Case 3:17-cv-00357-CWR-LGI Document 354 Filed 03/31/21 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
`NORTHERN DIVISION
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`SESHADRI RAJU, M.D., P.A.
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`V.
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`MEDTRONIC, INC.
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`PLAINTIFF
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`CAUSE NO. 3:17-CV-357-CWR-LGI
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`DEFENDANT
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`Before the Court is a series of motions: Defendant’s Motion to Strike Brian Brown’s
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`ORDER
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`Second Report [Docket No. 278]; Defendant’s Motion to Strike Brian Brown’s Third Report
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`[Docket No. 333]; Plaintiff’s Motion to Strike Defendant expert, Dr. Paul Gagne [Docket No. 295];
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`Defendant’s Motion for Partial Summary Judgment [Docket No. 301]; Plaintiff’s Motion for Leave
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`to File a Surrebuttal [Docket No. 339]. After due consideration of the motions, the responses, and
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`the exhibits attached, the Court is prepared to rule.
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`I.
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`Background and Procedural History
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`What started out as a lawsuit about a failed business relationship between two doctors, in
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`which Dr. Seshadri Raju accused the other, Dr. Erin Murphy, of breach of an employment
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`agreement, fraud, embezzlement, among other things, see Raju v. Murphy, 709 F. App’x 318 (5th
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`Cir. Jan. 26, 2018), has transformed into a brawl between Raju and Medtronic Inc., an international
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`medical device company. The case has taken an arduous path. Raju initially sued Murphy in Hinds
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`County Circuit Court. Murphy removed the action to this Court and filed her own counterclaims
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`against Raju, which, in turn, made Raju second guess utilizing the courts to resolve his dispute. He
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`had inserted arbitration language in the employment agreement, so he asked this Court to enforce
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`that language and order the parties to arbitration. This Court refused to do so, concluding that Raju
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`waived the right to arbitration by invoking the judicial process. Not happy with that decision, Raju
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`appealed to the Fifth Circuit, which affirmed and remanded the case to this Court. Discovery has
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`concluded, So, here we are.
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`Raju is a vascular surgery specialist with over five decades of experience in medicine.
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`In June 2014, he and Murphy entered into a Physician Employment Agreement in which the parties
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`agreed that Raju would instruct Murphy in surgical techniques and procedures. The agreement
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`included non-compete provisions and a confidentiality agreement.
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`During discovery into their contractual dispute, it was uncovered that Murphy, while still
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`employed with Raju, began working for Medtronic. In October 2015, Medtronic hired Murphy to
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`participate in its animal study of its ABRE stent in preparation for FDA approval. Medtronic then
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`retained Murphy to be the National Principal Investigator for human clinical trials of the ABRE
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`stent.
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`In February 2017, Murphy left Raju’s employment on less than amicable circumstances.
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`This action ensued. On March 2, 2019, Raju amended his Complaint adding Medtronic and
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`accusing it of misappropriation of trade secrets, tortious interference with a contract, civil
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`conspiracy, and copyright infringement. Docket No. 156. The gravamen of Raju’s Complaint
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`alleges that Medtronic misappropriated his trade secrets and copyrighted materials in order to
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`create its own ABRE venous stent program.
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`The product at issue here is Medtronic’s ABRE stent—a self-expanding stent system
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`designed and intended “for use in the iliofemoral veins for the treatment of symptomatic venous
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`outflow obstruction.” Docket No. 250-1. In 2015, Medtronic acquired Coviden Inc., which had
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`first developed a preliminary ABRE stent program in 2011. Docket 250-5, at 11. Dr. Jeff Vogel,
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`Medtronic’s Senior Principal Engineer for the ABRE, maintains that the ABRE venous stent
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`design was completed in 2015, although this fact is in dispute. Id. Since its FDA approval in 2020,
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`the ABRE stent has been launched in both Europe and the United States.
