throbber
Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 1 of 23 PageID #: 3177
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Case No. 4:10CV38 CDP
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`RELIANT CARE MANAGEMENT,
`COMPANY, INC., et al.,
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` Plaintiffs,
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` vs.
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`HEALTH SYSTEMS, INC., et al.,
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` Defendants.
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`MEMORANDUM AND ORDER
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`This case arose from a dispute between rival health care companies over the
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`use of similar behavioral treatment programs. Plaintiff Reliant Care Management
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`Company is a health care management company that enters management
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`agreements with skilled nursing facilities and nursing homes in Missouri. In 2005,
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`employees at Reliant Care created a unique treatment system for treating patients
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`with behavioral management problems, the Focus Program. Reliant Care obtained
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`a copyright and has entered into licensing agreements with several nursing
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`facilities to use the Focus Program with patients.
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`Sometime in 2008, defendant Health Systems Inc. – a health management
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`company like Reliant Care – developed treatment programs similar to the Focus
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`Program. Like Reliant Care, Health Systems uses these treatment programs in the
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`Missouri facilities with which it has management agreements. Reliant Care and the
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`nursing facilities licensed to use the Focus Program contend these rival programs
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`are copies of their Focus Program, and bring this action for copyright infringement
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`and trade secret misappropriation. They also raise several common-law claims.
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`Both parties have moved for summary judgment. This order deals with only the
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`copyright and trade secret claims. Because I conclude that issues of fact remain as
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`to plaintiffs’ claims for copyright infringement and violation of the Missouri
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`Uniform Trade Secret Act, I will deny defendants’ motions as to these claims. I
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`will rule on the motions directed to the other counts in the near future.
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`Background
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`Plaintiff Reliant Care and defendant Health Systems are both health care
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`management companies that enter management agreements with skilled nursing
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`facilities and nursing homes in Missouri. The companies compete to increase the
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`patient populations at the facilities with which they have management agreements,
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`including the population of residents with behavioral problems who require long-
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`term care. To this end, employees of Reliant Care began to develop a unique
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`system for treating residents with behavioral problems in the early 2000s.
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`Although the parties present conflicting evidence as to exactly when and by whom
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`the system was developed, Reliant Care created the Focus Program by at least 2005
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`and began using it in the facilities with which it had management agreements.1
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`In general, the Focus Program provides a progressive system for treating
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`residents with behavioral problems, requiring them to complete several steps
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`before they are allowed to progress to the next level. The goal of the program is to
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`help the resident achieve the greatest level of self-sufficiency and independence.
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`The Focus Program is now being used in every nursing facility with which Reliant
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`Care has a management agreement, and plaintiffs copyrighted it in 2007.
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`In 2008, defendant Jonathon Harrup left his position as a deputy Public
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`Administrator for Clay County to join Health Systems. As a Public Administrator,
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`Harrup had frequently referred patients to plaintiffs, although the parties dispute
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`how much he knew about their use of the Focus Program or the contents of the
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`Focus Program. In any event, in May of 2008 Harrup proposed a plan to develop
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`a similar treatment program for use at defendants’ facilities. This plan included
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`hiring two of plaintiffs’ employees who had helped to develop the Focus Program.
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`Soon after these employees were hired, defendants developed a behavioral
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`treatment program called the CCC Program. Defendants later developed another
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`similar treatment program called the Life Skills Program. Both programs have
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`1These facilities include plaintiffs Chariton Park Health Care Center, North Village Park,
`Bridgewood Health Care Center, Levering Regional Health Care Center, Bernard Care Center,
`Crestwood Health Care Center, Heritage Care Center of Berkeley, and Four Seasons Living
`Center.
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`been or are now used at several facilities with which Health Systems has
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`management agreements.2
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`Plaintiffs soon discovered defendants’ use of the CCC and Life Skills
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`Programs and concluded that defendants had copied their Focus Program. They
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`filed this lawsuit in January of 2010, bringing claims of copyright infringement and
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`trade secret misappropriation. They also raise several common-law counts,
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`including unfair head start, unfair competition, tortious and intentional interference
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`with a business expectancy, conversion, trespass, and prima facie tort. Defendants
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`move for summary judgment on all claims, and plaintiffs move for partial summary
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`judgment on their claim for unfair head start.
