ACI Worldwide Corp., a Nebraska Corporation. Appellant,
Baldwin Hackett & Meeks, Inc., et al., Appellees.
Motions to Vacate: Proof: Appeal and Error.
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.
Motions for New Trial: Appeal and Error.
appellate court reviews a trial court's ruling on a
motion for a new trial for abuse of discretion.
Pretrial Procedure: Appeal and Error.
regarding discovery are directed to the discretion of the
trial court and will be upheld in the absence of an abuse of
Verdicts: Appeal and Error.
reviewing a jury verdict, the appellate court considers the
evidence and resolves evidentiary conflicts in favor of the
Verdicts: Juries: Appeal and Error.
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.
Trial: Expert Witnesses: Appeal and Error.
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.
Judgments: Words and Phrases.
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.
Attorney Fees: Appeal and Error.
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
Appeal and Error.
considered by an appellate court, an error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error.
Neb. 819] 10. Trade Secrets:
is no talismanic procedure for trade secret discovery that
may be used to obtain the best results in any given case.
___: ___. 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
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
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.
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.
. 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
Vendor and Vendee.
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.
. The existence of monopoly power ordinarily is inferred from
the seller's possession of a predominant share of the
Vendor and Vendee: Damages.
the broad remedial language of the Junkin Act, not every
person claiming an injury from a Junkin Act violation can
Vendor and Vendee: Damages: Proof.
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.
Vendor and Vendee.
anticompetitive effects include, but are not limited to,
reduction of output, increase in price, or deterioration in
Neb. 820] 21. Contracts: Appeal and
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.
the terms of a contract are clear, they are to be accorded
their plain and ordinary meaning.
Trial: Expert Witnesses: Appeal and Error.
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.
Trial: Expert Witnesses.
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
Trial: Rules of Evidence: Expert Witnesses.
witness may qualify as an expert by virtue of either formal
training or actual practical experience in the field.
Damages: Evidence: Proof.
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.
Words and Phrases.
costs are business expenses that cannot be allocated to a
particular service or product.
Rules of Evidence.
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
Trial: Evidence: Appeal and Error.
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
Trial: Presumptions: Waiver.
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.
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.
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
from the District Court for Douglas County: J Russell Derr,
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,
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.
NATURE OF CASE
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").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.
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.
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 -
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).
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.
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
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.
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
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.
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.
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
Meets With BHMI
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.
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.
ACI's Complaint and BHMFs Countersuit
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 . . . ."
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.
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
ACI's Motions to Compel BHMI to Produce Trade Secret
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
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
Neb. 826] (i) February 2013 Hearing
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.
hearing the parties' arguments, the district court told
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.
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.
Neb. 827] (ii) April 2013 Hearing
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
May 2013 Hearing
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 also alleged in the statement that it was convinced BHMI
stole the information, but it did not know how.
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
hearing both parties argue, the court reserved ruling until
it received BHMI's brief.
Order Overruling ACI's Motion to Compel
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
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:
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."
ACI's First Motion to Clarify
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.
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.
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
September 2013 Hearing
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."
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.
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
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.
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
MasterCard Deposition: Stephen Birge
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.
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.
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
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
BHMFs Motion for Summary Judgment and ACI's Motions to
Compel MasterCard and BHMI
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.
January 30, 2014, Hearing
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.
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
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."
February 7, 2014, Hearing
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
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.
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."
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.
February 25, 2014, Hearing
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.
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 ...