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`Raju’s Amended Complaint does not specify his trade secrets in detail; rather, it describes
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`a range of broad “practices,” “procedures,” “designs,” “techniques,” “formulas,” and “methods”
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`used in venous stenting. Unsatisfied, Medtronic moved for a more definite statement seeking, inter
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`alia, “a statement specifically identifying and describing with particularity the alleged trade secrets
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`that Plaintiff claims were taken” and “a statement specifically identifying and describing with
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`particularity each and every act of trade secret misappropriation that occurred on or after May 11,
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`2016, as required by the DTSA [Defend Trade Secrets Act].” Docket No. 165. After a hearing, the
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`Court denied the motion but granted Medtronic leave to propound up to 20 expedited
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`interrogatories to identify Raju’s claims. Text Only Order of June 18, 2019. In answering
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`Medtronic’s interrogatories, Raju asserts Murphy disclosed the following trade secrets:
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`1. Stent placement procedure disclosed consists of the Plaintiff’s flowering and
`expansion control procedure.
`2. Stent deployment procedures consists of Plaintiff’s sequence of configuring the
`upper and lower end of a stent and the deployment of a self expanding stent at
`predetermined landing sites.
`3. “[T]reatment practices and programs” . . . consists of Raju’s methods for choosing
`patients, the proper selection of patients, the monitoring and post op protocol of
`stent placement procedures.
`4. “[V]enous stent surgery research compilations” . . . consists of Plaintiff’s database
`of research and surgical procedures performed on over 3,000.00 patients.
`5. “[S]tent devices” . . . consists of the joinder of two stents of different types or same
`type for use in the Iliac vein.
`6. “[V]essel calculation formulas” . . . consists of Plaintiff’s 1) Optimal size and
`length stent for Illiac vein use; and 2) Use of IVUS imaging and fluoroscopic
`imaging for vessel calculations.
`7. “[V]enous stent designs” . . . consists of the physical properties of the stent such
`as radial strength, resistance, compressions etc, and configuration for specific use
`in the Illiac vein.
`8. “[V]enous stent prototypes” . . . consists of Plaintiff’s use of stents off label or
`application of new prototype.
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`Docket No. 250-6.
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`To describe the litigation as contentious is an understatement. The parties had a series of
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`discovery disputes requiring multiple discovery conferences. Most pertinent here, issues arose over
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`the utility of the ABRE’s Design History File—a compilation of records that describes a device’s
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`design history. On September 13, 2019, Medtronic produced the Design History File in an image
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`format. Raju complained that the document was completely unusable because it was in “an image
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`format with no index and was not searchable.” Docket No. 291.
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`In October 2019, Raju complained to the Court again and requested a PDF version of the
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`file. The Court ordered Medtronic to produce the design history in PDF format by October 14,
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`2019. The remaining deadlines were extended as follows: Plaintiff’s deadline to designate his
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`experts was pushed to November 28, 2019, Defendant’s deadline to designate its expert moved to
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`January 6, 2020, and the general discovery deadline was extended to March 3, 2020. Docket No.
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`192. Raju then requested a searchable PDF version, which he received on October 29, 2019. Still,
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`Raju claims that he had to spend substantial resources converting the documents into another
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`format, optical character recognition, to properly review the Design History File.
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`Complying with the Court’s Amended Scheduling Order, on November 27, 2019, Raju
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`disclosed the expert report of Brian Brown. In that report, Brown summarized his conclusions of
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`misappropriation of trade secrets in two broad categories: Venous Stenting Techniques &
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`Flowering.1 Docket No. 212-12.
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`On April 16, 2020 the Court extended the discovery deadline “until July 7, 2020 for the
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`limited purpose of allowing discovery related to new information that Plaintiff did not know, or
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`1 Brown described Raju’s trade secrets as the following: “Venous Stenting Techniques . . . Dr. Raju developed and
`owned considerable trade secrets related to the design of the stent, its delivery into the vein, diagnostic methods like
`IVUS and the clinical expertise related to diseases requiring venous stents. . . . Unique techniques to treat venous
`occlusions through the use of clinical trials and patient data management.” Docket No. 212-12 at 7. He describes the
`“Flowering” trade secrets as follows: “Dr. Raju has developed numerous proprietary techniques for the treatment of
`May Thurner Syndrome (MTS) and Post Thrombotic Syndrome (PTS). One such technique is called ‘Flowering.’”
`Id. at 8.
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`could not reasonably have known, prior to February 9, 2020.” Docket No. 260. That Order gave
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`Raju until May 27, 2020, to submit supplemental expert reports, and Medtronic had until June 27,
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`to do the same. Id. On May 27, 2020, Raju submitted Brown’s supplemental expert report,2 which
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`identifies the trade secrets as follows:
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`1) Trade Secret No. 1: Proprietary use of intravascular ultrasound (IVUS) to
`precisely identify and quantify obstructive venous disease as well as the localization
`of optimal landing zones for clinical success.