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`Discussion
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`The standards for summary judgment are well settled. In determining
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`whether summary judgment should issue, I must view the facts and inferences from
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`the facts in the light most favorable to the nonmoving party. Matsushita Elec.
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`Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving
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`party has the burden to establish both the absence of a genuine issue of material
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`fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
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`Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v Carrett,
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`477 U.S. 317, 322 (1986). Once the moving party has met this burden, the
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`2These include defendants N&R of Platte City, N&R of Chillicothe, N&R of Farmington,
`N&R of Sweet Springs, and Vienna Nursing & Rehab.
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`nonmoving party may not rest on the allegations in the pleadings but must set forth
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`by affidavit or other evidence specific facts showing that a genuine issue of
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`material facts exists. Fed. R. Civ. P. 56(e). At the summary judgment stage, I will
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`not weigh evidence and decide the truth of the matter, but rather I need only
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`determine if there is a genuine issue of material fact. Anderson, 477 U.S. at 249.
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`Copyright Infringement
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`Defendants first move for summary judgment on plaintiffs’ claim for
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`copyright infringement, Count I. In this Count, plaintiffs assert that defendants
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`copied their Focus Program to treat residents with behavioral disorders, in
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`violation of the 1976 Copyright Act, 17 U.S.C. §§ 101 et seq. Defendants argue
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`that they are entitled to summary judgment on these claims because the Focus
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`Program is entitled to thin or no copyright protection. Alternatively, defendants
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`contend that even if the Focus Program is entitled to copyright protection,
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`defendants’ CCC and Life Skills Programs are not substantially similar to the
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`Focus Program. I disagree. Plaintiffs’ original expressions in the Focus Program
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`are entitled to full copyright protection, and genuine issues of material fact remain
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`as to whether defendants’CCC and Life Skills Programs are substantially similar in
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`idea and expression to the Focus Program.
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`In order to ultimately prevail on their claim for copyright infringement,
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`plaintiffs must establish two elements: (1) plaintiffs’ ownership of a valid
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`copyright for the Focus Program, and (2) defendants’ copying of the original
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`elements of the Focus Program. Feist Publ’ns Inc. v. Rural Tel. Serv. Co., 499
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`U.S. 340, 361 (1991); Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 731 (8th Cir.
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`2006).
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`Here, there is no dispute that plaintiffs own the copyright for the Focus
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`Program. The United States Copyright Office issued plaintiffs a certificate of
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`registration for their Focus Program on January 22, 2007, which was two years
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`after plaintiffs created the program. A plaintiff’s registration of its work within
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`five years of the work’s creation is prima facie evidence of the validity of the
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`copyright and the plaintiff’s ownership therein. See 17 U.S.C. § 410(c) (in a
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`judicial proceeding, “certificate of registration made before or within five years
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`after first publication of the work shall constitute prima facie evidence of the
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`validity of the copyright and the of the facts stated in the certificate.”); accord, e.g.,
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`Taylor Corp. v. Four Seasons Greetings, LLC, 315 F.3d 1039, 1042 (8th Cir. 2003)
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`(“Since Taylor holds certificates of registration in all six cards, it has provided
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`prima facie evidence of the validity of its copyright in the cards at issue and is
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`entitled to a rebuttable presumption of the validity of its copyrights.”). Defendants
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`do not dispute that the copyright was issued, but they challenge the validity of the
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`copyright and the scope of any copyright protection that may be available.
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`Copyrightability of the Focus Program
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`Defendants first argue that plaintiffs’ copyright infringement claims fail
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`because plaintiffs seek protection for unprotectable ideas, processes, and systems.
