Donald L. Robertson Trust v. Brigham Young University ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 30, 2021
_______________________________________
Christopher M. Wolpert
Clerk of Court
BEUS GILBERT PLLC,
Plaintiff,
No. 20-4061
v. (D.C. Nos. 2:12-CV-00970-RJS &
2:14-CV-00206-RJS)
DONALD L. ROBERTSON TRUST, (D. Utah)
Defendant Crossclaimant -
Appellant,
v.
BRIGHAM YOUNG UNIVERSITY,
Defendant Crossclaim
Defendant - Appellee.
________________________________________
ORDER AND JUDGMENT *
__________________________________________
Before TYMKOVICH, Chief Judge, EBEL and BACHARACH, Circuit
Judges.
___________________________________________
This case arises out of the discovery of the COX-2 enzyme. The
discovery proved lucrative, leading three biochemists to claim partial
credit. Among them was Dr. Donald L. Robertson, who allegedly helped
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
discover the enzyme while working as a biochemistry professor at Brigham
Young University. The discovery was shared with a major pharmaceutical
company, which used the information to develop a blockbuster drug called
“Celebrex.” BYU sued the pharmaceutical company and settled in 2012 for
$450 million.
After paying attorney’s fees, BYU kept 55% for itself and agreed to
distribute the other 45% to the biochemists responsible for the discovery.
Dr. Robertson and the two other biochemists disagreed on the allocation,
and litigation ensued.
During the litigation, Dr. Robertson died. His successor in interest,
the Donald L. Robertson Trust, moved for leave to file amended
crossclaims against BYU for breach of contract and misappropriation of
trade secrets. The district court denied the motion, and the Trust appeals.
In deciding this appeal, we conclude that the Trust’s allegations
 state a valid claim for breach of contract and
 show that the limitations period had already expired for a claim
of misappropriation of trade secrets.
Given these conclusions, we partially affirm and partially reverse the
denial of leave to amend.
I. The Denial of Leave to Amend
The Trust challenges the denial of leave to amend the crossclaims to
add claims for breach of contract and misappropriation of trade secrets.
2
The district court denied the motion as futile, concluding that the amended
claims would not survive a motion to dismiss.
A. The Standard of Review for Futility
When reviewing a denial of leave to amend, we ordinarily apply the
abuse-of-discretion standard. Johnson v. Spencer, 950 F.3d 680, 720–21
(10th Cir. 2020). But when a district court disallows amendments based on
futility, we conduct de novo review. Id. Here the district court concluded
that the amendments were futile because they would not survive a motion
to dismiss for failure to state a valid claim. So our review is de novo.
Dismissal for failure to state a claim is proper only if the allegations
lack enough facts to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible when
the allegations give rise to a reasonable inference that the defendant is
liable.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
In determining facial plausibility, “we will disregard conclusory
statements and look only to . . . the remaining[] factual allegations . . . .”
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). But
“specific facts” are unnecessary; the claimant needs only to provide “fair
notice” of the claim and its grounds. Id. at 1192. We credit the “well-pled
factual allegations,” viewing them “in the light most favorable” to the
claimant and in “the context of the entire [crossclaim.]” Evans v. Diamond,
3
957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Peterson v. Grisham, 594
F.3d 723, 727 (10th Cir. 2010)); Ullery v. Bradley, 949 F.3d 1282, 1288
(10th Cir. 2020).
B. The Proposed Addition of a Crossclaim for Breach of
Contract
For substantive legal principles on the proposed amendment to the
crossclaim for breach of contract, we apply Utah law. Corneveaux v. CUNA
Mut. Ins. Grp., 76 F.3d 1498, 1506 (10th Cir. 1996). Under Utah law, a
contract claim requires four elements:
1. the existence of a contract,
2. the performance by the party seeking recovery,
3. a breach by the other party, and
4. the existence of damages.
Am. W. Bank Members, L.C. v. State, 342 P.3d 224, 230–31 (Utah 2014).