`2) Trade Secret No. 2: Proprietary stent position technique to reduce the incidence
`of contralateral deep vein thrombosis (DVT)
`3) Trade Secret No. 3: Novel stent performance requirement to withstand 4mm
`diameter expansion beyond the rated caliber (diameter) of the stent.
`4) Trade Secret No. 4: An algorithm establishing a unified process for patient
`selection and patient treatment.
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`Docket No. 268.
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`The discovery wars resumed. Among them, Raju claims that Medtronic produced over
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`170,000 additional documents after Brown submitted his initial report between January and May
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`of 2020. Then, on June 6, 2020, Medtronic moved to strike Brown’s supplemental report in its
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`entirety contending that it is an improper supplemental report under Rule 26(e) of the Federal
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`Rules of Civil Procedure. Docket No. 278. Raju countered that this report is in fact a proper
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`supplemental report and is admissible under Rule 26(e). The following month, Medtronic filed its
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`renewed motion for partial summary judgment. Docket No. 301. On August 31, 2020, Raju filed
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`his response and supporting documents, including another report by Brian Brown, which was
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`produced in the form of an affidavit. Docket No. 324-1.3 On September 15, 2020, Medtronic
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`moved to strike Brown’s third report in its entirety under Rule 26(e). Docket No. 333. Again, Raju
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`defends by arguing that Brown’s third report is supplemental.
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`2 In its briefing, Medtronic has labeled this as Brown’s Second Report. The Court, however, will refer to is as the
`“supplemental report.”
`3 This is actually Brown’s second supplemental report, but, in their filings, the parties have labeled it the “third
`report.” The Court will also refer to it as the third report.
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`The Court will first address the motions to strike because they affect, at least in part, the
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`summary judgment analysis.
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`II. Medtronic’s Motions to Strike
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`A.
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`Brown’s Supplemental Report
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`First, Medtronic argues that the Court should strike the supplemental report provided by
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`Brown. It argues that Brown’s reports exceed the limited additional discovery permitted by the
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`Court’s Extended Scheduling Order. Docket No. 278. Raju responds that Medtronic’s motion
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`should be denied because the report is permissible under Rule 26.
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`Rule 26 of the Federal Rules of Civil Procedure calls for “a complete statement of all
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`opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B).
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`The purpose of this requirement is to avoid disclosure of “sketchy and vague” information. Sierra
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`Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 571 (5th Cir. 1996). Rule 26
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`requires “a party [to] make these disclosures at the times and in the sequence that the court orders.”
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`Fed. R. Civ. P. 26(a)(2)(D). The rule also permits the supplementation of an expert report when a
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`party “learns that in some material respect the disclosure or response is incomplete or incorrect.”
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`Fed. R. Civ. P. 26(e)(1)(A). However, “supplements that include material additions to an opinion
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`are not permitted.” Stubblefield v. Suzuki Motor Corp., No. 3:15-CV-18-HTW-LRA, 2018 WL
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`11008929, at *1, (S.D. Miss. Mar. 22, 2018), aff’d on other grounds, 826 F. App’x 309 (5th Cir.
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`2020) (citations omitted).
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`“If a party fails to provide information or identify a witness as required by Rule 26(a) or
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`(e), the party is not allowed to use that information or witness to supply evidence on a motion, at
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`a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
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`37(c)(1). To make that determination, courts are to consider: (1) the party’s explanation, if any, for
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`its failure to disclose the information in a timely manner; (2) the prejudice to the opposing party if
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`the evidence is admitted; (3) the possibility of curing such prejudice by granting a continuance;
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`and (4) the importance of the evidence. Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir.
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`1996). After a thorough review, the Court concludes that Brown’s supplemental report is not
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`supplemental within the meaning of Rule 26(e). Brown’s initial report identifies and briefly
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`describes two trade secrets referred to as “Venous Stenting Techniques” and “Flowering.” See
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`Docket No. 212-12. However, Brown’s supplemental report essentially abandons these theories
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`and offers four separate trade secrets that are only tenuously related to Brown’s initial report or
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`Raju’s Amended Complaint. See Docket No. 268.
