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ACI Worldwide Corp. v. Baldwin Hackett & Meeks, Inc.

Supreme Court of Nebraska

June 9, 2017

ACI Worldwide Corp., a Nebraska Corporation. Appellant,
v.
Baldwin Hackett & Meeks, Inc., et al., Appellees.

         1. Motions to Vacate: Proof: Appeal and Error.

         An appellate court will reverse a decision on a motion to vacate or modify a judgment only if the litigant shows that the district court abused its discretion.

         2. Motions for New Trial: Appeal and Error.

         An appellate court reviews a trial court's ruling on a motion for a new trial for abuse of discretion.

         3. Pretrial Procedure: Appeal and Error.

         Decisions regarding discovery are directed to the discretion of the trial court and will be upheld in the absence of an abuse of discretion.

         4. Verdicts: Appeal and Error.

         When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in favor of the successful party.

         5. Verdicts: Juries: Appeal and Error.

         A jury verdict may not be set aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find for the successful party.

         6. Trial: Expert Witnesses: Appeal and Error.

         A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

         7. Judgments: Words and Phrases.

         An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         8. Attorney Fees: Appeal and Error.

         When an attorney fee is authorized, the amount of the fee is addressed to the trial court's discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion.

         9. Appeal and Error.

         To be considered by an appellate court, an error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

         [296 Neb. 819] 10. Trade Secrets: Pretrial Procedure.

         There is no talismanic procedure for trade secret discovery that may be used to obtain the best results in any given case.

         11. ___: ___. In determining whether a party's trade secret information should be discoverable, the moving party's need for the trade secret information must be weighed against the injury that disclosure might cause the party opposing the discovery.

         12. Torts: Parties.

         Under the doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), a party is protected from tort liability for the act of filing a lawsuit.

         13. Torts.

         The doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), does not protect a party from liability for the act of filing a "sham" lawsuit. A lawsuit is a "sham" if it is both (1) objectively baseless in the sense that no reasonable litigant could expect success on the merits and (2) subjectively motivated by bad faith.

         14. Pleadings.

         An affirmative defense raises new matters which, assuming the allegations in the petition to be true, constitutes a defense to the merits of a claim asserted in the petition.

         15. ___ . The doctrine established by Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), is an affirmative defense.

         16. Vendor and Vendee.

         For purposes of the Junkin Act, monopolization consists of two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

         17. ___ . The existence of monopoly power ordinarily is inferred from the seller's possession of a predominant share of the market.

         18. Vendor and Vendee: Damages.

         Despite the broad remedial language of the Junkin Act, not every person claiming an injury from a Junkin Act violation can recover damages.

         19. Vendor and Vendee: Damages: Proof.

         To recover damages, a plaintiff must prove an antitrust injury. To constitute an antitrust injury, the injury must reflect the anticompetitive effect of the violation or the anticompetitive effects of anticompetitive acts made possible by the violation.

         20. Vendor and Vendee.

         Actual anticompetitive effects include, but are not limited to, reduction of output, increase in price, or deterioration in quality.

         [296 Neb. 820] 21. Contracts: Appeal and Error.

         The interpretation of a contract is a question of law, in connection with which an appellate court has an obligation to reach its conclusions independently of the determinations made by the court below.

         22. Contracts.

         When the terms of a contract are clear, they are to be accorded their plain and ordinary meaning.

         23. Trial: Expert Witnesses: Appeal and Error.

         There is no exact standard for fixing the qualifications of an expert witness, and a trial court is allowed discretion in determining whether a witness is qualified to testify as an expert. Unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal.

         24. Trial: Expert Witnesses.

         Experts or skilled witnesses will be considered qualified if they possess special skill or knowledge respecting the subject matter involved superior to that of persons in general, so as to make the expert's formation of a judgment a fact of probative value.

         25. Trial: Rules of Evidence: Expert Witnesses.

         A witness may qualify as an expert by virtue of either formal training or actual practical experience in the field.

