Seiu Healthcare Nw Training Partnership v. Evergreen Freedom Foundation ( 2018 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    SEIU HEALTHCARE NORTHWEST
    TRAINING PARTNERSHIP, a                     No. 76220-6-1
    WashingtOn trust,
    DIVISION ONE
    Respondent,
    V.
    EVERGREEN FREEDOM
    FOUNDATION, d/b/a FREEDOM                  PUBLISHED OPINION
    FOUNDATION, a Washington nonprofit
    organization,                              FILED: October 1, 2018
    Petitioner.
    BECKER, J. — Evergreen Freedom Foundation appeals from an order of
    replevin compelling the return of data belonging to respondent, SEIU Healthcare
    Northwest Training Partnership. We find no error. The trial court correctly
    determined that the replevin claim is not preempted by the Uniform Trade
    Secrets Act(UTSA), chapter 19.08 RCW,and is an appropriate remedy under
    the circumstances.
    FACTS
    The Partnership is a nonprofit organization that provides training to many
    Washington home care workers. These include individual providers whose
    training is funded by the State pursuant to a collective bargaining agreement with
    No. 76220-6-1/2
    the union for individual providers. The union, SEIU 775, is part of the Service
    Employees International Union. The State shares information with the
    Partnership about state-funded individual providers. The Partnership stores this
    data, along with other information about trainees, in a confidential electronic
    database
    The Foundation is a nonprofit organization that, among other things,
    endeavors to inform workers of their constitutional rights regarding financial
    support of public-sector unions. An opportunity to acquire contact information for
    individual providers arose in the spring of 2016. A former employee of the
    Partnership, Matthew Williams, had access to confidential records about
    thousands of trainees from the Partnership's internal database. He offered to sell
    this data to the Foundation. The Foundation paid Williams $12,000 for two
    electronic spreadsheets stored on a flash drive. The Foundation copied and
    I
    downloaded the spreadsheets and the data they contained, including individual
    contact information, into its electronic database. The Foundation used the
    records to notify individual providers that they had the right to opt out of
    financially supporting SEIU 775.
    In August 2016, two flyers from the Foundation were delivered to the
    Partnership's office addressed to a name that existed in the Partnership's
    database only in connection with a mock file created as part of a training exercise
    for a new employee. The Partnership realized that the Foundation must have
    gained access to its database. The Partnership brought this suit, alleging a
    violation of the Uniform Trade Secrets Act and a claim for intentional interference
    2
    No. 76220-6-1/3
    with business expectancy. Shortly thereafter, in a different lawsuit between the
    Foundation and SEIU 775, Maxford Nelsen—the Foundation's CR 30(b)(6)
    1
    witness—testified that the Foundation had purchased records concerning
    approximately 42,000 individual providers from a person he referred to as
    Confidential Source B. Although the Foundation refused to reveal the identity of
    Confidential Source B, the Partnership later learned through its own efforts that it
    was Williams.
    The Partnership wrote to the Foundation demanding immediate return of
    all copies of the stolen records and the destruction of information derived from
    the stoleri database. The Foundation did not comply with this demand.
    In September 2016, the Partnership amended its complaint to include a
    cause of action for replevin, seeking return of the spreadsheets.
    Replevin is an ancient remedy for an ancient problem that can be phrased
    as "that's mine, give it back." Replevin has come down to us from medieval
    times as a summary process, arising "out of the need of a turbulent society to
    discourage resort to self-help." JOHN G. FLEMING,THE LAW OF TORTS 73(5th ed.
    1977). Washington has had a replevin statute since the first legislative assembly
    of the Territory of Washington. LAWS OF 1854,§§ 100-110, at 149-52. Replevin
    is a special statutory proceeding "to determine title to, or right of possession of,
    personal property." Apgar v. Great Am. Indem. Co., 
    171 Wash. 494
    , 498, 
    18 P.2d 46
    (1933). The prima facie elements are "ownership of the property, a right
    to its possession, a demand on the respondents for its surrender, their refusal to
    3
    No. 76220-6-1/4
    surrender it, and their consequent wrongful detention of same." Page v. Urick,
    
    31 Wash. 601
    , 603-04, 72 P.454 (1903).
