Daniel C. Lorenz 521 S.W. Clay Portland, OR 97201 Attorney for Plaintiff Joanna R. Brody Scott Oberg Oborne Jackson Lewlis LLP Portland, OR 97204 Attorneys for Defendant
MEMORANDUM OPINION AND ORDER
ON CROSS-MOTIONS FOR
Daniel C. Lorenz
521 S.W. Clay
Portland, OR 97201
Attorney for Plaintiff
Joanna R. Brody
Scott Oberg Oborne
Jackson Lewlis LLP
Portland, OR 97204
Attorneys for Defendant
HUBEL, Magistrate Judge:
The plaintiff John Allen Gordon brings this case against the defendant Kleinfelder West, Inc. ("Kleinfelder") for damages arising from Gordon's termination by Kleinfelder on February 2, 2010, and events occurring immediately thereafter. The case is before the court on motions for summary judgment filed by both parties. Gordon seeks partial summary judgment on the issue of liability as to two of his claims against Kleinfelder; i.e., his Third Claim for Relief, for malicious prosecution, and his Fourth Claim for Relief, for conversion. Dkt. #24; see Dkt. #1-1. He also seeks summary judgment on all four of Kleinfelder's Counter-claims, which seek damages for conversion, breach of contract, violation of Oregon's Uniform Trade Secrets Act, and defamation. See Dkt. #23, Kleinfelder's Amended Answer and Counterclaims.
Gordon also moved for summary judgment on his First Claim for Relief, for defamation, but he abandoned his motion for summary judgment on this claim in his reply brief. See Dkt. #56, p. 2.
Kleinfelder seeks summary judgment on all of Gordon's claims against it, or alternatively, partial summary judgment on all claims as to which no genuine issues of material fact exist.
There are few undisputed facts. Kleinfelder is a nationally-based science, architecture, and engineering consulting firm. Dkt. #26, ECF p. 7 (citing Dkt. #29, Izen Decl. ¶ 2). In approximately April of 2008, Kleinfelder hired Gordon as a Civil Design Specialist, which required Gordon to perform civil site design and plan development. Id. (citing Izen Decl. ¶ 4). According to Gordon, one of the inducements for Kleinfelder to hire him was his personal portfolio of CAD drawings that he could use in performing his job. Dkt. #24-2, Gordon Decl. ¶ 2; Dkt. #41, Gordon Decl. ("Gordon Decl. #2") ¶ 2. At the request of his then-supervisor, Jay Beeks, Gordon put his CAD drawings onto the "D" drive on his office computer. Id.; Gordon Decl. #2 ¶ 2.
During his tenure at Kleinfelder, a significant amount of Gordon's time was spent working on a wind power development project (the "EverPower Project") for one of Kleinfelder's clients, EverPower Wind Holdings, Inc. Dkt. #26, ECF p. 7 & n.1 (citing Dkt. #27, Att. 1, Deposition of John Gordon ("Gordon Depo"), p. 153). Beginning in January 2010, Peter Stroud, a Principal Engineering Geologist for Kleinfelder, became Project Manager for the EverPower Project, and served as Gordon's direct supervisor. Id. (citing Dkt. #34, Stroud Decl. ¶ 3). "The EverPower Project involved potentially repurposing a logging tract into a wind farm." Id. (citing Dkt. #30, Loftis Decl. ¶ 3). As part of Gordon's work on the EverPower Project, he participated in a feasibility study to assess what types of vehicles could traverse the existing roadways at the EverPower Project site. Gordon spent two days at the site obtaining information about culvert locations and the general condition of culverts in the logging tract. Id. (citing Gordon Depo. pp. 149, 155-56, 161). A Kleinfelder drafter, Taran Kratz, accompanied Gordon to the site on the second day. Id. (citing Gordon Depo. pp. 161, 171). Gordon recorded about 100 culvert locations on a GPS device, and also recorded field data in handwritten notes. Dkt. #26, ECF p. 9 (citing Stroud Decl. ¶ 4; Gordon Depo. pp. 330-31). His intention was to transfer the data into Kleinfelder's CAD system to generate maps and diagrams for use in connection with the EverPower Project. See Gordon Depo. pp. 157, 164; Gordon Decl. ¶ 5. According to Gordon, the EverPower Project could not be completed without this data. Gordon Decl. ¶ 5.
On February 2, 2010, Abraham Izen, who at that time was Kleinfelder's Global Director of Renewable Energy, and Stroud, Gordon's supervisor, met with Gordon and terminated his employment. Dkt. #26, ECF p. 8 (citing Izen Decl. ¶ 7). The parties dispute the reason for Gordon's termination.
Kleinfelder claims Gordon was terminated due to poor work product, poor attitude, uncooperative behavior, and unwillingness to accept appropriate supervision. Dkt. #26, ECF p. 8 (citing Izen Decl. ¶ 6; Loftis Decl. ¶ 6, Ex. A). Izen claims he informed Gordon that he was being terminated for "poor work performance and behavior," and he "gave Gordon a Performance Improvement and Corrective Action form . . . that specified that Gordon was being terminated based on his unsatisfactory work performance and the fact that Gordon was uncooperative, disrespectful, and combative with his supervisors." Id., ¶ 7. According to Izen, Gordon refused to sign the form, writing "Not true" next to the reasons for his termination. Id.; see Dkt. #27-1, ECF p. 70, "Performance Improvement and Corrective Action" form dated 1/29/2010 (Gordon Depo. Ex. 13). Under "Reason for action," the form indicates, "Unsatisfactory Work Performance - work is not completed in accordance with the standards set by the company or the requirements of the position." Dkt. #27-1, ECF p. 70. Under "Facts and Events," the form indicates, "Per attached documentation, [Gordon] has been uncooperative, disrespectful and combative with senior Kleinfelder staff. He has also been resistant to accountability and supervision." Id. Next to each of these items is a handwritten notation, "Not true." Id.
