CDC Restoration & Construction, LC v. Tradesmen Contractors, LLC

2016 UT App 43THE UTAH COURT OF APPEALS
CDC RESTORATION & CONSTRUCTION, LC,
Appellee,
v.
TRADESMEN CONTRACTORS, LLC,
Appellant.
Opinion
No. 20130097-CA
Filed March 3, 2016
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 080908435
Sarah L. Mathews and Stephen M. Enderton,
Attorneys for Appellant
Richard F. Ensor and Michael C. Barnhill, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 Tradesmen Contractors, LLC appeals from a jury verdict
in favor of CDC Restoration & Construction, LC. The jury found
that Tradesmen misappropriated CDC’s information. We affirm.
CDC Restoration & Construction v. Tradesmen Contractors
BACKGROUND1
¶2 CDC specializes in concrete repair and coatings. Between
2003 and 2005, it had a contract to perform concrete repair and
restoration work at a refinery owned by Kennecott Utah Copper
Corporation (Kennecott). As part of this arrangement, CDC and
Kennecott entered into a Preferred Provider Agreement (PPA).
The PPA was a confidential document that, among other things,
set forth the rates for CDC’s work, the pricing information for
CDC’s hourly employees, and for the hourly, daily, weekly, and
monthly rates for various pieces of equipment.
¶3 Paul Carsey began working at CDC in 1992 and served as
a foreman during the time of CDC’s work for Kennecott. In the
course of his duties, Carsey regularly delivered sealed envelopes
that contained confidential information. But, although he was
informed that information related to CDC’s projects was
confidential, Carsey never signed a confidentiality agreement.
¶4 At the beginning of January 2006, Carsey gave Ralph
Midgley, CDC’s co-owner, two weeks’ notice of his intent to
resign from CDC. Carsey explained to Midgley that he was
‚burned out‛ and ‚tired of working at Kennecott.‛ He told
Midgely of his plan to earn a living by buying, refurbishing, and
selling houses instead. Unbeknownst to Midgely, Carsey had
already become a co-owner and director of a new competing
company, Tradesmen, with Kenneth Allen.
1. ‚In reviewing a jury verdict, we view the evidence in the light
most favorable to it, and recite the facts accordingly. We present
conflicting evidence only to the extent necessary to understand
the issues raised on appeal.‛ Ortiz v. Geneva Rock Prods., Inc., 939
P.2d 1213, 1215 (Utah Ct. App. 1997) (citations and internal
quotation marks omitted).
20130097-CA 2 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
¶5 Allen was a subcontractor for Kennecott who acted as the
project supervisor overseeing CDC’s work there. In this role,
Allen received CDC’s invoices for its projects and verified that
its rates conformed to those specified in CDC’s PPA.
Consequently, Allen received and had access to CDC’s pricing
information. Although Allen had worked as a contractor at
Kennecott for twenty-eight years, he met with Carsey and other
potential business associates sometime in mid-2005 to discuss
forming a company to perform work at Kennecott. Allen
stopped working at the refinery in December 2005. The same
month, he finalized his ownership interest in Tradesmen and
instructed another partner not to disclose to Kennecott his status
with Tradesmen.2
¶6 In late 2005, Kennecott opened a competitive bid process
on a project known as E-Bay (the Project) at its refinery.
Kennecott invited a pre-bid walkthrough of the Project site on
Monday, January 9, 2006. Together, Midgely and Carsey
participated in the walkthrough on behalf of CDC. Tradesmen
also had two representatives participate in the walkthrough.
When Midgley asked questions about Tradesmen, Carsey
responded that he had ‚never heard of them.‛
¶7 After the walkthrough, Midgley and Carsey developed
CDC’s bid and assessed the equipment needs and the amount of
time and labor that would be required to complete the Project.
Although Carsey had ‚a better grasp‛ on what needed to be
done and had expertise in estimating labor and equipment
needs, the two ‚combined *their+ knowledge‛ in ‚debating out
what it took to do *the Project.+.‛ Once Midgley and Carsey
made these calculations, Midgley formulated the bid by taking
2. In November 2005, Allen wrote an email to a Kennecott
employee in which Allen purported to have little information
about Tradesmen.