    In an action to recover the possession of personal property, the plaintiff
    "may claim and obtain the immediate delivery of such property." RCW 7.64.010.
    As the result of an amendment in 1979, the plaintiff must first apply for an order
    directing the defendant to appear and show cause why the court should not issue
    an order putting the plaintiff in possession of the personal property.
    RCW 7.64.020(1). Final judgment at a show cause hearing is permitted when
    the defendant raises no factual issues requiring a trial. RCW 7.64.035(3). In this
    respect, replevin is analogous to unlawful detainer, a summary proceeding
    designed for the purpose of hastening recovery of possession of real property.
    MacRae v. Way,64 Wn.2d 544, 546, 392 P.2d 827(1964).
    The trial court held a show cause hearing and determined the Foundation
    had raised no issue of material fact and all of the elements of replevin were met.
    The court entered a written order of replevin on November 15, 2016. The court
    listed the following as facts that were undisputed at the hearing:
    • The Foundation purchased copies of two spreadsheets
    containing information about the Training Partnership's students
    from Person B for $12,000;
    • The Foundation knew the copies of spreadsheets came from
    the Training Partnership when it purchased them;
    • The Training Partnership maintained the spreadsheets and the
    information contained therein as confidential;
    • The Training Partnership treated the information in the
    spreadsheets as confidential pursuant to its Confidentiality
    Policy;
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    No. 76220-6-1/5
    • Downloading information from the Training Partnership's
    database is not permitted under the Partnership's policies;
    • The Training Partnership owns or has lawful possession of all of
    the information contained in its student database, and the
    Partnership never authorized the Foundation to own or possess
    any part of its student database;
    • The Washington State Department of Social and Health
    Services owns some of the information in the Training
    Partnership's student database and authorizes the Training
    Partnership to use that information. The department never
    authorized the Foundation to own or possess its portion of the
    Training Partnership database;
    • The value of the spreadsheets purchased by the Foundation
    from Person B is at least $12,000, the amount the Foundation
    paid for them; and
    • The Foundation is able to identify and extract the information
    that was contained in the two spreadsheets from other
    information contained in its databases.
    The court concluded that these facts supported a final judgment entitling the
    Partnership to possession of all copies of the two spreadsheets and the
    information contained therein, in addition to all other remedies authorized by the
    replevin s atute. The Foundation was ordered to take various actions to comply
    with this ruling. The court rejected the Foundation's argument that the replevin
    claim was preempted by the Uniform Trade Secrets Act.
    In December 2016, the Foundation filed a notice seeking discretionary
    review by this court. Discretionary review was granted under RAP 2.3(b)(4)
    based on the parties' stipulation.
    5
    No. 76220-6-1/6
    ANALYSIS
    1. The Uniform Trade Secrets Act does not preempt replevin
    The Uniform Trade Secrets Act codifies the basic principles of common
    law trade secret protection. Ed Nowogroski Ins., Inc. v. Rucker, 
    137 Wash. 2d 427
    ,
    438, 
    971 P.2d 936
    (1999). It permits injunctive relief and damages for
    "misappropriation" of "trade secrets." RCW 19.108.020, .030.
    The act "displaces conflicting tort, restitutionary, and other law of this state
    pertaining to civil liability for misappropriation of a trade secret."
    RCW 19.108.900. The Foundation contends this language preempts the
    Partnership's replevin claim.
    The Partnership responds that the replevin claim cannot be preempted
    under these or any circumstances because the replevin statute expressly
    provides that its remedies "are in addition to any other remedy available to the
    plaintiff." RCW 7.64.010.
    Whether the Uniform Trade Secrets Act displaces a replevin action calls
    for statutory construction. Matters of statutory construction are reviewed de
    novo. O.S.T. v. Regence BlueShield, 
    181 Wash. 2d 691
    , 696, 335 P.3d 416(2014).
    Our fundamental goal is to discern and implement the legislature's intent.
    
    0.S.T., 181 Wash. 2d at 696
    . It is the duty of the court to reconcile apparently
    conflicting statutes and to give effect to each of them, if this can be achieved
    without distortion of the language used. State v. Facia1de, 
    85 Wash. 2d 730
    , 736,
    
    539 P.2d 86
    (1975).