         26. Damages: Evidence: Proof.

         A plaintiff's burden of offering evidence sufficient to prove damages cannot be sustained by evidence which is speculative and conjectural, but proof of damages to a mathematical certainty is not required; the proof is sufficient if the evidence is such as to allow the trier of fact to estimate actual damages with a reasonable degree of certainty and exactness.

         27. Words and Phrases.

         Overhead costs are business expenses that cannot be allocated to a particular service or product.

         28. Rules of Evidence.

         In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is a factor only when the rules make such discretion a factor in determining admissibility.

         29. Trial: Evidence: Appeal and Error.

         To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of the litigant complaining about evidence admitted or excluded.

         30. Trial: Presumptions: Waiver.

         Generally, a motion which is never called to the attention of the court is presumed to have been waived or abandoned by the moving party, and, where no ruling appears to have been made on a motion, the presumption is, unless it otherwise appears, that the motion was waived or abandoned.

         31. Attorney

         Fees. If an attorney seeks a statutory attorney fee, that attorney should introduce at least an affidavit showing a list of the services rendered, the time spent, and the charges made.

         [296 Neb. 821]32. ___ . An award of attorney fees involves consideration of such factors as the nature of the case, the services performed and results obtained, the length of time required for preparation and presentation of the case, the customary charges of the bar, and general equities of the case.

         Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.

          Gregory C. Scaglione, Patrice D. Ott, and John V. Matson, of Koley Jessen, PC, L.L.O., and Eric J. Magnuson, Ryan W. Marth, and Christopher P. Sullivan, of Robins Kaplan, L.L.P, for appellant.

          Michael F. Coyle, Timothy J. Thalken, and Robert W. Futhey, of Fraser Stryker, PC, L.L.O., for appellees.

          Heavican, C.J., Wright, Cassel, Stacy, Kelch, and Funke, JJ.

          KELCH, J.

         I. NATURE OF CASE

         In September 2012, ACI Worldwide Corp. (ACI) sued Baldwin Hackett & Meeks, Inc. (BHMI); its cofounders; and other BHMI principals. The primary claims involved in this case are ACI's claim that BHMI misappropriated its trade secrets and BHMFs counterclaims that ACI tortiously interfered with a business relationship, breached a nondisclosure agreement, and violated provisions of Nebraska's unlawful restraint of trade statutes (referred to as the "Junkin Act").[1]In a 2014 trial, a jury found that ACI had not met its burden of proof with respect to its misappropriation claim. In a 2015 trial, a jury found in favor of BHMI on all of its counterclaims and awarded BHMI $43, 806, 362.70. The district court awarded BHMI $2, 732, 962.50 in attorney fees and $7, 657.93 in costs.

         ACI filed motions to vacate the 2014 and 2015 judgments, reopen the evidence, and grant ACI a new trial on the basis [296 Neb. 822] that it had discovered new evidence. This "new" evidence was trade secret information, which the district court had previously ruled could not be discovered until ACI conducted more non-trade-secret discovery to support its claims. However. ACI obtained the evidence in a federal action against one of BHMI's customers. The district court overruled ACI's posttrial motions, and ACI appeals.

         II. FACTS

         1. Prelitigation ACI and BHMI are competitors in the business of developing and licensing electronic payment processing software, including "middleware." Middleware is computer software that enables other software applications to communicate with one another by routing messages between them. Two different middleware programs are involved in this case: (1) ACI's middleware, "NET24-XPNET" (XPNET), and (2) BHMI's middleware, "Concourse - TMS" (TMS).

         (a) Middleware Programs

         (i) XPNET

         ACI's XPNET software has been the primary middleware in the electronic payments market for the past 40 years, and it generates approximately $52 million in annual revenue for ACI. Of the approximately 350 worldwide customers in the market, approximately 300 customers use XPNET. One of those customers is MasterCard International, LLC (MasterCard).

         By itself, XPNET does not do anything. In order for a customer like MasterCard to use XPNET, it must purchase or develop a program to "bolt onto" XPNET. To "bolt onto" XPNET, MasterCard purchased a program known as the MasterCard Debit Switch or MDS.

