MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

Before the Court are multiple motions, including Defendant Merkle, Inc.'s Motion for Summary Judgment ("Merkle's Motion for Summary Judgment"), Defendant Drew May's Motion for Summary Judgment ("May's Motion for Summary Judgment"), and Defendant Drew May's Motion to Strike Declarations and Other Material ("Motion to Strike"), For the reasons that follow, Merkle's Motion for Summary Judgment will be granted, May's Motion for Summary Judgment will be granted in part and denied in part, and May's Motion to Strike will be denied. Also pending before the Court are plaintiff IDM's Motion to Compel Merkle, Inc. to Respond to Plaintiff's Discovery Requests ("Motion to Compel"), Plaintiff Integrated Direct Marketing, L.L.C.'s Motion in Limine for an Adverse Inference for Defendants' Spoliation of Evidence and Other Relief ("Spoliation Motion"), and Plaintiff, [sic] Integrated Direct Marketing, L.L.C.'s Motion for Sanctions for Defendants' Failure to Produce Documents, Submission of a False Affidavit, and Refusal to Answer Questions at Deposition ("Motion for Sanctions"). For the reasons that follow, plaintiff's Motion to Compel and Spoliation Motion will be denied, and plaintiff's Motion for Sanctions will be granted in part and denied in part.

I. BACKGROUND

A. Procedural History

Plaintiff Integrated Direct Marketing, LLC ("plaintiff" or "IDM") instituted this action against former employee Drew May ("May") for allegedly misappropriating IDM's confidential and proprietary information, including its trade secrets, and using that information to benefit himself and his new employer, Merkle, Inc. ("Merkle"), Almost six months after filing the initial Complaint, IDM filed an amended complaint, titled "Integrated Direct Marketing, LLC's First Amended Complaint Against Drew Many and Merkle, Inc., for Injunctive Relief, Damages, and Other Relief" ("Amended Complaint"), adding Merkle as a defendant. The Amended Complaint alleges seven causes of action. The first four, consisting of breach of contract (Count I), breach of fiduciary duty (Count II), conversion (Count III), and violation of the Arkansas and Virginia trade secrets acts (Count IV), were filed solely against May. Count V, which also alleges a violation of the Arkansas and North Carolina trade secrets acts, was filed solely against Merkle, and the last two counts of intentional interference with business expectancies (Count VI1); and unjust enrichment (Count VII2) were filed against both defendants.

In terms of relief, IDM seeks an injunction barring May and Merkle from engaging in any use of IDM's trade secrets and the confidential information May learned while employed with IDM; directing May and Merkle to return any documents or electronic files containing those trade secrets or confidential information; and enjoining May and Merkle "from engaging in future activities that would result in misappropriation of IDM's trade secrets and confidential proprietary information, including refraining from work on all accounts on behalf of Merkle that are in competition with IDM, including on data integration, campaign analytics, data sourcing, data pricing, and any other activities in which May and Merkle have retained, used, and may use, IDM's trade secrets and confidential and proprietary information." IDM also seeks compensatory and punitive damages, Merkle's disgorgement of any unlawfully obtained profits, and reasonable royalties for misappropriating IDM's information.

This action has been heavily litigated from the beginning due to the parties' failure to follow the Local Civil Rules and numerous discovery-related disputes which required endless motions hearings resulting in an almost three-month extension of discovery. Still pending is IDM's Motion to Compel, which seeks further discovery of Merkle's financial information in relation to IDM's unjust enrichment claim and damages theory. That motion has been held in abeyance pending the outcome of summary judgment. In addition, upon the defendants' motions, IDM's two damages experts were stricken from this case because they were not timely disclosed. See Order of April 13, 2015 [Dkt. No. 113] (magistrate judge's order); Order of May 1, 2015 [Dkt. No. 162] (Order affirming the magistrate judge's ruling). Accordingly, IDM has no expert to testify at trial about its damages. Also still pending are plaintiffs Spoliation Motion, which accuses May and Merkle of spoliating evidence, and plaintiff's Motion for Sanctions, which was filed against both defendants on multiple grounds. After hearing argument on both motions, including live testimony from May on the spoliation issue, the Court declined to rule on those motions.