    6
    No. 76220-6-1/7
    The issue under RCW 19.08.900 is whether statutory replevin is a
    "conflicting" law pertaining to misappropriation of a trade secret. The replevin
    statute eXpressly provides that its remedies "are in addition to any other remedy
    available to the plaintiff" RCW 7.64.010(emphasis added). This language was
    added to the Washington replevin statute in 1990, nine years after Washington's
    enactment of the Uniform Trade Secrets Act in 1981. It evinces legislative intent
    that statutory replevin is always available to a qualifying plaintiff. It follows that a
    plaintiff who has alleged (or could allege) misappropriation of a trade secret does
    not thereby lose the right to seek replevin of property owned by the petitioner and
    wrongfully detained by the alleged misappropriator.
    The Foundation is able to construct an argument for the supremacy of the
    Uniform Trade Secrets Act only by ignoring the strong antipreemptive language
    in the replevin statute—"in addition to any other remedy available." The
    Foundation does not address this provision. According to the Foundation, the
    displacement of other law that occurs by means of RCW 19.108.900 obliterates
    the court's duty to try to reconcile or harmonize statutes that might appear to
    conflict with the Uniform Trade Secrets Act. Reply Brief of Petitioner at 7-9. In
    the analysis recommended by the Foundation, the text of a preempted statute is
    irrelevant and statutory construction is unnecessary. Reply Brief of Petitioner at
    9.
    The Foundation contends that when another claim is brought in the same
    lawsuit with a claim of trade secret misappropriation, the question the court must
    ask is whether both claims are based on the same underlying facts. The
    7
    No. 76220-6-1/8
    Foundation supports this position by citation to a number of federal district court
    decision. When such decisions apply Washington law, they typically take as
    their starting point the "factual preemption" test adopted in Thola v. Henschell,
    
    140 Wash. App. 70
    , 82 & n.5, 164 P.3d 524(2007). See e.g., T-Mobile USA, Inc.
    v. Huawei Device USA, Inc., 
    115 F. Supp. 3d 1184
    , 1198(W.D. Wash. 2015).
    The plaintiff in Thola was a chiropractor. Her former employee, Mahan,
    went to work for Henschel!, another chiropractor. Henschell paid Mahan a bonus
    of $100 for every new client she added to the patient rolls. Mahan appropriated
    Thola's confidential client list and used it to persuade many of Thola's clients to
    transfer to Henschell. Thola sued Henschel! and Mahan, alleging
    misappropriation of trade secrets under the Uniform Trade Secrets Act as well as
    three common law claims: breach of the duty of loyalty, tortious interference with
    a business relationship, and unjust enrichment by the tortious conduct. 
    Thola, 140 Wash. App. at 76
    . When the case went to trial, defendants argued that the
    trade secrets claim preempted the three common law claims and moved for a
    directed verdict on those claims. The motion was denied. A jury awarded
    $89,000 in damages against Mahan and Henschell and found that Henschell had
    been unjustly enriched by $28,712.
    Preemption was argued on appeal. The court did not dismiss any of the
    common law claims as preempted. The court preserved Thola's cause of action
    for unjust enrichment, noting that the act expressly allows for recovery of "unjust
    enrichment caused by misappropriation that is not taken into account in
    computing damages for actual loss." RCW 19.108.030(1), quoted in Thola, 140
    8
    No. 76220-6-1/9
    Wn. App at 84. The court also preserved the tortious interference claim because
    it was suIpported by evidence of Mahan's in-person solicitation of clients, which
    evidence was distinct from the misappropriated client list that supported the claim
    of trade secret misappropriation. 
    Thola, 140 Wash. App. at 82-83
    . The court did
    not reach Henschell's argument that the act preempted Thola's claim for breach
    1
    I
    of the duty of loyalty because that claim pertained only to Mahan, who had filed
    1
    for bankruptcy and was not a party to the appeal. 
    Thola, 140 Wash. App. at 83-84
    and 77 n 3.