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`The most glaring example of this change is Brown’s “supplemental” opinion of Raju’s
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`Trade Secret #3. Without detailing any methodology, principles, or standards directly tied back to
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`the initial report, Brown’s supplemental report newly opines Raju’s Trade Secret #3 as “novel stent
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`requirement to withstand 4mm diameter expansion of the stent during reinterventions.” Docket
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`No. 268. A review of Brown’s original report does not mention or discuss Raju’s 4mm expansion
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`technique. See Docket No. 212-12. This opinion in Brown’s supplemental report plainly
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`contravenes Rule 26’s command to disclose a complete statement of all opinions that Brown will
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`express and the basis and reasons for them. See Fed. R. Civ. P. 26(a)(2)(B).
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`Brown’s supplemental report could and should have been offered by the Court’s disclosure
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`deadline since the information Brown relies on was produced well before November 28, 2019.
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`“Courts have routinely rejected untimely ‘supplemental’ expert testimony where the opinions are
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`based on information available prior to the missed deadline for service of initial disclosures.”
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`Buxton v. Lil’ Drug Store Prods. Inc., No. 2:02-CV-178, 2007 WL 2254492, at *5 (S. D. Miss.
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`Aug. 1, 2007), aff’d, 294 F. App’x 92 (5th Cir. 2008).
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`Because Brown’s challenged supplemental reports were not timely disclosed, the Court
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`will determine whether they should be excluded under Rule 37. In doing so, the Court considers
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`four factors: (1) the party’s explanation for its failure to disclose evidence; (2) the prejudice, if any,
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`to the party opposing the admission of the evidence; (3) the possibility of curing any prejudice
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`with a continuance; and (4) the importance of the evidence. Barrett, 95 F.3d at 380.
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`Considering the first factor, Raju argues that “[b]y refusing to turn over tens of thousands
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`of critical documents over six months,” Medtronic’s own discovery tactics necessitated Brown’s
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`supplemental reports. Docket No. 291 at 11. Even if that is true, it fails to explain why the
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`supplemental report exceeds the scope of the Court’s limited discovery designation4 and the
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`subject matter of the initial report. Receipt of new discovery materials can justify revising an
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`analysis from the initial report or provide new details not previously known, but it cannot justify
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`altering the description of a trade secret or abandoning a trade secret and replacing it with an
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`entirely new one. “[S]upplemental report[s] that effectively replace[] an earlier report [are] not
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`‘supplemental’ within the meaning of Rule 26(a).” United States ex rel. Gudur v. Deloitte
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`Consulting LLP, No. H–00–1169, 2007 WL 4322433, at *5 (S. D. Tex. Mar. 5, 2007) (citation
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`omitted) (alterations added). Moreover, as one court has explained, “a party may not rely on
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`supplementation as a way to remedy a deficient expert report or as a means of getting in, in effect,
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`a brand new report.” Rojas v. Marko Zaninoich, Inc., No. 1:09-CV-705 AWI JLT, 2011 WL
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`4375297, at *6 (E.D. Cal. Sept. 19, 2011) (citation omitted).
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`As the Fifth Circuit stated, supplemental disclosures “are not intended to provide an
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`extension of the deadline by which a party must deliver the lion’s share of its expert information.”
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`Sierra Club, 73 F.3d at 571. This is what Brown’s supplemental report does. Raju presumably
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`4 Plaintiff’s amended its Complaint to add Medtronic and his trade secret claim on March 2, 2019. Discovery ended
`in this case a year later on March 3, 2020.
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`would not have brought this claim in the first place without reasonably certain expert information
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`regarding the trade secrets allegedly appropriated by Medtronic. The Design History File and
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`several other materials were available to Raju at the time of the initial report. We know they were
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`because Brown cited them among the documents he relied upon in preparing his report. Thus, the
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`Court concludes that the first factor weighs in favor of exclusion.
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`As to the second factor, Medtronic contends that it would be prejudiced by admitting
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`Brown’s supplemental report for two reasons: first, it will be forced to reengage its experts to rebut
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`these new opinions and second, it will be forced to revise its pending summary judgment motion
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`to address Brown’s opinions. Raju responds that Medtronic had notice of Brown’s opinions, and
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`any possible prejudice can be cured under the current scheduling order.
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`“Disruption of the court’s discovery schedule and the opponent’s preparation constitutes
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`sufficient prejudice to militate in favor of the exclusion of [expert] testimony.” Williams v.
