ALI-ABA Topical Courses Trade Secrets From the ... - ALI CLE

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56company’s strategic plan for California. Botticella concedesthat if he had disclosed his intention to work for Hostess,Bimbo would have restricted his access to this and other typesof information. Indeed, Botticella maintains that he no longerfelt “comfortable” being privy to Bimbo’s confidentialinformation following his acceptance of the Hostess offer andthat, accordingly, when he received emails and electronicdocuments containing confidential information, he deletedthem, and that when he was exposed to confidentialinformation during presentations at meetings, he “blocked it”4out of his head. App. at 195, 197.In one instance over the Christmas holiday, Botticelladeleted a number of documents from his company-issuedlaptop computer. These documents included both items of apersonal nature, such as his resume, and a number of workrelateddocuments containing confidential information.Botticella claimed that he deleted these documents because he“didn’t think th[ey] would [have] any value to anybody.”App. at 198. Nevertheless, when Botticella returned to hisoffice at Bimbo on January 4, 2010, he asked a computertechnician to restore the files because “he wanted to havethem back just in case for the next weeks we needed to have ameeting or something.” App. at 198. Bimbo’s technicianthen restored the files to the computer.4We are quite uncertain as to how an individual can block outinformation from his head for a human mind does not functionlike a computer from which, through an electronic process,materials may be deleted.9
57Following Botticella’s departure, Bimbo hired E. BrianHarris, a computer forensics expert, to investigate Botticella’suse of his company laptop during December 2009 andJanuary 2010. Harris’s testing revealed that a user whologged in as Botticella had accessed a number of confidentialdocuments during the final weeks of Botticella’s employmentat Bimbo. In particular, the testing revealed that the personlogging in as Botticella had accessed twelve files within aspan of thirteen seconds on January 13, 2010, Botticella’s last5day at Bimbo. Significantly this access occurred minutesafter the phone call in which Botticella finally disclosed toBimbo his plans to work for Hostess and Bimbo told him tocease working for it.There were several similar patterns of access in theweeks leading up to January 13. According to Harris, thistype of activity—multiple files being accessed more or lesssimultaneously—was “inconsistent with an ordinary usagewhereby individual files are opened and either read or edited.”App. at 238. Harris concluded that the activity was, however,consistent with copying a group of files at the same time, buthe could not determine conclusively whether the filesBotticella had accessed had been copied and deleted or nevercopied at all. App. at 238. The testing also revealed thatthree external storage devices—a portable device known as a“thumb” or “flash” drive and two external hard drives—had atone time or another been connected to Botticella’s computer,although it was unclear exactly when these devices had been5Botticella does not deny that he was the person logging in underhis name.10
Page 1 and 2: 47ALI-ABA Topical CoursesTrade Secr
Page 3 and 4: 49Michael L. Banks (argued)Morgan,
Page 5 and 6: 51quality and cost, labor issues, a
Page 7 and 8: 53continued working for Bimbo notwi
Page 9: 55to work for a competitor. Moreove
Page 13 and 14: 59D. Procedural HistoryAfter Bottic
Page 15 and 16: 61consequently, also is the primary
Page 17 and 18: 63a. Information in Bimbo’s code
Page 19 and 20: 651. Air Products and Inevitable Di
Page 21 and 22: 67sale of on-site gas during his em
Page 23 and 24: 69regardless of those secrets’ te
Page 25 and 26: 71hired to provide information he o
Page 27 and 28: 73would be “virtually impossible
Page 29 and 30: 75preliminary injunction on its tra
Page 31 and 32: 77The Superior Court subsequently s
Page 33 and 34: 79have rested on its interpretation
Page 35 and 36: 815. Adverse Inference Based on Bot
Page 37 and 38: 83needed in the interim to protect
Page 39 and 40: 85which he or she is best suited.
Page 41 and 42: 87IN THE UNITED STATES DISTRICT COU
Page 43 and 44: 89made in their Rule 56.1 statement
Page 45 and 46: 91during Maremont’s absence, a gu
Page 47 and 48: 931125(a)(1)(A). As the Seventh Cir
Page 49 and 50: 95damages based on their representa
Page 51 and 52: 97Therefore, the Court denies both
Page 53 and 54: 99judgment as to Count III of the S
Page 55 and 56: 101CONCLUSIONFor the these reasons,
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