Gordon claims he was told he was terminated as part of a reduction in force. On a "Separation Report" completed by Izen in connection with Gordon's termination, under "Reason for Separation," Izen noted, "Layoff/Reduction in Force." Izen Decl. ¶ 8; Dkt. #29-1, Separation Report. In his Declaration, Izen states he made that notation "so that Gordon would not have to disclose his performance-based termination to prospective employers," and also because he believed it "would help Gordon receive unemployment benefits." Izen Decl. ¶ 8.
At the end of the termination meeting, Gordon was instructed to arrange to meet with Stroud after regular business hours to retrieve his personal belongings from his office. Dkt. #26, ECF p. 9. According to Kleinfelder, as Gordon left the termination meeting, he showed Stroud a GPS device, stating it contained 100 culvert locations from the EverPower Project that had not been saved onto Kleinfelder's computer yet. Id. (citing Stroud Decl. ¶ 4; Gordon Depo. pp. 330-31) Gordon also mentioned that he had his original field notes in the trunk of his car, if Kleinfelder wanted them. No action was taken at that time to transfer the GPS data or to retrieve Gordon's handwritten field notes. Gordon Decl. ¶ 3; Gordon Decl. #2 ¶ 5.
It is not clear from the parties' briefs and the depositions whether Gordon had possession of the GPS unit containing the culvert locations at the time of the termination meeting, or it was in his car, or it actually was at Kleinfelder's offices but the data points just had not been entered on Kleinfelder's computer system yet. See, e.g., Dkt. #26, ECF p. 9; Dkt. #27-1, Gordon Depo., pp. 330-31, 347-48, 350; Dkt. #28-1, Stroud's notes from meeting with Gordon on February 3, 2010; Dkt. #28-3, Officer Defrain's report stating Izen told her "he verified the GPS was not taken by Gordon."
Gordon called Stroud around 5:00 p.m. on February 3, 2010, to arrange to retrieve his personal belongings. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). When Gordon arrived at the office, Stroud accompanied him into his former office. Id. (citing Gordon Depo. p. 342; Stroud Decl. ¶ 5). The parties have conflicting versions of what occurred during and subsequent to this meeting.
Gordon claims that while he was in his office, he picked up a piece of paper, previously retrieved from a recycling bin, that contained a portion of an old map - a section of a larger map that had already been filed of record in Lewis County, Washington. See Dkt. #54-1, p. 33 (Gordon Depo. Ex. 14). Gordon claims he had written personal telephone numbers and information relating to a child support matter on the document, and the document contained no proprietary or confidential information. Gordon Decl. ¶¶ 4, 8. Stroud claims the document Gordon picked up was a large, folded EverPower Project map belonging to Kleinfelder, which Stroud believed contained proprietary information. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). Stroud told Gordon he could not take the map because it was Kleinfelder's property, but Gordon refused to relinquish the document, stating he needed the personal phone numbers written on it. Dkt. #26, ECF p. 10 (citing Stroud Decl. ¶ 5). A brief scuffle ensued during which Stroud attempted to prevent Gordon from leaving the office with the document, but Gordon was able to evade Stroud's attempt and he left the office with the document. Gordon Decl. ¶ 1. Gordon claims Stroud assaulted him, and threatened him with further assault. Id.; Gordon Decl. #2, ¶ 6. Gordon also claims he was not allowed to take his personal CAD drawings, some text files, and gaming "screen shots" that he had placed on his "D" drive, as well as a personal address book. He claims these items belong to him, not to Kleinfelder, and they have never been returned to him. Gordon Decl. ¶¶ 1, 2; Gordon Decl. #2 ¶ 7.
In addition, Gordon claims that while he was retrieving his personal items, he again mentioned to Stroud that his field notes were in the trunk of his car, if Kleinfelder wanted them, but again, no one requested the information. Gordon Decl. ¶ 6. Subsequently, in a letter dated February 11, 2010, Gordon made a formal offer, through his attorney, to deliver the handwritten field notes to Kleinfelder; however, according to Gordon, Kleinfelder never requested the notes until it served Gordon with a request for production of documents in this case. Id.
Gordon claims he never took any proprietary or confidential information or data from Kleinfelder's premises, and the scrap of the map he took with him had no intrinsic or monetary value to Kleinfelder. Gordon Decl. ¶¶ 4, 14. He further claims he has never used, shared, disseminated, or benefitted from any proprietary information or trade secrets of Kleinfelder's. Id. ¶ 15. Gordon also claims that during his employment, Izen and other Kleinfelder employees created a hostile work environment in an attempt to dissuade Gordon from continuing to work at Kleinfelder. Gordon Decl. ¶ 3; Gordon Decl. #2 ¶¶ 8, 9. Gordon claims these actions included publicly insulting him, demeaning his manhood, publicly describing him as a "pussy," and systematically harassing him. Id.
Kleinfelder claims that on February 2 and 3, 2010, Gordon asked three Kleinfelder employees to copy some Kleinfelder computer files for him, but all three of the employees refused. Dkt. #26, ECF p. 9 (citing Gordon Depo. pp. 333-37; Dkt. #31, Steel Decl., ¶ 4; Dkt. #33, Wells Decl. ¶ 4; Izen Decl. ¶ 15). Gordon claims he was only attempting to retrieve his personal computer files, and not any of Kleinfelder's project files. Gordon Decl. #2 ¶¶ 2, 3.
On February 3, 2010, Gordon called the Beaverton Police Department, and reported that Stroud had assaulted him while he was removing his belongings from his former office. Dkt. #28, DeFrain Decl. ¶ 3. On February 4, 2010, after meeting with several Kleinfelder employees, the police refused to pursue the assault charge "based on a lack of supporting evidence." Id. ¶ 4. During these interviews, Izen told the police that Gordon had taken a Kleinfelder map which was believed to contain confidential, proprietary information. Izen also told police that Gordon had contacted several Kleinfelder employees in an attempt to obtain confidential Kleinfelder computer files. Id. ¶ 5. The investigating officer told Izen that if a police report were filed, the police would assume responsibility for returning Gordon's personal property to him, and for retrieving Kleinfelder's property from Gordon and returning it to the company. Id. ¶ 6.