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`Gonzales, No. CIV.A. 104CV342, 2005 WL 3447885, at *6 (E. D. Tex. 2005). It is undisputed
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`that Medtronic and its experts have already filed extensive briefing on the nature of Raju’s trade
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`secrets and their appropriation. At this juncture, allowing Raju to put forward these varying
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`opinions is inconsistent with the purpose of the discovery rules. As one court has explained, “[t]he
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`purpose of exchanging expert reports is to let opposing counsel know about what the expert intends
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`to testify, and to prevent the expert from changing his opinion as the litigation progresses.” In re
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`Hanford Nuclear Reservation Litig., No. CY-91-3-15-AAM, 1998 WL 775340, at *197 n.364
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`(E.D. Wash. 1998), rev’d on other grounds, 292 F.3d 1124 (9th Cir. 2002). Thus, the second factor
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`does not weigh in Raju’s favor.
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`As to the third factor, while a continuance could afford Medtronic additional time to depose
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`and respond to Brown about the information in his supplemental report, it would result in increased
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`cost and delay in an already costly and lengthy case. Because of the complexity of the issues in
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`the case, the Court set generous deadlines on the front end to avoid the very type of delay that a
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`continuance would cause. As such, this factor does not weigh in Raju’s favor.
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`Lastly, the Court finds that late supplementation of Brown’s report is important to Raju’s
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`case. Brown is Raju’s only expert witness on his trade secrets claim. See Docket No. 212.
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`Nevertheless, the significance of Brown’s report only “underscores how critical it was” for the
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`reports to have been timely disclosed. Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875,
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`883 (5th Cir. 2004). Thus, this factor only slightly weighs in Raju’s favor. Medtronic’s motion to
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`strike Brown’s second report is therefore granted.
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`B.
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`Brown’s Third Report
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`Next, Medtronic moves to strike Brown’s third report. Docket No. 333. The parties’
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`arguments regarding this motion are identical to those concerning Brown’s supplemental report.
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`The Court has reviewed Brown’s affidavit carefully and finds that Brown’s third report departs
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`from and expands upon his original report in numerous material respects. Again, the most glaring
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`example of this change is Raju’s Trade Secret #3. In Brown’s third report, he opines for the first
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`time that “I will testify that Murphy disclosed Raju’s trade secret #3 of applying the Wallstent
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`4mm overexpansion technique to nitinol stents.” Docket No. 324-1. A review of Brown’s original
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`report does not mention or discuss Raju’s 4mm overexpansion technique, not to mention its
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`application to “nitinol stents.” It bears repeating:
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`[T]he purpose of supplementation [under Rule 26] is to correct inadvertent errors,
`not to allow a party to engage in gamesmanship by creating a new and improved
`expert report in order to gain tactical advantage or by bolstering opinions to avert a
`dispositive motion or an expert challenge. The duty to supplement does not give
`license to sandbag one’s opponent with claims and issues which should have been
`included in the expert witness’ report, and does not allow a party to file
`supplements intended to deepen or strengthen its own expert’s prior Rule
`26(a)(2)(B) report.
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`Munoz v. FCA US LLC, No. CV 17-881 WJ/SCY, 2020 WL 7318076, at *4 (D.N.M. Dec. 11,
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`2020) (internal quotation marks and citations omitted) (emphasis added).
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`Applying the Barrett factors, for the reasons stated above, the Court finds that Brown’s
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`third report should also be stricken. Based on the foregoing reasons, Medtronic’s motion to strike
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`Brown’s third report is granted.5
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`II. Raju’s Motion to Strike: Dr. Paul Gagne
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`Turning to Raju’s motion. Raju moves to strike Medtronic’s expert, Dr. Paul Gagne,
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`because he is the sole owner of Vascular Breakthroughs—a clinic that conducts site studies for the
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`clinical trials of Medtronic’s ABRE. Docket No. 295. This relationship, Raju argues, creates “a
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`glaring and undeniable conflict of interest” because Gagne “has a monetary interest in the ABRE
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`stent and an allegiance to Medtronic that far surpasses the role of a paid expert.” Docket No. 296
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`at 3. Medtronic counters that Gagne has no “direct financial interest” in the outcome of the
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`litigation, and any alleged bias is not grounds to exclude his expert testimony. Docket No. 308. To
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`support their position, both parties rely heavily on Perfect 10, Inc. v. Giganews, Inc., No. CV 11-
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`07098-AB (SHX), 2014 WL 10894452 (C.D. Cal. Oct. 31, 2014).