20130097-CA 3 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
those figures and entering them into a spreadsheet with the
labor and equipment rates. The rates used in the spreadsheet
matched the pricing information in CDC’s PPA. Before
submitting the final bid on Friday, January 13, Midgley
increased it after Carsey told Midgley that more labor hours
were needed.
¶8 Midgley believed both CDC’s PPA and its final bid were
confidential, and he shared CDC’s labor and equipment
estimates with only Carsey and Kennecott. In addition, Midgley
kept the details of CDC’s bid in his locked office to prevent
someone from having ‚an advantage *by+ trying to underbid‛
CDC.
¶9 Meanwhile, Carsey and Allen were in frequent telephone
contact when the two companies were formulating their bids.
According to a partner at Tradesmen, Carsey gave Allen input
on the numbers for Tradesmen’s bid the night before bids were
due.
¶10 CDC, Tradesmen, and another company submitted bids
for the Project. CDC’s bid was the highest at $179,729.32,
Tradesmen’s was the second highest at $141,575.00, and a third
company’s was the lowest. On January 23, 2006, Kennecott
awarded the Project to Tradesmen. Dan Larsen, who had
replaced Allen as the supervisor at Kennecott, informed Midgley
that Tradesmen won the contract because it was ‚the lowest
competent bidder‛ owing to the fact that Carsey worked there.
Until this point, Midgley did not know Carsey was involved
with Tradesmen.
¶11 CDC brought suit against Tradesmen, Allen, and Carsey
(collectively, Defendants), alleging, among other things,
misappropriation of trade secrets for improper use of its labor
and equipment rates and bid information. The trial court granted
summary judgment to Defendants on all claims. On appeal from
that order, this court affirmed in part and reversed in part. CDC
20130097-CA 4 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012 UT
App 60, ¶¶ 60–61, 274 P.3d 317. This court affirmed with regard
to the misappropriation of labor and equipment pricing
information, concluding that these details are not job-specific
and ‚not, as a matter of law, entitled to trade secret protection.‛
Id. ¶¶ 27, 28 n.2. Nevertheless, without opining on the merits of
the issue, this court determined that CDC presented enough
evidence to create a genuine issue of material fact to preclude
summary judgment regarding CDC’s claim for misappropriation
of bid information. Id. ¶¶ 28, 32, 61 & n.7.
¶12 The case proceeded to a jury trial. CDC argued that its
labor and equipment estimates for the Project and its total bid
were trade secrets. CDC further argued that although
Tradesmen never had access CDC’s actual bid, Tradesmen
misappropriated the pricing information and the labor and
equipment estimates used to compute CDC’s bid. Specifically,
CDC argued that Tradesmen inappropriately used Carsey’s
knowledge of CDC’s estimates and Allen’s familiarity with
CDC’s pricing information to formulate Tradesmen’s lower bid
for the Project. In contrast, Tradesmen argued it did not
misappropriate the bid information because it had no access to
CDC’s actual bid and because Carsey’s general knowledge about
estimating labor and equipment needs for projects is not a trade
secret.
¶13 At the close of CDC’s case-in-chief, Tradesmen moved for
a directed verdict, arguing CDC failed to provide any competent
evidence showing that its bid information was a trade secret and
that Tradesmen misappropriated and used CDC’s bid. In
opposing the motion, CDC argued the bid was a trade secret
because it resulted from a collaborative effort and circumstantial
evidence showed Tradesmen used the bid information. The
court denied Tradesmen’s motion, ruling that enough
circumstantial evidence created a question for the jury on CDC’s
claim.
20130097-CA 5 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
¶14 Although Tradesmen proposed jury instructions stating
that the standard for a trade secret is ‚whether the information is
generally known and readily ascertainable to‛ Defendants
‚based on [their] knowledge and experience,‛ the instructions
submitted to the jury omitted this language but tracked the
statutory language used in Utah’s Uniform Trade Secrets Act.
