OPINION AND ORDER
On November 23, 2011, Plaintiff Big Vision Private Limited (“Big Vision” or “Plaintiff”) initiated the instant action against Defendant E.I. DuPont De Nem-ours & Co. (“DuPont” or “Defendant”), alleging breach of contract, unfair competition, and misappropriation of trade secrets. Broadly speaking, Big Vision claims that (i) DuPont misappropriated its five-element trade secret method for producing recyclable banners over the course of three laboratory trials attended by both
BACKGROUND
A. Factual Background
1. The Parties and the Claims
Plaintiff Big Vision is a digital printing company with approximately 50 employees, headquartered in Mumbai, India. (Compl. ¶ 6; S. Visaría Tr. 10).
Defendant DuPont is a Delaware corporation headquartered in Wilmington, Delaware. (Def. 56.1 ¶ 1). DuPont’s Tyvek® is a recyclable, nonwoven substrate made from polyethylene that has been used for over 20 years as an advertising banner. (Id. at ¶ 52). Coated, recyclable Tyvek products have been developed and sold for at least 10 years by several companies. (Id. at ¶ 58). DuPont also produces and sells specialty polymers and resins, such as Entira®, and commodity pigments such as titanium dioxide (“Ti02”). (Id. at ¶ 2).
Big Vision alleges that DuPont misappropriated its five-element trade secret for producing recyclable banners, which it defines in its briefing as: (i) a “suitably strong nonwoven polyolefin central layer”; (ii) “high pigment levels, including CaC03”; (iii) “a layered structure efficiently made by coextrusion or lamination of a predominantly LDPE structure”; (iv) “minimal use of Entira or other expensive resins”; and (v) “surface treatment.” (PI. 56.1 ¶ 159; PI. Opp. 23-24). Related to this claim is a claim for breach of contract, which Big Vision predicates on two nondisclosure agreements between the parties, and a claim for unfair competition. A careful review of the record — set forth herein with particular focus on the disclosures made by, and the agreements reached between, the parties — is essential to understanding the arguments now made to this Court.
2. Banner Production Generally
Banners are commonly produced by “extruding,” or coating, polyvinyl chloride (“PVC”), a polymer, onto the surface of a base, or “substrate,” which is usually a lightweight, woven fabric, such as polyester. (Def. 56.1 ¶¶ 5, 6). PVC banners are not recyclable. (Id. at ¶ 8; Compl. ¶ 12). Substrates can also be made of polyethylene (“PE”) or polypropylene (“PP”), both of which are of the class of polymers known as polyolefins, and both of which can, in certain circumstances, be recyclable. (Benim Decl. ¶ 9; S. Visaría Tr. 87-88).
Extrusion coating equipment coats the substrate one layer at a time, while coex-trusion coating equipment coats the substrate with two or more layers simultaneously. (Def. 56.1 ¶ 10). The layers of the banner are referred to as the banner’s “structure,” and are commonly referred to with letter designations, as, for example, “A/B/A” or “A/B.” (Ronaghan Tr. 10-11).
The “masterbatch” is a customizable commercial blend of one or more additives in various concentrations that can be extruded onto the substrate. (Def. 56.1 ¶ 6). Various other materials, including resins and additives, can be added to the master-batch or extruded separately to confer certain physical qualities onto the banner, such as opacity or a silky finish. (Id.).
Materials to be coated can include expensive, specialty resins like DuPont’s En-
3. Big Vision Explores the Recyclable Banner Market
a. The Decision to Develop Recyclable Banners
In early 2007, perceiving a need in the market, Big Vision began exploring a project to develop cost-competitive recyclable banners for its own use and for resale. (PI. 56.1 ¶¶ 140-41). In or around April 2007, Big Vision retained a polymer expert with experience in product development, Dr. Yatish Vasudeo, to assist in developing a recyclable banner. (Id. at ¶ 144). Big Vision then entered into a written confidentiality agreement with Dr. Vasudeo that, inter alia, prevented him from disclosing Big Vision’s “business and manufacturing secrets.” (Id. at ¶ 148; Ex. 150).
b. Circulation of the Circle Graphics Article and Subsequent Patent Searches
In April 2007, Manish Avashia, the executive director of Big Vision, circulated an article to the company’s managing director, Shailesh Visaría (“Visaría”), and to Dr. Vasudeo from “Sign of the Times,” a U.S.-based trade publication. (Def. 56.1 ¶ 86; PI. 56.1 ¶ 139; Avashia Tr. 8; Ex. 44). The article concerned a recyclable banner patent recently filed by Circle Graphics, a Denver-based printing company (the “Circle Graphics Patent”). (Ex. 44).
As part of its recyclable banner development project, in April 2007, Big Vision contacted Charu Plastics in Indore, India, and asked them to produce a blown, white, opaque film with CaC03, Ti02, and corona treatment. (PL 56.1 ¶¶ 145-46; S. Visaría Tr. 120, 122; Ex. 29). In his initial e-mail communication with Charu Plastics, Visa-ría attached a copy of the “Sign of the Times” article regarding Circle Graphics’ patent for recyclable banners. (Ex. 29).
Around June 2007, Charu Plastics produced a blown film for Big Vision that included CaC03, Ti02, LDPE, and corona treatment. (PI. 56.1 ¶ 145; S. Visaría Tr. 122). Shailesh Visaría and Urmil Visaría (“Urmil”), the manager of marketing at Big Vision and Shailesh’s nephew, provided different accounts of how the film came to be produced. (U. Visaría Tr. 14, 18). Urmil testified that his uncle instructed him to give Charu Plastics a pre-mixed blend of Ti02, CaC03, and LDPE, and that Charu Plastics later added in LLDPE. (Id. at 57-58).
Visaría testified, by contrast, that “[w]e asked [Charu Plastics] for [a] white opaque film with calcium carbonate and Ti02 with corona treatment,” but did not specify the amount of Ti02 or CaC03 to use. (S. Visaría Tr. 122-23).
d. Big Vision Seeks a Manufacturer
Big Vision began contacting manufacturers in 2007 and 2008 with the intention of purchasing its own machinery to manufacture recyclable banners. (PL 56.1 ¶ 147). In early 2007, Big Vision contacted various manufacturers and disclosed the “recipe” from the 3M Patent as its intended formulation. (Ex. 63, 64, 65; S. Visaría Tr. 188— 92, 194).
Big Vision then turned to Davis-Standard, a noted manufacturer of extrusion and coextrusion equipment. (Def. 56.1 ¶ 13). In May 2007, Shailesh Visaría met Philip Tan, a sales representative from Davis-Standard. (S. Visaría Tr. 145^46). Visaría testified that he told Tan that Big Vision “wanted to manufacture a polyethylene film,” and may have discussed the Circle Graphics Patent with Tan. (Id. at 145^47). In April 2008, Big Vision entered into a contract with Davis-Standard for the production of an extrusion coating line. (Ex. 32). Visaría testified that he and three employees of Davis-Standard exchanged “verbal [] terms of confidentiality,” but conceded that they did not enter into a written confidentiality agreement. (S. Visaría Tr. 219-21). Christine Rona-ghan, the sole Davis-Standard witness deposed in this case, testified that to her knowledge, Big Vision and Davis-Standard did not enter into a confidentiality agreement. (Ronaghan Tr. 50).
4. DuPont’s Pre-2008 Recyclable Banner Development
DuPont was another company involved in the recyclable banner market; of note, at least two different DuPont divisions in North America had explored recyclable banners before being introduced to Big Vision. By way of background, DuPont’s previous coated-fabric development efforts, including banners, are reflected in a variety of patent applications. (See Def. 56.1 ¶¶ 66-68, 70-72).
Beginning around 2006, Dr. Chou and H.I. Lee, a P & IP chemist with extensive experience developing specialty polymers
“Downgauging” is an extremely common technique in the extrusion coating industry; it simply means to use less of a material, usually in order to reduce costs. (Lee Tr. 136). In fact, Lee testified that when he entered the packaging industry in 1980, the first term he learned was “down-gauging.” (Id.). Perhaps because it was so common, Lee testified that when he develops or tests any resin, he always tries downgauging that resin in laboratory trials to determine the minimal possible thickness at which it still functions. (Id. at 137, 144-45). Thus, his normal laboratory procedure is to first try to extrude 100% of the expensive resin, and then “split [the resin] using LDPE” in a two-or three-layer structure in order to “reduce the material cost.” (Id. at 181).
A separate DuPont division, known as Nonwoven Fabrics (“NOW”), began developing a recyclable banner product around 2007, using Tyvek as a substrate. (PI. 56.1 Response ¶ 54; Teather Tr. 23-24). The lead developer for NOW, Eric Teather, reached out to P & IP to obtain resins with which to coat Tyvek around 2008. (Teather Tr. 44-45; Pryor Tr. 60). Entira was recommended to Teather by Dr. Seqwana Pryor, a platform leader in P & IP who was tasked with finding market applications for E/MAME technology. (Pryor Tr. 13-15). To Teather’s knowledge, he was the first person at DuPont to coat EntiraCoat
In 2007 and 2008, NOW engaged in several joint trials with InterWrap to test NOW’s intended recyclable banner formulations. (Teather Tr. 20, 23). During those trials, DuPont tested structures in which Entira was extruded along with Ti02 and CaC03 onto a Tyvek substrate, with a corona finishing treatment. (Def. 56.1 ¶ 63; Shokar Tr. 47-52). DuPont filed a patent application in November 2008 that reflected this structure,, described by Plaintiff as a ‘ “[r]ecyclable coated banner’ in which layers of ethylene acrylic resin [Entira] are affixed, via ‘extrusion coat[ing,]’ to a ‘planar polyolefin banner substrate.’ ” (Compl. ¶ 50; Teather Tr. 123-25).
5. The Davis-Standard Trials
After Big Vision entered into contract with Davis-Standard, the two companies began planning a series of laboratory trials to test Big Vision’s intended machine specifications. Three such trials took place at Davis-Standard between 2008 and 2009 (the “Davis-Standard Trials” or the “Trials”). As described herein, the undisputed evidence shows that DuPont was initially
a. The First Trial: June 4-5, 2008
i. Preparation for the First Trial and Development of the Trial Plan
In April 2008, Big Vision sent a polyethylene banner sample that Shailesh Visaría had obtained from “an exhibition or something” to Davis-Standard “[t]o show [them] that’s the kind of product that we would like to coat and manufacture.” (S. Visaría Tr. 261-63). Big Vision asked Davis-Standard to determine the sample’s composition; Davis-Standard, in turn, asked DuPont to analyze the sample, which it did in May 2008. (Def. 56.1 ¶ 96; S. Visaría Tr. 262; Ex. 33).
On May 8, 2008, Ken Piora, a sales manager at Davis-Standard, forwarded the laboratory results to Visaría, writing:
Essentially, [the sample] is a monolayer 65 micron LD[PE]/LLD[PE] coating with CaC03 onto the PP [polypropylene] fabric. Actual percentage of CaC03 is [s]till being tested, but is believed to be 10-12%. From discussions with DuPont, they’re recommending coextrusion of LD [PE]/LLD[PE] with their Entira Coat 100.14 They claim the Entira coat has excellent bonding strength to the nonwoven and accepts digital inks very well. Of course we can make our laboratory available for any trials.
(Ex. 33; S. Visaría Tr. 302-04). The “discussions with DuPont” referenced in the email had begun the previous day, when Piora had written to Dr. Seqwana Pryor in DuPont’s P & IP division. (Ex. 35 at DSP0026771). Piora related to Dr. Pryor that he was working “on a banner project in India [ ] that is very active,” and asked her, “[i]n your experience what would be the coating thicknesses (A/B) for this type of banner application!?]” (Id.). Dr. Pryor recommended a coating thickness of [redacted] mils, and attached a data sheet on EntiraCoat. (Id. at DSP0026770; Pryor Tr. 78-79).
Piora replied by noting that “the banner material will be primarily a nonwoven substrate,” and then asked Dr. Pryor to clarify the layer distribution and coating weights for the banner application. (Ex. 35 at DSP0026769). Dr. Pryor explained:
you could do [redacted] mil A coating/ B (nonwoven) /[redacted] mil A coating ... the key is to get enough coating to print on, the strength will come from the non-woven substrate ... in some applications we’ve gone as high as [redacted-]mil. [Dr. Pryor then suggested the use of an additive package containing a flame retardant, and shared that in DuPont’s experience] Entira Coat/PE [polyethylene] or Entira Coat as the A laminate/ coating gives you the best ... feel & drapability [ ] and printability as an alternative to PVC coated banners.
(Id. at DSP0026768; Pryor Tr. 78-79).
Piora then advised Dr. Pryor that [o]ur potential customer would like to run a lab trial at our Fulton, N.Y. facility on June 2 — 5[, 2008]. The end productis advertisement banners with digital printing. Could DuPont donate some resin for this trial? 1000 pounds of En-tira. 2000 pounds of LDPE. We would like to run A/B & B/A/B structures. We hope DuPont could participate in this trial.
(Ex. 35 at DSP0026767-68). Dr. Pryor responded that EntiraCoat 100 was “restricted inventory” and that DuPont would need to know the customer’s name and “possibly [have] a confidentiality agreement in place to [perform a] trial [with] the Entira Coat 100.” (Id. at DSP0026767; Pryor Tr. 88-89).
Christine Ronaghan, a Davis-Standard process engineer, then drafted the trial plan for the First Trial with input from Ken Piora and Big Vision. (Ronaghan Tr. 39). Ronaghan was aware that Piora had reached out to Dr. Pryor at DuPont for advice regarding coating thicknesses, which Big Vision and Piora had discussed before, but recalled that Big Vision had not “actually nailed down exactly what they wanted to do.” (Id. at 74). More to the point, Ronaghan testified that prior to the First Trial, Big Vision
had targeted a specific coating weight [and] had targeted layer structures. We had discussed, again, being two layers. There’s some options; A/B; A/B/A. We talked about that. And — and they had made some recommendations and we agreed to what we wanted to try. And they had input on the fabrics. So they chose the fabrics and supplied the fabrics. So they were wholly responsible for that at that point.
(Id. at 39). When asked to describe Big Vision’s “recommendations,” Ronaghan clarified that they were not so much “recommendations,” but instead “requests,” such as “[t]his is what we would like to see, this sort of layer structure, they talked about A/B/A. And they also made some requests in terms of formulation.” (Id. at 39^10). Big Vision has not disputed Ronaghan’s testimony in this regard.
Ronaghan also recalled that Big Vision “had asked for some assistance [ ] in taking a first stab at selecting these master-batches,” so Davis-Standard “consult[ed] the suppliers of those materials and ask[ed] for their recommendations.” (Ro-naghan Tr. 40). Big Vision does not dispute that it asked Davis-Standard to select the masterbatches, which included such ubiquitous additives as Ti02 and CaC03. (S. Visaría Tr. 384).
