United States District Court, D. Nebraska
MCDONALD APIARY, LLC, a Nebraska Limited Liability Company, Plaintiff,
STARRH BEES, INC., a California Corporation, et al., Defendants.
M. Gerrard United States District Judge.
matter is before the Court on the defendants' motion for
summary judgment (filing 141) and their motion in
limine (filing 158). Both motions will be denied.
plaintiff, McDonald Apiary, LLC, is in the beekeeping and
honey production business in, among other places, western
Nebraska. Filing 142 at 5. Defendant Starrh Bees is in
the same business. Filing 142 at 5. In 2014,
McDonald Apiary and Starrh agreed that Starrh would bring
about 6, 000 beehives to Oklahoma and Nebraska to place them
at locations chosen by McDonald Apiary. Filing 142 at
5-6. The parties agreed to share transportation costs
(although they now disagree about what those costs entail),
McDonald Apiary would extract the resulting honey at its
extraction facilities, and McDonald Apiary and Starrh would
split the proceeds. Filing 142 at 6.
the parties moved their activity from Oklahoma to Nebraska,
their relationship fell apart. See filing 142 at
6-7. McDonald Apiary accuses Starrh of misappropriating
McDonald Apiary's database of foraging locations in
western Nebraska. Filing 142 at 7. McDonald Apiary
also accuses Jonathan Gonzalez, a Starrh employee, of
trespassing and vandalism at McDonald Apiary's Lisco,
Nebraska extraction facility. Filing 142 at 10. And
McDonald Apiary contends that Starrh is tortiously
interfering with McDonald Apiary's business relationships
with the landowners on whose land it has placed its hives.
Filing 142 at 11-12.
Apiary's Second Amended Complaint (filing 59)
alleges 12 claims for relief against Starrh; Gonzalez;
Starrh's owner, Anne Ashley; and Anne's husband Dale
Ashley, a Starrh employee (collectively,
Starrh). See, filing 59;
filing 142 at 5. Two of McDonald Apiary's claims
were dismissed at the pleading stage, see filing 40,
and Starrh's motion for summary judgment seeks dismissal
of nine of the remaining ten, see filing
judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). The movant bears the initial
responsibility of informing the Court of the basis for the
motion, and must identify those portions of the record which
the movant believes demonstrate the absence of a genuine
issue of material fact. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en
banc). If the movant does so, the nonmovant must respond by
submitting evidentiary materials that set out specific facts
showing that there is a genuine issue for trial. Id.
motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is
a genuine dispute as to those facts. Id. Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the evidence are jury
functions, not those of a judge. Id. But the
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts. Id. In
order to show that disputed facts are material, the party
opposing summary judgment must cite to the relevant
substantive law in identifying facts that might affect the
outcome of the suit. Quinn v. St. Louis County, 653
F.3d 745, 751 (8th Cir. 2011). The mere existence of a
scintilla of evidence in support of the nonmovant's
position will be insufficient; there must be evidence on
which the jury could conceivably find for the nonmovant.
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 791-92 (8th Cir. 2011). Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Torgerson, 643 F.3d at 1042.
Apiary claims that Starrh violated the Nebraska Trade Secrets
Act, Neb. Rev. Stat. § 87-501 et seq.,
in connection with its alleged misappropriation of McDonald
Apiary's database. Filing 59 at 9-11. Starrh
claims that McDonald Apiary's database is not a
"trade secret" because it is ascertainable by
proper means, and was not the subject of reasonable efforts
to maintain its secrecy. Filing 142 at 17. Starrh
also argues that there is no evidence that the database was
misappropriated. Filing 142 at 17.
Nebraska law, a "trade secret" is defined as
(a) Derives independent economic value, actual or potential,
from not being known to, and not being ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Neb. Rev. Stat. § 87-502(4). That definition is
narrow; it means that if an alleged trade secret is
ascertainable at all by any means that are not improper, the
would-be secret is excluded from coverage under the Act.