         In a March 2008 letter, ACI announced to MasterCard and other customers that it intended to transition all customers from "BASE24, " which XPNET is a part of, and which runs exclusively on Hewlett Packard (HP) NonStop hardware, to "BASE24-eps, " which would run on IBM hardware. In the [296 Neb. 823] letter, ACI advised its customers that it would no longer provide routine enhancements or support for BASE24.

         After the March 2008 announcement, ACI's customers became concerned that they would have to license all new software and purchase new IBM hardware, resulting in the loss of their significant investment in the HP NonStop hardware. MasterCard representatives met with HP representatives to discuss the future of HP hardware. When the topic of middleware came up, HP recommended that MasterCard take a look at BHMI, who had previously worked for HP on a project.

         (ii) TMS

         In April 2008, a sales representative from HP contacted BHMI to see if BHMI would be interested in developing an XPNET replacement for MasterCard. BHMI indicated that it was interested, and in mid-April, HP, MasterCard, and BHMI had a preliminary conference call to discuss BHMFs capabilities and MasterCard's requirements and interest in replacing XPNET.

         In April 2009, MasterCard entered into a contract with BHMI to develop the XPNET replacement. MasterCard wanted a middleware that could be used not only on HP NonStop hardware, but on other platforms as well. BHMI developed TMS, which was designed to run on all major types of hardware.

         In June 2010, MasterCard sent ACI a notice that it would not renew its contract for XPNET. By May or June, TMS had been delivered to MasterCard, and MasterCard was testing it by running it on various components of its network. On August 20, MasterCard accepted TMS.

         In December 2010, BHMI began to market TMS and issued a press release announcing that MasterCard had replaced XPNET with TMS and that TMS would be commercially available to other HP NonStop users.

         (b) ACI Meets With BHMI

         In late December 2010, ACI contacted BHMI and requested a meeting to discuss ACI's concerns that BHMI had used [296 Neb. 824] ACI's proprietary information to develop TMS. BHMI denied ACI's accusation and agreed to meet so long as ACI provided an agenda prior to the meeting and signed a nondisclosure agreement. ACI and BHMI exchanged at least six versions of the nondisclosure agreement before agreeing on the final version. The final version of the nondisclosure agreement (NDA) contained a provision that ACI would not utilize the confidential information of BHMI in any manner, including in a legal action against BHMI or its customers.

         After the NDA was signed, BHMI met with Charles Linberg, ACI's chief technology officer, and Alan Hoss, another ACI employee, to discuss how TMS operated. At the conclusion of the meeting, Linberg and Hoss requested to see the source code and manuals for TMS. After an internal discussion, BHMI agreed to allow Linberg and Hoss to review the technical manuals for TMS.

         2. ACI's Complaint and BHMFs Countersuit

         In September 2012, ACI filed a complaint against BHMI and its officers, alleging eight causes of action: breach of contract, misappropriation of trade secrets, fraud, unjust enrichment, tortious interference with business relations and expectations, conversion, trespass to chattels, and civil conspiracy. All of these claims, except for the claim of misappropriation of trade secrets against BHMI, were dismissed through pretrial motions. To support its claim of misappropriation of trade secrets, ACI alleged in its complaint that "BHMI agreed to allow ACI representatives to conduct an examination of the operations, configurations, and application programming manuals related to [TMS]" and that "[a]s a result of the inspection, ACI found a high degree of conceptual similarity . . . ."

         BHMI countersued, alleging that ACI had (1) breached the NDA by utilizing BHMFs confidential information in a legal action against BHMI; (2) tortiously interfered with BHMFs prospective business relationships by falsely claiming that TMS was the product of infringment, which placed a cloud [296 Neb. 825] over TMS and prevented BHMI from marketing or licensing it; and (3) violated the Junkin Act, which is Nebraska's counterpart to the federal antitrust laws, i.e., the Sherman Act and the Clayton Act.[2]

         In November 2012, the first hearing was held. At the hearing, BHMI asked for expedited discovery because of the impact that the litigation was having on BHMFs ability to market TMS. Counsel for ACI stated that "we certainly welcome expedited discovery.''