On May 23, 2008, Piora sent Visaría a “draft of the proposed 2 day trial plan,” solicited comments and suggestions from Big Vision, and asked Big Vision to “tell us the percentages of CaC03 and when/where you would like the Ti02.” (Ex. 131 at BV-00156142-44). The draft trial plan reflected eight separate B/A/B coating structures: three did not contain Entira; one contained only Entira; and four contained Entira and LDPE, CaC03, and Ti02. (M).
The plan also indicated that a variety of finishing treatments would be used. (Id.). In response, Visaría wrote: “[w]e need to use Ti02 in all the structures to make the material white (opaque). We feel CaC03 should be added on the top layer as it would help printability.” (Id. at BV-0015641). Piora confirmed the precise masterbatches and coating amounts the next day, and promised to submit a revised trial plan “focused on good printing.”
When the parties met at Davis-Standard for the First Trial on June 4, 2008, Visaría began discussing the 3M Patent with the representatives from DuPont and Davis-Standard. (Pryor Tr. 39, 87-88; S. Visaría Tr. 177-79). Upon hearing this, Dr. Pryor stepped out of the conference room to call her supervisor and request that they execute a confidentiality agreement with Big Vision “to protect all parties ... including DuPont.” (Pryor Tr. 40, 108-09). Dr. Pryor also testified that DuPont commonly requires its customers to sign a confidentiality agreement in order to use a product, such as Entira, that is in “restricted inventory.” (Id. at 89).
ii. The First Trial
The First Trial was held on June 4-5, 2008. (Def. 56.1 ¶ 97). The DuPont attendees were Drs. Pryor and Chou. (PI. 56.1 ¶ 157; Ex. 165). The Big Vision attendees were Shailesh Visaría and Dr. Vasudeo. (Vasudeo Tr. 65; S. Visaría Tr. 362).
The Davis-Standard trial report (the “Trial Report”) was drafted by Christine Ronaghan, and summarizes all three Trials. (Ronaghan Tr. 117; Ex. 75).
The parties now dispute what was tested at the First Trial. It is undisputed that only A/B/A structures were coextruded onto various nonwoven substrates; that one structure was comprised only of En-tira; and that other structures were comprised of varying combinations of Entira (in concentrations of [redacted]-[redacted]%), LLDPE, LDPE, Ti02 (at [redacted]%), and CaC03 (at [redacted]%). (See PI. 56.1 ¶¶ 158-59; Def. 56.1 Response ¶¶ 158-59). The parties further agree that LDPE and LLDPE, Ti02, or CaC03 structures were tested without Entira, but DuPont argues that the LDPE structures were coated only on the back, non-printable side of the substrate. (Id.).
i. Preparation for the Second Trial and Development of a Trial Plan
The second Davis-Standard trial (the “Second Trial”) was held on August 5-6, 2008. (Def. 56.1 ¶ 101). Ahead of the Second Trial, Ken Piora wrote to Drs. Pryor and Chou at DuPont on July 22, 2008, stating:
During our last trials you mentioned that you were going to make suggestions on the blended materials. We do plan to blend the ENTIRA with Ti02, CaC03, UV. Could you be so kind and make recommendations on the above?
(Ex. 36 at DSP0006146). Upon receiving no response, Piora wrote again six days later:
I have been in contact with Shailesh of Big Vision and he mentioned that you were in communication with him about the resin. 1-Do you plan to participate in the trial? 2-What is the status of the ENTIRA resin? 3-Christine has been trying to get in contact with your colleague about the Ti02, CaC03 & UV concentrates with no success yet.... Is there anyone else? As you can imagine, I am getting nervous since the trial is within 7 days.
(Id.).
H.I. Lee responded to Piora’s request the next day:
In regards with the blend ratio of Ti02, CaC03, UV with Entira Coat 100, I believe it would [ ] depend on the customer’s requirements for the opacity,UV blocking performance, etc. I don’t know if you have blended these additives in your previous trial run ... but [redacted]% blending of Ti02 would be a good starting point from my experience. We can increase blend ratio of Ti02 in further if it is needed, such as [up to] [redacted] [redacted] % ... I hope you Ken or Christine can talk to Shailesh as to this subject — what level of these additives he wants to blend with Entira Coat 100.
(Ex. 36 at DSP006141-42; Lee Tr. 206-09).
ii. The Second Trial
The Second Trial was attended by Dr. Chou, H.I. Lee, Shailesh Visaría, Urmil Visaría, Manish Avashia, and Dr. Vasudeo. (Lee Tr. 79-191; S. Visaría Tr. 364; U. Visaría Tr. 129; Avashia Tr. 33; Vasudeo Tr. 56). According to the Davis-Standard Trial Report prepared after the trial, UV additive was included for the first time per the recommendation of Schulman (the masterbatch supplier chosen by Davis-Standard), and Davis-Standard chose and purchased the CaC03, Ti02, and UV additives. (Ex. 75; Ronaghan Tr. 117-18). The report noted, and Ronaghan confirmed, that “many fabrics and various coatweights were evaluated”; that “[several changes were made [] to processing temperature, blend formulation, etc.”; and that the “removal of the UV additive” seemed to improve the appearance. (Ex. 75; Ronaghan Tr. 117-18). The amounts of Ti02 and CaC03 were increased up to [redacted]% and [redacted]%, respectively. (Ex. 75; Ronaghan Tr. 117-18).
The parties again dispute before this Court what was tested at the Second Trial. Plaintiff states that LLDPE — and LDPE — only structures were run, in addition to several structures combining Entira and LDPE. (PI. 56.1 11167). Defendant argues instead that LDPE was only coated on the reverse, nonprintable surface. (Def. 56.1 Response ¶ 167).
Shailesh Visaría testified that DuPont made additive suggestions ahead of the Second Trial, and that the parties “worked together” during that Trial to “try and identify why the problems are coming in.” (S. Visaría Tr. 350-51). Visaría further testified that the concentrations of additives were changed during the Trial. (Id.) Similarly, Urmil Visaría described the Second Trial as a “collective call between Davis-Standard and [Big Vision] and DuPont.” (U. Visaría Tr. 129). He also recalled that the “UV additives [were] not compiling with Entira,” so “we jointly discussed it and [the UV additives were] removed and after that it ran perfectly all right.” (Id. at 130). Urmil also testified that it was a “joint decision” to increase the amount of Ti02, and CaC03 by [redacted] to [redacted] percent at the trial. (Id. at 130-31).
Conversely, Christine Ronaghan testified that Big Vision was “struggling” to come up with the formulation to use, and only conveyed its desire for a more opaque product; it was either Ronaghan or Lee who suggested the specific amount of Ti02 to use. (Ronaghan Tr. 97-100; Lee Tr.
c. The Third Trial: June 5, 2009
The third Davis-Standard trial (the “Third Trial”) occurred on June 5, 2009, and was attended by Shailesh Visaría and Dr. Vasudeo from Big Vision; Diane Hahm and Dr. Chou from DuPont’s P & IP division; and Rob McPheeters from DuPont’s NOW division. (Def. 56.1 ¶ 102; S. Visaría Tr. 376; Vasudeo Tr. 58; Hahm Tr. 129; Chou Tr. 229).
Diane Hahm testified that she drafted the trial plan for the Third Trial (the “Third Trial Plan”) with input from Davis-Standard personnel, who conveyed Big Vision’s “goal” to manufacture a recyclable, white, non-PVC banner. (Hahm Tr. 96-98). Big Vision does not dispute this testimony. (PI. 56.1 Response ¶ 102). Christine Ronaghan testified similarly that Hahm recommended and supplied the additives for the formulations that were run at the Third Trial. (Ronaghan Tr. 116). Hahm recalled that Big Vision asked for DuPont’s assistance because “they didn’t have any processing experience ... of their own.” (Hahm Tr. 94, 96-98). Shail-esh Visaría conceded that DuPont suggested the additives for the Third Trial. (S. Visaría Tr. 387-88).
The Davis-Standard Trial Report stated:
The objective of the third trial was to process the DuPont recommended formulations in an AB structure onto various grades of CLAF [nonwoven] fabric. The scope of the trial was not a continuation of Trial 2, since all additive packages were different, and the UV and FR [flame retardant] were new to the blend. In retrospect, the amounts of materials supplied, including fabric, additives, LDPE were inadequate given that the formulations and materials had all changed.
(Ex. 75 (emphasis added); Ronaghan Tr. 118-21). The Trial Report further noted that “DuPont made additive recommendation[s] based on previous experience in their lab with the Entira resin and various masterbatch grades.” (Ex. 75; Ronaghan Tr. 116, 134-35). The formulations included Ti02, CaC03, UV additives, and flame retardants. (Ronaghan Tr. 116).
The Trial Report noted that “[t]here remain several concerns over formulation [including opacity from the Ti02 levels, the level of flame retardancy, and the additive package to be selected].... DuPont will be issuing a report on formulation and planned testing at their site to assist [Big Vision] in defining the required blends for their application.” (Ex. 75; Hahm Tr. 118-19 (testifying to the internal tests DuPont ran for Big Vision in order to troubleshoot the die-buildup issue experienced at the Third Trial)). The Report also detailed the various structures and formulations run, and the problems encountered with each. (Id.). The Report ended by
Diane Hahm recalled that at the Third Trial, the Ti02 percentage was increased to [redacted] percent, which, in Hahm’s opinion, caused the “mixing” to become poor and the samples to have a “very poor appearance.” (Hahm Tr. 103). Hahm also testified that at the trial, she “explain[ed] the trial plan [to Big Vision] and explained the extrusion coating process, because they were not familiar with that whole process.” (Id. at 98). Hahm prepared a post-trial report, in which she recommended a three-layer coextruded option as the easiest structure to run at the lowest cost. (Id. at 104-05). Going forward, Hahm promised to research for Big Vision whether the product’s opacity could be increased by any means other than increasing the Ti02 level. (Id. at 106).
Visaría wrote Davis-Standard shortly after the Third Trial to express his “ex-tremen disappointment with] the way [the] trial had been conducted and concluded.” (Ex. 19). In the e-mail, Visaría reviewed the different structures and formulations run during the trial, and concluded:
this has been our third trial and we have always failed to run proper UV, FR, Ti02 and CaCo[3] with or without En-tira. Plus what the point of all the planning and trials when you tell me at the trial that the Entire and LDPE have different melting point. I think we should have been informed if that was the problem th[e]n we could have taken corrective steps before.
(Id.; S. Visaría Tr. 361 (agreeing with this statement)). In response, Davis-Standard noted that the “[s]pecific additive packages for opacity and flame retardants, whether for LDPE or Entire are well outside our area of expertise ... DuPont has expressed this same concern, and is devoting a lot of effort into developing that additive package.” (Ex. 21). Visaría and Davis-Standard exchanged several e-mails in July 2009 regarding the proper amount of Ti02 to use with Entire, in order to correct certain problems that were encountered at the Third Trial. (Ex. 22-23; S. Visaría Tr. 373-74). Subsequently, Davis-Standard described the different structures run in the Second and Third Trials, and stated that the additive package was currently “undetermined because of Big Vision’s evolving product requirements.” (Ex. 23).
The parties planned a fourth trial for July 2009. In e-mails between Visaría and Hahm in early July 2009, Visaría sent his proposed formulation for a three-layer structure. (Ex. 38; S. Visaría Tr. 375 (noting that the formulation he sent included structures run at the Second Trial). In response, Hahm noted that “[t]here are still a few things we have to determine [including flame retardant levels and the thickness of LDPE and reclaim layers in order to impart opacity].... [W]e will be working to give you guidance on this.” (Id. at DSP0014418-19; Hahm Tr. 118-19). Hahm reassured Visaría that “Entire Coat is being commercially run today for banners [and ... ] its processing characteristics are well known.” (Ex. 38 at DSP0014419; Hahm Tr. 112)). Hahm further noted that the Third Trial did not produce useful samples because “there was just too high a temp run, and then too high a Ti02 level run.” (Ex. 38 at DSP0014419). In a later e-mail, Hahm noted that “the operators threw in [redacted^ of the Ti02 masterbatch in the LDPE[, which ...] was over the limit we set [of] [redacted]% of masterbatch,” and that as a result Hahm “knew the samples would look awful.” (Id.; Hahm Tr. 117-18 (confirming that [redaeted]% Ti02 was
Throughout July 2009, Visaría and Hahm continued to discuss the proper formulation and structures to employ. (See Ex. 39). Later in 2009, however, Big Vision terminated its relationships with both Davis-Standard and DuPont.
6. Big Vision’s Contacts with Additional Third Parties Regarding Its Recyclable Banner Project
After the Second and Third Trials, Big Vision contacted at least 11 different third parties, and appeared to seek a new machine manufacturer. (S. Visaría Tr. 191— 95, 204-18; Shokar Tr. 33-35; Ex. 66-72). Big Vision disclosed its intended recyclable banner formulation in considerable detail, while continuing to disclose the “recipe” from the 3M Patent. (S. Visaría Tr. 191— 95, 204-18; Shokar Tr. 33-35; Ex. 66-72). Shailesh Visaría conceded that he did not enter into written confidentiality agreements with any of those third parties, but alleges that he orally “communicated with them [his] confidentiality.” (S. Visaría Tr. 191-95, 204-18). In at least one instance, however, Visaría disclosed Big Vision’s intended formulation to a manufacturer without any prior or subsequent communications to “ensure confidentiality.” (Ex. 68; S. Visaría Tr. 209-10).
7. Big Vision’s Indian Patent Application and Continued Banner Development
On June 30, 2009, Visaría filed a patent application in India for “a graphics substrate for digital printing application and method of manufacturing thereof.” (Ex. 74; No. 1536/MUW2009). Indian patent applications are publicly available, and Vi-saría requested early publication of the same. (S. Visaría Tr. 405; see http:// ipindiaservices.gov.in/patentsearch/ PublishedSearch/publishApplication Number.aspx? application — number=mu SKPXpSpbKLViTuhKFeSg==). Visaría testified that the patent “was a much [] broader and wider patent in [terms] of the process” than Big Vision’s proffered trade secret. (S. Visaría Tr. 406-07). Yet the patent disclosed, among other things:
i. A nonwoven polyethylene “core layer” having good tensile strength;
ii. A top layer comprising CaCOg, LDPE, or LLDPE;
iii. Extrusion coating; lamination; and coextrusion;
iv. Thickness of the top layer kept at a minimum, including the use of copo-lymers and “acrylic materials”; and
v. Corona, plasma, flame, or E-Beam finishing treatments.
(Def. 56.1 ¶ 120; Ex. 74). Visaría acknowledged that the patent referenced “learn-ings [from] the Second Trial.” (S. Visaría Tr. 410-11).