The district court denied the adequacy of allegations on the first two
elements: a contract and Dr. Robertson’s performance. 1 We disagree with
the district court.
1
BYU does not question satisfaction of the last two elements (a
contractual breach and the existence of damages).
4
1. The Trust plausibly alleged a contract and Dr. Robertson’s
performance.
In our view, the Trust’s amended crossclaim for breach of contract
satisfied the first two elements by alleging a contract and Dr. Robertson’s
performance.
a. The Trust plausibly alleged a contract between Dr.
Robertson and BYU based on the IP Policies in effect from
1989 to 1992 and adopted in 1992.
For a contract claim, the Trust must allege a contract between Dr.
Robertson and BYU. The district court regarded the allegations as deficient
for failing to say
 what the material terms were or
 when and how a contract had been formed.
We disagree because the Trust plausibly alleged that Dr. Robertson
and BYU had entered into implied contracts governed by the IP Policies
 in effect from 1989 to 1992 and
 adopted in 1992. 2
2
The complaint refers to “the BYU IP Policy that was in effect from
1989 through 1992 during the development of COX-2.” See, e.g.,
Appellant’s App’x vol. 2, at 78–79, ¶¶ 27, 38. The Trust has explained in
district court and on appeal that this reference encompasses the IP Policy
adopted in 1992. Id. at 199, 201, 207–210, 225, 229–33; Appellant’s
Opening Br. at 24, 34; Appellant’s Reply Br. at 2, 8.
5
i. A contract may be implied.
“An implied contract may arise from . . . personnel policies . . . .”
Cabaness v. Thomas, 232 P.3d 486, 502 (Utah 2010), abrogated on other
grounds by Gregory & Swapp, PLLC v. Kranendonk, 424 P.3d 897 (Utah
2018). Personnel policies create an implied contract if
 the employer communicates a “promise of employment under
certain terms” to the employee and
 the employee performs under the offer.
Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001–02 (Utah 1991).
ii. The alleged facts establish an implied contract under the IP
Policy in effect between 1989 and 1992.
The Trust plausibly alleged an implied contract under the IP Policy in
effect from 1989 to 1992 by stating the material terms.
The Trust paraphrased the terms but did not attach the IP Policy in
effect before the adoption of the 1992 policy. Attaching the policy was
unnecessary; the Trust needed only to plead the key promises. See T.G.
Slater & Son, Inc. v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836,
841–42 (4th Cir. 2004) (concluding that a plaintiff had adequately pleaded
a breach of contract without attaching written documentation by pleading
that a defendant had “retained” the plaintiff to work on a real estate
purchase and had agreed to pay “a customary real estate commission for
[the plaintiff ’s] services”); Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993) (“A plaintiff is under no
6
obligation to attach to her complaint documents upon which her action is
based . . . .”); see also 5A Arthur R. Miller, Mary Kay Kane & A. Benjamin
Spencer, Federal Practice and Procedure § 1327 (4th ed. Oct. 2020 update)
(“The provision for incorporation of exhibits in Rule 10(c) is permissive
only, and there is no requirement that the pleader attach a copy of the
writing on which his claim for relief or defense is based.”).
The Trust satisfied this requirement by pleading the key promises of
the IP Policy:
10. The development of COX-2 occurred on BYU’s campus
between 1989 and 1992.
11. At all times during their employment, in particular during
the development of COX-2, BYU’s employment agreements with
Dr. Robertson, Dr. Simmons, and Dr. Xie included the provisions
of BYU Intellectual Property Policy as it existed at that time.
* * * *
13. Under the IP Policy that was effective from 1989 through
1992 during the development of COX-2, BYU claimed ownership
of the COX-2 technology as the property of BYU.
14. Under the IP Policy that was effective from 1989 through
1992 during the development of COX-2, BYU has a duty to
distribute income to the individuals from whom BYU has
claimed ownership of the COX-2 technology.