Additionally, an instruction informed the jury that ‚it is the law
[of the case] that CDC’s *PPA+, pricing information, and
equipment rates to perform the E-Bay Project are not trade
secrets.‛
¶15 The jury ultimately found against Defendants. In
accordance with the verdict, the trial court entered judgment in
favor of CDC, awarding it $161,974 from Allen, $171,974 from
Carsey, and $982,455 from Tradesmen. Tradesmen appeals.3
ISSUES AND STANDARDS OF REVIEW
¶16 Tradesmen first contends the trial court erred in denying
its motion for a directed verdict. ‚We review the trial court’s
grant or denial of a motion for directed verdict for correctness.‛
Francis v. National DME, 2015 UT App 119, ¶ 22, 350 P.3d 615(citation and internal quotation marks omitted). ‚Accordingly,
we will sustain a directed verdict if[,] after examining all
evidence in a light most favorable to the non-moving party,
there is no competent evidence that would support a verdict in
the non-moving party’s favor.‛ Id. (alteration in original)
(citation and internal quotation marks omitted).
¶17 Second, Tradesmen contends the trial court submitted
erroneous instructions to the jury. ‚Whether a trial court
properly instructed the jury is a question of law, which we
3. Although all three Defendants are listed on the notice of
appeal, only Tradesmen has filed appellate briefs in this matter.
20130097-CA 6 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
review for correctness.‛ Jensen v. Intermountain Power Agency,
1999 UT 10, ¶ 16, 977 P.2d 474.
¶18 Third, Tradesmen contends the trial court erred in
allowing the admission of certain evidence under rules 402 and
403 of the Utah Rules of Evidence. ‚Trial court rulings on the
admissibility of evidence generally entail a good deal of
discretion, and we review those rulings for an abuse of
discretion.‛ Francis, 2015 UT App 119, ¶ 20 (citation and internal
quotation marks omitted).
ANALYSIS
I. Directed Verdict
¶19 Tradesmen contends the trial court should have granted
its motion for a directed verdict on the ground that there was no
competent evidence of misappropriation of bid information that
could support a verdict in CDC’s favor. Under Utah’s Uniform
Trade Secrets Act (the UTSA), a prima facie case of
misappropriation has ‚two essential elements: existence of a
protectable ‘trade secret’ of a plaintiff and demonstration of
‘misappropriation’ by a defendant.‛ InnoSys, Inc. v. Mercer, 2015
UT 80, ¶ 24, 364 P.3d 1013 (quoting Utah Code Ann. § 13-24-2(LexisNexis 2013)). We address Tradesmen’s contentions as to
each element in turn.
A. Trade Secret
¶20 Tradesmen contends there was no competent evidence
that CDC’s bid information was a trade secret. Under the UTSA,
a ‚trade secret‛ is information, such as a formula, technique, or
process that:
(a) derives independent economic value, actual or
potential, from not being generally known to, and
20130097-CA 7 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
not being readily ascertainable by proper means
by, other persons who can obtain economic value
from its disclosure or use; and
(b) is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
Utah Code Ann. § 13-24-2(4).4 The trial court would be ‚justified
in granting a directed verdict only if, examining all evidence in a
light most favorable to [CDC], there is no competent evidence
that would support‛ a finding as to both components of the
trade secret definition. See Merino v. Albertsons, Inc., 1999 UT 14,
¶ 3, 975 P.2d 467.
i. Independent Economic Value
¶21 Tradesmen contends that CDC’s bid information and
labor and equipment estimates cannot be considered trade
secrets with independent economic value. In particular,
Tradesmen argues ‚CDC failed to present any evidence that
differentiated the knowledge and experience of . . . Defendants
and CDC’s purported trade secret.‛ According to Tradesmen,
the hours and equipment estimates that went into CDC’s bid
‚came directly from Mr. Carsey’s knowledge and expertise,
which as a matter of law cannot be a trade secret.‛
¶22 The Utah Supreme Court has explained that ‚‘*a+ unique
combination of generally known elements or steps can qualify as
a trade secret, if it represents a valuable contribution attributable
to the independent efforts of the one claiming to have conceived
it.’‛ USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 43, 235 P.3d 749(quoting Microbiological Research Corp. v. Muna, 625 P.2d 690, 696
4. Because the relevant statutory provisions have not changed
since the events in question, we cite the current codification of
the Utah Code.