Big Vision continued to conduct trials from 2009 through 2011 to further refine its recyclable banner formulation, both in-house and at third-party manufacturers’ facilities. (U. Visaría Tr. 23-34). Big Vision settled on its desired recyclable ban
8. DuPont’s Continued Development of Recyclable Banners
a. NOW’s Discussions with Big Vision in 2008-2009
Starting in July 2008, Big Vision was introduced to DuPont’s NOW division to discuss using one of their nonwoven fabrics, such as Tyvek, as a substrate. (PI. 56.1 ¶ 206; Def. 56.1 Response ¶ 206). A representative from NOW attended the Third Trial for this reason, and in July 2009, NOW and Big Vision signed a second NDA (the “second NDA”; collectively with the first NDA, the “NDAs”). (Def. 56.1 ¶ 103; Def. 56.1 Response ¶ 206). The second NDA was identical to the first NDA, save for a somewhat broader purpose, that of exploring “a possible business opportunity of mutual interest regarding graphic products.” (Compl. Ex. B). Annette Kim, a marketing manager in NOW, explained that NOW personnel did not know whether the first NDA applied to both P & IP and NOW (which it did, see Discussion Sec. B(3), infra), so NOW and Big Vision executed a second NDA “just to make sure.” (Kim Tr. 9, 257-58).
As a result of NOW’s discussions with Big Vision, a number of e-mails were circulated within NOW between 2008 and 2009 regarding Big Vision, several of which are cited by Plaintiff in support of its current claims. In the context of NOW’s discussions with Big Vision, Steve Wilkinson, a NOW employee, circulated a PowerPoint presentation entitled “Key Learnings From Big Vision” to a number of people within NOW. (Ex. 95). In the cover email, Wilkinson wrote:
Meeting Big Vision in Mumbai was key for me to really understand at first hand their business model (and for us to further compare with Nonwoven’s model). [ ] This company certainly appears to be in the correct location of the value chain to help gain business from[ ] PVC, they have done their homework and are confident that they have lowered their total system cost [and] can compete on price. Key will be to see just how good they are at influencing the industry to change. As you know, their move to back integrate and purchase coextrusion technology is key to help them lower costs.
[T]hey have tried to find other banner material than Entira Coat but say we have an advantage in that our materials print on a wide variety of printers and is [a] more robust solution ...
For us, how do we find similar channel partners in other key countries that have large amount fo[r] banner Ads running constantly through their country like India! ?
I’m doubtful that Nonwovens has a) the right costs in banner material design due to their margins to compete against PVC, b) that Nonwovens has the recycle loop securely figured into their launch plans.
(Id. at DSP0009538-39).
Around July 2009, NOW engaged in further discussions with Big Vision in order to ascertain whether Big Vision could be a “toll coater” for DuPont, meaning that Big Vision would manufacture banners pursuant to DuPont’s specifications, but that DuPont would market and sell the products. (Kim Tr. 98-99). The discussions appeared productive from both sides. On July 7, 2009, Shailesh Visaría e-mailed Annette Kim and other employees of DuPont’s NOW division, and noted that he would be sending them banner samples that had been printed on solvent inkjet and UV inkjet machines. (Ex. 99 at BV-0011782; Kim Tr. 263-67). He detailed the technical specifications of the extrusion coating machine Davis-Standard was building for Big Vision, and asked Kim if the “configuration would meet your coating requirement.” (Id.). He then asked Kim what DuPont’s coating requirement would be, and their current business model for toll coating companies. (Ex. 99 at BV-0011782). Visaría closed the e-mail by writing “[njeedless to say all the information we share on our product in all our communication needs to be dealt with utmost confidentiality.” (Id.). Kim replied by noting that they were in the process of drafting a confidentiality agreement. (Id.; Kim Tr. 263-67). Several days later, Visa-ría asked Kim to send Big Vision certain samples for inkjet and solvent inkjet printing. (Ex. 99 at BV-0011779-81).
In early April 2010, Annette Kim drafted a presentation for NOW entitled “Sustainability Is a Business Imperative.” (Ex. 96). The presentation noted that “DuPont Tyvek Vivia is a sustainable solution,” and that “DuPont Tyvek is recyclable and reusable.” (Id. at DSP0962596-97). The presentation outlined a “DuPont Life-cycle Based Solutions” program in which “[tjhrough an alliance with Waste Management, we’ve created a national ship-back recycling program to capture the items printed on DuPont Tyvek Vivia.” (Id. at DSP0962601-02). In response, Steve Wilkinson wrote that “[tjhis is very similar to the Big Vision idea [... ] let’s hope we see some sales!!” (Id. at DSP0962587).
b. DuPont’s Internal Evaluation of a Potential Commercial Relationship with Big Vision
Following the Second Trial, and in light of Dr. Chou’s sales estimates of Entira to Big Vision in the range of several million pounds per year, NOW began discussions with P & IP regarding a “One DuPont” approach. (See Ex. 167; Kim Tr. 77-80; Chou Tr. 215-18; Welchel Tr. 19-20). The idea behind “One DuPont” is that although each division reports its own profit and loss statements, partnerships between divisions that would benefit DuPont as a whole are encouraged. (Kim Tr. 77-80). Thus, NOW and P & IP began discussing the costs and benefits of several different approaches, including (i) selling Entira and NOW’s fabrics to Big Vision as customer; (ii) using Big Vision as a toll coater; or (iii) having NOW enter into an exclusivity agreement with P & IP so that P & IP would not sell Entira to a potential competitor like Big Vision. (Id. at 77-80, 95-99; Welchel Tr. 35-45; Ex. 188, 189).
Wayne Welchel, a business development manager in DuPont’s P & IP division, worked with P & IP and NOW to calculate the potential sales DuPont might experience in each of the above scenarios. (Wel-
Welchel shared his financial calculations with NOW in order to evaluate the benefit to DuPont of each option. (Ex. 181; Wel-chel Tr. 73-74). Welchel summarized this e-mail by stating “[b]ased on what I’ve done so far, there is so much difference in the products, the only question is will NOW get any business at all, even replacing the fabric with a cheaper nonwoven.” (Ex. 181; Welchel Tr. 92-96). Welchel testified (again, without contradiction in the record) that his comment was made in the context of evaluating DuPont’s potential relationship with Big Vision, and reflected his view that if Big Vision were to use a product with anything less than 100% Entira, it would be more cost-competitive in lower-cost markets than NOW’s existing 100% Entira offerings. (Welchel Tr. 92-96).
Welchel subsequently circulated a PowerPoint presentation evaluating the various “One DuPont” options regarding recyclable banners. In that presentation, Welchel wrote: “If we mimic Big Visions’ structure, what value does One DuPont bring?” (Ex. 188). The bullet points under that statement read “non-DuPont fabric” and “downgauge, dilute Entira coating.” (Id.). Welchel testified that he did not recall suggesting that NOW “mimic” any structure, and certainly did not speak with any NOW scientists or chemists regarding the project. (Welchel Tr. 58-59, 96-97). Welchel testified that the word “mimic” referred to a “more downgauged structure that in turn resulted] in less potential revenue to P & IP.” (Id.). In other words, if NOW used less Entira, as Big Vision planned to do, it would result in lower sales of P & IP’s resin. (Id.).
c. Continued Recyclable Banner Development
Tom Benim took over the NOW recyclable banner project from Eric Teather in 2008, and continued development of DuPont’s Vivia line throughout 2008 and 2009. (Benim Tr. 174-83). When Benim took over the project, he began development of the “second generation” of Vivia products, which was intended to be a lower-cost product than the “first generation,” En-tira-only product. (Benim Tr. 140, 161— 64).
In the fall of 2008, Benim participated in a call with P & IP. (PI. 56.1 ¶ 194). His handwritten notes from that call included the words “[redacted] mil,” which Plaintiff alleges was the precise coating weight of
Benim conducted a test in January 2009 at DuPont’s Egan extrusion coating line in which he coextruded Entira with LDPE. (Benim Tr. 170-84). Big Vision alleges that Benim coextruded [redacted]% Entira with [redacted]% LDPE in one layer of the structure, but does not allege the coating weight of Entira used in this structure, much less that it was [redacted] mils. (PI. 56.1 ¶ 194; PI. Opp. 6-7).
In preparation for that test, in December 2008, Benim asked Hahm to order Entira Coat 100 and LDPE so that he could “check a ‘coextrude’ concept.” (Ex. 118; Benim Tr. 176-84). Consistent with H.I. Lee’s testimony, Benim also testified that in his opinion, coextruding Entira with LDPE was the “natural thing to try” in the “second! ]generation” of what had previously been an Entira-only product. (Benim Tr. 160-61, 166). Benim testified that he had experience downgauging expensive resins as early as 1995. (Id. at 164-65). Benim did not recall whether Hahm suggested coextrusion. (Id. at 173).
DuPont’s Vivia 2082 VI product was released in April 2009, and included a single layer of Entira with Ti02, extruded onto a Tyvek substrate. (Benim Deck ¶ 5). Next, DuPont’s Vivia 2083 VI was introduced, which consisted of a single layer of LDPE with Ti02 and CaC03, extruded onto a Tyvek substrate. (Id. at ¶ 6). Lastly, DuPont’s Vivia High Opacity 2082 HO was introduced, and consisted of two layers of LDPE extruded via multiple-pass extrusion onto a Tyvek substrate, with Ti02, carbon black, and CaC03. (Id. at ¶ 7). Of those products, only Vivia
DuPont released its Imvelo and Imvelo Deco products to the market in 2010 and 2011. (Nov. 5 Tr. 5-6). Those products were LDPE-based and included Ti02 and CaC03, but did not use Entira and were not manufactured by coextrusion. (PL 56.1 ¶ 214). These products were sold only in Europe, and are no longer commercially available today, in part because they, too, did not sell well. (Nov. 5 Tr. 5-6). Overall, the Vivia and Imvelo lines of banners sold significantly less than DuPont had originally forecasted. (Kim Tr. 34-36, 150-53, 308-09).
B. Procedural History
1. The Instant Action
Big Vision filed the instant action on November 23, 2011, alleging claims of breach of contract, misappropriation of trade secrets, and unfair competition. (Dkt. # 1).
2. Big Vision’s Shifting Trade Secret Theory
a. As Pled in the Complaint
Of significance to the instant motion (and of some concern to the Court), the trade secret descriptions advanced by Big Vision have changed dramatically over the course of the litigation. In the Complaint, Big Vision alleged that its “precise technical innovation” — and the trade secret DuPont misappropriated — was “[a] ‘[r]ecyclable coated banner 'in which Iay-ers of ethylene acrylic resin are affixed, via ‘extrusion coatfing]’ to a [planar polyo-lefin banner substrate].” (Compl. ¶¶ 1, 4, 14-21, 22, 25-27, 33, 48-50; Def. 56.1 ¶¶ 19, 21). Big Vision also alleged that it “devised a way to construct a substrate from a ‘non-woven’ [ ] fabric” (Compl. ¶ 17), and that it “figured out [ ] through a process known as ‘downgauging’ how to create different price points of banners” (id. at ¶ 21). Big Vision further alleged that principal among Big Vision’s innovations was the determination of “how to make cost-effective banners that require only the smallest amount of ethylene acrylic resin,” by “increasing the relative amounts of less-expensive LDPE and other additives.” (Compl. ¶ 21; PL 56.1 Response ¶ 18). Big Vision alleged that En-tira was an “ethylene acrylic resin.” (Compl. ¶25).
Big Vision alleged that DuPont misappropriated its “recycle loop,” which it defined as “a sophisticated business model ‘creating] incentives for every player in the process, from printers to installers to corporate end-users, to share responsibility for the various tasks required to implement a recycle loop.’ ” (Compl. ¶ 22, 61; Pl. 56.1 Response ¶ 21).
Big Vision lastly described its trade secrets as follows: “its technical designs for a recyclable banner material and the methods and materials necessary to place a high-quality image on that material; proprietary market research concerning the size and drivers of the international market for banners; including detailed cost and margin projections; and designs and
b. As Described in Interrogatories
DuPont filed its answer on December 20, 2011, and the parties proceeded thereafter to discovery for a period of approximately 13 months. (Dkt. # 5, 22, 47). At an initial conference before United States Magistrate Judge Theodore H. Katz on March 12, 2012, in response to questioning from the Court and DuPont regarding what Big Vision actually claimed as its trade secret, Big Vision alleged that “the combination and the process for combining” certain elements disclosed at the Davis-Standard trials constituted its trade secret. (Transcript of March 12, 2012 Proceedings at 24, 32, 33). Five months later, on August 22, 2012, DuPont protested before Judge Katz that “Big Vision [has] refused to specify what its trade secret is”; accordingly, Judge Katz required Big Vision to further identify its trade secrets. (Transcript of August 22, 2012 Proceedings at 7). Consequently, Big Vision identified its trade secret in a six-page definition submitted as part of a September 24, 2012 interrogatory response. (Ex. 90). Among many other things, Big Vision articulated:
i. “a polyolefin-based product” with a “chemically similar polyolefin coating like LDPE” (Ex. 16 at 3);
ii. “a multilayer structure combining nonpolar polyolefin polymers with polar polyolefin polymers or a post-coating treatment providing polar functionality or both, along with a polyolefin substrate,” which is reflected in the structures and formulations run at the Davis-Standard Trials, which were reflected in approximately 70 pages of laboratory materials (id. at 3-4);
iii. “polyethylene or polypropylene nonwoven substrates, such as Ty-vek, Xavan, or CLAF” (id. at 4-5);
iv. “novel quantities” of additives such as “Ti02, CaC03, UV-stabilizer, and FR additive” and “introduction of LDPE in significant quantities” (id. at 5-6);
v. banner products could be “manufactured through a state-of-the-art coextrusion process”; “developing insights including the temperature profile at which an ethylene acrylate copolymer like Entira could be coex-truded with LDPE”; the “requisite die structure for coextruding these two resins;” and “the proper screw design for this application” (id. at 6); and
vi. a “proprietary business model” for the “recycling loop,” including financial incentives “for end users to the banners to return the used banners through recycling” (id. at 7).
Big Vision lastly alleged that “over the course of its banner development efforts, Big Vision established a banner ... [that] could be used to print with a full range of commercial inks, including UV, solvent, and eco-solvent inks.” (Id. at 6).
Defendant objected shortly thereafter to Plaintiffs response as vague, writing, “[i]t is now more than ten months since Big Vision filed its complaint, and DuPont has yet to be advised of the trade secrets upon which the complaint is based. As a result, DuPont cannot prepare a defense [ ... or] determine if it is using Big Vision’s alleged trade secrets.” (Ex. 148). Specifically, DuPont asked Big Vision to:
i. “[I]dentify the specific ‘solution’ which Big Vision maintained as a trade secret [ ] including the specific substrate, specific coating and specific trade secret combination/ formulation” (id. at 2); and
i.Identify what constitutes, for example, “appropriate amount[s],” “post-coating treatments,” “coating thicknesses,” “novel quantities and combinations,” “insights,” and “novel amount” {id. at 2-4); and further noted that
iii. The [Davis-Standard Trial documents] “include a number of different materials, blends, equipment, extrusion methods and additives ... which of these does Big Vision claim constitute its trade secret?” {Id. at 3).