Appellant’s App’x vol. 2, at 76.
7
The district court concluded that the Trust had needed to allege more
specific facts. We disagree. The Trust’s factual allegations imply two key
promises:
1. Dr. Robertson promised to work at BYU (Id. ¶ 11) and to
relinquish ownership of any discoveries like COX-2 (Id. ¶¶ 11,
13).
2. BYU promised to employ Dr. Robertson (Id. ¶ 11), to support
his research (Id. ¶¶ 10–11), and to distribute income to
employees making discoveries (like COX-2) subject to BYU’s
ownership (Id. ¶¶ 11, 14).
The Trust also adequately alleged the formation of an implied contract
based on these terms because
 BYU had communicated the IP Policy to Dr. Robertson and
 he had accepted the offer by continuing performance.
The Trust alleged communication of the IP Policy in two ways.
First, the Trust alleged that
 the IP Policy in existence “at the time” had been “included” in
the “employment agreement” with BYU (Id. at 76 ¶ 12) and
 the IP Policy made key promises. (See p. 7, above.)
These allegations reasonably imply that BYU communicated the terms as a
binding promise to Dr. Robertson: if Dr. Robertson didn’t know the terms
of his employment agreement, how could he have been expected to
comply? See Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah
1991) (“[I]f an employee manual is to be considered part of an employment
contract, the terms should be considered terms of a unilateral contract.”).
8
Second, the Trust attached correspondence from Dr. Robertson,
stating his belief that “[t]he acknowledgment of the participants in this
[COX-2] discovery [was] consistent with research policies which [were]
firmly established at both universities and in industry for the
acknowledgment of contributions to any discovery.” Appellant’s App’x,
vol. 2 at 136. Dr. Robertson’s reference to the “firmly established” IP
Policy suggests that BYU had communicated the IP Policy to him by 1989.
The Trust also alleged that Dr. Robertson had accepted the implied
contract by staying at BYU and “faithfully performing all that was required
of him under his employment agreement” between 1989 and 1992. Id. at 75
¶ 7, 76 ¶¶ 15, 16. So the Trust adequately alleged an implied contract
governed by the IP Policy in effect between 1989 and 1992.
In reaching a contrary result, the district court cited three district
court opinions with more specific facts. One opinion followed a bench
trial, a second opinion decided a summary-judgment motion, and a third
opinion recognized only that the plaintiff had adequately alleged a valid
claim. See Fenn v. Yale Univ., 283 F. Supp. 2d 615, 620 (D. Conn. 2003)
(opinion after a bench trial); Univ. of W. Va. Bd. of Trs. v. VanVoorhies, 84
F. Supp. 2d 759, 771 (N.D. W. Va. 2000) (opinion denying summary
judgment); Charest v. President & Fellows of Harvard Coll., 2016 WL
614368, at *11–12 (D. Mass. Feb. 16, 2016) (opinion denying in part a
motion to dismiss). None of these opinions suggested a baseline for
9
specificity in a complaint or crossclaim. At this stage, the allegations need
only to support a “reasonable inference” of a contract and its terms.
Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). So the three
cited opinions shed little light on the adequacy of the Trust’s allegations.
iii. The alleged facts establish an implied contract under the IP
Policy adopted in 1992.
The Trust also plausibly alleged an implied contract based on the IP
Policy adopted in 1992.
First, the Trust alleged the terms of the 1992 IP Policy by attaching a
copy. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
Second, the Trust alleged that the terms had become effective as an
implied contract: BYU had communicated the terms through a binding
promise to Dr. Robertson, and Dr. Robertson accepted the terms by
remaining at BYU until 1995.
The Trust adequately alleged communication of the terms as a
binding promise because the 1992 IP Policy had expressly required faculty
compliance. See p. 8, above. For example, the 1992 IP Policy stated:
“Intellectual property . . . developed by University personnel within their
field of expertise and/or scope of employment at the University . . . [is] the
property of the University.” Appellant’s App’x vol. 2, at 86. The 1992 IP
Policy also stated that it applied to all faculty, implying that
10
 BYU was publishing the policy to all faculty (including Dr.