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`Defendants refer to the idea/expression dichotomy – the “most fundamental axiom
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`of copyright law.” Feist, 499 U.S. at 344. According to this principle, copyright
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`protection exists not for an author’s original idea, but instead for her expression of
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`that idea. See id.; see also Frye v. YMCA Camp Kitaki, 617 F.3d 1005, 1008 (8th
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`Cir. 2010) (“The principle that a copyright does not protect ideas, but only the
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`expression of those ideas, is longstanding.”). This is so because the purpose of
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`copyright law is to “promote the progress of science and useful arts,” not to reward
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`an author’s labor. See Feist, 499 U.S. at 349 (quoting U.S. Const. art. I, § 8, cl. 8).
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`“To this end, copyright assures authors the right to their original expression, but
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`encourages others to build freely upon the ideas and information conveyed by a
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`work.” Id. at 349-50. The idea/expression dichotomy is also codified into the
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`1976 Copyright Act:
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`In no case does copyright protection for an original work of
`authorship extend to any idea, procedure, process, system, method of
`operation, concept, principle, or discovery, regardless of the form in
`which it is described, explained, illustrated, or embodied in such
`work.
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`17 U.S.C. § 102(b).
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`Even if no protection exists for an author’s ideas, however, an author’s
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`unique expression of those ideas is protected under copyright law, including the
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`author’s creative choices in describing and organizing ideas. See, e.g., Situation
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`Mgmt. Sys., Inc. v. ASP Consulting LLC, 560 F.3d 53, 61 (1st Cir. 2009); see also
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`Applied Innovations, Inc. v. Regents of the Univ. of Minn., 876 F.2d 626, 636 (8th
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`Cir. 1989) (Minnesota Multiphasic Personality Inventory testing data entitled to
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`copyright protection as original expressions of facts or processes). For instance, in
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`Situation Management, the plaintiff consulting company sought copyright
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`protection for its communication and negotiation training manuals. Situation
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`Mgmt., 560 F.3d at 55. After some of plaintiff’s employees left the company and
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`founded a rival company with its own training manuals, plaintiff filed a complaint
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`for copyright infringement, claiming that the rival company’s manuals copied
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`plaintiff’s manuals. Id. at 56-57. The district court rejected plaintiff’s copyright
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`claims, concluding that even if defendant had copied plaintiff’s manuals, such
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`copying did not amount to copyright infringement because plaintiff’s manuals
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`contained mostly unprotectable systems and processes, and because the remaining
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`protectable expressions were not substantially similar. Id. at 57.
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`But the First Circuit Court of Appeals disagreed:
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`Here, the district court improperly denied copyright protection to large
`portions of SMS’s works because it, in an error of law, found they
`focus on concepts and teach a noncopyrightable process. The fact that
`SMS’s works describe processes or systems does not make their
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`expression noncopyrightable. SMS’s creative choices in describing
`those processes and systems, including the works’ overall
`arrangement and structure, are subject to copyright protection.
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`Id. at 61. The court also cautioned against courts losing “sight of the
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`expressiveness of the works as a whole by focusing too closely on their
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`noncopyrightable elements.” Id. at 61-62. As in Situation Management, even if
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`some elements of plaintiffs’ program are not copyrightable, the program itself may
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`still be covered: “. . .the original selection and arrangement of noncopyrightable
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`elments is itself copyrightable.” Id. at 62.
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`After reviewing the evidence in the record before me, I conclude that
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`plaintiffs’ expression of their Focus Program is copyrightable. Although plaintiffs
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`cannot seek copyright protection for the various treatment ideas expressed in the
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`Focus Program, their unique expression of those ideas – including their selection
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`and arrangement of the treatments to be used and their use of questions to the
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`patient such as, “Where do I go from here?” – is entitled to copyright protection.
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`See id. at 61; see also Applied Innovations, 876 F.2d at 636 (plaintiffs made certain
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`adjustment to factual data based on their “expertise and clinical experience,” and so
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`this data were copyright able as “original expressions of those facts or processes”);
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`cf. Seng-Tiong Ho v. Taflove, 648 F.3d 489, at *6-7 (7th Cir. 2011) (no copyright
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`protection for plaintiff’s atomic model when model’s value was its ability to
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`“accurately mimic nature,” and plaintiffs’ claims were not for defendants’
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`appropriation of their creative expression of the model, but instead for defendants’
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`appropriation of the substance of the model).