The parties met and conferred shortly thereafter. (PL 56.1 ¶ 219; Ex. 83, 148). After the meet and confer, Big Vision followed up in writing on October 12, 2012, to confirm that, among other things, (i) Big Vision did not claim a multilayered structure as its trade secret, but rather claimed “the specific multilayered structures” reflected in the Run Reports and Trial Plans from the Davis-Standard Trials; (ii) Big Vision’s trade secret “mix of pigments and additives,” “coating thicknesses,” and “appropriate amounts” were disclosed in the Run Reports and Trial Plans; (iii) Big Vision did not claim “post-coating treatment” or “corona treatment” as its trade secrets; (iv) Big Vision did not claim “downgauging” as its trade secret; (v) its trade secret related to “reducing the amount of functional polyolefin” was disclosed in the Run Reports and Trial Plans; and (v) to the extent Big Vision claimed “novel quantities and combinations” as its trade secret, those were identified in the Run Reports and Trial Plans. (Ex. 104). DuPont subsequently withdrew its threatened motion to compel. (PI. 56.1 ¶ 220).
c. As Described in Big Vision’s Expert Report
Later in discovery, Big Vision’s expert witness proffered yet another version of its trade secret, this one a five-element trade secret that the expert claimed was novel in combination, namely:
i. a “[s]uitably strong polyolefin central layer”;
ii. . “high pigment levels, including CaC03”;
iii. “a layered structure made by coex-trusion or a lamination of a predominantly LDPE structure”;
iv. “minimal use of Entira or other expensive resins”; and
v. “surface treatment.”
(Ex. 11). Plaintiffs expert also alleged that the trade secret could be expressed to “include [a] parallel concept [] based on non-functional olefins modified for printa-bility with CaC03 and optional surface treatments.” {Id. at vii). Big Vision argues that the five-element trade secret was “embodied]” in the “precise structures run at the June 2008 trial” (i.e., the First Trial), which were “recorded on Big Vision’s behalf by Davis-Standard” and are reflected in the Run Reports and Trial Plans. (PI. 56.1 Response ¶ 17).
Big Vision alleges that some of the confidential information it conveyed to DuPont was reflected in DuPont’s Provisional Patent Application No. 61 / 118,129, which concerned a “ ‘recyclable coated banner,’ in which layers of ethylene acrylic resin [En-tira] are affixed, via ‘extrusion coat[ing]’ to a ‘planar polyolefin banner substrate.’ ” (Compl. ¶ 50; Def. 56.1 ¶ 19). Big Vision alleges that DuPont later formally filed Patent Application No. 12/624,684, with this same information. (Compl. ¶ 53; Def. 56.1 ¶ 20). In its Complaint, Big Vision further alleges that DuPont’s Vivia, Imve-lo, and Imvelo Deco products reflected use of Big Vision’s trade secret. (Def. 56.1 ¶ 22). Big Vision subsequently acknowledged that two of DuPont’s Vivia products that were brought to market in 2009, 2085 VI and 2082 VI, were developed solely by
3. The Instant Motion
This case was reassigned to the undersigned on June 25, 2013. (Dkt. # 50). Pursuant to instructions from the Honorable Andrew L. Carter, the District Judge then assigned to the case, DuPont filed a motion for summary judgment on July 26, 2013, which motion was fully briefed on August 30, 2013. (Dkt. # 56, 57, 58, 59, 60). All materials related to the motion for summary judgment were filed under seal pursuant to a protective order entered by Magistrate Judge Katz on April 26, 2012. (Dkt. #25). Oral argument was held before the Court on November 5, 2013. (See Dkt. # 61).
On February 10, 2014, the Court filed an unredacted copy of this Opinion under seal. On that same day, the Court provided the parties with a copy of both the unredacted Opinion and of the Court’s proposed redactions to that Opinion. Pursuant to the Court’s directions, the parties will file their summary judgment materials publicly by February 28, 2014, with certain limited categories of information redacted.
DISCUSSION
A. Applicable Law
Under Fed.R.Civ.P. 56(a), summary judgment may be granted only if all the submissions taken together “show[] that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett,
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323,
If the moving party meets this burden, the nonrooving party must “set out specific facts showing a genuine issue for trial” using affidavits or otherwise, and cannot rely on the “mere allegations or denials” contained in the pleadings. Anderson,
B. Big Vision’s Breach of Contract Claim Fails
The first of Big Vision’s claims, for breach of contract, is predicated on the two NDAs it executed with DuPont. In brief, Big Vision claims that it disclosed information to DuPont during and in connection with the Davis-Standard Trials that was (and, more importantly, that was designated under the NDAs as) confidential, and that DuPont subsequently used this information in violation of the parties’ agreement. Because Big Vision did not in fact designate the proffered information as confidential pursuant to the express terms of the NDAs, DuPont did not breach any agreement with Big Vision, and summary judgment is warranted.
1. Relevant Facts
Under the terms of the NDAs, information is “Confidential” if it is disclosed (i) “in writing, or in other tangible form, and designated confidential in writing at the time of disclosure”; or (ii) “orally or visually, summarized and confirmed confidential in writing within thirty (30) days.” (Compl. Ex. A, B at Sec. 1; Def. 56.1 ¶¶ 98, 103). The NDAs further provide that “Confidential Information” or “Confidential Samples” shall not be disclosed to any third parties for a period of five years, and that any testing performed on Confidential Samples must be immediately disclosed to the other party. (Compl. Ex. A, B at Sec. 3-5). Confidential Samples must be designated as such, in writing, at the time of delivery. (Id. at Sec. 4). The parties may share Confidential Information with their affiliates, which include any corporation or other business entity that controls, is controlled by, or is under common control with the party. (Id. at Sec. 8).
The NDAs each contain an “Entireties” clause, which states that the agreement “contains the entire understanding of the parties pertaining to the Purpose and shall be amended only in writing agreed to by both parties.” (Compl. Ex. A, B at Sec. 15). The “Purpose” in the First NDA is defined as a “business opportunity of mutual interest” relating to “graphics products, and markets/ manufacturing processes therefor, which discussions may include the disclosure of confidential information and/or samples solely for evaluation.” (Compl. Ex. A). The “Purpose” in the
2. Applicable Law
Under Singapore law, which governs the NDAs, the elements of a cause of action for breach of contract are (i) “the existence of a contract or agreement”; (ii) “the defendant’s breach of the contract or agreement”; and (iii) “damages resulting from the breach.” MM Global Servs., Inc. v. Dow Chem. Co.,
3. Application
As the parties do not dispute the NDAs’ validity, the salient issue is whether DuPont breached the NDAs. It did not. In this regard, Big Vision raises several arguments, in something of a rhetorical sleight of hand, in order to distract from the fact that it never actually designated its information as Confidential. First, Big Vision submits that it did designate two emails as Confidential, albeit belatedly. Second, Big Vision protests that the terms of the agreement were too onerous, and did not reflect the actual intentions of the parties. Third, Big Vision argues-for the first time in its opposition papers-that the parties orally modified the contract; even then, it does not specify how, but only claims that DuPont breached it. All three arguments fail.
a. Big Vision Never Designated Its Alleged Trade Secret as Confidential
It is undisputed that no information exchanged at the First Trial-or at any of the Davis-Standard Trials-was contemporaneously designated as Confidential in writing by Big Vision. (Def. 56.1 ¶ 98). Even if the information had been contemporaneously designated as Confidential orally or visually (and there is no evidence of that fact), Big Vision was still required to follow up in writing to confirm the designation within 30 days. It did not.
Big Vision’s argument falls short. For starters, to the extent that this footer was intended to serve as a designation of confidentiality, it failed to comply with the terms (including the time limits) set forth in the NDAs. Perhaps more importantly, however, Big Vision had previously disclosed this same information — in greater detail — in e-mails dated June 19, 27, and July 10, 2008, all of which were sent without including a confidentiality designation. (Ex. 136, 225). The NDAs require written information to be contemporaneously designated as Confidential to qualify as such; because this information was already disclosed, it could not be designated as Confidential. (Compl. Ex. A, B).
The second e-mail was sent to certain NOW employees on July 7, 2009, following the close of all three trials. (Ex. 62, 138, 139). In the course of discussing Big Vision’s coating capabilities (and not, it should be noted, its intended banner formulation), Visaría wrote, “[n]eedless to say all the information we share on our product in all our eommunication[s] needs to [be] dealt with [the] utmost confidentiality.” (Ex. 62, 138, 139). But merely writing that “all our communications” must be “dealt with ... confidentially]” did not satisfy the clearly-worded requirements of the NDAs. This e-mail was simply too late to cover any of the information disclosed at any of the trials. These emails do not constitute confidentiality designations under the terms of the NDAs.
Visaría opined, in his capacity as Big Vision’s witness designated pursuant to Federal Rule of Civil Procedure 30(b)(6), that it was unrealistic for the parties to include confidentiality designations on each e-mail, and that “as a thumb rule ... I think people understand that when you’ve enter[ed] into a confidentiality [agreement], information remains confidential.” (S. Visaría 30(b)(6) Tr. 33). Beyond the self-evident proposition that Visaria’s personal opinion cannot supplant the expressed mutual intent of the parties in the NDAs, his understanding of the NDAs would, if adopted, render its confidentiality
There is no evidence that the terms of the NDAs were so onerous as to be infeasible; each contains the simple requirement that information must be designated as Confidential before it will be treated as such. (Compl. Ex. A, B). If Big Vision believed the confidentiality designations in the NDAs were too burdensome, it was free to negotiate different terms. Big Vision cannot expect to engage in three trials — during which much of the information was provided by third parties and none of the information was contemporaneously designated as Confidential — -and then succeed on a breach of contract claim based upon a belated, one-sentence, boilerplate confidentiality designation and an even-more-belated, one-sentence, catch-all confidentiality designation. If the alleged trade secret were as valuable and novel as Big Vision now claims, it should have gone to the trouble of designating its alleged trade secret as Confidential in its entirety.
b. The Court Will Not Consider Big Vision’s Belated Modification Theory
Plaintiff argues in the alternative that even if it did not properly designate its alleged trade secret as Confidential, the NDAs were modified orally or through the parties’ course of conduct. (See PI. Opp. 9-11).
Defendant correctly notes that the Court need not consider this claim, because it was raised for the first time in Plaintiffs opposition papers. (Def. Reply
The Court takes note, however, that the Federal Circuit recently considered a similar fact pattern in Convolve, cited supra. There, the plaintiff had failed properly to designate information as confidential under the terms of a similar NDA. However, the plaintiff argued that the parties had, through their course of conduct, “adopted a broad construction of the NDAs or waived their specific requirements for designating matters as confidential.”
Similarly, Big Vision failed to designate any information as Confidential, rendering irrelevant whatever subjective belief it may have held regarding the confidentiality of that information. Because Plaintiff did not designate any materials exchanged in the Davis-Standard trials as Confidential, if DuPont used any information it learned in the trials, it cannot constitute a breach of contract. Summary judgment is accordingly granted to DuPont on Big Vision’s breach of contract claim.
C. Defendant Is Entitled to Summary Judgment on Plaintiffs Trade Secret Misappropriation Claim
Big Vision’s second claim, for trade secret misappropriation, fares no better. The gravamen of the claim is that DuPont, representing itself as a “mere resin supplier” at the three Davis-Standard Trials, used those trials to gain access to Big Vision’s trade secret method for producing recyclable banners and then misappropriated that information for DuPont’s own gain. (PL Opp. 5-6). This claim fails for at least three reasons. First, Big Vision failed to describe its trade secret with particularity, both at the time of disclosure and throughout the instant litigation. Second, to the extent discernible, Big Vision does not have a trade secret because the information was not secret and was publicly known. Third, DuPont did not use the trade secret or discover it by improper means.
A “trade secret is ‘any formula, pattern, device or compilation of information which is used in one’s business, and which gives [the owner] an opportunity to obtain an advantage over competitors who do not know or use it.’” Softel, Inc. v. Dragon Med. & Scientific Comms., Inc.,
Before analyzing whether Plaintiff had a trade secret, the Court first considers whether Plaintiff has described its trade secret with sufficient particularity, both at the time of disclosure and throughout the litigation. See Heyman v. AR. Winarick, Inc.,
2. Application
a. Big Vision Has Not Described Its Alleged Trade Secret with Particularity
i. The Law on Particularity
The requirement of particularity exists for the simple reason that a defendant must know what constitutes a plaintiffs trade secret, so that it does not infringe upon that trade secret and so that the defendant can defend itself at any trial. See Sit-Up Ltd.,
In Heyman,
In Sit-Up Ltd., Judge Cote built on Heyman in holding that specificity was required not only at the moment of disclosure of the trade secret, but also through
Judge Cote explained why her decision was a natural outgrowth from the Second Circuit’s holding in Heyman:
A corollary requirement of specificity for claimed trade secrets is inferable from this holding: If a particular piece of information, or a formula, is not entitled to trade secret protection because it is “so vague and indefinite” at the time it is divulged, then it cannot be granted protection as a trade secret by a court during litigation if it is “vague and indefinite.” Specificity is required at the moment of divulging so that the party to whom the secret is revealed understands the contours of the secret information and does not inadvertently or purposefully transgress its boundaries. Similarly, specificity is required before the court so that the defendant can defend himself adequately against claims of trade secret misappropriation, and can divine the line between secret and non-secret information, and so that a jury can render a verdict based on a discriminating analysis of the evidence of disclosure and misappropriation.
While the Second Circuit has not explicitly adopted this requirement,
Several district courts within this Circuit have adopted this particularity requirement, and this Court ~aow joins them. See, e.g., TNS Media Research, LLC v. TRA Global, Inc., No. 11 Civ. 4039(SAS),
ii. The Trade Secret Was Not Described With Particularity at the Time of Disclosure
Big Vision alleges that it came to the Davis-Standard trials with a fully formed, five-element trade secret that was memorialized for the first time in the trial plan drafted by Davis-Standard in May 2008. (Nov. 5 Tr. 16-18).
In particular, Big Vision contends that its trade secret was disclosed to DuPont at the First Trial in June 2008, through the Trial Plan and Run Reports.
It is undisputed that the formulas for each sample tested at the First Trial were markedly different: the concentrations of Entira varied, the layer compositions varied, the additive amounts varied, the substrates varied, and the surface treatments varied. See generally Background Sec. A(5)(a), supra. Plaintiff acknowledges that not every structure tested at the First Trial reflected the five-element trade secret, but attempts to sidestep the issue by arguing that all of the structures tested there “embodied” the trade secret and were tested “in service of’ the trade secret “concept.” (Nov. 5 Tr. 19-20). This cannot stand. Absent an affirmative disclosure or description from Big Vision, DuPont had no way of knowing which structure or structures embodied Big Vision’s trade secret. Was it the structure with 100% Entira coating (which Big Vision now disclaims), or the structures with no Entira coating? Which was “minimal”: 0%, [redacted]%, [redacted]%, or 100% Entira? Which of the many substrates were “suitably strong”? And at what point or points did the concentrations of CaC03 and Ti02 become “high” (even though the percentages were raised in subsequent trials, and even though they were dwarfed by the 25% disclosed in the 3M Patent)? More pointedly, if the structures tested “embodied” and were “in service of’ the actual trade secret, how was DuPont to know what that actual trade secret was, absent a disclosure from Big Vision?