Following the close of discovery and after hearing oral argument on plaintiff's Spoliation Motion and Motion for Sanctions, each defendant filed a motion for summary judgment. Subsequently, May moved to strike certain exhibits attached to IDM's brief in opposition to his summary judgment motion. All three motions were fully briefed and a hearing was held on August 21, 2015. During that hearing, the Court granted summary judgment in favor of May on the breach of contract claim (Count I), which alleged that May breached Paragraph 2 of his Confidentiality Agreement with IDM. Paragraph 2 indefinitely prohibited May from disclosing any of IDM's confidential information to any third party. "Confidential information" was defined as "any and all information furnished by" IDM that is not publicly known, As May argued, the breadth of that definition made that clause unenforceable. For example, it would prevent May from ever disclosing information such as the identity of IDM's janitor services vendor. Accordingly, the Court ruled that the confidentiality provision was not narrowly tailored to protect IDM's legitimate business interests, thereby rendering it unenforceable under Virginia law.3 See Assurance Data, Inc. v. Malyevac, 286 Va. 137, 747 S.E.2d 804, 808 (2013) (reiterating the principle that an agreement that restrains competition or trade must be "no greater than necessary to protect a legitimate business interest," "not unduly harsh or oppressive in curtailing an employee's ability to earn a livelihood," and "reasonable in light of sound public policy"); Lasership Inc. v. Watson, 2009 WL 7388870, at *8, 79 Va. Cir. 205 (Aug. 12, 2009) (finding a confidentiality agreement overbroad because it precluded the disclosure of any information concerning the business to any person in perpetuity, including information not "worthy of confidence"); see also BB & T Ins. Servs., Inc. v. Thomas Rutherfoord, Inc., 2010 WL 7373709, at *5, 80 Va. Cir. 174 (Va.Cir. Feb. 9, 2010) (confidentiality clause unenforceable because its duration was "for perpetuity"). Moreover, even if Paragraph 2 were enforceable, IDM failed to produce any evidence of actual damages resulting from May's alleged breach, which is an essential element of a breach of contract claim. See Sunrise Continuing Care, LLC v. Wright, 277 Va. 148, 671 S.E.2d 132, 135 (2009).

The remainder of the issues raised in the parties' summary judgment motions, as well as during the August 21 hearing, are addressed in this Opinion.

B. Factual Background

Both IDM and Merkle are engaged in the data-driven marketing business. IDM provides data solutions, analytics, and strategies to technology and retail companies for their business-to-business ("B2B") and business-to-consumer ("B2C") marketing needs. See Deck Slater Supp. Pl.'s Opp'n to Merkle's Mot. Summ. J. ("Slater Deck Opp'n MSJ") ¶ 3. IDM's principal place of business is in Reston, Virginia. Its focus is to help its clients achieve their customer acquisition and retention goals, as well as their sales goals. Id. Two key areas of IDM's business are data sourcing and customer data integration ("CDI"). Id. ¶ 4. "Data sourcing involves selecting and acquiring the best data for each [data] solution, including drawing from large data providers to hundreds of niche sources in order to build the greatest depth and accuracy at the best value." Id. "CDI involves matching various data sources using special processes to provide a dataset that has no errors or duplications." Id. ¶ 5; see also Deck Brian Wiedower ("Wiedower Decl.") ¶ 5 (explaining that CDI is the process of consolidating and managing customer information from multiple data sources). CDI is an element of customer relationship management ("CRM") for companies and enables a company to maximize the success of a marketing campaign using customer data. Id.

Merkle's principal place of business is in Columbia. Maryland. It provides data solutions, analytics, and strategies to businesses in support of their B2B and B2C marketing. Both IDM's and Merkle's businesses involve procuring custom data for clients from external data sources and combining it with client internal data to produce custom data-based CRM programs. Both companies compete to provide their data-integrated CRM services to high-tech businesses.