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`Scope of Copyright Protection
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`Defendants next raise several challenges to the scope of copyright protection
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`for the Focus Program. First, they contend that the Focus Program is a collection
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`of facts entitled to only thin copyright protection. See, e.g., Feist, 499 U.S. at 349
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`(compilations of factual data such as telephone numbers entitled to thin copyright
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`protection); Schoolhouse, Inc. v. Anderson, 275 F.3d 726,728-29 (8th Cir. 2002)
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`(plaintiff’s tables of information about local schools, including their offered
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`courses and sports, was a compilation of facts entitled to only thin copyright
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`protection). As defendants correctly point out, a plaintiff claiming copyright
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`infringement of a factual compilation can only prevail if she shows defendant’s
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`“extensive verbatim copying” of her compilation. See Anderson, 275 F.3d at 729.
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`I disagree with defendants that the Focus Program is a factual compilation.
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`It is neither a collection of data on schools as in Anderson, nor a collection of
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`names, towns, and telephone numbers as in Feist. Rather, much like the training
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`manuals in Situation Management, the Focus Program is a manual containing
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`original processes and systems for treating patients with behavioral disorders.
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`Thus, although the ideas themselves are not entitled to copyright protection,
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`plaintiffs’ original expression of those ideas is entitled to full copyright protection,
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`and plaintiffs need only show that the Focus Program and defendants’ programs
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`are substantially similar to ultimately prevail on this claim. See Situation Mgmt.,
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`560 F.3d at 62 (remanding case to district court for a determination of whether the
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`parties’ training manuals were substantially similar).
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`Defendants next argue that many of plaintiffs’ expressions in the Focus
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`Program are not entitled to copyright protection. In particular, they contend that
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`plaintiffs were limited to a narrow range of expression when they drafted the Focus
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`Program, because the applicable Missouri health care regulations dictated
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`plaintiffs’ expressions. Similarly, defendants assert that there was only one way to
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`express the ideas in the Focus Program, and so plaintiffs’ expressions are not
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`copyrightable. I reject these arguments as well.
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`It is true that one court has concluded that portions of a plaintiff’s airplane
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`maintenance manuals were not entitled to copyright protection when federal
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`regulations dictated both the content and form of those portions. See Gulfstream
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`Aerospace Corp. v. Camp Sys. Int’l, Inc., 428 F. Supp. 1369, 1375-76 (S.D. Ga.
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`2006) (because federal regulations dictated most portions of the manuals’ content
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`and form, those portions lacked “creative or original touch” and so were not
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`copyrightable). But that court also noted that copyright protection might exist for
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`portions of the manual that “could have been expressed in more than one way.”
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`See id. at 1376. The Missouri regulations cited by defendants here are not so
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`pervasive as those in Gulfstream. Instead, the regulations cited by defendants refer
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`to only a few issues, including checking residents for suicidal tendencies and
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`preventing their exposure to hazardous substances. A review of the Focus Program
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`reveals that it offers a holistic system for treating behaviors of residents,
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`prescribing treatment beyond what is required by the regulations.
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`And, as plaintiffs point out in their response, plaintiffs’ phrasing in the
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`Focus Program differs from the phrasing in the Missouri regulations. So this is not
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`a case where the idea and expression have merged because there is “essentially
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`only one way to express an idea, making copying of the expression permissible.”
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`See, e.g., Situation Mgmt., 560 F.3d at 62 (internal quotation marks and citation
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`omitted). Instead, the treatment systems expressed in the Focus Program could
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`have been expressed several ways, and plaintiffs’ original phrasing is entitled to
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`copyright protection. See id.; see also Gulfstream, 428 F. Supp. at 1376.
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`Substantial Similarity
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`The second element of a copyright infringement claim – defendant’s copying
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`of the copyrighted material – may be established either: (a) by presenting direct
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`evidence of copying; or (b) by showing that the defendants had access to the
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`copyrighted materials, and that a substantial similarity of ideas and expression
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`exists between the alleged infringing materials and the copyrighted materials.