Kleinfelder filed a police report, accusing Gordon of stealing a map valued at $3,200 - a statement Gordon asserts Kleinfelder knew was false at the time it was made. Id. ¶ 7 & Att. 2; Dkt. #24-1, ECF p. 4. On February 4, 2010, Kleinfelder was arrested on criminal charges arising from the police report. Gordon Decl. ¶ 9; DeFrain Decl. ¶¶ 10-11. He was taken into custody, handcuffed, transported to the Washington County Jail, incarcerated, and formally charged. Id. After further investigation, the Washington County District Attorney declined to prosecute Gordon, and the criminal charge was terminated. Gordon Decl. ¶ 10. Gordon claims he incurred $2,500 in attorney's fees in connection with the criminal matter. Id.
After Gordon's termination, he contacted David McClain at EverPower, seeking employment with EverPower. Gordon Decl. #2 ¶ 4; Dkt. #32, McClain Decl. ¶ 4. Gordon also offered to deliver his field data regarding the EverPower Project directly to EverPower, but McClain declined that request and told Gordon he should return the field data to Kleinfelder. Gordon Decl. ¶ 8; McClain Decl. ¶ 4. Gordon claims he was told by McClain that Kleinfelder was asserting he had been terminated for cause, he "was incompetent to perform the duties and responsibilities of his position as an engineer," and he had committed the crime of theft. McClain states he was never told "Gordon was not competent to perform the duties and responsibilities of his position, that he had been or was going to be arrested, or that he had been stealing valuable information." McClain Decl. ¶ 6; see Dkt. #46, McClain Decl. ("McClain Decl. #2") ¶ 4. Kleinfelder claims the only representation made was that Gordon had been "let go," which was true. Dkt. #26, ECF p. 14; see McClain Decl. ¶ 5.
McClain acknowledges telling Gordon that Loftis had told him Gordon had been terminated for cause, although McClain cannot recall if that actually is what Loftis told him. McClain Decl. ¶ 7. According to McClain, Loftis called him to advise him that Gordon no longer worked at Kleinfelder. McClain states Loftis also told him "Gordon may have removed information from Kleinfelder offices relating to the EverPower Project, and that the police might be in contact with EverPower." Id. ¶ 5.
THE PARTIES' CLAIMS IN THIS LAWSUIT
In his First Claim for Relief, Gordon claims Kleinfelder defamed him, damaging his ability to obtain employment, and rendering him "sick, sore, nervous and upset." In his Second Claim for Relief, Gordon claims Kleinfelder's actions caused him to be "deprived of his liberty and falsely imprisoned." In his Third Claim for Relief, Gordon claims Kleinfelder's actions "were wanton and malicious, intending that [he would] be falsely accused and prosecuted." In Gordon's Fourth Claim for Relief, he claims Kleinfelder converted his personal property. In his Fifth Claim for Relief, Gordon claims Kleinfelder intentionally inflicted emotional distress on him. See Dkt. #1-1.
For its Counterclaims, Kleinfelder asserts Gordon converted its proprietary information for his own purposes; he breached a Confidentiality and Non-Solicitation Agreement entered into between the parties as part of Gordon's employment; he removed a project map containing trade secrets from Kleinfelder's offices, in violation of Oregon's Uniform Trade Secrets Act; and he defamed Kleinfelder to EverPower. See Dkt. #23.
SUMMARY JUDGMENT STANDARDS
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). In considering a motion for summary judgment, the court "must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial." Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996)).
The Ninth Circuit Court of Appeals has described "the shifting burden of proof governing motions for summary judgment" as follows:
The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some "metaphysical doubt" as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In
determining whether a jury could reasonably render a verdict in the non-moving party's favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505.
In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).
Kleinfelder moves for summary judgment on Gordon's defamation claim. Gordon moves for summary judgment on Kleinfelder's defamation counterclaim. Gordon also moved for summary judgment on his own defamation claim, but he conceded in his reply brief that "there is a triable issue of fact as to the motivation of defendant in speaking with David McClain at Everpower, and the issue of qualified privilege which relates to the motivation issue, as one which needs to be considered by a jury." Dkt. #56, p. 2.
To prove defamation under Oregon law,
a plaintiff must show that the defendant made a defamatory statement about the plaintiff to a third person. Wallulis v. Dymowski, 323 Or. 337, 342-43, 918 P.2d 755[, 758] (1996). A defamatory statement is a false statement that would subject the plaintiff "to hatred, contempt or ridicule . . . [or] tend to diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the plaintiff]." Farnsworth
v. Hyde, 266 Or. 236, 238, 512 P.2d 1003[, 1004] (1973). . . .
Tubra v. Cooke, 233 Or. App. 339, 349, 225 P.3d 862, 867 (2010).
Oregon law recognizes two privilege defenses to a defamation claim: a qualified privilege and an absolute privilege. An absolute privilege is a complete bar to a plaintiff's claim. However, absolute privilege applies only in a very narrow range of circumstances, none of which is present here. A qualified privilege, on the other hand, generally "exists to protect three kinds of statements: (1) those made to protect the defendant's interests; (2) those made to protect the plaintiff's employer's interests; or (3) those made on a subject of mutual concern to the defendant and the persons to whom the statement was made." DeLong v. Yu Enterprises, Inc., 334 Or. 166, 170, 47 P.3d 8, 10 (2002) (citing Wallulis v. Dymowski, 323 Or. 337, 350, 918 P.2d 755, 762 (1996), in turn citing Wattenburg v. United Medical Lab., 269 Or. 377, 380, 525 P.2d 113, 114 (1974)). To overcome a qualified privilege, a plaintiff must "'prove that a defendant acted with actual malice[.]'" Christianson v. State, 239 Or. App. 451, 459, 244 P.3d 904, 908 (2010) (quoting DeLong, 334 Or. at 170, 47 P.3d at 10). "It must be borne in mind . . . that it is for the court, and not the jury, to decide where the line is to be drawn between a protected and an unprotected defamatory publication." Post v. Oregonian Pub. Co., 268 Or. 214, 222, 519 P.2d 1258, 1261 (1974).
