address Kapsalis' summary judgment motions. The parties agreed that these two motions should be decided on the present record.

         II. Lack of Specificity in Identifying Trade Secrets (DN 281) and Failure to Establish Elements of Misappropriation of Trade Secrets Claim (DN 119-1, Section II.B.)

         The memorandum filed on the issue of lack of specificity is described by Kapsalis as a “Supplemental Memorandum in support of their Motion for Summary Judgment.” DN 281-1, PageID # 29839. The motion accompanying this supplemental memorandum, DN 281, PageID #29836, is identical to its earlier motion for summary judgment, DN 119, PageID #2119, and seeks summary judgment on all counts on a variety of theories. In this first section, the court will address the challenge to the specificity of the trade secret disclosures (DN 281) and the section of the other pending summary judgment motion (DN 119) which urges that Vogt has failed to adduce evidence of the other elements of a misappropriation of trade secrets claim under KUTSA. (Section II.B.)[4]

         Kapsalis urges that he is entitled to summary judgment on the ground that Vogt has failed to identify its purported trade secrets with enough specificity to put him on notice of the nature of Vogt's trade secrets claim. DN 281-1, p. 10, PageID #29848. He also contends that Vogt has failed to adduce evidence of materials which would constitute protectable trade secrets, or that Kapsalis misappropriated them. DN 119-1, p. 23-24, PageID #2144-2145.

         The disclosure of Vogt's purported trade secrets is found at ¶ 374, PageID #33773, and DN 376 PageID #33874 (sealed). This final disclosure comes after resolution of numerous discovery disputes ongoing since February of 2014. In March of 2016, Kapsalis moved for the sanction of dismissal of the trade secret misappropriation claim under Rule 37 for Vogt's purported continuing failure to identify its trade secrets with specificity in accordance with the magistrate judge's prior orders. DN 223, PageID #26183. The motion for sanctions was denied by United States Magistrate Judge Colin H. Lindsay who concluded that Vogt's April 2016 disclosure complied with his orders because “plaintiffs have included both a narrative description of the trade secrets along with specific Bates-numbers of the documents that they claim constitute trade secrets.” DN 361, PageID #33742-33743. The magistrate judge went on to require a bit more fine tuning by the plaintiff in the form of specific identification of the trade secret portion of a document for any document listed which is alleged to contain both trade secret and non-trade secret information. DN 361, PageID #33743. Vogt did just that in DNs 374 and 376, providing a final list of Bates numbered documents, a comparison view document which identifies all additional changes made to the prior list, and a separate sealed compedium of those documents which contain both trade secret and non-trade secret information, with the trade secret material highlighted.

         Kapsalis complains that Vogt “string cites” in its list document, and identifies the documents in issue by general categories such as “calculations” or “drawings, ” thus failing to provide the specificity required to adequately identify trade secrets. He fails to mention the descriptive portion of the disclosure in which Vogt provides particular information about the documents in each category. Cases in this circuit support a finding that Vogt's disclosure is sufficiently specific to satisfy KUTSA.[5]

         KRS 365.880(4) defines “trade secret” to mean “information, including a formula, pattern, compilation, program, data, device, method, technique, or process that…[d]erives 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…[i]s the subject of efforts that are reasonable under the circumstances to maintain secrecy.” Additionally, “[t]o qualify as a trade secret, the information must ‘derive independent economic value, ' not be ‘readily ascertainable by proper means, ' and be the ‘subject of efforts that are reasonable under the circumstances to maintain secrecy.'” Auto Channel, Inc. v. Speedvision Network, LLC, 144 F.Supp.2d 784, 794 (W.D.Ky. 2001)(quoting KRS 365.880); Caudill Seed and Warehouse Company, Inc. v. Jarrow Formulas, Inc., 161 F.Supp.3d 513, 525 (W.D.Ky. 2015)(quoting Auto Channel, Inc.).