         3. Discovery

         (a) ACI's Motions to Compel BHMI to Produce Trade Secret Information

         In December 2012, before ACI had even served written discovery on BHMI, ACI filed a motion to compel BHMI to produce trade secret information, including TMS' source code and manuals. In the same motion, ACI sought a protective order for its own trade secret information. In support of its motion to compel, ACI alleged that ACI employees had reviewed TMS manuals and found a high degree of similarity between XPNET and TMS. In the motion, ACI proposed that BHMI disclose its source code and manuals to an expert hired by ACI, who would review the information and provide to ACI an opinion as to whether misappropriation had occurred. ACI would then decide whether to continue its suit, and if it did, then ACI would submit its trade secret information to an expert hired by BHMI.

         After three hearings on ACI's motion, which are described below, the district court overruled ACI's motion to compel, indicating that it would consider granting a similar motion in the future, provided that ACI conducted some non-trade-secret discovery.

         [296 Neb. 826] (i) February 2013 Hearing

         The first hearing on ACI's motion to compel was held in February 2013. In opposition to the motion, BHMI argued that under Nebraska case law, before ACI could gain access to BHMI's trade secrets, ACI must set forth with particularity what trade secrets of XPNET it contends BHMI misappropriated. BHMI also expressed concern that under the plan proposed by ACI, BHMI's biggest competitor, ACI's expert would have access to its most sensitive information, and that if ACI decided not to continue the suit, then ACI would never have to disclose the information contained in the expert's report, nor would there be any "checks" on what ACI did with that information. ACI argued that it had pled its misappropriation claim with sufficient particularity when it pled that TMS and XPNET were similar in conception and implementation and that it needed BHMI's source code to prove its claims.

         After hearing the parties' arguments, the district court told ACI:

I want you to get what you need, but I understand completely [BHMI counsel's] need to protect his client, too, at the same time. So - these trade secret cases and confidential information cases are kind of tricky sometimes, and I understand both needs here. You can't be so handcuffed you can't prove your case; but, on the other hand, I just don't think because they get sued they have to turn over everything to you that could damage - potentially damage them far beyond just disclosing the limited amount of information.

         The court stated, "I think the best thing to do would be to respond - to provide with particularity what it is you believe they have done and then we'll decide the most limited way that you can obtain the information that you believe you need." The court then decided to hold ACI's motions in abeyance until such time as ACI produced with particularity what it believed BHMI had misappropriated.

         [296 Neb. 827] (ii) April 2013 Hearing

         The second hearing on ACI's motion was held in April 2013. At this hearing, ACI offered exhibit 5, which was a response to interrogatories, in support of its motion. ACI asserted that exhibit 5 identified with particularity the trade secrets it contended BHMI misappropriated. However, BHMI argued that the characteristics identified in exhibit 5 were not ACI's trade secrets, but characteristics of every middleware program and were available in the public domain. BHMI argued that before ACI could gain access to its trade secret information, ACI must show that the information in exhibit 5 is a trade secret and that it was misappropriated by BHMI. The district court agreed and again held ACI's motion in abeyance.

         (iii) May 2013 Hearing

         In May 2013, another hearing was held on ACI's motion to compel. This time, ACI offered a document referred to as ACI's "trade secret statement." In the statement, ACI aimed to show what information it believed BHMI had misappropriated and that such information was a trade secret. To prove that the information was a trade secret, ACI illustrated the steps ACI had taken to keep the information a secret and the economic value that XPNET had to ACI.[3] ACI also alleged in the statement that it was convinced BHMI stole the information, but it did not know how.