Robertson),
 all faculty had been aware of the policy, and
 all faculty had regarded the policy as a binding promise.
The Trust also adequately alleged that Dr. Robertson had accepted
the implied contract by staying at BYU after the publication of the 1992 IP
Policy. See p. 9, above. So the Trust adequately alleged an implied contract
based on the IP Policy adopted in 1992.
iv. The Trust did not plausibly allege Dr. Robertson’s entry into
a contract under the 2001 IP Policy.
The Trust also claimed, in the alternative, that BYU had breached a
contract governed by the 2001 IP Policy. 3 The district court properly
rejected this claim. By the time that BYU had adopted this policy, Dr.
Robertson had left; and there’s nothing in the allegations to support a
contract between BYU and a former professor.
The Trust makes three arguments for a contract under the 2001 IP
Policy:
1. BYU and two other biochemists pleaded the creation of a
contract based on the 2001 IP Policy.
2. BYU admitted that the 2001 IP Policy had created a contract
when moving for a stay.
3
The Trust also alleged a contract based on the IP Policy adopted in
2000; but on appeal, the Trust treats this policy as identical to the 2001
policy.
11
3. The district court implicitly recognized the contractual nature
of the 2001 IP Policy by using it to stay the litigation on other
biochemists’ claims.
These arguments are not persuasive. 4
First, the Trust argues that BYU and two other biochemists admitted
the binding nature of the 2001 IP Policy. For example, BYU pleaded that
the 2001 IP Policy should determine the parties’ rights. Appellant’s App’x
vol. 1, at 151–54, ¶¶ 19–21, 28, 31, 35 (BYU’s crossclaim). But Dr.
Robertson denied the binding nature of the 2001 IP Policy and its
procedures. Appellee’s Supp’l App’x vol. 1, at 57–59 ¶¶ 19–21, 28, 31, 35
(Dr. Robertson’s response to BYU’s crossclaim). So the Trust can’t rely on
BYU’s invocation of the 2001 IP Policy. Nor can the Trust rely on the
pleadings of other biochemists, for their relationships with BYU don’t
affect the terms reached with Dr. Robertson.
Second, the Trust argues that BYU admitted the binding nature of the
2001 IP Policy by moving for a stay. But BYU sought a stay only in the
alternative, arguing that if the district court were to allow amendment, the
terms of the 2001 IP Policy would require a stay for alternative dispute
resolution. By seeking a stay in the alternative, BYU did not concede a
contract with Dr. Robertson.
4
The Trust also briefly argues that the 2001 IP Policy applies because
it was in effect when BYU received the settlement funds. But the Trust
does not explain the relevance of this timing or say how Dr. Robertson
could have performed under a contract formed after he had left BYU.
12
Third, the Trust contends that the district court based a separate stay
order on the 2001 IP Policy. But the stay order did not implicitly
characterize the 2001 IP policy as a contract: the two other biochemists did
not oppose the stay, and BYU relied in part on a desire to mediate.
So the Trust did not plausibly allege a contract governed by the 2001
IP Policy.
* * *
The Trust plausibly alleged that Dr. Robertson and BYU had entered
into implied contracts governed only by the IP Policies
 in effect between 1989 and 1992 and
 adopted in 1992.
b. The Trust plausibly alleged Dr. Robertson’s performance
under the implied contracts.
Dr. Robertson’s performance constitutes an element of the contract
claim, so the Trust needed to plead his performance. The Trust did so in
part by generally alleging that Dr. Robertson had “faithfully performed all
that was required of him under his employment agreement with BYU,
including the BYU IP Policy that was effective from 1989 through 1992
during the development of COX-2.” Appellant’s App’x vol. 2, at 76 ¶ 15.