         In Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 410-11 (6th Cir. 2006), the Sixth Circuit found sufficient specificity in Mike's Train House's evidence of trade secrets to enable a jury to reasonably conclude that it had satisfied the first element of a misappropriation of trade secrets claim - that the information at issue actually constituted a “trade secret.” Id. at 410. In considering the specificity with which an item need be shown to contain trade secrets, the court stated that items may properly be considered trade secrets even though they contain a mixture of information. Mike's Train House argued that drawings allegedly copied by the defendant contained several kinds of secret information such as tolerances, data and reference points, clearances, pivot points, spring tensions, and specific alloys that could not be determined by looking at pictures or taking measurements from a finished product. The court noted that “It is well settled that detailed manufacturing drawings and tolerance data are prima facie trade secrets. [citations omitted].” Mike's Train House, 472 F.3d at 410.[6] The court then noted that “a plaintiff may prevail in a trade-secrets case without identifying a specific item of information that is not publicly known or readily accessible…A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design, or operation of which, in unique combination, affords a competitive advantage and is a protectable secret.” Id. at 410-11.

         A very recent case from the Kentucky Court of Appeals, Alph C. Kaufman, Inc. v. Cornerstone Industries Corporation, No. 2014-CA-001790-MR, 2017 WL 943972 (Ky, App. March 10, 2017), addressed the sufficiency of certain types of evidence similar to evidence disclosed in this case. On appeal taken after a lengthy jury trial, appellants urged that bid sheet templates, information regarding certain bids, bid preparation tools and pricing information of the company did not constitute “trade secrets.” The court of appeals found that sufficient evidence supported the jury's finding that these items constituted trade secrets:

Hess testified the information at issue was valuable to Cornerstone and contained commercially-sensitive information not available to the public at large. In fact, Hess testified that only certain Cornerstone employees-primarily sales persons-had access to its bid documents. Cornerstone's bid form was developed by Cornerstone to help its sales associates determine the right compliment of products to be used on a particular job. Roby admitted it would be detrimental to Cornerstone if its bid documents fell into a competitor's hands. Hess also testified Roby took digitized bid preparation documents, namely an active live Excel spreadsheet program document (not simply a paper form spreadsheet) used to calculate bid quotes. The Excel spreadsheet, developed by Cornerstone, contained formulas embedded in the program. It also contained Cornerstone's specific material costs and pricing information. Hess testified this information was valuable and confidential because it would allow a competitor to underbid Cornerstone and to negotiate favorable deals with Cornerstone's suppliers that would in turn allow the competition to match or narrowly beat Cornerstone's bids. Chruch v. Mut. Ins. Co. v. Smith, 3:14-CV-749-JHM, 2015 WL 3480656, at *4 (W.D.Ky. June 2, 2015)(“Trade secrets are valuable because they are secret-the secret information gives the user a competitive edge in a market for the very reason that the information is unknown to competitors.”).

Alph C. Kaufman, 2017 WL 943972 at *11. The court also noted that Cornerstone attempted to maintain the information's secrecy by having personnel sign non-competition agreements and implementing password-protected computer access. Id. at 12. Further, in finding misappropriation, the court noted that:

A defendant “misappropriate[s] a trade secret if [the defendant] used it without proper consent, if the trade secret was disclosed improperly, or if it was acquired through improper means.” Fastenal Co. v. Crawford, 609 F.Supp.2d 650, 672 (E.D.Ky. 2009)(citation omitted). Cornerstone introduced evidence that Roby, while a Cornerstone employee and without authorization, accessed Cornerstone's password-protected servers and emailed confidential bid documents, bid preparation tools, and pricing information to his personal email account. Cornerstone also identified evidence indicating Roby used Cornerstone's proprietary information without Cornerstone's permission, to construct bids on behalf of Kaufman and ACK to Cornerstone's detriment. We are fully cognizant that Appellants submitted evidence at trial that seemingly countered Cornerstone's evidence. But ultimately we find that Cornerstone presented substantial, competent evidence from which it was reasonable for the jury to conclude that the information at issue constituted trade secrets and that Roby, assisted by Kaufman and ACK, misappropriated those secrets.