20130097-CA 8 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
(Utah 1981)). Further, information may qualify as a trade secret
‚if extensive effort is required to pierce its veil by assembling the
literature concerning it and thereby uncover its parts.‛
Microbiological Research, 625 P.2d at 696 (citation and internal
quotation marks omitted). By contrast, ‚*i+f this can be readily
done by one who is normally skilled in the field and has a
reasonable familiarity with its trade literature, the secret may no
longer be entitled to protection.‛ Id. (citation and internal
quotation marks omitted).
¶23 Whether information is ‚generally known and readily
ascertainable‛ is not merely ‚whether the information is
generally known and readily ascertainable to the general public,
but, based on the defendant*‘s+ knowledge and experience,
whether the information was known or ascertainable to [the
defendant+.‛ USA Power, 2010 UT 31, ¶ 44 (alterations in
original) (citation and internal quotation marks omitted). This
standard ‚takes into account the relevant experience and
knowledge of the specific defendants.‛ CDC Restoration
& Constr., LC v. Tradesmen Contractors, LLC, 2012 UT App 60,
¶ 24, 274 P.3d 317. ‚There must be a delineation between the
general knowledge and experience of the employee and the
trade secrets of the employer.‛ Microbiological Research, 625 P.2d
at 697. Specifically, our supreme court has recognized there is a
‚distinction between . . . an employee, who leaves one employer
and uses his own faculties, skill and experience in the
establishment of an independent business or in the service of
another, and [an employee] who uses confidential information,
secured solely through his employment, to the harm of his
previous employer.‛ Id.
¶24 We conclude that CDC offered competent evidence from
which the jury could find that its bid information and labor and
equipment estimates derive independent economic value from
not being generally known or readily ascertainable. Tradesmen’s
argument centers on an alleged lack of differentiation ‚between
20130097-CA 9 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
the knowledge of Mr. Carsey and the variables which CDC
argued were the critical parts of its bid.‛ Although the evidence
showed that Carsey had knowledge and expertise in estimating
labor and equipment needs for projects and that he played an
important role in calculating CDC’s estimates, Midgley testified
that he and Carsey walked through the Project site together and
used their ‚combined knowledge‛ in putting together the
estimates which Midgley then multiplied by the pricing
information to calculate CDC’s actual bid.5 Thus, even if Carsey
was capable of estimating the needs for the Project on his own,
CDC offered evidence that Carsey’s knowledge of CDC’s exact
estimates came directly from working with Midgley to calculate
estimates on CDC’s behalf. Viewing the evidence in the light
most favorable to the jury’s verdict, the trial court correctly
determined CDC presented sufficient competent evidence that—
even taking into account Carsey’s relevant experience—its bid
information and labor and equipment estimates were not readily
ascertainable by others.
ii. Efforts to Maintain Secrecy
¶25 On appeal, Tradesmen contends that ‚CDC failed to
provide any evidence that [it] used reasonable efforts under the
circumstances to maintain the bid information’s secrecy as
required under Utah law.‛ ‚*T+o preserve an issue for appeal*,+
the issue must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.‛ 438 Main
St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (second
alteration in original) (citation and internal quotation marks
omitted). This requires parties to raise it in a timely manner and
with supporting evidence or relevant legal authority. Id. ‚Where
the grounds upon which a motion is made before the trial court
5. Unlike the pricing information, CDC’s labor and equipment
estimates were job-specific.
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differ from the grounds argued on appeal, appellate courts will
generally dismiss those arguments as unpreserved.‛ State v.
Gonzalez, 2015 UT 10, ¶ 24, 345 P.3d 1168.
¶26 In supporting its motion for a directed verdict before the
trial court, Tradesmen argued that the evidence could not show
that CDC’s bid information was a trade secret, focusing only on
the first component of the trade secret definition. But Tradesmen
did not support its motion with a specific argument that the bid
information was not the subject of reasonable efforts to maintain
its secrecy, which is the second component of the trade secret
definition. As a result, Tradesmen did not give the trial court an
opportunity to rule on the issue, see 438 Main St., 2004 UT 72,
¶ 51, and its argument on appeal regarding CDC’s efforts to
keep the bid information secret is a new argument and therefore
unpreserved, see Gonzalez, 2015 UT 10, ¶ 24.