    Although the court did not dismiss any of the common law claims as
    preempted, the court reversed the jury's award in its entirety and remanded for a
    new trial. The error that required reversal was the court's failure to instruct the
    jury that it could not consider acts of trade secret misappropriation as proof of
    other claims. Most of the evidence related to the theft of the confidential
    customer list, and it was likely the jury used that evidence to find in Thola's favor
    on all claims. The trial court "should have instructed the jury that it could not
    consider evidence of Mahan's acts of trade secret misappropriation when it
    deliberated on Thola's common law claims." 
    Thola, 140 Wash. App. at 85
    .
    "Because the damages award was not segregated, we cannot strike those
    portions related to the preempted causes of action." 
    Thola, 140 Wash. App. at 77
    .
    In coming to this result, the court set forth an analytical framework that
    "precludes duplicate recovery for a single wrong." 
    Thola, 140 Wash. App. at 82
    .
    The three-step analysis was offered as a "helpful guide" to determining whether
    the Uniform Trade Secrets Act preempts a civil claim: "(1) assess the facts that
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    No. 76220-6-1/10
    support the plaintiffs civil claim,(2) ask whether those facts are the same as
    those that support the plaintiffs UTSA claim, and (3) hold that the UTSA
    preempts liability on the civil claim unless the common law claim is factually
    independent from the UTSA claim." 
    Thola, 140 Wash. App. at 82
    , citing Mortg.
    Specialists, Inc. v. Davey, 
    153 N.H. 764
    , 778-79, 904 A.2d 652(2006). The court
    referred to its analysis as "factual preemption," distinguishing it from an
    elements-based analysis discussed in Mortgage Specialists, Inc. Thola, 140 Wn.
    App. at 82 n.4. The elements analysis holds that "a common law claim is not
    preempted if the elements require some allegation or factual showing beyond
    those required under the UTSA." 
    Thola, 140 Wash. App. at 82
    n.4, citing Mortg.
    Specialists, 
    Inc., 153 N.H. at 778
    . The Thola court decided not to adopt an
    elements test "at this time" because the issue had not been briefed by the parties
    and had not been adopted in the court's earlier opinion on preemption, Ed
    Nowogroski Insurance, Inc. v. Rucker, 
    88 Wash. App. 350
    , 358, 
    944 P.2d 1093
    (1997)("Nowogroski may not rely on acts that constitute trade secret
    misappropriation to support other causes of action"), aff'd, 
    137 Wash. 2d 427
    .
    
    Thola, 140 Wash. App. at 82
    n.4.
    Thola has been described as taking a "strong" view of the preemptive
    scope of the Uniform Trade Secrets Act in Washington, in contrast to the
    I
    "weaker" elements analysis. 
    T-Mobile, 115 F. Supp. 3d at 1198
    . The distinction
    mattered in T-Mobile because on a motion to dismiss for failure to state a claim,
    the plaintiffs tortious interference claim would survive under the weak view but
    not under the strong view. 
    T-Mobile, 115 F. Supp. 3d at 1198
    -99. The court
    10
    No. 76220-6-1/11
    decided to apply "the stronger form of preemption that the Thola court
    embraced," predicting that the Washington Supreme Court would also embrace
    that view if called on to make a choice. 
    T-Mobile, 115 F. Supp. 3d at 1199
    . "As
    the court has already explained, there are no allegations in T-Mobile's complaint
    1
    that indicate that it can prove tortious interference without relying on the same
    facts that support its trade secret claim." 
    1-Mobile, 115 F. Supp. 3d at 1199
    .
    il
    Here, the Foundation argued to the trial court that the Partnership's cause
    of action in replevin relied on the same facts as its trade secret claim and
    therefore should be dismissed under Thola. The trial court, while aware of Thola,
    ruled that replevin was not preempted:
    The Court of Appeals held [in Tholal that the UTSA did not preempt
    1
    the tort claims because they were based on actions that were not
    the acquisition or use of trade secrets. There is no conflict between
    Ciapter 7.64 RCW and Chapter 19.108 RCW. Under Chapter 7.64
    RCW,it does not matter whether the data is confidential or a trade
    i
    secret. Instead, what matters is whether Training Partnership or
    EFF has a superior possessory interest in the data.