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`Federal courts have the inherent authority to disqualify experts. Koch Refining Co. v.
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`Jennifer L. Boudreaux M/V, 85 F.3d 1178, 1181 (5th Cir. 1996). “[D]isqualification is a drastic
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`measure that courts should impose only hesitantly, reluctantly, and rarely.” Hewlett-Packard Co.
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`v. EMC Corp., 330 F. Supp. 2d 1087, 1092 (N.D. Cal. 2004). While cases that grant
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`disqualification are uncommon, courts will employ this power to achieve important public policy
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`5 That said, even considering the supplemental reports, the Court finds that summary judgment should be granted to
`Medtronic. See infra.
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`goals, including “preventing conflicts of interest and maintaining the integrity of the judicial
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`process.” English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1504 (D.Colo. 1993).
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`After careful consideration of the parties’ arguments and the policy objectives at issue, the
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`Court finds that the motion should be denied. Gagne does not have a direct financial interest in
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`this case; he is compensated at an hourly rate of $500 and does not have an ownership interest in
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`the ABRE. Docket No. 296-1. Raju has not cited, and the Court has not found, any case
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`disqualifying an expert witness based on a similar indirect relationship. Thus, Raju’s reliance on
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`Perfect10 is distinguishable, as it involved a sole shareholder with a direct financial stake in the
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`outcome in the litigation. See Perfect 10, 2014 WL 10894452, at *1. Further, the Perfect 10 court
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`was skeptical that the conflicted shareholder “qualifie[d] as an expert for the purposes of [the]
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`litigation at all” as he “never testified as an expert witness in any litigation before, [and] has never
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`published any books or peer-reviewed articles on any relevant topics at issue in this action.” Id. In
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`contrast, neither Gagne’s qualifications nor the relevance of his opinions is at issue. While
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`acknowledging its gatekeeping role, the Court will not usurp the jury’s function of making
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`credibility determinations and weighing the evidence. See Madison Cnty. Nursing Home v.
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`Broussard, No. 3:17-CV-422-CWR-JCG, 2019 WL 3782191, at *3 (S.D. Miss. Aug. 12, 2019).
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` Raju has all the appropriate information at hand to make a promising impeachment and
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`cross-examination, which will all play out before the jury. See In re DePuy Orthopaedics, Inc.,
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`Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 792 (5th Cir. 2018). Raju’s concerns about
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`Gagne, go to the weight of the evidence, not its admissibility. Therefore, Raju’s motion will be
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`denied.
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`Case 3:17-cv-00357-CWR-LGI Document 354 Filed 03/31/21 Page 13 of 23
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`III. Motion for Summary Judgment
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`
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`Medtronic seeks partial summary judgment on three grounds: 1) all of Raju’s claims for
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`trade secret misappropriation under the Defend Trade Secrets Act (DTSA) and the Mississippi
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`Uniform Trade Secrets Act (MUTSA); 2) all of Raju’s copyright infringement-related claims for
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`statutory damages and attorneys’ fees; and 3) all of Raju’s civil conspiracy claims under state law.
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`Summary judgment is appropriate when “the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). A dispute is genuine “if the evidence supporting its resolution in favor of the party opposing
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`summary judgment, together with any inferences in such party’s favor that the evidence allows,
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`would be sufficient to support a verdict in favor of that party.” St. Amant v. Benoit, 806 F.2d 1294,
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`1297 (5th Cir. 1987) (citation omitted). A fact is material if it is one that might affect the outcome
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`of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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`
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`A party seeking to avoid summary judgment must identify admissible evidence in the
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`record showing a fact dispute. Fed. R. Civ. P. 56(c)(1). That evidence may include “depositions, .
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`. . affidavits or declarations, . . . or other materials.” Id. When evaluating a motion for summary
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`judgment, a court refrains from making credibility determinations and views the evidence in the
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`light favorable to the non-movant. Strong v. Dep’t of Army, 414 F. Supp. 2d 625, 628 (S.D. Miss.
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`2005).
