and submitted January 26, 2016.
County Circuit Court 12C13617; Vance D. Day, Judge.
J. Jacoby argued the cause for appellant. With him on the
briefs were Paul R.J. Connolly, Tyler P. Malstrom, and
Connolly & Malstrom.
Elizabeth Tedesco Milesnick argued the cause for respondent.
With her on the brief were John F. Neupert, P.C., and Miller
Nash Graham & Dunn LLP.
DeVore, Presiding Judge, and Lagesen, Judge, and James,
Or. 11] Case Summary: Plaintiff brought claims against
defendant that included misappropriation of trade secrets and
breach of an oral contract. The trial court entered a limited
judgment dismissing those two claims after granting
defendant's motion for summary judgment. Plaintiff
assigns error to the trial court's grant of summary
judgment, arguing that the evidence, including its attorney
declarations fled pursuant to ORCP 47 E reporting that
plaintiff retained an expert to testify about causation,
presents a question of fact for a jury to determine whether
competitors had harmed plaintiff by using its trade secrets.
Held: The trial court erred. Causation may be proved
by circumstantial evidence, expert testimony, or common
knowledge. Plaintiff's contravening evidence, including
its expert's testimony, presented a genuine issue of
material fact on causation asking how its competitors used
plaintiff's trade secrets. The same factual question
remains as to plaintiff's claim for breach of contract.
DeVORE, P. J.
Iverson's Unlimited, Inc. (Iverson) brought claims
against WinCo Foods, LLC (WinCo), that included
misappropriation of trade secrets and breach of an oral
contract. The trial court entered a limited judgment
dismissing those two claims after granting WinCo's motion
for summary judgment and denying Iverson's motions to
amend the claims and to plead punitive damages. Iverson
assigns error to each of those rulings. As to the first
assignment of error, we agree that there is a genuine issue
of material fact on the issue of causation that is common to
the claims, which precludes summary judgment. Therefore, we
reverse and remand. We do not reach the latter assignments,
because the questions of amendment of the complaint may be
renewed and reconsidered in a different light given our
reversal of the summary judgment ruling.
describe the facts consistent with our standard of review of
a summary judgment ruling. "On review, we view the
evidence and all reasonable inferences that may be drawn from
the evidence in the light most favorable to the nonmoving
party." Becker v. Pacific Forest Industries,
Inc., 229 Or.App. 112, 114, 211 P.3d 284 (2009). The
nonmoving party is Iverson.
had provided unloading services to commercial carriers of
goods being delivered to WinCo, an owner and operator of
supermarkets. In the past, Iverson had been paid largely by
the carriers. Beginning about 2005, WinCo put the contract
for unloading services out for bid, providing that, in
exchange for the right to exclusive use of WinCo's
facilities and equipment, the unloading contractor would pay
WinCo a percentage of fees collected from the carriers in a
"revenue share" arrangement. Iverson was awarded
the contracts after bidding in 2005 and 2008. Iverson paid
WinCo about 50 percent of its revenue from carriers.
this time, Iverson provided WinCo with reports on the dates
of unloading, number of loads, service fees by load, number
of cases and pallets unloaded, the elapsed times of
unloading, and names of carriers paying Iverson
("unloading data"). The information allowed WinCo
to confirm that Iverson was charging carriers correctly and
[288 Or. 13] sharing the proper amount of revenue. Iverson
expected its data to remain confidential when shared with
WinCo. Iverson did not intend that its data would be shared
with companies outside of WinCo or Iverson. As construed in
Iverson's favor, such productivity, cost, and revenue
information was confidential.
2011, Belliveau, a WinCo employee, began another request for
proposals (RFP) process. Upon request, Iverson gave Belliveau
general access to Iverson's secured server and emailed an
electronic file to him containing all of Iverson's
unloading data for 2010 and seven months of 2011. Iverson
told Belliveau that the electronic file was confidential.
solicited bids from Iverson and a number of competitors, and,
when WinCo sent its 2011 RFP documents, WinCo attached the
file that Iverson had prepared for Belliveau. Iverson's
information, which WinCo sent to Iverson's competitors,
was in a searchable database or spreadsheet form. The
spreadsheets included unloading dates, times, purchase order
numbers, vendors, start and stop times of tasks, the number
of cases, and the amounts Iverson charged carriers, but
excluded the revenue share that Iverson owed WinCo for each
load. WinCo's vice-president of distribution, Parker,
explained that WinCo provided unloading data for over a year
so that "RFP proponents [had] a good view of what they
were actually going to be doing." Belliveau ...