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`Rottlund Co., 452 F.3d at 731, citing Hartman v. Hallmark Cards, Inc., 833 F.2d
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`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 13 of 23 PageID #: 3189
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`117, 120 (8th Cir. 1987). “Direct evidence of copying is rarely available because it
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`includes evidence such as party admissions, witness accounts of the physical act of
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`copying, and common errors in the works of plaintiffs and the defendants.”
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`Hartman, 833 F.2d at 732. Instead, plaintiffs generally establish copying through
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`evidence of access and substantial similarity. Access can be shown through
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`evidence that defendants had a reasonable opportunity to view or copy the
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`protected work; proof of actual viewing is not necessary. See Moore v. Columbia
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`Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992).
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`Plaintiffs assert they have direct evidence of defendants’ copying:
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`defendants hired two of plaintiffs’ former employees; defendants’ CCC Program
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`was created in just under one month after these two employees were hired; and a
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`copy of plaintiffs’ Focus Program was discovered in defendants’ file cabinet. This
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`is not direct evidence of copying, but it is evidence sufficient to show that there is a
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`question of fact as to whether defendants had access to the Focus Program. See
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`Moore, 972 F.2d at 942 (plaintiff need only show a reasonable possibility of access
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`to survive summary judgment). If access is shown, the court then turns to the
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`question of substantial similarity of ideas and expressions.
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`The Eighth Circuit has developed a two-step test for analyzing the two
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`works’ substantial similarity:
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`There must be substantial similarity not only of the general ideas but
`of the expressions of those ideas as well. First, similarity of ideas is
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`analyzed extrinsically, focusing on objective similarities in the details
`of the works. Second, if there is substantial similarity in ideas,
`similarity of expression is evaluated using an intrinsic test depending
`on the response of the ordinary, reasonable person to the forms of
`expression.
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`Hartman, 883 F.2d at 120 (internal quotation marks and citations omitted). When
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`applying the extrinsic test, the focus is on the objective characteristics of the two
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`works, including the type of work involved, the setting for the subject, and the
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`materials used. Rottlund Co., 452 F.3d at 731. If the ideas are substantially similar
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`under the extrinsic test, similarity of expression is then evaluated “using an
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`intrinsic test depending on the response of the ordinary, reasonable person to the
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`forms of expression.” Hartman, 833 F.2d at 120.
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`In applying the extrinsic test, I must consider the works’ similarity of ideas,
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`“focusing on objective similarities in the details of the works.” Id. This analysis
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`includes consideration of “the type of artwork involved, the materials used, the
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`subject matter, and the setting for the subject.” Nelson v. PRN Prods., Inc., 873
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`F.2d 1141, 1143 (8th Cir. 1989) (quoting Sid & Marty Krofft Television Prods.,
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`Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977)). Expert opinions
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`may be considered at this stage. See, e.g., Rottlund Co., 452 F.3d at 731.
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`A comparison of plaintiffs’ Focus Program and defendants’ CCC and Life
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`Skills Programs reveals that there is more than enough evidence of a similarity of
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`ideas to survive summary judgment. All three are employee training manuals for
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`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 15 of 23 PageID #: 3191
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`treating residents with behavioral problems who require long-term care in skilled
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`nursing facilities. Plaintiffs’ expert opines that all three programs “treat the same
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`types of individuals, have levels through which residents progress, and share the
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`ultimate goal of releasing the resident to the least restrictive environment possible.”
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`Plaintiffs’ expert also details how many of the treatment policies in the programs
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`are the same, including one common policy in both the Focus Program and the
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`CCC Program that reserves a room for residents struggling with treatment and
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`needing private time. Similarly, the Focus Program and the Life Skills Program
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`share a policy that provides for intensified treatment for residents who are non-
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`compliant.
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`The second step of test for substantial similarity – the intrinsic test –
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`focuses on the similarity of expression in the works. Rottlund Co., 452 F.3d at
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`731. “[S]imilarity of expression is evaluated using an intrinsic test depending on
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`the response of the ordinary, reasonable person to the forms of expression.”