Id.

         The court further notes that in Integral Development Corporation v. Tolat, No. 14-16629, 2017 WL 123316 (9th Cir. Jan. 11, 2017), the Ninth Circuit Court of Appeals reversed a decision relied upon herein by Kapsalis. The case involved an offer of trade secrets evidence in a format similar to Vogt's categorization and explanation of its items.[7] The court held that the CUTSA[8] claim based upon misappropriation of Integral's source code should have survived summary judgment. Id. at *1. In evaluating the district court's grant of summary judgment, the court of appeals stated

Integral has identified three sets of information that it claims are trade secrets that Tolat misappropriated: (1) facts about Integral's business that Tolat included in a resume he sent to EBS, one of Integral's competitors; (2) Integral's source code for its products; and (3) business documents containing, inter alia, customer lists and details about ongoing projects…There is evidence in the record that Tolat copied at least a portion of Integral's source code on to an external hard drive, in violation of Integral's policies, on November 5, 2012, shortly before he planned to retire from Integral…Integral has also identified specific key aspects of its source code that it claims Tolat misappropriated. Thus, Integral sufficiently identified the information it alleges is a trade secret.

         With these legal guideposts in place, we turn to the disclosure of Vogt's alleged trade secrets and the sufficiency of evidence concerning them.

         Vogt has isolated documents it alleges constitute misappropriated trade secrets of Vogt.[9]The documents are identified by Bates number. Vogt has divided these documents into the following categories: CAD standards, calculation sheets, customer lists, marketing information, schematics and mechanical drawings, strategic plans, engineering standard, and TRS program. These documents were all apparently found in Kapsalis' possession after he left Vogt. See infra. Tr. of TRO Hrg., DN 33, PageID #230.

         Despite identification by Bates number and category, highlighting of the claimed trade secret portions of combined documents, and a descriptive paragraph addressing each category with citations to the record, Kapsalis claims that Vogt's production is all an “undifferentiated mass of data” (DN 350, p. 4, PageID #33555) which does provide sufficient specificity for him to respond the contention that the materials are trade secrets. (DN 281-1, p. 10, PageID #29848). The court rejects this contention and concludes that, taking the evidence in the light most favorable to the non-moving party, Vogt has come forward with sufficient evidence to overcome summary judgment on the ground of lack of specificity as well as the challenge to the sufficiency of evidence to support the contention that these materials are protectable trade secrets under KUTSA and that they were misappropriated by Kapsalis.

         The plaintiff is not required to prove its misappropriation claim on summary judgment. It is sufficient for our purposes that Vogt has produced Bates stamped documents that Kapsalis does not dispute were in his possession after he left Vogt. Vogt has come forward with evidence that Kapsalis did not have permission to take these materials. Kapsalis urges that, for a number of reasons, he did not misappropriate the documents. Vogt has established a triable issue on the question of misappropriation. Vogt's categorization of the documents and evidence offered concerning their purported value to Vogt, although disputed by Kapsalis, is sufficiently specific to overcome summary judgment.

         A. CAD Standards

         With regard to the “CAD standards” documents, Andrew Allen, BPI's Executive Vice President of Sales and Marketing, stated that “These CAD standards are standards that Vogt Power has created to control and maintain uniformity across Vogt Power mechanical drawings, and which constitute Vogt Power's engineering work product over a period of multiple years…They represent Vogt Power's ‘know how' and ‘lessons learned.'” DN 145, p. 2, ¶ 9, PageID #3864). Kapsalis argues that much of the CAD standard material is non-trade secret material from CAD manuals or other public sources. However, a trade secret is not stripped of protection simply because it is accompanied by non-trade secret material. Additionally, in its final disclosure, Vogt has gone through the CAD standard documents and highlighted the trade secret portions, in accordance with Magistrate Judge Lindsay's order. Allen further stated that, in his educated opinion, [10] Vogt's CAD standards are unique “in the level of detail to which they produce customer-issued drawings and track specific cost codes and details within the detailing of an HRSG.[11] He stated that “If Express were looking to improve its processes or expand their product offering to HRSGs, these CAD standards could be implemented to create and/or improve their process.” DN 145. P. 3, ¶ 10, PageID #3865.