B. Misappropriation
¶27 Tradesmen also contends CDC presented no competent
evidence to show misappropriation of CDC’s bid information.
Specifically, Tradesmen argues that although CDC’s ‚evidence
may in some manner show that [Tradesmen] had the
opportunity to use CDC’s bid information, it does not in any
meaningful way evince that *Tradesmen+ actually used CDC’s
information in preparing [its] own bid.‛ We are not persuaded.
¶28 Under the UTSA, ‚misappropriation‛ is defined as
follows:
(a) acquisition of a trade secret of another by a
person who knows or has reason to know that the
trade secret was acquired by improper means; or
(b) disclosure or use of a trade secret of another
without express or implied consent by a person
who:
20130097-CA 11 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
(i) used improper means to acquire knowledge
of the trade secret; or
(ii) at the time of the disclosure or use, knew or
had reason to know that his knowledge of the
trade secret was:
(A) derived from or through a person who
had utilized improper means to acquire it;
(B) acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its
use; or
(C) derived from or through a person who
owed a duty to the person seeking relief to
maintain its secrecy or limit its use; or
(iii) before a material change of his position,
knew or had reason to know that it was a trade
secret and that knowledge of it had been
acquired by accident or mistake.
Utah Code Ann. § 13-24-2(2) (LexisNexis 2013). ‚Improper
means‛ under the act includes ‚theft, bribery, misrepresentation,
breach or inducement of a breach of a duty to maintain secrecy,
or espionage through electronic or other means.‛ Id. § 13-24-
2(1).6 This can be inferred by circumstantial evidence. See CDC
Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012 UT
App 60, ¶ 30, 274 P.3d 317 (citing USA Power, LLC v. PacifiCorp,
2010 UT 31, ¶ 50, 235 P.3d 749).
6. The UTSA defines ‚person‛ to mean ‚a natural person,
corporation, business trust, estate, trust, partnership, association,
joint venture, government, governmental subdivision or agency,
or any other legal or commercial entity.‛ Utah Code Ann. § 13-
24-2(3) (LexisNexis 2013).
20130097-CA 12 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
¶29 Contrary to Tradesmen’s contention, CDC presented
competent evidence to support a finding that Tradesmen
misappropriated CDC’s bid information. In particular, CDC
presented evidence that showed Tradesmen used CDC’s bid
information and labor estimates to underbid CDC, knowing that
the information was ‚acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its use . . . or derived
from or through a person who owed a duty to [CDC] to maintain
its secrecy or limit its use.‛ See Utah Code Ann. § 13-24-
2(2)(b)(ii)(B)–(C). For example, evidence showed that Carsey was
aware of the secrecy surrounding the bid information and the
bidding process.7 CDC also offered evidence that Carsey
concealed his knowledge and involvement with Trademen, even
while he and Midgley worked together to develop CDC’s bid,
which showed that Carsey knew CDC’s estimates of the amount
of time, labor, and equipment required to complete the Project. It
also provided evidence which demonstrated that Allen had
access to CDC’s pricing information. Finally, CDC presented
evidence that Carsey and Allen were in frequent contact and
worked together on Tradesmen’s bid before it was due, and that
Tradesmen ultimately submitted a bid lower than CDC. This
evidence tended to show that Tradesmen had access to all the
information it needed to figure out CDC’s actual bid and how to
underbid CDC. Even though CDC may not have presented
direct evidence of use, it presented sufficient circumstantial
7. Although this court affirmed the dismissal of CDC’s breach of
fiduciary duty claim against Carsey on preemption grounds,
CDC Restoration & Constr., LC v. Tradesmen Contractors, LLC, 2012
UT App 60, ¶¶ 50–53, 274 P.3d 317, the jury could still consider
whether Carsey had a duty to maintain the secrecy of CDC’s
labor estimates in evaluating whether Tradesmen
misappropriated CDC’s information, see Utah Code Ann. § 13-
24-2(1), (2)(b).