    Conclusion of Law 3, Clerk's Papers at 747(emphasis added).
    The Foundation contends the trial court's ruling exemplifies the "weaker"
    elements-based reasoning disfavored by the courts that have followed Thola.
    The Foundation's position is that when plaintiffs allege theft or misuse of
    confidential, commercially valuable information, they are confined to a single
    cause of ction for misappropriation of trade secrets. Brief of Petitioner at 18-19;
    Reply Brief of Petitioner at 7-8. Thola does not support this position. Thola did
    not order dismissal of the common law causes of action. Instead, the court
    ordered a remand so that to the extent their factual bases overlapped with the
    11
    No. 76220-6-1/12
    trade secrets claim, proper instructions could be given to ensure that the jury did
    not give the plaintiff a duplicate recovery for a single wrong.
    The leading case in Washington on the preemptive scope of the Uniform
    Trade Secrets Act is not Thola; it is our Supreme Court's decision in Boeing Co.
    I.
    v. Sierra= Corp., 
    108 Wash. 2d 38
    , 48, 
    738 P.2d 665
    (1987). Thola does not cite
    Boeing on the issue of preemption, even though the issue arose in both cases in
    a similar posture. The dispute in Boeing was between the airplane company and
    a former supplier, Sierracin, arising from Sierracin's use of a Boeing window
    design. Boeing claimed breach of a confidential relationship, breach of contract,
    and misappropriation of trade secrets under the act. The jury found for Boeing
    on all three claims and awarded unsegregated damages of more than $1.6
    million. 
    Boeing, 108 Wash. 2d at 40
    , 43, 47-48. On appeal, Sierracin argued that
    the trial court erred by refusing to consolidate the claims into one claim under the
    Uniform Trade Secrets Act. 
    Boeing, 108 Wash. 2d at 48
    .
    The Supreme Court ruled that the trial court did not err in refusing to
    consolidate Boeing's claims. 
    Boeing, 108 Wash. 2d at 48
    . Because the act
    expressly provides that it does not affect contractual liability, the court
    determined that the contract claim was not preempted. RCW 19.108.900(2)(a).
    As to the claim for breach of a confidential relationship, the court reasoned that
    "proof of trade secrets is not required for breach of confidentiality claims, which
    may be brought independently of trade secrets claims." 
    Boeing, 108 Wash. 2d at 48
    . The court affirmed the verdicts on all three claims, finding they were
    supported by substantial evidence. 
    Boeing, 108 Wash. 2d at 46
    .
    12
    No. 76220-6-1/13
    In Boeing, the court did not assess the facts underlying the claim of
    breach o a confidential relationship to see if they were the same as the facts
    supporting the claim for misappropriation of trade secrets. The court's
    reasoning—that a claim for breach of a confidential relationship is not preempted
    because t "may be brought independently of" a trade secrets claim—resembles
    an elements-based analysis more than the "factual preemption" test adopted in
    Thola.
    In Boeing, the court did not consider the issue in Thola: whether the
    unsegregated award of damages gave the plaintiff a duplicate recovery for a
    single wrong. This may explain why the Supreme Court did not try to determine
    whether the breach of confidentiality claim was supported by the same facts as
    the trade secrets claim, and it may explain why Thola did not cite Boeing.
    Nevertheless, "Until or unless the Washington Supreme Court overrules Boeing
    and adopts the Thola analysis, Boeing controls." Modumetal, Inc. v. Xtalic Corp.,
    No. 76708-9-1, slip op. at 21 (Wash. Ct. App. June 25, 2018),
    http://www.courts.wa.gov/opinions/pdf/767089orderandopinion.pdf. The
    Foundation's refusal to examine the elements of replevin is inconsistent with
    Boeing. 'Boeing indicates the Uniform Trade Secrets Act is preemptive only if an
    examination of the allegedly preempted cause of action shows that it is founded
    on a law "regarding civil liability for misappropriation." 
    Boeing, 108 Wash. 2d at 48
    .
