Free Response to Motion - District Court of Delaware - Delaware

I Case 1:05-cv-00023-JJF Document 117-2 Filed O1/16/2008 Page 1 of 4


‘ 2003 V¥®a?slé)$€G5Jcv-00023-JJF Document 1 17-2 Filed O1/16/2008 Page 2 ofP4¤g@ I 0122
(Cite as: 2003 WL 21054394 (Del.Super.})
Not Reported in A.2ci, 2003 WL 21054394 (Del.Super.)
· Oniy the Westlaw citation is currently avaiiabie. y
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Delaware.
. SAVOR, INC.
v.
FMR CORP. and Uprornise, Inc.
I No. Civ.A. O0C102·49JRS.
= Submitted March 14, 2003.
Decided April 3, 2003.
Y Upromise, i1nc.'s Motion for Summary Judgment-Denied.
1 Dear Counsel:
SLIGHTS, J.
*1
Cite as: 2003 WL 21054394, *1 (Del.Super.))
Defendant, Upromlse, Inc. ("i.ipromise”), has moved for summary judgment in this
misappropriation of trade secrets case on the grounds that the undisputed facts of record reveal that
Plaintiff, Savor, Inc. ("Savor”), has faiied to identify a trade secret worthy of statutory protection and
has failed to identify the manner in which any trade secret it may have possessed was
misappropriated by Upromise. This motion foilows Upromise's motion to dismiss on essentiaily the
same grounds which was granted by the Court on March 14, 2002. The Court's order of dismissal was
reversed in part by the Supreme Court of Delaware on November 25, 2002. Since the remand of this
matter by Mandate dated December 13, 2003, the Court has convened a scheduling conference, the
parties have exchanged written discovery, and Savor has provided responses to the written discovery.
Q No other discovery has been initiated by the parties.
Upromise‘s motion for summary judgment is premised upon Savor‘s responses to a handful of
interrogatories that it contends are insufficient to raise a factual issue with respect to the existence
and/or misappropriation of a trade secret. At oral argument, counsei for Upromise acknowledged that
E Savor properly could have responded to the motion for summary judgment with an affidavit in
I accordance with Deiaware Superior Court Rule 56(f) but it declined to do so. EN--; Upon inquiry of the
5 Court, Savor confirmed that it was not making a Rule 56(f) application because it did not believe one
g was necessary. According to Saver, the record as it stands is adequate to deny the motion because
the trade secret and the manner of its misappropriation have been sufficientiy identified in the
3 pleadings and in response to the defendants' interrogatories to allow the disputed issues of fact to be
§ determined by the jury.
,l§;lM1w, DeI.Super. Ct. Civ. R. 56lf) provides: "S_houid it appear from the affidavits of a party
. opposing the motion that the party cannot for reasons stated present by affidavit facts
` essential to justify the party‘s opposition, the Court may refuse the appiication for
judgment or may order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or make such other order as is just.”
Upon review of the record, the Court is satisfied that entry of judgment at this time would be I
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I 2003 Wi3.a%ia‘)54054cv-00023-JJF Document 1 17-2 Filed 01/16/2008 Page 3 ofP41gc 2 of 2
premature. Summary judgment is not appropriate when the Court determines that it does not have
sufficient facts in the record to enable it to apply the law to the facts before ihmg Such is the case
here. The Court is not inclined to rule on a record which is comprised only of “first-cut" interrogatory
answers (thus far unchallenged by Rule 37 motion practice) and self sewing affidavits. Admittedly,
the Court's sensitivity to the status of the record is enhanced by the procedural history of this case.
p Nevertheless, this history cannot be ignored. Prudence dictates that further discovery be permitted
l before requests for dispositive relief are entertained.
EN.; See ,,., ,.2si-:ii§.fZ....:€l2Z.Q.c(.i;[email protected]).. See also Quxcuiurdtciai
Nominating Comm'r,3,m§_5_§Q_A,...2_ciw_Z_ZZ,_l80 (DeiL&uper.1995)_ (citation omittecl)("summary
( judgment may not be granted if it seems desirable to inquire more thoroughly into the
facts in order to clarify the application of law to the circumstances").
The Court envisions a bifurcated discovery plan, the particulars of which will be ironed out with
; counsel at a status conference to be scheduled promptly by the Court. The first phase of discovery
Q will address the trade secret and misappropriation issues. The second phase will address causation
and damages. And while the Court does not intend to outline specifically the scope of discovery that
should be initiated, it seems clear, at a minimum, that the following discovery should be made a part
Q of the record before the Court considers another motion for summary judgment the deposition of Mr.
Doyle (to be limited for now to trade secret and misappropriation issues); the depositions of the
individuals involved in the direct communications between Savor and FMR Corp., including Mr. Claude
and Mr. Fadule (to he limited to the trade secret and misappropriation issues); and expert reports
and/or Rule 26(b) disclosures from Savor (and, perhaps, the defendants) addressing specifically the
identification/expianation ofthe trade secret, with follow—up expert discovery as appropriate. The
Court will, ofcourse, consider appropriate applications for protection along the way to limit the scope
of discovery consistent with the bifurcated planing
See ep. .... .... .... .....
(recognizing general rule that plaintiff may not obtain discovery of its adversary's trade
Q secrets until it has identified its own trade secret with “reasonabie particuiarlty").
*2
(Cite as: 2003 Wl. 21054394, *2 (Del.Super.))
E The motion for summary judgment is DENIED with leave to renew after further development of the
record.
IT IS SO ORDERED.
_ Del.Super.,20G3.
Saver, Inc. v. FMR Corp.
Not Reported in A.2cl, 2003 WL 21054394 (De1.Super.)
END OF DOCUMENT
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Case 1:05-cv-00023-JJF Document 117-2 Filed O1/16/2008 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
1 CERTIFICATE OF SERVICE
j I, W. Harding Drane, Jr., hereby certify that on January 16, 2008, a copy
I ofthe foregoing document was electronically tiled with the Clerk ofthe Court using
CM/ECP which will send notification of such tiling(s) to the following and the document
is available for viewing and downloading from CM/ECF and in addition copies were
delivered as indicated below:
nv HAND
Kenneth Nachbar
Thomas W. Briggs
g Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
I hereby certify that on January l6, 2008, I have Electronically Mailed the
document to the following non-registered participants:
Harry J. Roper
Raymond N. Nimrod
Aaron A. Barlow
Jenner & Block LLP
One IBM Plaza
Chicago, IL 60611
i By: /s/ WZ Harding Drone, Jr.
W. Harding Drane, Jr. (#1023)
Richard L. Horwitz (#2246)
I Suzanne M. Hill (15*4414)
y Hercules Plaza, 6 Floor
13 I 3 N. Market Street
. Wilmington, DE 19899-095l
(302) 984~6000
_ wdrane@_pg_ottera11derson.com
[email protected]
[email protected]