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`A. Federal and State Trade Secrets Claims
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`The DTSA and the MUSTA provide a private cause of action for misappropriation of a
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`trade secret. See 18 U.S.C. § 1836(b)(1); Miss. Code Ann. § 75-26-7. Generally speaking, the
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`elements required to establish a claim for misappropriation are the same under both the DTSA and
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`Case 3:17-cv-00357-CWR-LGI Document 354 Filed 03/31/21 Page 14 of 23
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`the MUSTA.6 To establish such a claim, a plaintiff must show: (1) the existence of a trade secret;
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`(2) the acquisition, use, or disclosure of the trade secret without consent; and (3) that the individual
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`acquiring, using, or disclosing the trade secret knew or should have known the trade secret was
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`acquired by improper means. Compare Ultradent Prods. Inc. v. Spectrum Solutions LLC, No. 2:17-
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`CV-890, 2018 WL 324868, at *2 (D. Utah Jan. 8, 2018) (listing elements of misappropriation claim
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`under the DTSA) and, Blue Star Land Servs. LLC v. Coleman, No. CIV-17-931-R, 2017 WL
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`6210901, at *4 (W.D. Okla. Dec. 8, 2017) (same) with, Brown & Brown of Miss., LLC v. Baker,
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`No. 1:16-CV-327-LG-RHW, 2017 WL 5158667, at *3 (S.D. Miss. Nov. 7, 2017) (listing elements
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`of misappropriation claim under the MUSTA).
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`
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`The DTSA defines “trade secret” broadly. It includes “all forms and types of financial,
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`business, scientific, technical, economic, or engineering information” so long as (1) the owner of
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`the trade secret has taken “reasonable measures to keep such information secret” and (2) such
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`information “derives independent economic value, actual or potential, from not being generally
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`known to, and not being readily ascertainable through proper means by” another person. 18 U.S.C.
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`§ 1839(3). The MUTSA’s definition of “trade secret” closely mirrors that of the DTSA. See Miss.
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`Code Ann. § 75-26-3d (defining “trade secret” as information, “including a formula, pattern,
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`compilation, program, device, method, technique or process” (1) that “derives independent
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`economic value, actual or potential, from not being generally known to, and not being readily
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`ascertainable by proper means by, other persons who can obtain economic value from its disclosure
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`or use,” and (2) that “is the subject of efforts that are reasonable under the circumstances to
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`maintain its secrecy”).
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`6 Under the DTSA, a trade secret must also “relate[ ] to a product or service used in, or intended for use in, interstate
`or foreign commerce.” 18 U.S.C. § 1836(b)(1).
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`Case 3:17-cv-00357-CWR-LGI Document 354 Filed 03/31/21 Page 15 of 23
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`
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`“A trade secret ‘is one of the most elusive and difficult concepts in the law to define.’”
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`Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 613 (5th Cir. 2011)
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`(quotations omitted). Under the DTSA, for the information to qualify as a “trade secret,” the owner
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`must take “reasonable measures to keep such information secret,” and the information must
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`“derive[] independent economic value . . . from not being generally known to, and not being readily
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`ascertainable through proper means.” § 1839(3)(A)-(B). “The efforts required to maintain secrecy
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`are those reasonable under the circumstances, and courts do not require extreme and unduly
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`expensive procedures to be taken to protect trade secrets.” Ruby Slipper Cafe, LLC v. Belou, No.
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`CV 18-1548, 2019 WL 1254897, at *6 (E.D. La. Mar. 19, 2019) (citations and internal quotation
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`marks omitted) (applying the DTSA and Louisiana Uniform Trade Secret Act).
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`
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`Similarly, under Mississippi law, there are two prongs a plaintiff must establish to prove
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`the existence of a trade secret. First, the trade secret “must derive economic value, actual or
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`potential, from not being generally known to, and not being readily ascertainable by proper means
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`by other persons who can obtain economic value from its disclosure or use.” Marshall v. Gipson
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`Steel, Inc., 806 So.2d 266, 271 (Miss. 2002) (citations omitted). Second, the court must consider
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`whether the information was “subject to reasonable attempts to preserve its secrecy.” Id. at 272;
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`see also TLS Mgt. & Mkting, Serv., LLC., Mardis Finan. Serv., Inc. 2018 WL 3698919, at *4 (S.D.
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`Miss. Aug. 3, 2018) (observing that in order to claim that information is a trade secret a party must
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`take reasonable efforts to maintain its secrecy).
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`
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`Generally, the existence of a trade secret is a question of fact to be decided by the factfinder.
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`Se