         In opposition to the motion, BHMI offered Linberg's deposition, which BHMI argued showed that ACI did not have a good faith basis for its lawsuit against BHMI and that therefore ACI was not entitled to trade secret discovery. ACI had identified Linberg as one of two people who had knowledge of BHMI's alleged improprieties. So, at the deposition, counsel for BHMI [296 Neb. 828] asked Linberg for all the bases Linberg had for believing that BHMI had misappropriated ACI's proprietary information. Linberg testified that he believed BHMI had misappropriated ACI's proprietary information after he saw BHMI's marketing materials and website, because "it would be impossible for any other company to develop a software system that does the same functions that [XPNET] does without stealing [ACI's] trade secrets." BHMI counsel asked Linberg, "So even if we were to come forward and produce all of our software code and it's completely different but it does the same thing [as XPNET], you still believe that it's a violation of your trade secrets?" Linberg replied, "[Y]es." Linberg testified that even if he had not met with BHMI and reviewed its manuals, ACI still would have sued BHMI.

         After hearing both parties argue, the court reserved ruling until it received BHMI's brief.

         (iv) Order Overruling ACI's Motion to Compel

         On July 29, 2013, the district court issued an order overruling ACI's motion to compel BHMI to produce its source code and manuals. In the order, the court agreed with ACI that it was not "required at this stage of litigation to prove exactly how and when the trade secrets were allegedly misappropriated, " but stated that ACI "should not be able to gain unfettered access to [BHMI's] own valuable trade secrets simply by making the allegation [that BHMI misappropriated ACI's proprietary information]."

         The court noted its broad discretion under Neb. Ct. R. Disc. § 6-326 of the Nebraska Rules of Discovery to limit the time, place, and manner of discovery as required '"to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.'" Additionally, the court noted its "broad discretion to modify the timing and sequence of discovery 'for the convenience of the parties and witnesses and in the interests of justice.'" The court then stated:

         [296 Neb. 829] Under a properly crafted protection order, the Court would be inclined to allow discovery of the source code, if and when there is significantly more evidence to support [ACI's] allegations. At this juncture, there are the allegations contained in [ACI's] Complaint, denials in [BHMFs] Answer, and testimony of [ACI's] representative, [Linberg]. Short of ordering BHMI to produce its source code to [ACI's] expert, there would appear to be any number of means of discovery that may uncover evidence of plagiarizing, including depositions of MasterCard representatives, [BHMI], current and former employees of [BHMI], third-party contractors of BHMI, as well as subpoenas for documents from MasterCard and third-party contractors, and, of course, requests for production of documents from [BHMI], (b) Further Discovery: MasterCard In August 2013, ACI served MasterCard with a subpoena duces tecum. In the subpoena, ACI requested that MasterCard produce, among other documents, TMS' manuals and any documents showing MasterCard's requirements and specifications for TMS. After MasterCard indicated that it would not produce these documents, ACI filed a "Motion to Clarify Order Regarding Source Code and Notice of Hearing."

         (i) ACI's First Motion to Clarify

         At the hearing on ACI's motion to clarify, the district court stated that it did not intend "to just allow [ACI] to go to MasterCard and get what we're not disclosing yet from BHMI." ACI argued that it was not asking for all of BHMI's manuals, but for manuals that BHMI had given to MasterCard during the development of TMS. Counsel for BHMI agreed that any exchanges between MasterCard and BHMI made before BHMI entered into a contract with MasterCard were "fair game." But counsel for ACI clarified that ACI wanted all exchanges made before the delivery of TMS, including exchanges made after the parties entered into an agreement.

         [296 Neb. 830] Because it seemed that the parties might be able to reach an agreement as to what ACI could discover from MasterCard, the court directed the parties to work together to draft a protective order to govern the MasterCard discovery. Although the parties agreed on a protected order, they did not reach an agreement as to whether postcontract, predelivery exchanges were discoverable.

         After the hearing, MasterCard produced some of the documents requested by ACI. However, MasterCard did not produce "Requirements Documents" or "External Specification Documents, " because it believed doing so would violate the district court's July 29, 2013, order. The "Requirements Documents" and "External Specification Documents" were sent to MasterCard as attachments in emails. MasterCard produced the emails to which the documents were attached, but not the attachments. After MasterCard refused to disclose those attachments, ACI filed a motion to compel MasterCard to produce the email attachments.