The court begins with a determination as to whether Gordon's allegations potentially state a claim for defamation. Gordon claims that after his termination, Kleinfelder's employees "informed David McLain [sic] at EverPower that [Gordon] had been terminated for cause and had been arrested for stealing from Kleinfelder . . . [and] that [he] was not competent to perform the duties and responsibilities of [his] position as an engineer[.]" Gordon Decl. ¶¶ 11, 13. Gordon claims these statements were false, Kleinfelder knew they were false, and the statements engendered a negative image of him that prevented him from finding suitable employment. In his reply brief, Gordon characterizes his defamation claim differently, asserting that the basis of the claim "is the false statements by [Kleinfelder] that [Gordon] had been discharged for cause, imputing both an unfitness for his profession and lack of integrity in the discharge of [his] employment and an inability or incompetency to pursue his trade or profession as a civil engineer, together with the indication that [Gordon] had removed information from the Kleinfelder offices relating to the Everpower project, implying the commission of a theft." Dkt. #40, p. 2.
Thus, we have two allegedly defamatory statements: (1) that Gordon was terminated for cause, and (2) that he removed, impliedly or expressly without authorization, information from Kleinfelder's offices relating to the EverPower project. Both of these alleged statements are enmeshed with factual disputes. With regard to the first, Gordon claims he was terminated due to a reduction in force, pointing to the form he was given that lists reduction in force as the reason for his termination. Kleinfelder claims Gordon was terminated for cause, pointing to the termination forms that cite performance-related reasons for the termination. The determination as to why Gordon actually was fired depends largely on the credibility of the witnesses - a determination distinctly within the jury's purview.
However, Kleinfelder argues even if it communicated to EverPower that Gordon had been fired for cause, Gordon's defamation claim fails for several reasons. First, Kleinfelder claims such a representation would have been true, because Gordon was fired for cause. As noted above, the reason for Gordon's termination is a disputed question of fact that precludes summary judgment on that basis. Kleinfelder also argues such a representation, if made, was privileged as a matter of law. Oregon law "clearly recognizes that a former employer has a qualified privilege to make defamatory communication about the character or conduct of his employees to present or prospective employers." Walsh v. Consolidated Freight-ways, Inc., 278 Or. 347, 355, 563 P.2d 1205, 1210 (1977) (citing, inter alia, 3 Restatement of Torts 247, § 595 & comment (h)). The court finds that here, Kleinfelder's statements to EverPower - its existing client on whose project Gordon had been working prior to his termination - regarding the reason for Gordon's termination were privileged. The burden of proving Kleinfelder abused the qualified privilege rests upon Gordon. See Walsh, 278 Or. at 356, 563 P.2d at 1211. To do so, Gordon must prove Kleinfelder acted with malice. Christianson, supra.
The qualified privilege of a former employer to defame a former employee regarding the employee's character or conduct is a shield that protects an employer from good faith communications to a present or prospective employer; it is not a sword that allows the former employer to knowingly lie. If the jury believes Gordon was discharged due to a reduction in force, rather than for cause, then the jury could conclude Loftis knowingly lied to McClain for the purpose of damaging Gordon's reputation. Thus, the question of malice also is fraught with factual disputes, precluding summary judgment for Kleinfelder on Gordon's defamation claim.
As for the statement that Gordon had removed information from Kleinfelder's offices relating to the EverPower Project, the evidence indicates Loftis, Kleinfelder's Vice President and Global Director of Renewable Energy, contacted McClain at EverPower to tell him Gordon had been terminated. Loftis Decl. ¶ 8; McClain Decl. ¶ 5. According to McClain, Loftis told him that he might be contacted by the police because Gordon had removed information relating to the EverPower Project from Kleinfelder's offices. Id. McClain responded that he already had been contacted by Gordon, who stated he was no longer working at Kleinfelder, but he was avail- able to work directly for EverPower to finish the EverPower Project. Loftis Decl. ¶ 9; McClain Decl. ¶ 5. Gordon told McClain he had notes that would assist EverPower in completing the project, and McClain told Gordon to return whatever EverPower information he had to Kleinfelder. McClain Decl. ¶ 4.
As with Loftis's statement regarding the reason for Gordon's termination, Loftis was passing along information to its client, EverPower, that was on a subject of mutual concern to EverPower and Kleinfelder. The statement, therefore, could be privileged - if it was not made maliciously. Regardless of the reason for Gordon's termination, what was the motivation for telling McClain that Gordon had stolen documents? It is disputed that Gordon took anything of value from Kleinfelder's offices. With regard to the field notes, the current record raises the issue of whether Kleinfelder had abandoned any claim to them, or at least had forgotten about them until this litigation was underway. Even after McClain told Loftis that Gordon had offered to give EverPower the field notes, no one from Kleinfelder contacted Gordon to request the field notes until they were requested during discovery in this case. On these facts, a jury could conclude that Kleinfelder's only motivation for telling McClain that Gordon had stolen documents from Kleinfelder was malicious, intended to damage Gordon's reputation and chill his attempts to gain employment. Too many material factual issues exist to prevent the jury from deciding this claim. Thus, Kleinfelder's motion for summary judgment is denied with regard to Gordon's defamation claim, as that claim relates to Kleinfelder's statements that Gordon was fired "for cause," and that Gordon had taken information relating to the EverPower Project from Kleinfelder's offices and EverPower might be contacted by the police.
Gordon makes another assertion of defamation in connection with Kleinfelder's police report alleging Gordon had stolen a project map with a value of $3,200. Significant factual questions exist regarding what Gordon actually took with him, its value, and Kleinfelder's motivation for filing the police report. Resolution of these questions will affect the jury's decision as to whether Izen acted maliciously in filing the police report. See DeLong, 334 Or. at 173-74, 47 P.3d at 12 (citizens' statements to police officers generally are subject to a qualified privilege, receiving "protection only if they were made in good faith, to discourage an abuse of the privilege"; citing Van Vechten Veeder, Absolute Immunity in Defamation, 9 Colum. L. Rev. 463, 480 (1909)). Therefore, Kleinfelder's motion for summary judgment on Gordon's defamation claim with regard to the police report is denied.