20130097-CA 13 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
evidence from which a jury could conclude that Tradesmen used
CDC’s bid information without authorization.
¶30 In sum, CDC’s evidence that its bid information was a
trade secret that Tradesmen misappropriated was sufficient to
withstand a motion for a directed verdict. Accordingly, we
affirm the trial court’s denial of Tradesmen’s motion for a
directed verdict.
II. Jury Instructions
¶31 Tradesmen next contends the trial court erroneously
instructed the jury regarding the law of the case in two ways.
First, Tradesmen contends that even though the court instructed
the jury that CDC’s PPA, pricing information, and equipment
rates are not trade secrets, it inadequately advised the jury on
this issue because it ‚waited until the presentation of jury
instructions to provide any direction to the jury as to the law on
trade secrets and the law of the case.‛ Second, Tradesmen, citing
CDC Restoration & Construction, LC, 2012 UT App 60, ¶ 24,
contends the court should have added the following language to
the instruction defining a trade secret:
As to the standard for [whether information
derives independent economic value], it is not
whether the information is generally known and
readily ascertainable to the general public, but
based on the defendants’ knowledge and
experience, whether the information was known or
ascertainable to them.
Tradesmen further argues it was prejudiced by the omission of
this language because ‚the jury was entirely misled as to the
law‛ in that ‚the law of the case doctrine mandated that the jury
consider the interplay of the Defendants’ knowledge and
expertise in their determination as to whether the bid
information constituted a trade secret.‛
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¶32 A jury instruction that accurately states the law is not
erroneous. See State v. Gallegos, 849 P.2d 586, 590 (Utah Ct. App.
1993). As long as ‚the jury instructions as a whole fairly instruct
the jury on the applicable law, reversible error does not arise
merely because one jury instruction, standing alone, is not as
accurate as it might have been.‛ Jensen v. Intermountain Power
Agency, 1999 UT 10, ¶ 16, 977 P.2d 474 (citation and internal
quotation marks omitted). Accordingly, ‚[f]ailure to give
requested jury instructions constitutes reversible error only if
their omission tends to mislead the jury to the prejudice of the
complaining party or insufficiently or erroneously advises the
jury on the law.‛ Martinez v. Wells, 2004 UT App 43, ¶ 26, 88 P.3d
343 (citation and internal quotation marks omitted).
¶33 At the close of evidence, the trial court gave the jury all
the instructions, including Instruction 30, which explained that
‚it is the law that CDC’s *PPA+, pricing information, and
equipment rates to perform the E-Bay Project are not trade
secrets.‛ Tradesmen argues that by issuing this instruction at the
end of trial—rather than when CDC presented evidence
regarding the PPA, pricing information, and equipment rates—
the jurors were ‚in an untenable situation because they had no
clear understanding of what [CDC] was required to prove under
the law.‛ But Tradesmen ignores that its own counsel informed
the jury in opening statements that ‚the law of this case is that
*CDC’s+ pricing information, which is to be kept separate from
the actual bid, is not a trade secret.‛ Additionally, at the time of
the PPA’s admission into evidence, the trial court indicated that
a jury instruction related to the PPA would be forthcoming.
¶34 Furthermore, Tradesmen has presented no authority to
support its contention that the court should have diverted from
its routine practice of instructing the jury at the close of
evidence. And, it has not shown that Instruction 30 misstated the
law or was otherwise inaccurate. See CDC Restoration, 2012 UT
App 60, ¶ 27. Instruction 30 clearly informed the jury that it
20130097-CA 15 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
could not consider as trade secrets the PPA, pricing information,
and equipment rates. We therefore do not agree with Tradesmen
that the court inadequately advised the jury on the law of the
case.
¶35 We also disagree with Tradesmen’s contention that the
trial court erred when it declined to include Tradesmen’s
proposed language for the instruction defining a trade secret.
Even though Utah case law has expounded upon the statutory
definition of a trade secret, the court was not required to include
additional language in the instructions, because the instructions
tracked the statutory language and correctly stated the law.
Accordingly, we are not persuaded that the jury instructions
were inadequate or misled the jury as to the law.