         (ii) September 2013 Hearing

         In September 2013, a hearing was held on ACI's motion to compel MasterCard to produce the email attachments. At the hearing, ACI argued that certain emails produced by MasterCard showed that the attachments at issue must have contained ACI's trade secrets. In support of its argument, ACI pointed to an email sent from MasterCard to BHMI, wherein MasterCard answered some questions that BHMI asked in the course of developing TMS. In the email, BHMI asked questions such as, "What is the MSG Transparent field in the header used for? I don't think TMS has any need for this." ACI claimed that "MSG Transparent" relates to XPNET and argued that MasterCard must have given BHMI information about XPNET in order for BHMI to ask this question. ACI also pointed to a document that contained an action list, which was sent from MasterCard employee Theresa LaRosa to other MasterCard employees. Under the name "Kim Hall, " the document stated, [296 Neb. 831] "Provide BHMI current setup of XPNet external processes and how these configurations are cycled in."

         MasterCard argued that ACI was again seeking documents from MasterCard that it was precluded from getting from BHMI. MasterCard asserted that both the "Requirements Documents" and the "External Specification Documents" were sent to MasterCard from BHMI and contained BHMI's confidential trade secret information, including manuals and hundreds of pages describing the functionality and design of TMS. MasterCard also argued that it was precluded from producing the attachments because MasterCard had signed nondisclosure agreements with BHMI.

         BHMI agreed that the email attachments were confidential trade secret information and asked the court to overrule the motion. BHMI also argued that even though the document with the action list suggested that MasterCard had planned to provide BHMI with XPNET information, ACI had not produced any evidence that such an action was ever taken. BHMI asserted that ACI was set to depose a MasterCard representative in October 2013 and argued that ACI had "more than adequate evidence and paperwork to go take the deposition." BHMI suggested that if ACI could produce additional evidence in support of its claims as a result of the deposition, then the court could reconsider its decision to allow ACI to discover the attachments.

         After hearing the parties argue their positions, the district court asked ACI if it could proceed with the MasterCard deposition without the attachments and then report back to the court with more specific information regarding BHMI's alleged misappropriation. ACI indicated that it could not "take a meaningful deposition" without those documents.

         The district court then suggested a number of questions that ACI could ask to solicit information about the email attachments. The court suggested for example that ACI could "depose any number of MasterCard authors of these e-mails [and ask them:] What did you mean by this? What did you [296 Neb. 832] send?" The district court also suggested that ACI could "ask [BHMFs employees:] Why did you ask the question [about MSG Transparent field in the header]? Why did you use that term? Isn't that an XPNET header field?" The court stated that if the answers to the depositions were "not enough, they're guarded, they're deceptive, there is a lot of, I don't recall, I don't remember, " then the court would entertain expanding the scope of discovery.

         (iii) MasterCard Deposition: Stephen Birge

         On October 2, 2013, ACI deposed Stephen Birge, a senior business leader at MasterCard. ACI asked Birge about the email attachments. Birge testified that one of the documents was "BHMI created" and was a "very high level proposal to MasterCard." Another document contained "some of the header fields that the MDS [MasterCard debit switch] application was using at that time, " which was "produced by looking at the MDS source code." As stated above, MDS was an application that MasterCard had purchased to "bolt onto" XPNET. Birge testified that the MDS source code did not contain any components of XPNET and that MasterCard never provided BHMI with any of the ACI header layouts. When asked whether "bits of information in the MDS source code [were] only there because . . . MasterCard used XPNET for its middleware, " Birge stated that he did not know the origin of particular lines of code.

         Birge also testified that MasterCard never provided BHMI with a written list of MasterCard's requirements for TMS. According to Birge, "since TMS was already 80 percent [written]" when MasterCard met with BHMI, MasterCard and BHMI merely had a "back and forth dialogue" about what was already written and what MasterCard needed.