Turning to Kleinfelder's claim for defamation, the company alleges that subsequent to his termination, Gordon "falsely informed Everpower that Kleinfelder had been overcharging Everpower for work." Dkt. #23, p. 8, ¶ 9. In Gordon's deposition, he testified he "explained to David McClain that . . . Kleinfelder was planning on trying to overcharge them for work that was already included in the scope. . . ." Dkt. #43-1, p. 16 (Gordon Depo. p. 299). He also told McClain that Kleinfelder was "planning on charging [EverPower] for stuff, for items that are already included in the budget and [he] told them they had burned the budget by bringing in Paul Fisher." Id., p. 17 (Gordon Depo. p. 300). Gordon told EverPower that Kleinfelder had "burned the budget," and was "looking to charge EverPower more money" for work that had already been paid for. Id., p. 19 (Gordon Depo. p. 306).
Gordon argues these statements were true. "It is axiomatic that 'truth' is a complete defense in a defamation case." Bahr v. Statesman Journal Co., 51 Or. App. 177, 180, 624 P.2d 664, 666 (1981). Kleinfelder disputes the truth of Gordon's statements. However, neither party has offered any evidence beyond these bald assertions on this issue. As a result, the current record is insufficient for the court to grant or deny summary judgment on this issue, and Gordon's motion for summary judgment on Kleinfelder's Fourth Counterclaim is denied.
The elements of a malicious prosecution claim under Oregon law are as follows:
"(1) the institution or continuation of the original criminal proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in the plaintiff's favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the proceeding; and (6) injury or damage because of the prosecution."
Blandino v. Fischel, 179 Or. App. 185, 191, 39 P.3d 258, 261 (2002) (quoting Rose (Betty) v. Whitbeck, 277 Or. 791, 795, 562 P.2d 188, 190, mod. on other grounds 278 Or. 463, 564 P.2d 671 (1977)).
Thus, to prevail on his claim for malicious prosecution, Gordon must prove: (1) Kleinfelder instituted a criminal proceeding against him; (2) the proceeding terminated in Gordon's favor; (3) Kleinfelder did not have probable cause to institute the proceeding; and (4) Kleinfelder "acted with malice; i.e., a primary purpose other than that of bringing [Gordon] to justice." Ledford v. Gutoski, 121 Or. App. 226, 230, 855 P.2d 196, 198 (1993) (citing Rogers v. Hill, 281 Or. 491, 497, 576 P.2d 328, 331-32 (1978); Fleet v. May Dept. Stores, Inc., 262 Or. 592, 601, 500 P.2d 1054, 1059 (1972)).
"In the context of a malicious prosecution claim, 'probable cause' refers to the subjective and objectively reasonable belief that the defendant committed a crime." Blandino, 179 Or. App. at 191, 39 P.3d at 261 (citation omitted). The question of whether Kleinfelder had probable cause to institute criminal proceedings against Gordon is one of law. Fleet v. May Dept. Stores, Inc., 262 Or. 592, 601, 500 P.2d 1054, 1059 (1972) (citations omitted). However, "[w]here the facts under which the defendant acted are in dispute, it is the function of the jury, not the court, to resolve the dispute." Id. With regard to the question of malice, if the facts surrounding the probable cause issue are in dispute, the jury is entitled to consider whether the defendant's conduct was malicious. Id. Cf. Gustafson v. Payless Drug Stores Northwest, Inc., 269 Or. 354, 356-59, 525 P.2d 118, 120-21 (1974) (observing "that instructing on the issue of probable cause is very difficult when the jury can find a number of different fact combinations," and discussing possible procedures for trial).
Here, the facts are in dispute. Gordon claims Kleinfelder knew he had taken nothing of value and no proprietary information. Kleinfelder claims Izen believed Gordon had taken a proprietary project map that would cost over $3,200 to recreate, and he therefore had probable cause to file the police report. The jury must resolve the factual dispute before the court can make a determination as to probable cause. Therefore, both parties' motions for summary judgment on Gordon's malicious prosecution claim are denied.
Gordon claims Kleinfelder caused his false imprisonment on two separate occasions. The first occurred when Stroud allegedly prevented Gordon from leaving his former office. The second occurred when Gordon was arrested "based on incomplete and inaccurate information intentionally supplied to the Beaverton Police Department" by Kleinfelder. Dkt. #40, p. 8.
The Restatement (Second) of Torts, upon which the Oregon Supreme Court has relied in false imprisonment cases, see, e.g., Pearson v. Galvin, 253 Or. 331, 454 P.2d 638 (1969), provides: "An actor is subject to liability to another for false imprisonment if (1) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it." Restatement (Second) Torts § 35. The defendant must actually confine the plaintiff, unlawfully restraining the plaintiff against his will. Stone v. Finnerty, 182 Or. App. 452, 458, 50 P.3d 1179, 1184 (2002) (citations omitted). However, no particular length of time is required to constitute false imprisonment; "[t]he restraint need not be for more than a brief time." Lukas v. J.C. Penney Co., 233 Or. 345, 353, 378 P.2d 717, 720 (1963) (citing Restatement (Torts) § 35).
Taking Gordon's allegations as true for purposes of Kleinfelder's summary judgment motion, Gordon has stated a claim for false imprisonment in connection with Stroud's alleged actions in preventing Gordon from leaving his former office. It is for the jury to determine which version of the events - Gordon's or Stroud's - to believe. See, e.g., State v. Hyde, 28 Or. App. 809, 813, 561 P.2d 659, 662 (1977) ("[I]t is for the jury, not the court, to resolve conflicting evidence."); see also, e.g., State v. Guy, 229 Or. App. 611, 616, 212 P.3d 1265, 1268 (2009) ("It is well established in Oregon that the determination of a witness's credibility is the sole province of the trier of fact.") (citations omitted). Kleinfelder's motion for summary judgment is, therefore, denied as to Gordon's false imprisonment claim as it relates to the events that occurred in Gordon's former office.