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`Hartman, 833 F.2d at 120. Infringement of expression occurs when the total
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`concept and feel of the works are substantially similar. Id. Considering the three
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`programs at issue, I conclude that a reasonable juror could find that the total
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`concept and feel of how the Programs are arranged, organized, and expressed are
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`substantially similar. Plaintiffs present evidence of many similar expressions in all
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`three manuals, including the manuals’ asking questions to the resident such as,
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`“Where do I go from here?” at discharge. The programs also make use of the same
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`levels of treatment, arranged in the same way. Because an ordinary, reasonable
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`person could determine that the programs are substantially similar, a fact question
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`remains and precludes summary judgment on Count I.
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`Misappropriation of Trade Secrets
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`Defendants also move for summary judgment on plaintiffs’ claim for
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`misappropriation of trade secrets, Count III. In this Count, plaintiffs assert that
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`their 500-page Focus Program manual is a trade secret that defendants
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`misappropriated to create their CCC and Life Skills Programs, in violation of the
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`Missouri Uniform Trade Secrets Act (MUTSA), Mo. Ann. Stat. § 417.450 et seq.
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`In support of their motion for summary judgment, defendants argue that the Focus
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`Program manual is not a trade secret as a matter of law, because plaintiffs have
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`repeatedly disclosed it to the public. Defendants also contend that plaintiffs’ trade
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`secret claims fail because the Focus Program does not derive any economic value
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`from being a secret. I conclude that questions of fact remain as to plaintiffs’
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`disclosure of the Focus Program and the economic benefit of keeping the Focus
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`Program a secret, however, and so I will deny summary judgment on this Count.
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`Missouri has adopted the Uniform Trade Secrets Act as its law for trade
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`secret misappropriation claims. See, e.g., Lyn-Flex West, Inc. v. Dieckhaus, 24
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`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 17 of 23 PageID #: 3193
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`S.W.3d 693, 697 (Mo. Ct. App. 1999). Codified as the Missouri Uniform Trade
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`Secrets Act, this Act defines trade secrets as:
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`[I]nformation, including but not limited to, technical or nontechnical
`data, a formula, pattern, compilation, program, device, method,
`technique, or process, that:
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`(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
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`(b) Is the subject of efforts that are reasonable under the
`circumstances to maintain its secrecy.
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`Mo. Ann. Stat. § 417.453; see also Brown v. Rollet Bros. Trucking Co., 291
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`S.W.3d 766, 776 (Mo. Ct. App. 2009) (“A trade secret can be any formula, pattern,
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`device or compilation of information which is used in one’s business, and which
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`gives him an opportunity to obtain an advantage over competitors who do not
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`know or use it.”). In addition to this definition, Missouri courts look to the
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`following factors in determining whether certain information is a trade secret:3
`
`(1) the extent to which the information is known outside of one’s
`business;
`
`(2) the extent to which the information is known by employees and
`others involved in the business;
`
`3These factors are set out in the first Restatement of Torts and not in the MUTSA, but
`Missouri courts regularly apply them to determine whether information is a trade secret. See,
`e.g., Lyn-Flex West., Inc. v. Dieckhaus, 24 S.W.3d 693, 698 (Mo. Ct. App. 1999).
`
`- 17 -
`
`

`
`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 18 of 23 PageID #: 3194
`
`(3) the extent of measures taken by the business to guard the secrecy
`of the information;
`
`(4) the value of the information to the business and its competitors;
`
`(5) the amount of effort or money expended by the business in
`developing the information;
`
`(6) the ease or difficulty with which the information could be properly
`acquired or duplicated by others.
`
`See Lyn-Flex, 24 S.W.3d at 698.
`
` “The existence of a trade secret is a conclusion of law based on the
`
`applicable facts,” American Family Mut. Ins. Co. v. Mo. Dep’t of Ins., 169 S.W.3d
`
`905, 909-10 (Mo. Ct. App. 2005), but if the facts relevant to that conclusion are in
`
`dispute, the finder of fact must first resolve those disputes. See, e.g., Lyn-Flex, 24
`
`S.W.3d at 698-99 (trial court erred by directing a verdict for defendants that
`
`plaintiff’s price book was not a trade secret when plaintiffs presented sufficient
`
`evidence that book was a compilation of data and that plaintiffs had taken
`
`reasonable efforts to maintain its secrecy).