The legal point here is not complicated. In order to avail itself of trade secret
There was no written confidentiality agreement in place at the time of the First Trial, even though the parties had discussed such an agreement in April 2008. Big Vision could have insisted that the NDA be signed prior to the First Trial. It did not. Big Vision could have negotiated for terms providing that all information disclosed by Big Vision constituted its confidential information, as did the plaintiff in Sit-Up. It did not. Big Vision could have negotiated for terms providing that every structure tested in the trials, including the First Trial, would constitute Big Vision’s trade secret or confidential information. It did not. Big Vision could have followed up in writing, 30 days after the First Trial and after the NDA was signed, summarizing its alleged trade secret and designating it as confidential. As with everything else, it did not.
The only thing Big Vision affirmatively did around the time of the First Trial— and this is the subject of considerable dispute and not-considerable corroboration— was tell one DuPont employee, who did not attend the Trials, that DuPont needed to “ensure all confidentiality about [Big Vision’s] trials and ... developments.” (S. Visaría Tr. 314). A unilateral declaration of confidentiality relating to an entire commercial field is so vague and indefinite that it could not have provided the requisite particularity that a sophisticated, knowledgeable company like DuPont would need to ascertain the limits of Big Vision’s allegedly confidential information. To be sure, had Big Vision approached a layperson and stated “everything related to recyclable banners is confidential,” the Court’s analysis of whether it had disclosed its trade secret with particularity might be different. But DuPont had developed advertising banners for decades, held numerous patents in the space, and had at least two divisions in North America alone that were developing and testing these products. See Background Sec. A(4), (8), supra. “Specificity is especially important when a defendant holds a patent on the product.... It would substantially diminish the scope of patent protection to allow an award of damages for making and selling a product on which you have a patent, just because of vague overlaps between the patented product and another firm’s technology.” Composite Marine Propellers, Inc. v. Van Der Woude,
It would be absurd to allow Shailesh Visaria’s disputed declaration of confidentiality' — which was plainly ineffectual under the NDAs — to bar virtually all development of recyclable banners by DuPont. Adopting Big Vision’s argument would al
Big Vision uses “trade secret” and “confidential” as if the terms were interchangeable, but they are not. Most of Big Vision’s witnesses subscribed to the idea that everything that occurred during the trials constituted Big Vision’s trade secret.
At base, Big Vision is seeking retroactively to add terms to the NDA for which it failed to bargain in the first place. The Court refuses to expand trade secret law to fill in the gaps created by Big Vision’s own failure to negotiate and abide by the terms of the NDAs. DuPont is entitled to summary judgment on Big Vision’s trade secret misappropriation claim on this basis.
iii. Virtually All of the Elements of the Trade Secret Were Described With Insufficient Particularity During Litigation
Perhaps because Big Vision did not define its trade secret with sufficient
Even now, the putative trade secret is notable for its imprecision. See BondPro Corp. v. Siemens Power Generation, Inc.,
Numerous district courts facing this situation, i.e., a plaintiff unwilling or unable to winnow its trade secret from dozens of pages of materials, have required the plaintiff to define its trade secret without referring to those materials. In IDX Systems Corp. v. Epic Systems Corp., the Seventh Circuit rebuffed the plaintiffs “tender of the complete documentation for the software” because it did not identify “exactly which pieces of information are the trade secrets.”
In TNS Media Research, cited supra, the court held that the plaintiffs could not “reserve[ ] the ‘right to rely upon additional documents or testimony related to each trade secret’ ” among the hundreds of pages it claimed represented its trade secret.
So too here. There is a protective order in this case. Big Vision had every opportunity over the past two years, and was in fact repeatedly asked, to disclose the precise formula for its trade secret.
Taking the five elements in turn, the first is a “suitably strong polyolefin central layer.” The Court finds that the term “suitably strong” is subjective, not defined, and thus not specific. Numerous substrates were tested at the trials, and Plaintiff has not identified whether it finds any of them to be “suitably strong.” However, the term “polyolefin central layer” is sufficiently particular.
Second, the phrase “high pigment levels” is vague and indefinite. Big Vision tested a wide range of pigment levels at the trials, most of which were well within the normal range for the industry or disclosed in the patent literature. See nn. 4, 5, 7, and 11, supra. Without identifying which pigment levels were high, or in relation to what marker the pigment levels could be considered “high,” this phrase is not sufficiently particular.
Third, the phrase “a layered structure efficiently made by coextrusion or lamination of a predominantly LDPE structure” is not sufficiently particular. “Predominantly” is not defined and is vague. Again, since a wide variety of structures and composition of LDPE were tested at the trials, “predominantly” is not sufficiently particular.
Fourth, the phase “minimal use of En-tira or other expensive resins” is not sufficiently particular because “minimal” and “expensive” are subjective and not defined.
Finally, “surface treatment” is sufficiently particular since it was defined with the use of several examples, including E-beam or corona treatment. In this litigation and in this motion, Big Vision has unwittingly demonstrated why the particularity requirement exists in the first place. At the beginning of the litigation, it appeared that its trade secret was down-gauging Entira with LDPE; to that end, considerable discovery was devoted to this assertion. Big Vision then clarified that it did not claim “downgauging” as its trade secret; using small amounts of Entira (without defining the actual amounts) was its trade secret. Then, at the eleventh hour and after fact discovery had closed, Big Vision redefined the word “minimal” to mean simultaneously “some” and “none,” and claimed that its “innovation” was essentially to replace Entira with LDPE. DuPont has tried to play “whack-a-mole” as best it can with Big Vision’s shifting trade secret claims, but it need not have. Big Vision was in the position — from the very beginning — to know the precise formula for its trade secret. It should not have put the parties through this needless, expensive discovery effort because it could not decide what its trade secret really was.
Plaintiff has failed to identify all but one element of its five-element trade secret with sufficient particularity. The definitions proffered throughout this litigation are not sufficiently particular, and thus Big Vision’s claim fails for this reason as well.
b. Big Vision Does Not Have a Trade Secret
Even were the Court to find that Big Vision had defined its trade secret with
i. Applicable Law
“New York courts consider the following factors when determining whether certain information constitutes a trade secret: [i] the extent to which the information is known outside of the business; [ii] the extent to which it is known by employees and others involved in the business; [iii] the extent of measures taken by the business to guard the secrecy of the information; [iv] the value of the information to the business and its competitors; [v] the amount of effort or money expended by the business in developing the information; and [vi] the ease or difficulty with which the information could be properly acquired or duplicated by others.” USI Ins. Servs. LLC v. Miner,
The Court is mindful that the “ ‘existence of a trade secret is a question of fact.’ ” Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc.,
ii. Application
(a) The Information Is Not Secret
“Plaintiff must show that it took substantial measures to protect the secret nature of its information.” Geritrex Corp. v. Dermarite Indus., LLC,
There is virtually no contemporaneous documentary or testimonial evidence — beyond the testimony of Visaría — indicating that Big Vision took any steps to ensure the confidentiality of the information it disclosed to third parties. Instead, the evidence shows that Big Vision disclosed either the “recipe” it obtained from another company’s patent, or variations of a formulation derived from structures tested at the First and Second Trials, to at least 16 different third parties. Because Big Vision has not defined its trade secret with particularity, it is impossible to determine whether each third-party disclosure contained the alleged trade secret; it is worth noting, however, that while the information
To be sure, as Plaintiff notes, the disclosure of allegedly secret information may still be considered secret if the recipient of that information is sworn to secrecy. See Speedry Chem. Products, Inc. v. Carter’s Ink Co.,
As noted, Visaría testified to a universal understanding of confidentiality in the manufacturing business, and that he had verbal “communications to ensure confidentiality” with numerous third-party manufacturers. (Pl. Opp. 19; Pl. 56.1 Response ¶ 115). DuPont disputes this assertion, but neither party has presented any evidence corroborating or contradicting Vi-saria’s ipse dixit. And while the Court has resolved all ambiguities in Plaintiffs favor, Visaria’s testimony is significantly undermined by the fact that he admits disclosing Big Vision’s intended formula (in more detail and with more clarity than has been proffered in this litigation) to at least one manufacturer without any prior communications to “ensure confidentiality.” (See Ex. 68; S. Visaria Tr. 209-10). In that instance, Visaría simply “sent [the formulation and machine specifications] to a [manufacturer’s] website.” (S. Visaria Tr. 209).
The two cases Plaintiff cites in support of its argument are factually inapposite and do not involve such widespread disclosure of information. In A.H. Emery Co. v. Marcan Products Corp., the Second Circuit affirmed a finding that the plaintiffs disclosure of parts drawings did not destroy secrecy, where that disclosure was of only a portion of the product and was made only to a limited number of customers and members of the trade.
Similarly, in Trandes Corp. v. Guy F. Atkinson Co., the Fourth Circuit held that the plaintiff had taken reasonable measures to safeguard its secret where it had “licensed only two complete versions of [the trade secret] and extracted promises from both recipients that they would neither copy nor transfer the program, nor use the program for any purpose other than their own construction or engineering projects,” and had implemented a pass
Thus, even were there a “universal understanding” of confidentiality in the machine manufacturing business, the sheer number of detailed disclosures of ostensibly confidential information that Big Vision made' — sometimes without even contacting the third party first to ensure that the information would be treated with confidentiality — distinguishes the instant case and puts it in the realm of the extreme. “If an individual discloses his trade secret to others who are under no obligation to protect the confidentiality of the information, or otherwise publicly discloses the secret, his property right is extinguished.” Ruckelshaus v. Monsanto Co.,
Moreover, Big Vision’s July 2009 Indian patent application destroyed any secrecy that inhered in the alleged trade secret as of that date. See Timely Products Corp. v. Arron,
Big Vision argues that that the patent application disclosed a “much more general idea,” and did not “disclose a single specific structure run at the Davis-Standard trials, nor any details regarding the manner in which Big Vision was combining the banner elements or the proportions used, nor even its use of the Entira resin.” (PI. Opp. 20; Ex. 74). These arguments fall short. To the extent Big Vision’s trade secret is discernible (because, of course, “minimal,” “expensive,” “suitably strong,” “novel,” and “high” were never defined), each of the five elements claimed in the litigation are also disclosed in the Indian patent application. (See Ex. 74). Moreover, in separating, as it were, the wheat from the chaff in the dozens of structures reflected in the Run Reports and Trial Plans, Big Vision’s patent application defines the alleged trade secret with more detail than has been put forth in this litigation.
Big Vision effectively “freely disclosed” its information to “all comers,” and then published that same information in a patent application. On this record, no reasonable factfinder could find that Big Vision undertook reasonable efforts to maintain the secrecy of its alleged trade secret,
(b) The Information Is Publicly-Known
It is well-established that “a trade secret can exist in a combination of characteris
It is undisputed that all five elements of Big Vision’s claimed trade secret were publicly known; what is disputed is whether the combination of elements was also publicly known.
DuPont’s own prior patents not only disclose the individual elements of Big Vision’s alleged trade secret, but very nearly disclose the combination of those elements as well. For example, a 2006 DuPont patent discloses the use of (i) a polyolefin, nonwoven central layer; (ii) additives such as Ti02 and CaC03 up to 50%; (iii) a multilayer, coextruded structure; and (iv) the use of “ethylene alkyl acrylate copo-lymers and ethylene acid copolymers.” (Def. 56.1 ¶ 68). Big Vision’s claimed trade secret differs only in its addition of LDPE and surface treatments. (PI. 56.1 Response ¶ 68).
At least some courts have considered whether the combination of teachings disclosed in two patents discloses the trade secret in combination. For instance, in Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., the Fifth Circuit held that the plaintiffs unique combination of two of his own patent applications constituted a protectable trade secret.
Yet the Court need not resolve that issue because, more fundamentally, Plaintiff has failed to allege how its alleged trade secret constitutes a “unique” combination of publicly-available elements. Plaintiffs only evidence of the “unique combination of elements” is a oft-cited but conclusory passage from its expert opinion: “[the elements’] combination and useful performance when assembled w[as] not publicly known.” (Pl. Opp. 22). Repetition alone cannot make it so. A plaintiff asserting a combination trade secret must demonstrate that the way in which the publicly-available components fit together is unique and not publicly-known. Imperial Chem. Indus. Ltd.,
(c) The Remaining Factors Do Not Compel a Finding That There Was a Trade Secret
The remaining factors do not weigh as heavily as the preceding two, because it does not matter how easily duplicated or valuable a trade secret may be if it not in fact secret. First, Big Vision took some steps to limit who within the company knew of the project, but that in and of itself is not determinative. Big Vision is a small company, and that “only three people knew of the project” could speak more to the size and structure of Big Vision, than to active efforts to maintain the secrecy of the alleged trade secret. (PI. 56.1 ¶¶ 139, 149; Def. 56.1 Response ¶ 149).
Second, Big Vision alleges that it has invested time and expense in its recyclable banner project, but that time and expense could conceivably be traced as much to its development of the proper machinery as the proper formula to use. (Compl. ¶ 3).
Third, non-material issues of fact exist as to whether the alleged trade secret is easily duplicated or discernible. Visaría testified that once a recyclable banner product is sold, the public could determine its precise composition by sending a sample for analysis in a lab, as Big Vision itself did with another sample. (S. Visaría Tr. 124). Somewhat contradictorily, Plaintiffs expert opines that “[t]he combination of materials, structures, and manufacturing methods taught by Big Vision cannot be readily reverse engineered.” (PL 56.1 ¶ 124). One third-party witness testified that it would cost up to $3,000 to perform an analysis on a sample to determine its exact structure and composition, and that the analysis would take about a week. (Shokar Tr. 36-37). Defendant’s expert opined that it would cost approximately $7,000 to reverse-engineer all aspects of a coated, recyclable banner. (Ex. 6 at 27).
Fourth, non-material issues of fact exist as to the value of the alleged trade secret. DuPont argues that the trade secret is not used by Big Vision, and does not work, as reflected in Big Vision’s subsequent tests and modifications to the formula. (Def. Br. 19-20). Conversely, Plaintiffs experts opine that the alleged trade secret “represents] a valuable advance in the state of the art” whose value they assess “in the tens of millions of dollars.” (PI. Opp. 21 n. 14). The fact remains, however, that Big Vision has yet to commercially manufacture or sell a recyclable banner. (Def. 56.1 ¶¶ 125-26).
In short, while non-material issues of fact exist as to each of these factors, they are not dispositive, because the secrecy of the trade secret is of utmost importance, and the evidence shows that the alleged trade secret was publicly known and not secret.
3. DuPont Did Not Misappropriate Big Vision’s Alleged Trade Secret
a. DuPont Did Not Use Improper Means to Discover the Alleged Trade Secret
Even assuming that Big Vision had adequately identified a viable trade
DuPont did not breach the terms of its agreements with Big Vision. See Discussion Sec. B(3), supra. DuPont and Big Vision were not joint venturers (see Def. Br. 24-25; Pl. Opp. 24-25), or co-employees, such that DuPont had any special duty to Big Vision.