Considering Gordon's claim relating to his arrest, the Restatement provides, "One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment." Restatement (Second) Torts § 45A.
In Pearson, the court considered what is necessary to make out a substantive case of "instigation." The court relied on a comment to Restatement § 45A, which provides, in pertinent part, as follows:
"Instigation consists of words or acts which direct, request, invite or encourage the false imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of "Officer, arrest that man!" It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall bedone about any arrest, without persuading or influencing them."
Pearson, 253 Or. at 335, 454 P.2d at 640 (quoting Restatement (Second) Torts § 45A, comment c). Thus, to prevail on his claim for false arrest, Gordon must show that Kleinfelder "participated by taking an active part in bringing about [his] arrest." Pearson v. Galvin, 253 Or. 331, 337, 454 P.2d 638, 641 (1969).
Ordinarily, the filing of a police report alleging that a crime has been committed would not be enough to hold Kleinfelder liable for "instigating" Gordon's arrest and subjecting him to false imprisonment. "'Oregon follows the widely accepted principle that a person is not liable for false arrest if he or she merely lays facts before a law enforcement or judicial officer who makes the arrest on the basis of the officer's own judgment and discretion.'" Harrell v. Costco, No. 08-cv-3092-PA, 2010 WL 331773, at *6 (D. Or. Jan. 27, 2010) (Panner, J.) (quoting Hiber v. Creditors Coll. Serv., 15 Or. App. 408, 418 n.13, 961 P.2d 898, 904 n.13 (1998)).
However, if Kleinfelder acted maliciously, with some improper purpose or motive, then Kleinfelder would be liable for instigating Gordon's arrest. See, e.g., Brown v. Far West Fed. Sav. & Loan Ass'n, 66 Or. App. 387, 393, 674 P.2d 1183, 1186 (1984) ("public policy will protect the victim of a crime who, in good faith and without malice, identifies another as the perpetrator of the crime, although that identification may, in fact, be mistaken.'" Emphasis added.) (quoting Shires v. Cobb, 271 Or. 769, 772, 534 P.2d 188, 189 (1975)); cf. Hiber v. Creditors Coll. Serv. of Lincoln County, Inc., 154 Or. App. 408, 414-15, 961 P.2d 898, 902 (1998) ("Consistent with principles of joint and several liability for torts generally, liability for false imprisonment extends not only to the person who directly confines a plaintiff, but equally to one who instigates the confinement by directing, requesting, inviting or encouraging it.") (citing Pearson v. Galvin, 253 Or. 331, 335-37, 454 P.2d 638, 640-41 (1969)). This is a different standard from acting erroneously but in good faith.
Again, the determination will come down to the credibility of the witnesses regarding Kleinfelder's knowledge and motivation in filing the police report claiming Gordon had stolen a map valued in excess of $3,200. Kleinfelder's motion for summary judgment on this issue is, therefore, denied.
The parties each assert a conversion claim, Gordon for personal property left in his office and on his office computer; Kleinfelder for the project map it claims Gordon took from his office, and the field notes and GPS data relating to the EverPower Project. To state a claim for conversion under Oregon law, "'a party must establish the intentional exercise of dominion or control over a chattel that so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel.'" Mossberg. v. Univ. of Oregon, 240 Or. App. 490, 494, 247 P.3d 331, 334 (2011) (quoting Emmert v. No Problem Harry, Inc., 222 Or. App. 151, 159-60, 192 P.3d 844, 850 (2008)).
Gordon claims Kleinfelder converted his personal CAD drawings, certain text documents, and gaming screen shots that were on his office computer, as well as his personal address book. Kleinfelder argues Gordon cannot show that the company acted with the intent to control his address book, and Gordon "had no right to control the data on his work computer, which indisputably belonged to Kleinfelder[.]" Dkt. #26, p. 20 (citing Naas v. Lucas, 86 Or. App. 406, 409, 739 P.2d 1051, 1052 (1987) ("Bad faith is not required; the gravamen of the tort is the defendant's intent to exercise control over the chattel inconsistently with the plaintiff's rights."). Kleinfelder asserts it has not been able to locate Gordon's address book, and all of Gordon's personal property that was located on Kleinfelder's premises was boxed up and given to the Beaverton Police for delivery to Gordon. With regard to the computer files at issue, Kleinfelder argues Gordon never owned those files, which constituted work product created for Kleinfelder's use. Kleinfelder points to its "computer policy, which was given to [Gordon] as part of his hire packet," in arguing none of the data on Gordon's computer belonged to him. See Dkt. #26, p. 21 (citing Dkt. #27-1, p. 77 - Ex. 21 to Gordon's Depo).
The company policy to which Kleinfelder refers is entitled "Use of Kleinfelder Business Equipment and Communication Systems." In section 4.2, Use of Electronic Media, the policy states, in pertinent part:
Kleinfelder provides equipment and systems to all employees to assist in performance of their job. These systems include, but are not limited to telephone, fax, e-mail, voice mail, computers, LAN/WAN, Internet access, Oracle, software, printers, and copiers. These systems are sole property of Kleinfelder, and access to them is provided for business purposes. . . . Employees have no privacy rights with regard to any information resident on Kleinfelder's computers and/or computernetworks. Kleinfelder reserves the right to access, intercept, review, and disclose the contents of all computer files and e-mail messages.
. . .
1. All messages, data, pictures, text, etc. composed upon, or sent on these systems are the property of Kleinfelder. They are not the private property of any employee.
Dkt. #27-1, p. 77 (emphasis added).