The Trust elaborated with three specific factual allegations:
1. “Dr. Robertson [had begun] teaching as a professor of
biochemistry at BYU in 1980” and had “left BYU in 1995.” Id.at 75–76 ¶¶ 7, 16.
13
2. “Dr. Robertson [had] stated ‘the discovery of COX-2 was
actually between Dr. Simmons, Dr. Xie, and myself.’” Id. at 78
¶ 24 (quoting id. at 134).
3. “Dr. Robertson [had] advised BYU in 2013 and 2014 that he
was a developer of the COX-2 technology.” Id. at 78 ¶¶ 24–25.
These factual allegations incorporated a letter from Dr. Robertson,
where he explained his contributions to the discovery of COX-2 and gave
details about his experiments and support for another biochemist’s work.
Id. at 133–35; see also id. at 78 ¶ 24 (referring to the exhibit with this
explanation). Similarly, the Trust alleged that BYU had received other
correspondence showing Dr. Robertson’s contributions to the discovery of
the enzyme, including his supervision of relevant research, his provision of
cell lines, the use of his laboratory and equipment, and his role as a
principal investigator in the research leading to discovery of COX-2. Id. at
138–39; see also id. at 78 ¶ 25 (referring to the exhibit with this
explanation).
The district court considered the allegations inadequate for two
reasons:
1. The Trust had not alleged the terms of the agreement.
2. The Trust had not alleged the actions taken by Dr. Robertson
“to comport with those terms.”
Id. at 273. We disagree.
14
First, the district court ruled that with no more factual allegations
about the contractual terms, “the Trust’s conclusory allegation that
Robertson [had done] ‘all he was required to do’ [fell] short of plausibly
pleading contract performance.” Id. But the Trust did adequately plead the
contractual terms. See Part I(B)(1)(a)(i)–(iii), above.
Second, the district court concluded that the Trust had not alleged
satisfaction of Dr. Robertson’s contractual obligations. In arriving at this
conclusion, the district court reasoned that the Trust hadn’t framed its
allegations about Dr. Robertson’s work as “conduct undertaken to fulfill
his performance obligations under any contract.” Appellant’s App’x vol. 2,
at 273.
We disagree, for we view allegations “in the light most favorable” to
the claimant and in “the context of the entire [crossclaim.]” Evans v.
Diamond, 957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Peterson v.
Grisham, 594 F.3d 723, 727 (10th Cir. 2010)); Ullery v. Bradley, 949 F.3d
1282, 1288 (10th Cir. 2020); see pp. 3–4, above. The Trust incorporated the
specific allegations into the breach-of-contract claim, Appellant’s App’x
vol. 2, at 78 ¶ 26, and cited these allegations on the element of
performance. Appellee’s App’x vol. 1, at 235. Nothing more was necessary.
15
BYU defends this ruling, arguing that the Trust failed to allege Dr.
Robertson’s disclosure of his contributions to BYU and entry into a
distribution agreement. 5 This argument fails legally and factually.
The argument fails legally because a claimant need not specifically
allege satisfaction of every contractual obligation. See Khalik v. United Air
Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (stating that specific factual
allegations are unnecessary in the complaint). The Trust generally alleged
Dr. Robertson’s performance and specifically alleged how he had
contributed to the discovery of the enzyme. See Part I(B)(1)(b), above.
These allegations suffice.
The argument also fails factually because the Trust alleged that BYU
had considered and rejected Dr. Robertson’s status as a potential
developer. 6 BYU argues that his disclosure was too late to patent discovery
of the enzyme. Appellee’s Resp. Br. at 39–40. But BYU does not
5
Relying on evidence outside the pleadings, BYU also argues that Dr.
Robertson did not actually disclose his role as developer. But that’s an
issue for summary judgment, and the district court did not convert this
motion into one for summary judgment. See Appellant’s App’x vol. 2, at
274 n.85 (excluding consideration of material outside the pleadings
because no party had moved for conversion of the motion to one for
summary judgment).