As detailed above, Big Vision alleges that DuPont represented itself as a “mere resin supplier” to gain access to the Davis-Standard Trials in order to misappropriate Big Vision’s alleged trade secret for DuPont’s own use. (Pl. Opp. 5). This allegation is undermined by the fact that DuPont was invited to participate in the Trials (after first being solicited for information preparatory to those Trials), a fact Plaintiff recognizes, see n. 1, supra. Simply accepting an invitation to participate in a potential customer’s laboratory trials does not constitute “improper means” that “fall[ ] below the generally accepted standards of commercial morality.” Restatement (First) of Torts § 757 (1939). In short, Big Vision has not demonstrated that DuPont gained access to its alleged trade secret in violation of a contractual or otherwise relevant duty, or that it used improper means to discover it. As such, DuPont is entitled to summary judgment on Big Vision’s trade secret claim.
b. DuPont Did Not Misappropriate the Alleged Trade Secret
Separately, Big Vision has failed to show that DuPont used its alleged trade
Turning to the first argument, Big Vision hangs its hat on one thing: “[redacted].” Big Vision alleges that following a conference call between representatives of P & IP and NOW, the lead developer for NOW’s recyclable banner development project had in his notes “[redacted] mil,” which was one of the coating thicknesses of Entira tested at the Second Trial. (Pl. Opp. 7).
At least one other court has found that internal experimentation with trade secret information can constitute an impermissible use. See 02 Micro Int’l Ltd. v. Monolithic Power Systems, Inc.,
Big Vision’s second argument is that DuPont’s recyclable banner product lines misappropriate Big Vision’s trade secret. Quite simply, Big Vision cannot demonstrate that its recyclable banners are substantially similar to DuPont’s. The parties do not dispute that DuPont’s recyclable banner products are not made by either lamination or coextrusion. (Def. 56.1 ¶ 41). None of DuPont’s recyclable banner products use the three-layer structures tested at the Trials, the range of CaC03 tested at the Trials, or “minimal” amounts of Entira (to the extent it has been defined), since DuPont’s products either use 100% or 0% Entira. (Def. Br. 22-23). Furthermore, DuPont’s recyclable banner products are not printable with solvent ink. (Id. at 23; Def. 56.1 ¶ 134). Thus, to the extent Big Vision’s trade secret is discernible, DuPont’s products implicate almost none of its elements.
D. Big Vision’s Unfair Competition Claim Fails
Big Vision’s final claim, for unfair competition, depends heavily on the preceding two claims and fails for similar reasons. “The essence of an unfair competition claim is that one may not misappropriate the results of the labor, skills and expenditures of another [... ] the tort functions to protect ‘property rights of value ... from any form of commercial immorality.’ ” Norbrook Labs.,
Bad faith is an essential element of an unfair competition claim. See Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc.,
Plaintiff rests its unfair competition claim on several internal DuPont emails in which Steve Wilkinson and Kevin McAllister either summarize information conveyed to them by Big Vision, or raise concerns about sharing information about Big Vision between the P & IP and NOW divisions. See Background Sec. A(8), supra. As the parties have failed to submit testimony from either Wilkinson or McAllister to explain their e-mails, trying to discern bad faith (or not) from these disembodied communications is largely an exercise in tea-leaf reading. (Nov. 5 Tr. 64).
Big Vision also argues that DuPont had an obligation to disclose the fact that its NOW division could compete with Big Vision, and relies upon e-mails in which various DuPont employees recognize that NOW and Big Vision may be competitors. (See Pl. Opp. 13; Pl. 56.1 ¶¶ 187-90). Although numerous DuPont employees have offered unrebutted testimony that they did not believe DuPont and Big Vision to be competitors, (see generally Def. 56.1 Response ¶¶ 187-90), even if they were, Big Vision has cited no case for the proposition that DuPont had any duty to disclose that it could compete with Big Vision. In fact, Big Vision appears to have made no effort to discover this fact. Defendant is entitled to summary judgment on Plaintiffs claim for unfair competition.
CONCLUSION
As noted, the instant litigation has engendered both an extensive record and a surfeit of briefing. The Court has reviewed all of this information and argument with great care over many months, and has concluded that, as to each material fact implicated by Plaintiffs claims, there is no genuine issue in dispute, and summary judgment is warranted as a matter of law. Thus for the reasons discussed herein, Defendant’s motion is GRANTED.
SO ORDERED.
. Mention must, be made of the substantial record before the Court. The parties' submissions reveal a herculean discovery effort. As but a few examples, the parties have submitted two separate 56.1 statements, two 56.1 counterstatements (resulting in 223 paragraphs of fact, nearly 200 of which were contested to some extent), 227 exhibits, and thousands of pages of deposition transcripts. Plaintiff's counsel, in particular, has done an impressive job of disputing nearly every issue of fact. Indeed, one could be forgiven for assuming that each dispute identified was, in fact, material. Precisely for this reason, the Court followed Plaintiff down each and every rabbit hole created by its disputed issues of fact, and determined — after considerable effort — that, for the reasons discussed throughout this Opinion, there simply are no material issues of fact precluding summary judgment in favor of DuPont.
Plaintiff weaves a compelling tale in its Complaint and opposition papers, one which the Court followed closely, but which ultimately did not withstand scrutiny. Here, too, a few examples bear out the point: Plaintiff asserts that there were no "cost-competitive” recyclable banners on the market in 2007, yet neglects to provide pricing information for any of the 11 recyclable banners then on the market. See n. 6, infra. Big Vision also claims that it was the first to "successfully downgauge Entira with LDPE for the purposes of a recyclable banner application” (Pl. Opp. 4), yet omits mention of the considerable input it received from third parties, ignores evidence that DuPont had done so previously, and overlooks the very real possibility that it may have been the first only because Entira was not yet on the market, see Discussion Sec. 5(a). Big Vision alleges that DuPont gained entry to certain laboratory trials by disingenuously representing itself as a “mere resin supplier,” yet ignores the critical fact that DuPont was invited to participate in these trials, and concedes the absence of record support of any such ulterior motive ab initio. (Pl. Opp. 5; Transcript of November 5, 2013 Oral Argument (“Nov. 5 Tr.”) at 36). Lastly, Plaintiff alleges that its putative trade secret is worth tens of millions of dollars, but glosses over its failure to date to manufacture commercially or even sell a single recyclable banner. (Pl. Opp. 21 n. 14; Shailesh Visaría Deposition Transcript at 79).
. The facts stated herein are drawn from the parties' submissions in connection with the instant motion. These include Defendant's Local Rule 56.1 Statement of Material Facts (“Def. 56.1”); Plaintiffs Local Rule 56.1 Statement of Material Facts ("Pl. 56.1”); Plaintiff's Local Rule 56.1 Statement in Reply (“Pl. 56.1 Response”); and Defendant's Local Rule 56.1 Statement in Reply ("Def. 56.1 Response”), all of which were filed under seal, and then refiled in redacted form pursuant to the Court’s instructions. Citations to a party's 56.1 Statement incorporate by reference the documents cited therein. Where facts stated in a party’s 56.1 Statement are supported by testimonial or documentary evidence, and denied with only a conclusory statement by the other party, the Court finds such facts to be true. See S.D.N.Y. Local Rule 56.1(c) ("Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement required to be served by the opposing party.”); id. at 56.1(d) (“Each statement by the movant or opponent ... controverting any statement of material fact[] must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).”).
Exhibits 1 to 78 are attached to the July 16, 2013 Declaration of Anna R. Mercado; Exhibits 79 to 206 are attached to the August 15, 2013 Declaration of Leif Overvold; Exhibits 207 and 208 are attached to the August 16, 2013 Declaration of Leif Overvold; and Exhibits 209 to 227 are attached to the August 30, 2013 Declaration of Anna R. Mercado. References to "[Name] Decl.” reflect citations to the declaration of the named party, while references to "[Name] Tr.” reflect citations to the deposition transcript of the named party.
. Many of the technical terms mentioned in this subsection are discussed in detail in the remainder of the Factual Background. For convenience, all references to Entira, Entira-Coat, EntiraCoat 100, and Tyvek in the remainder of this Opinion are presumed to include the registered mark symbol.
. Circle Graphics developed a coated, recyclable banner prior to April 2007. (Def. 56.1 ¶ 88; Def. 56.1 Response ¶ 143; Ex. 30). The Circle Graphics Patent, published in 2007, disclosed (i) "virtually any strong, flexible, sheet like material,” such as polyolefin or the polypropylene TYPAR, including woven and nonwoven core layers [paras. 0011-0014, 0049, 0050]; (ii) "[vjarious additives to improve suitability for various applications,” including Ti02 and CaC03 to enhance printability with solvent-based inks [paras. 0047, 0057]; (iii) casting, molding, extrusion, film blowing, or similar methods [paras. 0046, 0048]; (iv) "[c]orona treatment or other treatment to increase its surface energy” [paras. 0029, 0048]; and (v) a top layer of the “minimum thickness required,” between 0.4 and 2 mils [para. 0046], "with an acrylic coating receptive to solvent-based inks” [para. 0048], (Ex. 30).
Plaintiff's expert states conclusorily that the Circle Graphics Patent does not disclose "that the LDPE compositions or LDPE layers in a coextruded structure can provide a printable surface for solvent-based inks.” (Ex. 11 at 6-7). Defendant’s expert disagrees, noting that the Circle Graphics Patent discloses repeatedly that it is printable with solvent-based inks [paras. 007, 0022, 0023, 0028, 0029, 0036, 0039, and 0054]; that the structure can be made through coextrusion [paras. 0027, 0051]; that the top layer should be made of polyethylene, which "provides a smooth, print receptive surface when coated” [paras. 0011, 0046]; and that because "the core layer is made from a material with a similar composition to the top layer, for example a polyolefin, this will facilitate recycling of the entire substrate” [para. 0049]. (Ex. 6 at 8-9).
. The 3M Patent, published in 2004, disclosed (i) an image-receptive layer compatible with solvent-based inkjet inks, with a thickness of between 0.5 and 2 mils, which layer includes a carrier resin comprised of a modified polyo-lefin and an ink-absorptive specialty resin (including DuPont’s Elvaloy or Fusabond) compatible with the carrier resin [col. 2-4]; (ii) extrusion and coextrusion [col. 3]; (iii) multilayer structures that include LDPE and polypropylene [col. 14, 16, 17]; and (iv) the use of Ti02 and CaC03 in the print-receptive layer, in concentrations up to 25% [col. 5], (Def. 56.1¶ 92; Ex. 31).
Plaintiff's expert argues without more that the 3M Patent does not disclose "LDPE compositions, or the use of LDPE layers in a co-extruded structure for downgauging.” (Ex. 11 at 6). Defendant's expert again disagrees, noting that the 3M Patent does disclose a number of extruded or coextrud-ed structures that include LDPE, LLDPE (Linear Low Density Polyethylene), and polypropylene. (Ex. 6 at 10 (citing tables 4, 6)). The Court notes that the 3M Patent plainly and repeatedly discloses the use of LDPE.
. Big Vision alleges that as of early 2007, no other company had successfully developed a "cost-competitive” recyclable banner (PI. 56.1 ¶ 143), a point which DuPont disputes (PL 56.1Response V 63; Def. 56.1 Response ¶ 143). Because neither party has offered evidence regarding the prices of the banner products discussed herein, it is impossible for the Court to evaluate Plaintiff’s assertion. The Court notes, however, that a representative of the Canadian manufacturer InterWrap testified that, in 2007, that company was offering a cost-competitive recyclable banner line known as ECOS. (Shokar Tr. 15).
More fundamentally, Big Vision's attempts to denigrate the state of the art in the recyclable banner industry as of early 2007 are bedeviled by the absence of record support for the company's subjective assertions. Big Vision alleges, for instance, that the "printability” and "aesthetics” of then-existing recyclable banners were "below acceptable levels,” but its expert conceded that there are no objective, industry-standard tests for either characteristic. (Def. 56.1Response ¶ 146). Furthermore, in this regard, the expert served more as conduit than as aid; her opinion was based upon assertions made by Shailesh Visaría, the managing director of Big Vision, about the quality of other companies’ banners, and not on the expert's own review of the approximately 11 recyclable banner products that were commercially available during that period. (See Ex. 11 at 5 ("As reported by Big Vision at the time, printability and aesthetics were below desired levels.” (emphasis added)); Ex. 6 at 7 (Defendant’s expert observing that Plaintiff's expert "acknowledges that at least 11 other recyclable banner products were available in the market,” but that "it does not appear that [the expert] inspected or analyzed these products, other than the InterWrap ECOS product,” and further noting that "the supposed 'limitations’ of these products which [the expert] refers to were taken from a chart prepared by DuPont” (citations omitted))). As Defendant's expert notes and Plaintiff does not dispute, at least one arbiter of acceptability is commercialization, and the fact that these products were commercially available indicated, at least in part, that they were acceptable to the market. (Ex. 6 at 7).
.InterWrap developed a recyclable banner around 2005. (Shokar Tr. 11-13). The components of that banner were (i) a woven, polyethylene substrate, (ii) that was extrusion coated, (iii) with a structure "largely” comprised of LDPE, CaC03, a "significant amount” of Ti02, and (iv) UV additive. (Sho-kar Tr. 12-13).
In 2007, InterWrap introduced its ECOS line, which comprised two similarly constructed recyclable banners: a heavier-weight banner known as Posterflex, and a lighter, less-expensive banner known as Flexilite. (Shokar Tr. 14-15). The components of the ECOS line of products were (i) a woven polyethylene substrate, (ii) that was extrusion coated on both sides with (iii) an LDPE-Ti02 mix, Ti02, and (iv) a UV additive. (Id. at 15-16). InterWrap selected LDPE because it was (and is) the most widely-used and cost-effective extrusion-coating resin. (Id. at 19-20). Plaintiff's expert conceded that the pigment levels inthis product "tend toward the higher end.” (Def. 56.1 ¶ 64).
.It is worth noting here that these same elements are disclosed in combination by the Circle Graphics Patent: ‘‘[v]arious additives to improve suitability for various applications,” including Ti02 and CaC03; film blowing, or similar methods; “[cjorona treatment or other treatment”; and polyethylene. (See n. 4, supra; Ex. 30).
Visaría testified at his deposition that Big Vision was not concerned that it might be infringing upon the Circle Graphics Patent, because Big Vision subsequently used a nonwoven substrate. (S. Visaría Tr. 168— 69, 173). In response to a question noting that the Circle Graphics Patent in fact disclosed the use of a nonwoven substrate, Visaría repeated, without more, that Big Vision simply did not believe it was infringing upon the Circle Graphics Patent. (Id. at 169, 173).