Kleinfelder further asserts that because "all information found on the computer belonged to Kleinfelder, subsequent to [Gordon's] termination, Kleinfelder removed the information it needed from [the] computer and then, pursuant to company policy, reformatted the computer to be used by another employee. Any information left on the work computer would have been erased." Dkt. #26, p. 21 n.8 (citing Dkt. #Dkt. #29, Izen Decl. ¶ 23). Further, Izen states that he instructed Kleinfelder's IT department "to work with Gordon in retrieving his personal files from his work computer, and [he] remember[s] that the IT department burned Gordon's personal files onto a DVD for him." Dkt. #29, ¶ 23. Izen asserts Kleinfelder did not intentionally keep any of Gordon's personal computer files. Id.
The "Use of Electronic Media" clause refers to information "composed upon, or sent on" Kleinfelder's systems; the policy is silent on the issue of an employee's personal computer files that are stored on the company's computers. Gordon claims his supervisor at the time he was hired asked him to download his portfolio of CAD files onto the "D" drive of his work computer; he complied; and those files have never been returned to him. He further maintains that he left a personal address book in his office, and Kleinfelder has refused to return the book to him. Like many of the other issues in this case, resolution of this claim comes down to a determination of whose version of the facts is to be believed. Gordon has offered evidence sufficient to create a genuine issue of fact for trial. The parties' motions for summary judgment are denied as to Gordon's conversion claim.
As for Kleinfelder's conversion counterclaim, Kleinfelder claims Gordon converted its proprietary information for his own purposes, including the project map Kleinfelder has accused Gordon of stealing, and the field notes and GPS data in Gordon's possession at the time of his termination. Gordon has offered evidence to refute Kleinfelder's claim, including evidence that he tendered the field notes to Kleinfelder both informally and by letter from his attorney, and his repeated assertions that the portion of a map he took from his former office contained no proprietary data and had no intrinsic value. Indeed, in Gordon's declaration, he identifies Dkt. #54-1, p. 33 (Gordon Depo. Ex. 14) as that map. Kleinfelder has not identified any proprietary information on that document, but seems to question whether the exhibit is, in fact, what Gordon took with him. Again, the court is faced with varying issues of material fact that must be decided by the jury at trial. Gordon's motion for summary judgment on Kleinfelder's conversion counterclaim claim is denied.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Gordon alleges that the actions of three Kleinfelder employees - Amie Weitz, Kellie Stratton, and Abe Izen - created a hostile work environment that intentionally inflicted emotional distress on Gordon, rendering him "sick, sore, nervous and upset," and "interfer[ing] with his ability to seek and maintain gainful employment[.]" Dkt. #1-1, ¶ 13; Dkt. #27-1, p. 16 (Gordon Depo, p. 242) . Regarding Weitz, Gordon testified that "she stormed through the office trying to get people to say things about [him], trying to get people to turn against [him]. It was her mission." Dkt. #27-1, pp. 16-17 (Gordon Depo. pp. 242-43). He stated Weitz was extremely rude to him, and she instigated arguments "at every opportunity." Id., p. 17 (Gordon Depo. p. 243). She had "gossipy type conversations with other employees," which he found "very upsetting." Id., p. 18 (Gordon Depo. p. 244).
Gordon claims Izen demeaned him and made sexually-based comments to him that were overheard by others. He claims Izen made statements about taking Gordon's "man card" on several occasions, he called Gordon a "pussy" in front of other employees, and he talked to Gordon like he was a five-year-old. See id., pp. 21-25 (Gordon Depo. pp. 261-63, 267, 281).
No testimony was elicited from Gordon during his deposition to elaborate on his claim that Stratton contributed to the hostile work environment.
In Mayorga v. Costco Wholesale Corp., the Ninth Circuit Court of Appeals, applying Oregon law, observed:
To succeed on a claim for intentional infliction of emotional distress, a plaintiff must prove: "(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct." McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849
(1995) (internal quotation marks and citation omitted).
Mayorga, 302 F. App'x 748, 749 (9th Cir. 2008); accord Grimmett v. Knife River Corp.-Northwest, No. CV-10-241, slip op., 2011 WL 841149 (D. Or. Mar. 8, 2011) (Hubel, MJ); see House v. Hicks, 218 Or. App. 348, 357-58, 179 P.3d 730, 736 (2008) (IIED plaintiff must prove defendants "intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress"; their conduct was "outrageous . . . i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior"; and their "conduct in fact caused plaintiff severe emotional distress") (citing McGanty v. Staudenraus, 321 Or. 532, 543, 550, 901 P.2d 841 (1995)). "'A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by assessing the allegedly tortious conduct to determine whether it goes beyond the farthest reaches of socially tolerable behavior and creates a jury question on liability.'" Ballard v. Tri-County Metro. Transp. Dist. of Oregon, No. 09-873, slip op., 2011 WL 1337090 (D. Or. Apr. 7, 2011) (Papak, MJ) (quoting House, 218 Or. App. at 358, 179 P.3d at 736; and citing Pakos v. Clark, 253 Or. 113, 453 P.2d 682, 691 (1969) "('It was for the trial court to determine, in the first instance, whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.')").
For conduct to be sufficiently "extreme and outrageous" to support a claim for IIED, the conduct must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" House, 218 Or. App. at 358-60, 179 P.3d at 737-39 (quoting Restatement (Second) of Torts, § 46, comment d). The determination of whether conduct rises to this level "is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances." Id. However, although the inquiry is fact-specific, the question of whether the defendant's conduct exceeded "the farthest reaches of socially tolerable behavior" is, initially, "a question of law." Houston v. County of Wash., 2008 WL 474380, at *15 (D. Or. Feb. 19, 2008) (citation omitted).
On summary judgment, then, the court must assess whether, if Kleinfelder's conduct as alleged by Gordon is proven at trial, that conduct is sufficiently beyond the pale to state an IIED claim. The court finds it is not. Taking Gordon's allegations as true, the conduct of Kleinfelder's employees, while objectionable and likely upsetting, did not rise to the level of the "extreme and outrageous" conduct required to sustain an IIED claim. As I have observed on previous occasions:
Conduct that is merely "rude, boorish, tyrannical, churlish, and mean" does not support an IIED claim. Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). "[T]he tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiff's distress otherwise qualifies for liability." Hall v. The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 479, 480-81 (1992) (no claim where employer threw a tantrum, screamed and yelled at his employees, accused them of being liars and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 312 Or. 198, 205-06, 818P.2d 930, 934 (1991) (no claim where employee terminated for refusing to pull down pants).