6
BYU also makes two other arguments, one about the IP Policy
adopted in 2001 and another about the IP Policy in effect from 1989 to
1992.
16
 support this argument with citations to the IP Policy adopted in
1992 or
 suggest that it would have claimed a patent for the enzyme if
Dr. Robertson had disclosed his role earlier.
2. The Trust’s allegations go beyond those of the claimants in
BYU’s cited authorities.
Finally, BYU argues broadly that the Trust’s allegations don’t
adequately state a contract claim. But BYU’s cited authorities do not apply.
For example, BYU cites Cai v. Huntsman Corp., 810 F. App’x 639, 643
(10th Cir. 2020) (unpublished). But in Cai, the plaintiff never claimed to
be an employee. See id. Here, the Trust alleged that BYU had employed Dr.
Robertson.
BYU’s other cited authorities are non-binding opinions where the
claimant didn’t allege the content of any contractual provisions or identify
First, BYU argues that this duty of disclosure is imposed by the IP
Policy adopted in 2001. But we have elsewhere rejected the Trust’s
reliance on this policy. See pp. 11–13, above.
Second, BYU argues that the Trust couldn’t deny an obligation for
express disclosure under the IP Policy in effect from 1989 to 1992:
“Notably, the Trust does not allege that any of the policies it argues could
theoretically apply impose anything less than express disclosure
obligations on a would-be developer.” Appellee’s Resp. Br. at 37–38. For
this argument, BYU supplies no explanation or support.
The Trust could allege that the IP Policy in effect from 1989 to 1992
had not expressly required disclosure of inventions bearing commercial
potential. After all, BYU has not pointed to anything in the 1989–1992 IP
Policy requiring such a disclosure.
17
a provision that had been breached. See Estate of Bass v. Regions Bank,
Inc., 947 F.3d 1352, 1358 (11th Cir. 2020) (stating that the plaintiff did not
allege “any general or specific provision of any contract that [defendant]
might have breached”); Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599,
603–04 (7th Cir. 2009) (stating that the pleading “contain[ed] no facts
concerning: (1) what, if any, promises the University made to [the
plaintiff]; (2) how these promises were communicated; (3) what [the
plaintiff] promised in return; or (4) how these promises created an implied
contract”); Guajardo v. JP Morgan Chase Bank, N.A., 605 F. App’x 240,
244 (5th Cir. 2015) (unpublished) (stating that the “[p]laintiffs failed to
allege the manner in which” the defendant had breached the contract or
identify a contractual provision that had been breached); Northampton
Rest. Grp., Inc. v. FirstMerit Bank, N.A., 492 F. App’x 518, 522 (6th Cir.
2012) (unpublished) (concluding that “without the contracts or reference to
specific language, [the plaintiff] ha[d] failed to put forth a plausible claim
for relief”); Cotter v. Newark Hous. Auth., 422 F. App’x 95, 99 (3d Cir.
2011) (unpublished) (stating that the pleadings had alleged no offer and
acceptance because “the offer [had been] rejected in favor of a counter-
offer”). These opinions don’t apply because the Trust did allege how BYU
had breached the contracts.
18
C. The Proposed Addition of a Crossclaim for
Misappropriation of Trade Secrets
The Trust also sought leave to add a crossclaim for misappropriation
of trade secrets. The district court concluded that this claim had been time-
barred, and we agree. The district court reasoned that the Trust had waited
to assert this claim until roughly seven months after the limitations period.
The Trust doesn’t question that the limitations period had ended for a new
claim; 7 the Trust instead argues that the proposed crossclaim would relate
back to the filing date of the original crossclaims.
But the Trust didn’t make this argument in district court. There
counsel for the Trust said only: “So if there’s a triggering event . . . that’s
well within three years from when he first brought his cross-claims in this
case.” Id. at 228–29 (emphasis added). The Trust didn’t mention the term
“relation back” or present a related argument. Indeed, the district court
observed that it was not addressing possible “relation back” because the
Trust had “not raise[d] or offer[ed] argument on the issue of whether the
trade secret claim relates back to the filing of [Dr.] Robertson’s original
Cross Claim under Rule 15(c).” Id. at 281 n.117.