         Birge was also asked about the action list, wherein "Kim Hall" was to "[p]rovide BHMI current setup of XPNET external processes . . . ." Birge testified that he did not know if Hall [296 Neb. 833] ever provided that information to BHMI, but he did not see it upon his review of MasterCard documents. Birge believed that whoever created the action list was using the term "XPNET" as a generic term for middleware and that the intent was not to send BHMI the XPNET information, but to provide them with information about "processes that run outside of middleware control."

         In the 3 months following Birge's deposition, ACI did not communicate with MasterCard and did not request any further information from MasterCard. Additionally, ACI did not and had not requested any depositions of BHMI or any of its employees.

         (c) BHMFs Motion for Summary Judgment and ACI's Motions to Compel MasterCard and BHMI

         On December 27, 2013, BHMI filed a "Motion for Summary Judgment" in favor of BHMI on all issues. One week later, ACI filed a motion to continue BHMI's motion for summary judgment, as well as a motion to compel MasterCard to produce documentation of all the documents it was withholding pursuant to the July 29 protective order. On January 30, 2014, a hearing was held on BHMI's motion for summary judgment and ACI's motion for a continuance.

         (i) January 30, 2014, Hearing

         ACI argued that it needed a continuance for the motion for summary judgment because, without the email attachments, ACI could not yet prove its case. To persuade the district court to allow ACI to discover the email attachments, ACI pointed to Birge's deposition, wherein Birge was unable to recall, without referencing the attachments, exactly what information MasterCard sent to BHMI.

         In opposition to ACI's motion to continue, BHMI reminded the district court of the parties' request for expedited discovery and argued that ACI was not actively pursuing discovery.

         [296 Neb. 834] After hearing the parties' arguments, the district court offered ACI 30 days to submit evidence and any resistance, but indicated that BHMI's motion for summary judgment was not premature. ACI argued that to defend the motion for summary judgment within 30 days, ACI would need a ruling on its motion to compel production from MasterCard. Although ACI had not requested a hearing on that motion, the district court stated that it would do "everything in [its] power" to get ACI an expedited hearing on that matter. Additionally, although ACI had not previously requested a deposition of BHMI or any of its employees, counsel for BHMI offered to "make somebody available from [BHMI] for deposition in the next 30 days."

         (ii) February 7, 2014, Hearing

         One week later, the district court held a hearing on ACI's motion to compel production from MasterCard. In support of its motion to compel, ACI again argued that it was unable to properly depose Birge without the attachments. ACI argued that the documents were "crucial for [ACI] to examine the BHMI representatives . . . and to further examine MasterCard."

         In opposition to ACI's motion, MasterCard argued that although counsel for ACI "would lead [the court to] believe that [Birge was] not prepared to testify" on the documents ACI was requesting, "the requirements document was the subject of over 20 pages of testimony in a seven-hour deposition." MasterCard argued that it had already produced over 19, 000 pages of documents and that all of the documents that ACI sought were all within BHMI's possession. Thus, MasterCard argued, if ACI is entitled to the documents, it should get them from BHMI.

         The district court agreed with MasterCard, stating, "I'm going to overrule the motion to compel as against MasterCard. I'm not saying you're not entitled to this information; but I think to the extent you're entitled to it, it needs to come from BHMI."

         [296 Neb. 835] Later that day, ACI filed a motion to compel BHMI to produce the email attachments. A hearing on the motion was held on February 25, 2014.

         (iii) February 25, 2014, Hearing

         At the hearing, ACI argued that it should at least be able to discover the attachments that MasterCard had sent to BHMI, because those attachments were from MasterCard and therefore were not BHMI's proprietary information.

         BHMI advised the court that on January 31, 2014, ACI had filed a suit against MasterCard in the U.S. District Court for the District of Nebraska.

After hearing both parties, the district court commented:
[O]ne of the problems with . . . these type of cases, is that both sides are a little bit at a disadvantage, because you think something happened and you're trying to prove it. That's your burden. They say it didn't, and why would we have to turn stuff over when we don't think there's any evidence that says ...

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