Wolf v. Ron Wilson Center for Effective Living, Inc., slip op., 2010 WL 4638888, at *5 (D. Or. Nov. 8, 2010).
Kleinfelder's motion for summary judgment on this claim is granted.
BREACH OF CONTRACT
Gordon moves for summary judgment on Kleinfelder's counterclaim for breach of contract. Kleinfelder claims Gordon breached the company's Confidentiality and Non-Solicitation Agreement (the "Agreement") by retaining Kleinfelder's confidential information for his benefit or in a manner adverse to Kleinfelder's interests, and by disparaging Kleinfelder and its employees. See Dkt. #3, p. 9, ¶¶ 14-17; see Dkt. #43-1, pp. 60-63 (Gordon Depo. Ex. 4, "Employee Covenants Agreement, Confidentiality and Non-Solicitation"). In Gordon's motion for summary judgment on this claim, he states only that his "Affidavit establishes that he made no such breach, and [Kleinfelder] cannot contradict that assertion." Dkt. #24-1, p. 5.
Gordon signed an "Employee Covenants Agreement - Confidentiality and Non-solicitation" on April 15, 2008. Dkt. #43-1, pp. 60-63 (the "Agreement"). The "Confidentiality" covenants are applicable to the period of time an employee is working for Kleinfelder, and for two years thereafter. The covenants require employees to use "Confidential Information" only in the course of performing their duties for Kleinfelder, and not for their "personal benefit, for the benefit of any other third party, or in any manner adverse to the interests of [Kleinfelder], its clients or its or their affiliates[.]" Id., ¶ 1(a). Employees also are required to "return all materials containing or relating to Confidential Information to [Kleinfelder] when his/her employment relationship with [Kleinfelder] terminates or otherwise upon demand." Id., ¶ 1(b). This includes not retaining copies of "correspondence, memoranda, reports, notebooks, drawings, photographs, databases, diskettes, or other documents or electronically stored information of any kind relating in any way to the business, potential business or affairs of [Kleinfelder], its clients or its or their respective affiliates." Id. Exempted are copies of reports an employee is required to maintain as part of his/her "professional registration." Id.
The Agreement defines "Confidential Information" as follows:
"Confidential Information" includes all trade secrets, know-how, technical, operating, financial, and other business information, specifically including but not limited to information regarding documentation, designs, inventions, improvements, methodology, concepts, records, files, memoranda, reports, plans, price lists, client and supplier information, product development and project procedures. Confidential Information does not include general skills, experience or information that is generally available to the public, other than information that has become generally available as a result of Employee's act or omission.
Id., ¶ 1.
Factual issues similar to those discussed above in this opinion also exist regarding whether Gordon breached the confidentiality covenants. The parties dispute whether Gordon took any confidential information with him, or retained any confidential information without Kleinfelder's consent, whether actual or implied.
The "Non-Disparagement" section of the Agreement prohibits employees, "at any time (during or after Employee's employment with [Kleinfelder])," from disparaging "the reputation of [Kleinfelder], its clients and its or their respective officers, directors, agents or employees." Id. ¶ 4. Little discussion is required to resolve Gordon's motion for summary judgment on this clause of the Agreement. Kleinfelder has offered evidence that Gordon solicited employment from EverPower, and made statements to EverPower indicating Kleinfelder intended to overcharge EverPower for work. Kleinfelder further claims Gordon made disparaging comments to EverPower regarding Kleinfelder employee Paul Fisher. The parties dispute the exact content of Gordon's statements, and the intent and impact of those statements.
Taking Kleinfelder's allegations as true for purposes of Gordon's summary judgment motion, the court finds Kleinfelder has offered evidence sufficient to raise a genuine issue of fact for trial as to whether Gordon breached the Agreement. Gordon's motion for summary judgment on this claim is denied.
OREGON UNIFORM TRADE SECRETS ACT
Gordon moves for summary judgment on Kleinfelder's counterclaim asserting a violation of the Oregon Uniform Trade Secrets Act, ORS § 646.461, et seq. Kleinfelder claims the project map Gordon allegedly took from his former office, and information Gordon disclosed to EverPower concerning Gordon's work on the EverPower Project, constituted trade secrets under the Act. Dkt. #23, p. 10, ¶¶ 19-23.
The Act defines a "trade secret" as "information, including a drawing, cost data, customer list, formula, pattern, compilation, program, device, method, technique or process that (a) [d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (b) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy." ORS § 646.461(4). Kleinfelder claims it "employed reasonable measures to maintain the secrecy of the information located on the project map and other trade secret information wrongfully disclosed by [Gordon], and expressly instructed [Gordon] not to remove the project map from [Kleinfelder's] offices." Dkt. #23, p. 10, ¶ 21.
As discussed previously in this order, the parties dispute whether Gordon misappropriated the project map or other information, as well as whether the document Gordon took with him had any "independent economic value." In addition, Gordon claims the document he took with him was a portion of a map that already had been recorded in the public record. If that is the case, then the document likely does not meet the definition of a "trade secret" under the Act. See ORS § 646.461(4)(a) ("'Trade secret' . . . [d]erives independent economic value, actual or potential, from not being generally known to the public. . . .").
The parties also dispute whether Gordon disclosed any information to EverPower about the work it paid Kleinfelder to perform that could be considered a trade secret. These factual questions present genuine issues for trial. While Kleinfelder's eventual success on this claim is in doubt, I cannot say on this record how the issues will be resolved by the finder of fact. As a result, Gordon's motion for summary judgment on this counterclaim is denied.
In summary, then, Kleinfelder's motion for summary judgment on Gordon's IIED claim is granted, and both parties' motions for summary judgment are denied as to all other claims and counterclaims.
IT IS SO ORDERED.
Dennis James Hubel
Unites States Magistrate Judge