    The Foundation's preemption argument presented an apparent conflict
    between the Uniform Trade Secrets Act and the replevin statute. The trial court
    correctly perceived its duty to examine and, if possible, reconcile the apparently
    13
    No. 76220-6-1/14
    conflicting statutes. We affirm the trial court's conclusion that relief under the
    replevin tatute "is not based upon misappropriation of a trade secret," RCW
    19.108.900(2)(a), and therefore is not displaced by RCW 19.108.900(1). The
    two statutes do not conflict. Both statutes can be given effect without distortion
    of the language used in either. See 
    Faqalde, 85 Wash. 2d at 736
    .
    We are not convinced that the outcome would be different under Thola's
    three-step analysis. In support of its claim for relief under the Uniform Trade
    Secrets Act, the Partnership did allege facts supporting its claim that the
    confidential database of student educational records is a trade secret, the
    misappropriation of which caused damage. But to the extent that the Partnership
    alleged these same facts in support of replevin, they were not material to the
    replevin claim; they were simply part of the narrative. As the trial court stated,
    "Data can belong to one party and not be a trade secret. And the issue in a
    replevin case is who has the right to possess the data, not whether the data has
    any competitive value or economic value to a competitor." To have the right to
    replevin, the Partnership did not have to prove that the property was confidential
    I
    data that might be characterized as a trade secret. What mattered was which
    entity, the Partnership or the Foundation, had the superior possessory interest in
    the property. The causes of action arising from the two statutes at issue operate
    independently of each other. There is no danger of a duplicate recovery for a
    single wrong, the problem Thola dealt with.
    The Foundation cites two cases in which a federal district court ruled that
    a replevin claim was preempted by the Uniform Trade Secrets Act. In one case,
    14
    No. 76220-6-1/15
    replevin was among several causes of action dismissed on summary judgment.
    The court reasoned that although each cause of action had different elements,
    "the allegations necessary to prove each element still relate to the same core set
    of facts." Enters. Intl, Inc. v. Intl Knife & Saw, Inc., No. C12-5638 BHS, 
    2013 WL 6185241
    , at *10(W.D. Wash. Nov. 26, 2013)(court order). In the other case,
    a replevin claim was the subject of a motion to dismiss for failure to state a claim.
    The court granted the motion, finding the replevin claim was preempted "because
    it is based entirely on the misappropriation of[the plaintiffs] trade secrets and
    seeks only the return of the misappropriated information," a remedy
    contemplated by the Uniform Trade Secrets Act. Christopher Glass & Alum., Inc.
    v. O'Keefe, No. 1:16-cv-11532, 
    2017 WL 2834536
    , at *4(N.D. III. June 30, 2017)
    (memorandum opinion and order).
    Enterprises International, Inc. disposed of the replevin claim without
    mentioning that the remedies of Washington's replevin statute "are in addition to
    any other remedy available to the plaintiff." RCW 7.64.010. Christopher Glass
    likewise does not engage with the law of replevin. Because the interpretation of
    the two statutes and the resolution of their apparent conflict are issues of state
    law, Enterprises International and Christopher Glass, have neither authoritative
    nor precedential force. Hecnv Transp., Inc. v. Chu,430 F.3d 402, 404 (7th Cir.
    2005). Their cursory treatment of replevin is not persuasive. State courts should
    be reluctant to part with a remedy long deemed essential to maintaining civil
    order.
    15
    No. 76220-6-1/16
    The Seventh Circuit's opinion in Hecnv Transportation, Inc. has more to
    offer. The district court decision under review held that the plaintiffs non-trade-
    secrets claims were "knocked out" by his allegation that the defendant misused
    customer information. Hecnv Transp., 
    Inc., 430 F.3d at 404
    . Reversing, the
    appellate court held that "an assertion of trade secret in a customer list does not
    wipe out claims of theft, fraud, and breach of the duty of loyalty that would be
    sound even if the customer list were a public record." Hecnv Transp., 
    Inc., 430 F.3d at 405
    . The court stated:
    The Uniform Law Commissioners' comment to the model act
    supports this approach, stating: "The [provision] does not apply to
    dupes imposed by law that are not dependent upon the existence of
    competitively significant secret information, like an agent's duty of
    loyalty to his or her principal." We would be shocked if the
    Supreme Court of Illinois were to disagree; nothing in its
    jurisprudence suggests that it would. This is not a close question.