First Express Servs. Grp., Inc. v. Easter, 840
N.W.2d 465, 474 (Neb. 2013).
instance, in Easter, the Nebraska Supreme Court
concluded that the Trade Secrets Act did not protect the
customer list of a company that sold crop insurance, which
included "customers' names and their 2009
information: what crops the farmers had, what counties the
crops were located in, what insurance plan the farmers
bought, what percentage of coverage each farmer had, and what
commission [the insurer] had earned." Id. at
469. The court explained that "simple Internet searches
could identify which farmers farmed what land and could
provide contact information for those farmers."
Id. at 475. And the other
information on the list essentially reflected the
farmers' previous insurance coverage on their crops. It
is undisputed that the individual farmers had all of that
information and that [the defendant] could have obtained the
information from them through a simple telephone call. Also,
once a customer changed agencies, all of the customer's
prior insurance information became available from the
insurance carrier's Web site. Though the exact
information required to transfer a customer is a bit unclear,
the record shows that, at most, all that is required is the
customer's name, address, type of crops, and signature,
all of which are ascertainable by proper means.
Id. So, because the information on the customer list
was ascertainable through proper means, the court concluded
as a matter of law that it was not a trade secret.
Id. at 476.
other hand, in Home Pride Foods, Inc. v. Johnson,
the Nebraska Supreme Court held that there was sufficient
evidence to find that the customer list of a food service
company was a trade secret, because "the
customer list contained information not available from
publicly available lists." 634 N.W.2d 774, 782 (Neb.
2001). The court explained that, while courts "are
reluctant to protect customer lists to the extent that they
embody information that is readily ascertainable through
public sources[, ]" a customer list will be protected
"where time and effort have been expended to identify
particular customers with particular needs or
characteristics, " because "[s]uch lists are
distinguishable from mere identities and locations of
customers that anyone could easily identify as possible
customers." Id. at 781-82.
argues that McDonald Apiary's location database was not a
trade secret because, among other things, its beehive
locations can be ascertained by looking for them while
driving by on the road. Filing 142 at 26. And then,
by observing the area and using Internet searches, an
observer could collect information about the landowner and
the crops in the area, which was also information that
McDonald Apiary compiled. Filing 142 at 27.
Court is not persuaded that the information identified by the
parties is "ascertainable" just because beehives
are not invisible. There is a difference between information
that is readily ascertainable and that which is
realistically ascertainable. It might have been
possible, one supposes, to reconnoiter every highway, county
road, and deer path in western Nebraska looking for every one
of the approximately 23, 000 beehives that McDonald Apiary
placed in the summer of 2014. See filing 143-1
at 24. But the Court is not convinced that such a
theoretical possibility is enough to make the location
database "ascertainable" within the meaning of
also argues that McDonald did not use reasonable efforts to
maintain the secrecy of its information. Filing 142 at
20. Starrh points out that McDonald Apiary shares its
location information with competitors, does not hide its
hives, did not require confidentiality agreements, and did
not password-protect its GPS devices or lock the vehicles in
which the devices were often kept. Filing 142 at
Court cannot conclude that the measures McDonald Apiary did
take were unreasonable as a matter of law. Ed McDonald
testified that while there were no signed confidentiality
agreements, he did instruct people with whom information was
shared that the information was secret and that they
shouldn't tell anyone. Filing 143-1 at 42. Bryan
Addington, McDonald Apiary's foreman, testified that
sharecroppers were only given location information for their
own bees, and that McDonald Apiary "didn't want a
sharecropper knowing any other locations than what they
needed to know to tend to their own hives." Filing
143-3 at 32. McDonald even threatened to fire Addington
after Addington allowed Starrh to copy the entire database.
Filing 143-3 at 32.
be that a handshake agreement on secrecy and failing to lock
the car door may be found unreasonable. But, the Court finds,
it is a question that the jury must decide. Whether
information sought to be protected by the Trade Secrets Act
rises to the level of a trade secret is a question of fact.
Home Pride Foods, 634 N.W.2d at 708. And there is a
genuine issue of material fact here.
also contends that there is not enough evidence that
McDonald's location information was misappropriated.
(a) Acquisition of a trade secret of another by a person who
knows or has reason to know that the trade secret was