III. Evidentiary Rulings
¶36 Finally, Tradesmen contends that under rules 402 and 403
of the Utah Rules of Evidence, the trial court should not have
admitted CDC’s PPA into evidence. In particular, Tradesmen
argues that because CDC’s labor and pricing information is not
entitled to trade secret protection as it was readily ascertainable
information, the court should have excluded CDC’s PPA.
Tradesmen contends that the PPA containing pricing
information was not relevant, because it ‚could not lend any
credence to the issue of whether [Tradesmen] misappropriated
*CDC’s+ bid or to the issue of *Defendants’+ credibility.‛
Tradesmen further contends that the PPA should have been
excluded as unfairly prejudicial because the PPA ‚mis*led+ the
jury into believing that [Tradesmen] improperly took and used
CDC’s pricing information even though . . . such information
was not as a matter of law a trade secret.‛
¶37 Rule 401 of the Utah Rules of Evidence provides that
evidence is relevant if ‚it has any tendency‛ to make a fact of
consequence ‚more or less probable than it would be without
the evidence.‛ Utah R. Evid. 401. This presents ‚a very low bar
20130097-CA 16 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
that deems even evidence with the slightest probative value
relevant and presumptively admissible.‛ State v. Richardson, 2013
UT 50, ¶ 24, 308 P.3d 526 (citation and internal quotation marks
omitted). Under rule 403, a court may ‚exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.‛ Utah R. Evid. 403. We bear in mind that
‚*t+rial courts have wide latitude in making determinations of
relevance, probativeness, and prejudice.‛ Diversified Holdings, LC
v. Turner, 2002 UT 129, ¶ 38, 63 P.3d 686 (alteration in original)
(citation and internal quotation marks omitted).
¶38 We conclude that under rule 401, the PPA was relevant to
CDC’s claim that Tradesmen misappropriated its bid
information. Tradesmen’s argument appears to be that because
the PPA, pricing information, and equipment rates are not trade
secrets in and of themselves, any information about the PPA was
irrelevant to the question of whether the bid information was a
trade secret. This argument is not well taken. The PPA was still
relevant to CDC’s claim because it contained the pricing
information that was a key component of the overall bid
information. When considered in light of the evidence that Allen
had access to the PPA, the PPA tended to make it more probable
that Tradesmen had access to CDC’s pricing information and
combined that information with Carsey’s knowledge of CDC’s
labor and equipment estimates to calculate CDC’s actual bid.
¶39 We also conclude that the trial court did not exceed its
discretion in declining to exclude the PPA under rule 403. The
only unfair prejudice that Tradesmen contends resulted from the
admission of the PPA is that the jury might have been confused
about whether the PPA itself was a trade secret. But any possible
confusion was addressed by the jury instruction informing the
jurors that ‚CDC’s *PPA+, pricing information, and equipment
rates to perform the E-Bay Project are not trade secrets.‛ Indeed,
20130097-CA 17 2016 UT App 43CDC Restoration & Construction v. Tradesmen Contractors
at the time of the PPA’s admission into evidence, the court told
the jury to expect an instruction related to the PPA. 8
Furthermore, CDC’s closing arguments highlighted that the PPA
was not a trade secret. As a consequence, Tradesmen has not
shown that the probative value of the PPA was substantially
outweighed by the danger of unfair prejudice or that the court
exceeded its discretion in admitting the PPA.
CONCLUSION
¶40 The trial court did not err in denying Tradesmen’s motion
for a directed verdict on CDC’s claim for misappropriation of
bid information. Tradesmen has not identified any errors in the
jury instructions and has not established that the trial court
exceeded its discretion in admitting evidence. Accordingly, we
affirm.
8. Alternatively, Tradesmen argues that if the PPA was admitted,
it should have been ‚admitted only in conjunction with a
cautionary instruction as to the law of the case.‛ But Tradesmen
does not explain how a cautionary instruction would have
differed from the instruction that the court actually gave, and we
have already rejected Tradesmen’s claim that the trial court
erred in not issuing Instruction 30 at the time the court admitted
the evidence. See supra ¶¶ 30, 33.
20130097-CA 18 2016 UT App 43