    Hecnv Triansp., 
    Inc., 430 F.3d at 405
    . The court found it "unimaginable that
    someone who steals property ... would get a free pass just because none of
    what he filched is a trade secret." Hecnv Transp., 
    Inc., 430 F.3d at 404
    .
    The same is true here. The Foundation has argued both that the
    Partnership's only remedy is under the Uniform Trade Secrets Act and that the
    stolen data is not a trade secret.1 If the wrongly detained data is not a trade
    secret, the consequence according to the Foundation is that the Partnership will
    be left without a remedy. The possibility of that result is contrary to the manifest
    1 See e.c., Clerk's Papers at 642 n.1 (Defendant's Brief on Show Cause
    Hearing): "The copies of the lists plainly do not meet the high standard required
    for trade secret protection."
    16
    No. 76220-6-1/17
    intention of the legislature that replevin remedies "are in addition to any other
    remedy available to the plaintiff." RCW 7.64.010.
    We conclude the trial court properly ruled that the replevin claim was not
    preempted.
    2. The replevin statute applies to electronic data
    The Foundation contends that the replevin statute does not apply to
    electronic data. The Foundation argues that replevin "has always been about the
    recovery of tangible property a plaintiff no longer possesses. A plaintiffs
    possession must be interrupted to give rise to a replevin claim." Brief of
    Petitioner at 26. We disagree. The replevin statute does not distinguish between
    tangible and intangible property. The question is whether the property may be
    taken back from the defendant and returned to the plaintiff. RCW 7.64.045,.047.
    Electronic data can be both taken and returned. In fact, this has already
    i
    I
    occurred in the present case. The electronic spreadsheets were removed from
    the Foundation's database pursuant to the replevin order. As noted by the trial
    court, a persuasive decision is Chefs Diet Acquisition Corp. v. Lean Chefs, LLC,
    No. 14-CV-8467(JMF), 
    2016 WL 5416498
    (S.D.N.Y. Sept. 28, 2016)(opinion
    and order), in which the plaintiff was permitted to use replevin to compel the
    return of an electronically stored customer list.
    The Foundation proposes that information stored electronically cannot be
    replevied unless the entity alleged to have the superior right of ownership has
    lost access to the information. The Foundation argues the court had no basis to
    compel the return of the copies because the Partnership retained the same
    17
    No. 76220-6-1/18
    information in its own database. The replevin statute does not support this
    interpretation. The Partnership has a superior possessory interest in the
    information. That interest is a property interest. It includes the right to control
    whether others can have access to the information. If the Foundation had
    acquired and wrongfully detained copies of tangible documents belonging to the
    Partnership, the Foundation would have to give them back regardless of whether
    the Partnership maintained possession of the originals. The same is true with
    respect to electronic data. The trial court did not err in applying the replevin
    statute t the electronic spreadsheets.
    3. It was wrongful for the Foundation to retain the data
    In support of a motion for a show cause hearing under the replevin statute,
    the plaintiff must file an affidavit showing, among other things, that the property is
    "wrongfully detained" by the defendant. RCW 7.64.020(2)(b). The Foundation
    contends the Partnership did not and could not show the Foundation's detention
    of the spreadsheets was wrongful because the Partnership always had access to
    its own copies of the information contained in the spreadsheets. As discussed
    above,fOr purposes of replevin, it does not matter that the Partnership kept its
    own copies of the stolen data. The Partnership's superior possessory interest in
    the information included the right to control access by others to the information.
    The Foundation wrongfully detained the spreadsheets when it was asked to give
    them back and did not do so.
    The Foundation also argues that the spreadsheets were not "wrongfully
    detained' because when Williams transferred them to the Foundation, he did not
    18
    No. 76220-6-1/19
    divulge that he had acquired them from the Partnership's database and he gave
    assurances that it was lawful for him to possess and transfer the information. To
    the extent this argument is based on Williams' deposition testimony, it will not be
    considered because that evidence was not before the trial court. Further, the
    argument is contradicted by findings the Foundation does not argue are
    erroneous. The trial court specifically found that the Partnership owns or has
    lawful possession of all of the information contained in its student database, the
    Department of Social and Health Services owns some of the information in the
    database and authorizes the Partnership to use it, and neither the Partnership
    nor the department ever authorized the Foundation to own or possess any
    portion of the database.