May, a resident of Arkansas, was hired by IDM in January 2012, J. Slip. [Dkt. No. 188] ¶ 5, to open IDM's Little Rock, Arkansas office, see Slater Decl. Opp'n MSJ ¶ 6. May had known Chad Slater ("Slater"), IDM's President and CEO. since 1997 or 1998 through their mutual employment at Acxiom. See IDM Dep. 39, 281. While he was at IDM, May served as the Executive Vice President for Data Integration. On March 11, 2014, IDM terminated May's employment. J. Stip. ¶ 5. Although May signed a Confidentiality Agreement with IDM early on in his employment, he declined to execute the Confidential Separation and Non-Disclosure Agreement that IDM presented to him upon his termination. Id. ¶¶ 7-8. May was clearly unhappy about his separation from IDM, as evidenced by inflammatory text messages he sent after he was terminated, which included statements that he was "[w]aiting on a few job offers to decide to take job [sic] or just steal all of IDM's clients and hire the team in LR [Little Rock] just to f them" and that he could "absof — inglutely" "poach IDM'ers." Decl. Darin D. Thomas Supp. Renewed Mol. Compel Merkle and May ("Thomas Decl.").

On April 29, 2014, May accepted employment with Merkle and began working at Merkle on May 5, 2015. J. Slip. ¶¶ 9, 11. May was hired as a Vice President and Client Partner in the "High Technology/B2B Vertical Markets Group." Id. ¶ 12. Upon learning of May's new employment, IDM's counsel sent letters on May 7, 2014, to both May's attorney at the time (John Coulter) and Merkle's CEO (David Williams) stating that "IDM is closely monitoring this situation in light of the fact that Mr. May is now employed by Merkle, a competitor of IDM, and IDM will aggressively pursue legal action against Mr. May and Merkle in the event IDM becomes aware of a breach of the [Confidentiality] Agreement."

Almost two months later, IDM's counsel reached out to Merkle's general counsel, Beverly Rubin, to express its concern over May working on Merkle's account with Dell, a large client of both IDM and Merkle. In mid-July 2014, Rubin discussed IDM's concerns with May. See Rubin Aff. ¶¶ 12-19 [Dkt. No. 256-1].4 During this conversation, May informed Rubin that he had backed up information from his IDM computer onto a personal external hard drive from lime to lime but "that he did not think he had any IDM information on his personal hard drive, yet he was unsure." Id. ¶ 15. May asked what he should do if he did still have IDM information on his hard drive, and Rubin "made it clear to him that [she] did not want any IDM information here at Merkle. [She] further indicated that he needed to continue to comply with his confidentiality obligations to IDM." Id. ¶ 16.

As it turned out, May had in fact retained a large amount of IDM files on his personal external hard drive following his departure from IDM. See Report on Digital Forensic Examination ("Ball Rep.") 3-9 (Apr. 8, 2015). Based on an examination of the hard drive by IDM's forensic computer expert, Craig Ball ("Ball"), it was determined that May retained possession of many IDM files long after he was fired from IDM and that he later attempted to delete those files from his external hard drive on four separate occasions: July 16, September 7, September 19, and September 22, 2014. See id. The latter two deletions occurred after the original Complaint was filed on September 8, 2014. Based on this evidence, May violated Paragraph 9 of his Confidentiality Agreement, which required that a terminated employee return any and all IDM property or destroy it upon IDM's direction.5 Despite the deletions, it appears from Ball's report that much of the information has been recovered, as Ball was able to list file names and access dates. See id.

In opposing summary judgment, IDM cites numerous examples of what it claims are instances of May and Merkle misappropriating IDM's confidential and proprietary information, including its trade secrets, particularly in light of the IDM files May retained on his external hard drive. The core argument in defendants' summary judgment motions is that there is insufficient evidence that either of them used or benefitted from any IDM information May retained and that none of the information specified by IDM qualifies as a trade secret. They also attack the lack of any evidence of IDM being actually damaged by either defendant's conduct.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment is appropriate "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(a). The movant has the initial burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant files for summary judgment and provides evidentiary support for the motion in accordance with Fed. R.Civ.P. 56(c), "the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted) (emphasis in original). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[W]hen considering a motion for summary judgment, the district court must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion;" however, "those inferences must, in every case, fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture." Thompson Everett, Inc. v. Nat'l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir.1995) (internal quotation marks and citation omitted).