. Visaría testified that Big Vision was also not concerned about infringing upon the 3M Patent because that patent "was just a film patent.” (S. Visaría Tr. 176). Regardless, the 3M Patent played a recurrent role in Big Vision’s recyclable banner project, at least from 2007 to 2008. Not only did Visaría admit to having reviewed the patent "in detail” (id. at 175), but he also admitted to having discussed this patent with DuPont and with a New Jersey-based company, Davis-Standard, because Big Vision "would [have] require[d] something like [the 3M Patent] to have a top coat for ink-receptive coating” (id. at 175-80).
. Plaintiff admits that what it disclosed to at least some of these manufacturers was “a film
. DuPont has identified at least six relevant patents, all of which DuPont applied for or obtained prior to its introduction to Big Vision. The relevant patents include: (i) a March 4, 2008 provisional patent application filed by Eric Teather, which disclosed a recyclable Tyvek substrate with an extruded layer of LDPE along with other polymers and polymer blends, including Ti02 and CaC03 from 1-10% for use in projection screens (Def. 56.1 ¶ 66; Ex. 6 at 10-11); (ii) an October 25, 2007 patent application, which disclosed the use of Ti02 and CaC03 from 0.1 to 50% for use in a polyolefin layer in a banner application, and surface treatments of any form known within the art (Def. 56.1 ¶ 67; Ex. 6 at 11); (iii) a July 13, 2006 patent application, which disclosed a printable, multilayer advertising banner comprising a woven or nonwoven substrate, the use of specialty resins such as Elvaloy AC pigmented with Ti02 for whiteness and opacity, along with Ti02 and CaC03 in other layers of the banner, in an extrusion-or coextrusion-coated structure (Def. 56.1 ¶ 68; Ex. 6 at 11); (iv) a May 6, 1997 patent, which disclosed LDPE as the sole extrusion-coated layer on a nonwoven polyethylene or polypropylene fabric for use as a protective garment (Def. 56.1 ¶ 70; Ex. 6 at 11); (v) a July 17, 1990 patent, which disclosed a nonwoven, Tyvek substrate coated with an outer polyethylene layer for printing applications (Def. 56.1 ¶ 71; Ex. 6 at 11); and (vi) a March 6, 1990 patent, which disclosed a nonwoven polyolefin banner coated with a polymer coating that “makes the surface receptive to printing inks” and can contain 58% Ti02 (Def. 56.1 ¶ 72; Ex. 6 at 11).
. Plaintiff disputes that Lee’s internal tests concerned recyclable banners specifically. (See Pl. 56.1 ¶ 58). While Lee and Chou did testify that these tests related to coated fabric applications, of which banners were one component (see, e.g., Chou Tr. 41-42; Lee Tr. 88), this disputed issue of fact is not material to the Court’s analysis.
. Entira 100 and EntiraCoat 100 are different trade names for the same product. (Chou Tr. 23).
. Ken Piora was not deposed in connection with this action. (Nov. 5 Tr. 7). DuPont cites this e-mail as proof that it had suggested coextruding LDPE and Entira prior to the First Trial (Def. 56.1 ¶ 96), but overlooks the fact that Piora’s statement is hearsay and cannot be put forth for the truth of the matter asserted. See Presbyterian Church Of Sudan v. Talisman Energy, Inc.,
. The trial plan sent by Piora on May 23 is less detailed than the trial plan contained in duplicative Exhibits 25 and 75 (the “First Trial Plan”), which includes a chart detailing the intended percentages of each additive.
. If such a document exists, it was not included in the record before the Court.
. Big Vision and DuPont subsequently executed a non-disclosure agreement (the “first NDA”), approximately one month after the First Trial. (Compl. Ex. A). The parties allege that the NDA was executed on July 1, 2008 (Def. 56.1 ¶ 98), but the NDA is dated August 29, 2008, and September 22, 2008 (Compl. Ex. A). The difference is immaterial for the purposes of this Opinion, and so the Court adopts the date proffered by the parties.
. The Trial Report is marked “Davis-Standard Confidential,” but Ronaghan testified that the confidentiality footer is part of the standard template she uses. (Ronaghan Tr. 131).
.Plaintiff does not dispute this fact, but the record does, inasmuch as documents associated with the First Trial indicate that at least some samples were produced with LDPE coated on the front and back sides. Resolution of this issue is complicated by the fact that the documents that Big Vision claims reflect its trade secret — the Trial Plan, Trial Report, run reports, and roll identification sheet — are cryptic at best.
The Trial Report was drafted by Davis-Standard and summarizes the outcomes of all three trials. Attached to the Trial Report are the trial plans for all three trials and the roll identification form for the First Trial. (Ex. 75; Ronaghan Tr. 117). The trial plans for the three trials (collectively, the "Trial Plans”) include for each a chart detailing the intended formulations of ingredients and a list of the various structures to be tested. The run reports (collectively, the "Run Reports”) are contemporaneous machine printouts produced at each trial. (Ex. 76, 77, 78).
The First Trial Plan includes nine A/B/A structures [numbered 1-6, 6a, 6b, and 8], three of which [2, 4, 6a] would also be coated with LDPE on the backside. (Ex. 75 at BV-0012179-80). By cross-referencing the additive chart on the first page of the Trial Plan [Blends A-E, G, Al, and El], one can determine the intended percentages of certain additives in certain layers. (Id.). The Run Reports each identify the roll number and coating thickness used; the columns "A Extruder” and “B Extruder” on each run report refer to the Blend number specified in the trial plan, but not the structure numbers. (Ex. 76). The roll identification sheet ("Roll Identification Sheet”), annexed to the Trial Report, lists the roll numbers [1-48] and the structure numbers tested [1-6, 6a, 6b, 8], the finishing treatments used on the rolls, as well as the date on which, and where, the rolls were shipped after the trial. (Ex. 75 at BV-0012181).
Through substantial effort (which the parties surely could have saved the Court), one can cross-reference the 24 pages of machine printouts that comprise the Run Reports from the First Trial (see Ex. 76), with the Trial Plan (Ex. 75 at BV-0012179-80), the additive chart in the Trial Plan, and the Roll Identification Sheet (id. at BV-0012181), in order to determine roughly what was tested at the First Trial. The Trial Plan notes that on the first day, Structures 1, 2, 3, and 4 would be tested (which included LDPE, Ti02, and CaC03), and Structures 2 and 4 would include LDPE on the backside as well. (Id. at BV-0012179). The Roll Identification Sheet indicates that Rolls 1, 2, and 3 were printed with LDPE on the backside (see Ex. 76 at BV-0027122, BV-0027133, BV0027139) and then reused for Structures 2, 4, and 6a (Rolls 9-13, 10-23, and 34-38). (Ex. 75 at BV-0012181). Thus, Rolls 4-23 (see Ex. 76 at BV-0027140-45, BV-0027123-25) were printed with Structures 1, 2, 3, and 4, which included LDPE, Ti02, and CaC03, but not Entira (Ex. 75 at BV0012179, BV-0012181). Given the considerable effort necessary to determine what was tested at the trials, and the fact that Plaintiff concedes that not every structure reflects its alleged trade secret (PL 56.1 ¶ 159), it is remarkable that Plaintiff has done little more to define its purported trade secret than refer Defendant and the Court to these materials. See Discussion Sec. C(2)(a), infra.
. The Trial Plan for the second trial (the "Second Trial Plan”) states that on Day 1, the backside of each fabric was coated with LDPE, TiOa, and CaC03 [Blend H] in an A/B/A structure. (Ex. 75 at BV-0012182). On Day 2, Entira was coextruded with Ti02, CaC03, UV additive, and LDPE in an A/B/A structure onto the front side [Blends J, HI]. (Id.). On Day 3, LDPE, LLDPE, Ti02, and CaC03 were coated onto the front side [Blends I, HI]. (Id.). While the Court resolves this non-material dispute in Plaintiff's favor, it notes that the Trial Plan supports Plaintiff's assertion that LDPE/LLDPE structures were printed on the front side of the substrate.
. The circumstances that led to NOW’s participation in the Third Trial are discussed infra, at Background Sec. A(8)(a).
. Big Vision subsequently avoided its contract with Davis-Standard. (PI. 56.1 Response ¶ 49). In October 2009, Davis-Standard initiated a lawsuit against Big Vision in the United States District Court for the Northern District of New York alleging various claims, including breach of contract. See Davis-Standard, LLC v. Big Vision Private Ltd., No. 09 Civ. 1160(NPM)(GHL) (N.D.N.Y.), Dkt. # 1. Big Vision counterclaimed and sought to implead DuPont, but its effort was rebuffed by that court in May 2011. (NDNY Dkt. #32). Davis-Standard and Big Vision settled their claims in September 2011. (NDNY Dkt. # 42, 43). Thereafter, Big Vision brought the instant action in November 2011.
. While Wilkinson was deposed, the transcript from his deposition was not submitted in connection with this motion. (Nov. 5 Tr. 7).
. DuPont contends, without contradiction in the record before the Court, that it does not use this business model, has no capability of using reclaimed material, and does not utilize a recycling loop. (Def. 56.1 ¶ 33).
. While Kevin McCallister was deposed, the transcript from his deposition is not part of the record before the Court.
. At that time, NOW's existing Vivia recyclable banner was more expensive than a standard PVC banner, and was geared for the high-end North American market. (Def. 56.1 Response ¶ 185; Ex. 181; Welchel Tr. 92-95). NOW recognized that Vivia might not be cost-competitive in lower-cost markets. (Def. 56.1 Response ¶ 185; Ex. 181; Welchel Tr. 92-95).
. Big Vision’s assertion is not clearly supported by the record. The Run Reports from the Second Trial list the coating thickness of the entire A/B/A structures (of which Entira only comprised the A layer) as being [redacted] mils. (See Ex. 77). The coating thickness in the First Trial was listed as [redacted] mils for the A/B/A structures in which Entira was the A laminate. (See Ex. 76). Thus, it stands to reason that the only structure in which Entira was coated at [redacted] mils was the all-Entira structure tested at the First Trial (Structure 8), which Big Vision now claims does not reflect its trade secret. (PL 56.1 ¶ 159). However, this discrepancy is ultimately immaterial to the resolution of this motion.
. Big Vision cites Benim’s testimony that he could not recall coextruded structures being considered prior to 2009 as proof that it was only through exposure to the Davis-Standard Trials that DuPont learned of coextrusion. (PL 56.1 ¶ 200; Def. 56.1 Response ¶200). Yet DuPont itself had filed a patent application in 2006, which disclosed coextruded structures for use in banner applications. See n. 11, supra.
. Plaintiff clarified at oral argument on November 5, 2013, that it no longer asserts a trade secret misappropriation claim for its recycling loop. (Nov. 5 Tr. 13-14). Permitting voluntary dismissal of the claim at this stage of the proceeding, however, would be procedurally improper. Instead, and for the reasons infra, DuPont is entitled to summary judgment on this claim. See Muench Photography, Inc. v. Houghton Mifflin Harcourt, No. 09 Civ. 2669(LAP),
. While Big Vision claimed in its Complaint that the Imvelo and Imvelo Deco products reflect its trade secret, it appears ,to have abandoned that claim in its opposition papers. (See PL Opp. 22).
. After considering the factors implicated by Lugosch v. Pyramid Co. of Onondaga,
. Big Vision’s failure to designate as Confidential anything disclosed at the First Trial is particularly noteworthy because Big Vision claims that it disclosed its claimed trade secret to DuPont at the First Trial. See Discussion Sec. C(2)(a)(i), infra.
. Shailesh Visaria recalled at his deposition that on April 14, 2008, he told Mark Jacobson of DuPont’s P & IP division that “if [DuPont] wanted to attend [Big Vision’s] trial, [DuPont] need[ed] to ensure all confidentiality about [Big Vision’s] trials and information about our developments.” (S. Visaria Tr. 314). Big Vision takes this testimony to mean that an oral confidentiality agreement was reached prior to the First Trial, which DuPont disputes. (PI. 56.1 ¶ 156; Def. 56.1 Response ¶ 156). Even had such an oral agreement been reached prior to the First Trial, Big Vision concedes that the NDAs “merely memorialized a confidential relationship that existed since the parties' introduction.” (PL Opp. 19 n. 11). Presumably for this reason, Big Vision’s breach of contract argument (as well as its related unfair competition argument) has been predicated on the written NDAs, and not any pre-existing oral understanding between the parties. (See, e.g., id. at 8, 12). Indeed, even if Plaintiff's reference to this testimony were an attempt to assert a claim for breach of oral contract, it is inappropriate to raise new claims in opposition to a summary judgment motion, and as such, the Court need not consider such an argument. See Discussion Sec. B(3)(b), infra; see also Southwick Clothing LLC v. GFT (USA) Corp., No. 99 Civ. 10542(GBD),
. Indeed, Big Vision’s use of this footer indicates, as DuPont suggests, that Big Vision understood that a written designation was required in at least some instances. See Convolve, Inc. v. Compaq Computer Corp., 527 Fed.Appx. 910, 924 (Fed.Cir.2013) ("By acknowledging that the disclosures at the October 1998 meeting were confidential, the parties’ conduct demonstrates they understood that oral and visual disclosures indeed require such follow up.”). (See Def. Reply 2 n. 3).
.Plaintiff alleges, and DuPont disputes, that Visaría "made clear to five different DuPont employees that all information Big Vision disclosed to DuPont concerning its recyclable banner project was confidential under the [NDAs],” and as a result, Visaría “received assurances that the information would be held in confidence.” (PI. Opp. 11). Even taking this hotly disputed testimony to be true, Plaintiff's allegation only establishes that certain DuPont employees agreed that information would be held "in confidence,” which is very different from DuPont as a whole agreeing that all of Big Vision’s information would be designated as Confidential under the NDAs.
Quite simply, the fact that a few DuPont employees — who were uninvolved in any of the Trials and largely ignorant of the NDAs — thought that Big Vision’s information was confidential did not discharge Big Vision of the confidentiality designation requirement set out in the NDAs. (See PL Opp. 6; see generally Background Sec. A(8), supra; Def. 56.1 Response ¶211; Vyas Tr. 274-78). Moreover, to the extent this argument relates to Plaintiff's modification theory, the Court disregards such a belated claim. See Discussion Sec. B(3)(b) infra.
. There is no evidence in the record (other than counsel’s conclusoty assertion at oral argument, which of course is not evidence) that the banner sample Big Vision sent to NOW in 2009 was designated as a Confidential Sample. (Nov. 5 Tr. 26). Thus, DuPont's failure to disclose any internal tests on the banner sample did not constitute a breach of the NDAs.
. Plaintiff protests that accepting Defendant’s argument means that "nothing is protected under the [NDAs] ... because neither party complied with the formal procedures for designating information as confidential.” (PI. Opp. 8). In support, Plaintiff cites the fact that DuPont did not designate any information as confidential in writing, and reasons from this that DuPont, too, meant to modify the contract orally. (Id. at 11). However, numerous DuPont employees testified that they did not disclose any confidential information at the trials (including, for instance, the precise formula of Entira), and that anything they did disclose was publicly known. (Def. 56.1 Response ¶¶ 177, 178). Thus, their failure to designate such information as Confidential is unsurprising: they did not consider it to be such.