         Allen also addressed AutoCAD.dwg files which consist of “half-done” or “partial completion” files created by Vogt which he stated are utilized repeatedly for its HRSG contracts, cutting down significantly the required engineering man-hours. DN 145, p. 3, ¶12, PageID #3865. He also found among the documents “Vogt's Engineering Guide for Equipment Coding” which accompanies its CAD standards. DN 145, p. 4, ¶ 13, PageID #3866. These items appear to be valuable as part and parcel of the CAD standard group of documents.

         We find that Vogt has come forward with sufficient evidence, taken in the light most favorable to Vogt, for a reasonable jury to find that its CAD standards constitute information not readily ascertainable by Vogt's competition, which was kept confidential, [12] and which derives independent economic value to Vogt with respect to established high quality standards for its HRSG projects. Vogt further established sufficient evidence that such information in the hands of a competitor could afford a significant competitive advantage in the HRSG market.

         B. Calculation Sheets

         The category of “Calculation Sheets” consists of spreadsheets developed by Vogt for performing American Society of Mechanical Engineers (ASME) calculations which assure that HRSG components are designed to meet ASME safety standards. DN 145, p. 3, ¶ 11, PageID #3865. Allen explained that “[a]lthough calculations are determined by the ASME, the spreadsheet formulas and outputs contained in the Vogt Power spreadsheets allow the user to perform extensive calculations in an efficient way representing major cost savings.” He stated that these spreadsheets in native format contain embedded formulas and calculations developed by Vogt for performing these ASME calculations. Id. He stated that the spreadsheets took innumerable man-hours to create and would thus have significant value in time and cost savings to any competitor. Id.

         We find that Vogt has come forward with sufficient evidence, taken in the light most favorable to Vogt, for a reasonable jury to find that Vogt's Calculation Sheets constitute information not readily ascertainable by Vogt's competition, which was kept confidential, and which derives independent economic value to Vogt with respect to ensuring that safety standards are met by its products. Vogt has offered sufficient evidence for a reasonable jury to find significant cost and manpower savings to a competitor who obtained these items.

         C. Customer Lists

         The “Customer Lists” of Vogt consist of names, contact phone numbers, and addresses for key individuals at each of its customers. The issue of “Customer Lists” has formed the basis for much dispute in this case beginning early in the litigation with Judge John G. Heyburn's entry of a TRO and preliminary injunction. Judge Heyburn addressed Vogt's claim that its “Contact List” was a protectable trade secret. Dns 34, 35, PageID #s 480, 486. Judge Heyburn found that Vogt had adduced evidence that the list was not simply business card-type information that could be ascertained from a telephone directory or other public source. Rather, Vogt adduced evidence that the compilation of information was made by Vogt over multiple decades, done at considerable cost to the company, and constituted “Vogt/BPI's essential business play book.” DN 34, p. 2, PageID #481.

         The trade secret nature of this information has been hotly contested throughout the life of the case, including in the matter of Vogt's motion to hold Kapsalis in contempt of the TRO and preliminary injunction. In a hearing on the contempt issue before the magistrate judge, BPI's President, Michael LeClair, testified concerning the nature and significance of the contacts which Kapsalis was privy to as a result of his employment with Vogt. In reference to the particular contacts Vogt had at customer Black & Veatch, LeClair stated:

Well, you wouldn't even get in the door if you didn't have the prior relationship established with these guys...

DN 279, p. 278, PageID #29800.

         Vogt's James Wilder testified with respect to the contact information used by Vogt in its 12-week rolling schedule for conducting sales calls:

…it was more than just the form of a schedule. It was a list of all of our, as we defined them, key customers…a list of individuals that were important to maintain contact with…So, the most important thing would be, here is a list of our customers and the ...

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