"While it is axiomatic that Rule 56 must be used carefully so as not improperly to foreclose trial on genuinely disputed, material facts, the mere existence of some disputed facts does not require that a case go to trial." Id.; see also Anderson, 477 U.S. at 252, 106 S.Ct. 2505 ("The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient...."). Accordingly, to survive a motion for summary judgment, "[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate to support a jury verdict." Id.; see also Poole v. Pass, 351 F.Supp.2d 473, 478 (E.D.Va.2005). "Thus, if the evidence is `merely colorable' or `not significantly probative,' it may not be adequate to oppose entry of summary judgment." Id. (quoting Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505).

B. Local Civil Rule 56

As an initial matter. IDM does not specifically contest the lists of numbered undisputed material facts in each defendant's memorandum in support of summary judgment. Instead, IDM states in a footnote in its opposition briefs that it "disputes all of May's [and Merkle's] `Undisputed' Material Facts (save for the stipulated facts filed with the Court). The facts the [sic] May [and Merkle] has recited are not in the light most favorable to IDM and are disputed for the reasons set forth herein." Pl.'s Opp'n to May's Mot. Summ. J ("Pl.'s Opp'n May's MSJ") 1 n. 1; Pl.'s Opp'n to Merkle's Mot. Summ. J. ("Pl.'s Opp'n Merkle's MSJ") 3 n. 2. IDM then presents its own version of the facts in narrative format, including citations to its exhibits, rather than in list format, and does not identify which facts, if any, are in dispute.

Defendants argue that IDM's opposition briefs do not comply with Local Civil Rule 56(13), which states: "A brief in response to such a motion [for summary judgment] shall include a specifically captioned section listing all material facts as to which it is contended that there exists a genuine issue necessary to be litigated and citing the parts of the record relied on to support the facts alleged to be in dispute." Local Civ. R. 56(B). Defendants further argue that the Court should accept their lists of undisputed facts as admitted due to IDM's failure to comply with the local rule. See Local Civ. R. 56 ("In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine facts in opposition to the motion.").

In support, defendants cite Lake Wright Hospitality, LLC v. Holiday Hospitality Franchising, Inc., No. 2:07-cv-530, 2009 WL 2606254 (E.D.Va. Aug. 20, 2009), and JDS Uniphase Corp. v. Jennings, 473 F.Supp.2d 705 (E.D.Va.2007), among other cases, in which courts in this district have adopted the moving party's list of undisputed facts because the nonmoving party failed to comply with Local Civ. R. 56(B). In Lake Wright, rather than listing all material facts contended to be in dispute, the plaintiff "set forth its own counterstatement in the 40-page body of its opposition, and then included ... a separate `summary of disputed facts' indexed to the numbered paragraphs of defendants' list of undisputed facts as Exhibit 1 to its opposition." Id. at *3. In addition, the "plaintiff's counterstatement contain[ed] literally dozens of paragraphs that are (A) argument, which has no place in the facts section of an opposition, (B) factual contentions unsupported by citations to record evidence, in violation of this court's Local Civil Rule 56(B), (C) misleading statements, and (D) outright misrepresentations." Id.

Similarly, in JDS Uniphase, the court found that the party moving for summary judgment, the counterclaim-defendant, "submitted a properly captioned statement of undisputed facts with appropriate record citations" but the counterclaim-plaintiff "responded with a narrative that did not identify with any specificity which facts, if any, were disputed." JDS Uniphase, 473 F.Supp.2d at 707. The court concluded, "In these circumstances Local Rule 56(b) dictates that the Court may `assume that facts identified by the moving party in its listing of material facts are admitted.' Accordingly, [the counterclaim-defendant's] statement of material facts is properly deemed to be undisputed." Id.

As in Lake Wright and JDS Uniphase, IDM's narrative version of its own interpretation of the facts fails to comply with Local Civil Rule 56(B), largely contains argument, and makes it difficult to determine exactly which material facts are disputed. Moreover, because of the way IDM responded to defendants' uncontested facts, it effectively denied many obviously uncontestable facts listed by May, such as:

The same is true for at least some of Merkle's listed uncontested facts:

Accordingly, IDM's opposition briefs do not demonstrate a good faith effort to specifically identify which material facts are genuinely in dispute, Therefore, all uncontested facts listed in defendants' opening briefs but not contested by IDM in its argument sections are deemed admitted. Moreover, any new facts included in IDM's narrative fact sections but not specifically discussed within the context of its arguments will not be considered as establishing anything.