By failing to raise the issue in district court, the Trust forfeited the
issue. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
7
The Trust does argue that the limitations period started in June 2012
rather than in May 2012. But this difference in timing would not affect the
timeliness of this claim.
19
2011). We could ordinarily consider the issue under the plain-error
standard. Id. But the Trust has not urged plain error, so we will not
consider the argument. Id. at 1131. We thus affirm the denial of leave to
add a crossclaim for misappropriation of trade secrets.
II. The Discovery Motion
The Trust also moved for discovery of two items:
1. the version of the BYU Intellectual Property Policy provided to
Dr. Robertson in 1980 with his appointment letter and
2. the version of the BYU Intellectual Property Policy in effect
from 1989 to 1992.
The district court denied the motion, and BYU defends the ruling because
the Trust had no pending claim when the court disallowed discovery.
As BYU suggests, discovery would ordinarily be pointless without a
pending claim. 8 But as noted above, we are reversing the dismissal with
instructions to grant the Trust’s motion for leave to amend to add a
8
Federal litigants’ discovery is limited to “any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the
needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). A litigant has no right to
discovery on an unpleaded claim even when discovery is needed to make
the claim viable. See Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because
respondent’s complaint is deficient under Rule 8, he is not entitled to
discovery, cabined or otherwise.”).
For the first time in its reply brief, the Trust argues that the
requested discovery would bear on a defense to BYU’s claim. But we do
“not ordinarily review issues raised for the first time in a reply brief.”
United States v. RaPower-3, LLC, 960 F.3d 1240, 1250 (10th Cir. 2020)
(quoting Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)).
20
crossclaim for breach of contract. Upon the filing of the amended
crossclaim, the district court should reconsider the Trust’s motion for leave
to conduct discovery.
III. The Trust’s Motions to Seal
The Trust’s opening brief, reply brief, and appendix contain
information about Dr. Robertson’s 1980 appointment letter from BYU. The
Trust moved to seal parts of these documents, saying that BYU had
designated these parts as highly confidential. BYU supported the motions,
explaining that it had designated the information as confidential because it
had appeared in Dr. Robertson’s employment file. With this explanation,
BYU cited an unpublished district court order, which protected the
confidentiality of employment files. Hamilton v. Ogden Weber Tech. Coll.,
No. 1:16-CV-00048-JNP-DBP, 2017 WL 5633106, at *5 (D. Utah Nov. 21,
2017).
We deny the Trust’s motions to seal. To obtain an order to seal, the
Trust must “overcome[] a presumption in favor of access to judicial
records by ‘articulat[ing] a real and substantial interest that justifies
depriving the public of access to the records that inform our decision-
making process.’” Sacchi v. IHC Health Servs., Inc., 918 F.3d 1155, 1160
(10th Cir. 2019) (second alteration in original) (quoting Eugene S. v.
Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135–36 (10th Cir.
2011)).
21
The parties have not shown a “real and substantial” privacy interest
in the existence or content of Dr. Robertson’s appointment letter. The cited
order served to protect discovery, not seal a court’s docket, and the
considerations differ. See Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir.
2011) (“[T]he parties cannot overcome the presumption against sealing
judicial records simply by pointing out that the records are subject to a
protective order in the district court.”). So the parties have not justified
sealing, and we deny the Trust’s motions.
IV. Conclusion
We reverse the denial of the Trust’s motion for leave to amend to add
a crossclaim for breach of contract. Given the reversal, we remand for
further proceedings. But we affirm the denial of the Trust’s
 motion for leave to add a crossclaim for misappropriating trade
secrets and
 motion for leave to conduct discovery.
We also deny the Trust’s motions to seal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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