`
`Misappropriation is defined in the MUTSA as the unlawful acquisition and
`
`use of another’s trade secrets through improper means, including theft,
`
`misrepresentation, breach of a duty to maintain secrecy, or corporate espionage.
`
`See Mo. Ann. Stat. § 417.453; see also Lyn-Flex, 24 S.W.3d at 699 (to show
`
`misappropriation, plaintiff must present evidence that defendant “used a trade
`
`secret of plaintiff’s . . . without the consent of plaintiff and that defendants used
`
`- 18 -
`
`

`
`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 19 of 23 PageID #: 3195
`
`improper means to acquire the trade secret.”). The issue of whether a defendant
`
`has misappropriated a trade secret is a question of fact. See, e.g., Lyn-Flex, 24
`
`S.W.3d at 699-700; Cerner Corp. v. Visicu, Inc., 667 F. Supp. 2d 1062, 1077
`
`(W.D. Mo. 2009).
`
`In support of their motion, defendants first argue that the Focus Program is
`
`not a trade secret as a matter of law, because plaintiffs have failed to take
`
`reasonable efforts to maintain its secrecy. In particular, defendants present
`
`evidence that plaintiffs disclosed the Focus Program to defendant Jonathon Harrup
`
`and to a Department of Health and Senior Services official. Defendants also argue
`
`that some of the information contained in the Focus Program is required by state
`
`law, and so plaintiffs are not entitled to trade secret protection for this widely
`
`known information. They also contend that the parts of the Focus Program must
`
`have been disclosed, because plaintiffs use the Program with patients and families.
`
`Finally, defendants argue that plaintiffs further disclosed the Program by
`
`depositing a copy of it with the U.S. Copyright Office.
`
`Plaintiffs respond with evidence showing that issues of fact remain as to
`
`their disclosure of the full Focus Program. Specifically, they present evidence –
`
`including Harrup’s own testimony – that Harrup never received the full Focus
`
`Program manual, and that they briefly allowed the DHSS official to view the full
`
`manual upon her request, but did not allow her to take it or photocopy it. Plaintiffs
`
`- 19 -
`
`

`
`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 20 of 23 PageID #: 3196
`
`also present evidence of their efforts to maintain the full manual’s secrecy,
`
`including:
`
`•
`
`•
`
`•
`
`limiting access to the complete Program to Administrators and Directors of
`
`Nursing at their facilities;
`
`requiring their employees to maintain the confidentiality of all of their
`
`“company proprietary information”;
`
`telling employees at orientation that the Focus Program is confidential and
`
`covered by the confidentiality policy.
`
`Additionally, there is evidence that plaintiffs have created more limited versions of
`
`the full manual to give to employees and residents without revealing any
`
`confidential information. Plaintiffs further respond with evidence that the manual
`
`contains a very limited number of state regulations, and my own review of the
`
`evidence reveals that the information for which plaintiffs seek trade secret
`
`protection is largely their original creation, as discussed above. Cf. Strategic
`
`Directions Group, Inc. v. Bristol-Meyers Squibb Co., 293 F.3d 1062, 1065 (8th
`
`Cir. 2002) (in some cases, a unique combination of elements may be protectable as
`
`a trade secret).
`
`Finally, plaintiffs present evidence of how the full Focus Program was kept
`
`confidential even though a copy is kept with the U.S. Copyright Office.
`
`Specifically, a person may only view the copy and take limited notes, and may
`
`- 20 -
`
`

`
`Case: 4:10-cv-00038-CDP Doc. #: 126 Filed: 09/15/11 Page: 21 of 23 PageID #: 3197
`
`only request copies of the staff packet upon proof of permission from plaintiffs,
`
`ongoing litigation, or a court order to receive copies. In the face of this evidence, I
`
`cannot conclude that, as a matter of law, plaintiffs’ depositing a copy of the Focus
`
`Program with the Copyright Office rendered “

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