Archive for: July, 2020

How Does Information Become a Protected Trade Secret?

Confidential business information automatically becomes protected in the law once the statutory definition in NRS 600A.030 is met.  There is no requirement that the parties expressly identify the information as a “trade secret”.   Should a dispute arise as to the use of the information, determining whether the information used is protected is a matter of applying the statutory definition as a question of fact.[1]

Courts may consider such factors as: (1) the extent to which the information is ascertainable from sources outside the business and the ease with which it can be obtained; (2) whether the information was confidential or secret or was treated as such by the business; and (3) the employee’s knowledge of the confidential information and whether the same was known by competitors.[2]  The business is presumed to make reasonable efforts to maintain the secrecy of information that is marked “Confidential” or “Private” in a reasonably noticeable manner.[3]  This presumption may only be overcome by clear and convincing evidence that the owner did not take reasonable efforts to maintain the secrecy of the information.[4]

[1] Frantz.

[2] Id., 116 Nev. at 467, 999 P.2d at 358-59.

[3] NRS 600A.032.

[4] Id.

Motion for a New Trial Under Rule 59

Federal Rule of Civil Procedure 59 governs motions for a new trial, as well as motions to alter or amend a judgment in certain cases where summary judgment has been granted.[1]  Although not granted except with a showing of “highly unusual circumstances,”[2] the Ninth Circuit has listed grounds for amending or altering a judgment pursuant to Rule 59(e): (1) to correct manifest errors of law or fact upon which the judgment rests; (2) to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; and (4) if the amendment is justified by an intervening change in controlling law.[3]  A district court, however, “has considerable discretion when considering a motion to amend a judgment under Rule 59(e).”[4]

[1] Fed.R.Civ.P. 59; see School Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir.1993), cert. denied, 512 U.S. 1236 (1994) (as cited by Olin Corp. v. Cont’l Cas. Co., 2:10-CV-00623-GMN, 2013 WL 6837799 (D. Nev. Dec. 23, 2013)).

[2] Carroll v. Nakatini, 342 F.3d 934, 945 (9th Cir. 2003); see also Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc)). (“a Rule 59(e) motion should not be granted absent “highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.”)

[3]  Olin, 2013 WL 6837799 (citing Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011)).

[4] Turner v. Burlington N. Santa Fe R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (citations omitted).

Relief From Final Judgment Under Rule 60

Rule 60 of the Federal Rules of Civil Procedure provides a standard by which the Court might reconsider its Order.  This rule, governing relief from a judgment or order, provides in part:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.[1]

The Ninth Circuit has distilled the grounds for reconsideration into three primary categories: (1) newly discovered evidence; (2) the need to correct clear error or prevent manifest injustice; and (3) an intervening change in controlling law.[2]  This Nevada District Court has recognized the same factors, while articulating a four-part test: “(1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; (2) the moving party presents newly discovered or previously unavailable evidence; (3) the motion is necessary to prevent manifest injustice; or (4) there is an intervening change in controlling law.”[3]

[1] Fed.R.Civ.P. 60(b).

[2] School Dist. No. 1J v. AC&S, Inc., 5 F.3d at 1263 (as cited by Centeno v. Mortgage Elec. Registration Sys., Inc., 2:11-CV-02105-GMN, 2013 WL 2558262 (D. Nev. June 8, 2013), appeal dismissed (Nov. 7, 2013)).

[3] Turner v. High Desert State Prison, 2:13-CV-01752-GMN, 2014 WL 321070 (D. Nev. Jan. 29, 2014) (citing Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d 1058 (9th Cir. 2003).

 

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Can I File a Motion to Reconsider in Federal Court?

Although not mentioned in the Federal Rules of Civil Procedure, motions for reconsideration may be considered pursuant to Rules 59(e) and 60(b).[1]  In order to succeed on a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.[2]  A motion for reconsideration is not, however, a mechanism for rearguing issues presented in the original filings, or for “advancing theories of the case that could have been presented earlier.” [3]  Thus, Rule 59(e) and 60(b) and are not “intended to give an unhappy litigant one additional chance to sway the judge.”[4]

[1] Hansen v. Liberty Mut. Fire Ins. Co., 2:11-CV-01519-GMN, 2013 WL 2322146 (D. Nev. May 28, 2013).

[2] Turner v. High Desert State Prison, 2:13-CV-01752-GMN, 2014 WL 321070 (D. Nev. Jan. 29, 2014) (citing Kern–Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds 828 F.2d 514 (9th Cir.1987)); see Frasure v. U.S., 256 F.Supp.2d 1180, 1183 (D. Nev. 2003) (citing All Haw. Tours Corp. v. Polynesian Cultural Ctr., 116 F.R.D. 645, 648–49 (D. Haw. 1987), rev’d on other grounds, 855 F.2d 860 (1988)).

[3] Hansen v. Liberty Mut. Fire Ins. Co., 2:11-CV-01519-GMN, 2013 WL 2322146 (D. Nev. May 28, 2013) (citing Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir.1985) and quoting Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D.Tex.1994) (footnotes omitted)).

[4] Id. (quoting Durkin v. Taylor, 444 F.Supp. 879, 889 (E.D.Va.1977)).

 

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