    The elemental question in this action for replevin is the relative right of
    possession as between the Foundation and the Partnership. It is immaterial that
    Williams may have told the Foundation he had a legal right to possess and share
    the spreadsheets. The Foundation has not shown any basis on which it was
    entitled to possess or retain the spreadsheets when asked by the Partnership to
    give them back.
    We conclude the record supports the element of wrongful detention.
    4. A bond was not required
    I
    i
    The Foundation contends that the trial court erred by not requiring the
    Partnership to post bond upon being awarded possession. Bond is required only
    when temporary possession is granted "pending final disposition."
    19
    No. 76220-6-1/20
    RCW 7.64.035(1)(a)(i). No bond was necessary here because the trial court
    entered final judgment at the show cause hearing.
    5. Motions
    First, we address the Foundation's motion to supplement the appellate
    record w th a transcript of Williams' deposition and related exhibits.
    The Partnership discovered Williams' identity in January 2017. His
    deposition was taken in March 2017, but the deposition was not considered by
    the trial court and is not in the trial court record.
    The motion is denied. The criteria of RAP 9.11 are not satisfied. The
    deposition adds nothing material to what is already in the record, and equitable
    considerations do not support the motion. The reason Williams' testimony was
    not available before the order of replevin was entered is that the Foundation
    chose not to reveal his identity.
    Second, we address the Partnership's motion to strike a letter sent to this
    court by the Foundation.
    I
    The Foundation asserts that the majority of jurisdictions that have
    I
    interpreted the Uniform Trade Secrets Act favor the fact-based or "strong"
    approac to preemption. During oral argument before this court on July 25,
    2018, we asked the Foundation for authority supporting this assertion. The
    I
    Foundation responded the next day with a letter citing eight cases. The
    Foundation's letter continues with briefing responding to points raised by the
    Partnership during oral argument. The letter states that questioning by the panel
    20
    No. 76220-6-1/21
    prevented counsel for the Foundation from using her four minutes of reserved
    time to rebut the arguments of the Partnership.
    The Foundation's case citations are accepted as a proper response to the
    panel's specific request for authority. We strike the remainder of the
    Foundation's letter as a brief not authorized by RAP 10.1. The use of time given
    for oral argument is at the discretion of the court. The opportunity to reserve time
    for rebuttal is not a guarantee that the panel will refrain from questioning counsel
    during that time.
    6. Attorney fees on appeal are awarded to the Partnership
    The trial court awarded fees to the Partnership as authorized by the
    replevin statute when final judgment is entered at a show cause hearing:
    (3) If at the time of the hearing more than twenty days have
    elapsed since service of the summons and complaint and the
    defendant does not raise an issue of fact prior to or at the hearing
    that requires a trial on the issue of possession or damages, the
    judge or court commissioner may also, in addition to entering an
    order awarding possession, enter a final judgment awarding plaintiff
    possession of the property or its value if possession cannot be
    obtained, damages, court costs, reasonable attorneys' fees, and
    costs of recovery.
    RCW 7.64.035(3). When a trial court awards attorney fees pursuant to a statute,
    it is ordinarily the rule that attorney fees are awardable on appeal as well.
    Cowiche Canyon Conservancy v. Bosley, 
    118 Wash. 2d 801
    , 825, 
    828 P.2d 549
    (1992). This court once denied a request for attorney fees on appeal in a
    replevin action, reasoning that RCW 7.64.035 "applies only to rulings of a 'judge
    or court commissioner, at the hearing on the order to show cause' in a replevin
    action." Puget Sound Nat'l Bank v. Honeywell, Inc., 
    40 Wash. App. 313
    , 319, 698
    P.2d 584(1985). Because Cowiche Canyon is the stronger precedent, we follow
    21
    No. 76220-6-1/22
    it. We award attorney fees on appeal to the Partnership, subject to compliance
    with RAP 18.1.
    Affirmed.
    WE CONCUR:
    22