. Though the Court need not reach this issue, it appears that the argument would also fail on the merits, because Plaintiff has not alleged precisely how, or even when, the contract was modified (as distinguished from what provision was modified), or whether the parties agreed it should be modified. (See PI. Opp. 10-11 (arguing, without more, that the parties "reached consensus to modify the [NDAs’] designation procedures”)). In particular, as DuPont notes, there is no evidence of a "consensus” or meeting of the minds under Singapore law, which is required for oral modification of a written contract. (See Def. Reply 3 n. 5).
. Neither party has addressed whether New York or Singapore law applies to Big Vision’s trade secret misappropriation or unfair competition claims, but both parties submitted briefing applying New York law. While the NDAs state that Singapore law governs the interpretation of those agreements, New York courts have consistently held that similar choice-of-law provisions were too narrow to cover non-contractual claims. See Innovative BioDefense, Inc. v. VSP Technologies, Inc., No. 12 Civ. 3710(ER),
. The Second Circuit has, however, affirmed at least one district court opinion that required specificity for the putative trade secret in the litigation. See Julie Research Labs., Inc. v. Select Photographic Eng'g, Inc.,
. Big Vision does not suggest that its preTrials development efforts reflect its five-element trade secret. For example, Big Vision does not claim, nor could it, that the film produced at Charu Plastics in 2007 represents its trade secret. (See DeE. 56.1 Response ¶ 145).
. Between April and June 2008, Davis-Standard liaised with both DuPont and Big Vision to develop the trial plan for the First Trial, and DuPont provided suggestions regarding the composition of the structures to be tested. See Background Section A(5)(a)(i), supra. While Big Vision may not have been aware of DuPont’s involvement at this stage, the fact remains that when the trade secret was allegedly disclosed to DuPont, DuPont itself had been consulted regarding several aspects of it. This further underscores why it was important for Big Vision not only to define its alleged trade secret with particularity, but also to define it with sufficient particularity to separate it from DuPont's pre-existing knowledge.
. The Court focuses on the disclosure at the First Trial because that is when Plaintiff argues that it first disclosed its trade secret to DuPont and, more importantly, because, in Plaintiff's own words, the Second Trial was a "collaborative effort,” and the Third Trial plan was drafted by DuPont. See Background Sec. A(5)(b)-(c), supra. Considering the "disclosures” made during the Second and-Third Trials in the Court’s analysis here would only further weaken Plaintiff's argument, because the structures tested in those Trials varied significantly from the structures tested at the First Trial, were not subject to any affirmative designation by Big Vision, and were in large part the product of DuPont's suggestions. See generally id.
DuPont asks the Court to find that if there was a trade secret, it was jointly developed, but in holding that there was no trade secret, the Court declines to reach this issue. (Def. Br. 24 (citing Raymond T. Nimmer & Jeff C. Dodd, Modern Licensing Law § 17:9 (“if two or more parties jointly develop confidential information, both own the trade secret”))).
. Big Vision attempts to cabin Visaria’s testimony on this point by arguing that counsel for DuPont was asking Visaría to reach legal conclusions. (PI. Opp. 16). Yet it remains telling that the managing director of Big Vision, who was involved in every stage of its recyclable banner project, and was put forth as Plaintiff's Rule 30(b)(6) witness, could not define its alleged trade secret more than to say, in essence, that everything that happened was Big Vision’s confidential information. When asked to identify Big Vision’s trade secret, Visaría testified: "[a]ll of our confidential information, including trials, formulations, it’s for our attorneys to identify trade secrets.” When asked if all of the “information that [Big Vision] supplied with DuPont was [Big Vision’s] trade secret,” Visaría replied “[t]hat’s correct. It was confidential, I said. And it’s up to my attorneys to decide which of them were trade secrets.” When asked again to identify the trade secret, Visa-ría stated that it consisted of "[t]he use of nonwoven banners, nonwoven fabric substrate structures, co-extrusion structures which are multilayer structures, [and the] use of calcium carbonate.” Visaría stated that ”[e]veiy trial that we made were confidential, including downgauging which we — which we knew about it, and we put it into practice at [the Davis-Standard] trials[....] And recycla-bility and even including achieving printability on Entira.” Visaría went on to identify that both high and low levels of Ti02 constituted Big Vision's trade secret, the use of additives constituted Big Vision’s trade secret, and that "[i]t's for my attorneys to decide whether even use of business model, of recycling loop. They were confidential. I leave it for my attorneys to decide.” (S. Visaría 30(b)(6) Tr. 36-39).
. When asked at oral argument whether everything in the Run Reports was Big Vision's trade secret, Plaintiff's counsel replied "Yes.[...] Everything.” (Nov. 5 Tr. 28). Counsel later clarified "[t]he fact of Entira is not [Big Vision’s] trade secret.... But the formulations that are expressed in the run reports are expressions of the five elements of the strong nonwoven banner, of the minimal use of Entira, and the other elements, the coating and so forth.” (Id..). In connection with this motion, however, Big Vision simultaneously disclaims the all-Entira structure tested at the First Trial (id. at 20; PL 56.1 ¶ 159), and claims that all structures tested at all Trials constituted its trade secret (Nov. 5 Tr. 19-20).
. Plaintiff's expert only adds to the lack of clarity. Dr. Reitman opines that when Big Vision’s five-element trade secret is "used as essentially taught, you should be getting products with” the following attributes: "a light weight, recyclable wide format structure with a desirable combination of printability with both UV and solvent-based inks, aesthetics, cost, and durability.” (Def. 56.1 ¶ 40; PI. 56.1 Response ¶ 40). The attributes are essentially a "wish list” and do not impart sufficient particularity to put DuPont on notice as to the trade secret; moreover, they were asserted for the first time in Plaintiff's expert report. In any event, Big Vision has not alleged, nor could it, that all recyclable banners with these subjective attributes reflect misappropriation of its trade secret.
. The only time Big Vision attempted to define the elements of its claimed trade secret was at its expert’s deposition, after substantial questioning by DuPont. Even then, the definitions were impermissibly vague and circular: (i) when asked if "predominantly” means "more than 50 percent,” Dr. Reitman answered, "that would be one way of thinking about it” (Reitman Tr. 154-55); (ii) when asked what "unconventionally high pigment levels” are, Dr. Reitman responded, "conventional levels are well below what is reflected in [the Trials]” (id. at 126); (iii) to Dr. Reit-man, "suitably strong” means "[t]here is a general expectation associated with the market in terms of the strength and tear resistance that will enable the use for these end use applications” (id. at 148); and (iv) to Dr. Reitman, "minimal use of expensive resins” means "the composition should be predominantly polyethylene and should be formulated in a way to minimize cost without compromising the functionality for this market” (id. at 159).
In a last-ditch effort to shore up the definition it has put forth, Big Vision points to Dr. Reitman’s opinion that the trade secret was defined in a level of particularity “that people in my field would recognize as being scientifically accurate and informative.” (PI. Opp. 16; PL 56.1 Response ¶ 38). This effort fails. To the extent Dr. Reitman proffers a legal opinion regarding the sufficiency of the trade secret definition put forth, the Court disregards that portion of her opinion.
. See also Xerox Corp. v. Int’l Bus. Machines Corp.,
In a facially contrary holding in 3M v. Pribyl, the Seventh Circuit upheld a jury verdict for a misappropriation of trade secret claim, and held that the trade secret was defined with particularity where the 500-page manual plaintiff relied upon in defining its trade secret alleged a singular process that was a protectable trade secret.259 F.3d 587 , 595-96 (7th Cir.2001). This case is factually inapposite. Far from alleging a singular, unified process, the Trial Plans and Run Reports include contrary ideas (100% Entira, 0% Entira) and varying structures, not all of which Big Vision claims reflect its trade secret.
. Big Vision argues that because DuPont’s counsel wrote an e-mail describing the parties' meet and confer as "productive,” they are somehow estopped from asserting this defense at summary judgment. (PL 56.1 ¶ 220). The Court is not swayed by this argument. DuPont tried repeatedly- — -in interrogatory requests, at conferences before Magistrate Judge Katz, at a meet and confer, and even at oral argument on this motion — to get Big Vision to define its trade secret with particularity. See Background Sec. B(2), supra.
. In response to DuPont’s particularity argument, Big Vision improbably points to Sit-Up in arguing that it need not define its trade secret with particularity since it seeks protection for its " 'unique manner of combining certain pieces of public information into a commercially advantageous business model.’ ” (Pl. Opp. 16 (citing Sit-Up Ltd..,
. Big Vision claims that DuPont should have known that its trade secret encompassed "predominantly” LDPE structures because some, but not all, structures at the First and Second Trials used LDPE but not Entira. (PI. Opp. 17; Pi. 56.1 Response ¶¶ 128-29). At the First Trial, Entira was used in concentrations of [redacted]-100%; it is difficult to imagine how DuPont could be expected to ascertain what "predominantly” LDPE, or even "minimal expensive resins,” meant from that fact.
. Big Vision alleges that "minimal” means both "some” and "no” Entira, and that its contribution to the recyclable banner industry was the determination "how to make cost-effective banners that require only the smallest amount of ethylene acrylic resin.” (PI. 56.1 Response ¶ 18; Compl. ¶21; Nov. 5 Tr. 21). Big Vision clarified for the first time in its expert report that the trade secret can be expressed through "two parallel concepts,” namely the use of Entira and LDPE, or LDPE or LLDPE alone. (PL 56.1 Response ¶ 26). At oral argument, Big Vision claimed that its Third Interrogatory Response had noted that the trade secret could be expressed by replacing Entira completely with LDPE (Nov. 5 Tr. 21, 53), but DuPont correctly noted that the portion of the interrogatory response claiming the use of LDPE (paragraph 1) was subsequently disclaimed by Big Vision as not being part of its trade secret (id. at 53-54; Ex. 16, 104).
More troublingly, it appears that the first time that DuPont learned that Big Vision was claiming these "parallel expressions” of its trade secret was in Plaintiff’s opposition papers. (Nov. 5 Tr. 54). Big Vision countered at oral argument that its Third Interrogatory Response had also disclosed an LDPE-only structure by means of the phrase "corona treatment could be used to contribute polar functionality to a banner surface composed of nonpolar polyolefins.” (Id. at 56; Ex. 16). It is worth noting that LDPE is named as such elsewhere in that Interrogatory Response (indeed, even in that same paragraph), when claiming that the trade secret involves the use of Entira with LDPE. (Ex. 16). This issue is exemplary of Big Vision’s failure to describe its trade secret with particularity.
Even if Big Vision did disclose the use of LDPE in its interrogatory response, it has now singled out that reference from six pages of information, most of which it now disavows as its trade secret. Once again, this confusion is unacceptable and could have been easily avoided had Big Vision defined its trade secret with particularity throughout the litigation.
. Exhibits 69 and 71 contain identical emails from Visaría to two separate manufacturers, sent in the same month as the e-mail in Exhibit 68. There is no indication that Visaría spoke to either manufacturer before sending these e-mails (see S. Visaría Tr. 210-11).
Visaría testified that although this e-mail adverted to the polymers and additives that Big Vision currently intends to use “in some combination,” it only contained machine specifications. (S. Visaria Tr. 211). Plainly, however, the e-mail also includes the precise percentages and additives to be used in each layer of the banner. (See Ex. 68, 69, 71).
. Although Plaintiff's expert explicitly opined in her report that all five elements of the alleged trade secret were publicly known, she backtracked from that opinion in her deposition, stating instead that "significant information as to a number of elements” was unknown, including "whether additives like Ti02 and CaC03 could be incorporated at unconventionally high levels into Entira-or LDPE-based structures specifically for a banner application and whether Entira, as a relatively new resin, could be used in thin but still highly functional layers in a multilayer banner structure.” (PL 56.1 Response ¶ 83). Plaintiff's expert elides the issue. Plaintiff does not claim "information about elements” as its trade secret; it claims the actual elements (i.e., that Entira was used, not whether or not it could be used). Thus the Court accepts Plaintiff’s initial position, as set forth in its expert report.
. Plaintiff attempts to differentiate its claimed trade secret from the prior art by distinguishing in which layer and for what purpose certain ingredients are disclosed, but its effort is a one-way street. (Compare PL 56.1 Response ¶ 68 ("[the DuPont patent application] discloses the use of Elvaloy AC only in the intermediate, non-print-receptive layer of the banner”), with Pl. 56.1 Response ¶ 159 (defining its trade secret, in part, as "minimal use of expensive resins”)). Plaintiff has not proffered a unified trade secret definition identifying in which layer and for what purpose various ingredients should be used, and thus its efforts to distinguish the prior art on that basis fail.
. Big Vision cites Monovis v. Aquino for the proposition that a "belated survey of the art” cannot defeat a trade secret claim where that survey is made possible only by virtue of the defendant's exposure to plaintiff’s alleged trade secret.
. In New York, "[a] conventional business relationship, without more, is insufficient to create a fiduciary relationship. Rather, a plaintiff must show special circumstances that transformed the parties’ business relationship to a fiduciary one.” Legend Autorama, Ltd. v. Audi of Am., Inc.,
. The evidence, however, indicates that this was the thickness tested at the First Trial, see n. 27, supra.
. In fact, most of the e-mails Big Vision uses to support its misappropriation claim deal instead with DuPont's internal evaluation of the various costs and benefits that might accrue if either Big Vision or DuPont were to use less Entira. This is nothing more than downgauging, which is an indisputably corn-mon practice in the industry, but one that nonetheless results in reduced sales of expensive resins. See Background Sec. A(8), supra.
.Plaintiff argues that because DuPont’s banners do not exhibit the four-item "wish list" that Big Vision's trade secret is supposed to cause, DuPont must have ineptly misappropriated its trade secret. (Pl. 56.1 Response ¶ 40). While clever, this argument is not a fair reading of the record, which makes clear
. At the November 5, 2013 oral argument, the Court noted that given the frequency with which Big Vision cites these two e-mails, it was surprising that the deposition transcripts
. DuPont has put forth convincing evidence, in the form of unrebutted testimony from a number of employees, that the alleged sharing of information dealt with DuPont's intention to utilize Big Vision as a toll coater, and to sell Entira to Big Vision. See generally Background Sec. A(8), supra. The coating thickness of Entira used by Big Vision was necessary to calculate the potential value in using Big Vision as a toll coater versus only a customer, and Big Vision has done nothing to rebut Welchel’s testimony in this regard. The fact that DuPont internally evaluated the potential value of its relationship with Big Vision should not be a basis of a finding of bad faith — a careful business analysis is an entirely reasonable and, in fact, desirable thing to undertake, and one the Court will not disin-centivize with a contrary ruling. In that vein, holding DuPont accountable for two e-mails sent by (perhaps overly) cautious employees could create a perverse incentive for employees not to raise potential issues within a company, or not to safeguard customer information as a matter of course (even if it is not required by the terms of an NDA). See generally Background Sec. A(8), supra.