C. Preemption Under the Arkansas Trade Secrets Act

Defendants argue that the Arkansas Trade Secrets Act ("ATSA"), and specifically Ark.Code Ann. § 4-75-602 (West), preempts IDM's non-contract claims regarding any of its confidential and proprietary information, even if that information does not qualify as a trade secret. That statutory provision states:

Ark.Code Ann. § 4-75-602 (West). IDM responds that a jury must first decide whether any of the information at issue constitutes a trade secret before the preemption issue can be decided. IDM also argues that the ATSA does not preempt tort claims arising under the law of other states, and further argues that all of its tort claims in fact arise under other states' laws.

After reviewing the cases cited by the parties, the Court is not persuaded by defendants' arguments that the determination of whether the ATSA preempts IDM's tort claims should be made at this time. Although the cases upon which the defendants rely demonstrate that the preemption issue may be decided before trial and that the ATSA may preempt tort claims even if the information underlying those claims is ultimately found not to qualify as a trade secret, each of those cases relies upon a single case from the Arkansas Supreme Court which does not appear to stand for as broad a proposition as defendants assert.

In that case, the Arkansas Supreme Court interpreted the preemption provision for the first time and found that, "[a]s a general rule, courts examine whether the claim is based upon the misappropriation of a trade secret. If so, the displaced claim must be dismissed." R.K. Enter., LLC v. Pro-Comp Mgmt., Inc., 356 Ark. 565, 158 S.W.3d 685, 689-90 (2004). The court then concluded that the ATSA "displaces or preempts the award of damages based upon tort claims for conversion of trade secrets, as well as other tort claims such as conspiracy, that may arise under a claim for misappropriation of trade secrets." Id. at 690. In reaching that conclusion, the court favorably quoted the following from a prior federal district court case interpreting the ATSA's preemption provision:

Id. at 689 (emphasis added) (quoting with approval Vigoro Indus., Inc. v. Cleveland Chem. Co. of Ark., 866 F.Supp. 1150, 1161 (E.D.Ark.1994), aff'd in part, rev'd in part on other grounds sub nom., Vigoro Indus., Inc. v. Crisp, 82 F.3d 785 (8th Cir.1996)). Under this analysis, IDM's tort claims would not be preempted to the extent that they may relate to information that does not qualify as a trade secret, Because the preemption issue need not be decided until a determination is made that there are in fact trade secrets involved in this action, the question of whether the ATSA preempts claims arising under other states' law's need not be addressed at this junction.

D. Trade Secrets Claims

In Counts IV6 and V, IDM raises claims against both defendants for violating the Arkansas Trade Secrets Act, Under the ATSA, a plaintiff may recover damages for any actual loss it suffers caused by misappropriation and for the defendant's unjust enrichment derived from the misappropriation "that is not taken into account in computing damages for actual loss." Ark. Code Ann. § 4-75-606 (West). In addition, "[a]ctual or threatened misappropriation may be enjoined." Ark. Code Ann. § 4-75-604 (West), "Misappropriation" is defined as:

Ark.Code Ann. § 4-75-601(2) (West).

"Trade secret" is defined as "information, including a formula, pattern, compilation, program, device, method, technique, or process," that:

Ark.Code Ann. § 4-75-601(4) (West). Lastly, "improper use" is defined as "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means." Ark.Code Ann. § 4-75-601(1) (West).

"In addition to the statute, [the Arkansas] supreme court has endorsed a six-factor analysis in determining whether information qualifies as a trade secret: (1) the extent to which the information is known outside the business; (2) the extent to which the information is known by employees and others involved in the business; (3) the extent of measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and to its competitors; (5) the amount of effort or money expended by the appellee in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others." LaPointe v. New Tech., Inc., 2014 Ark.App. 346, 437 S.W.3d 126, 130 (2014) (citing Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999)).

"Information must meet both the ATSA definition and all of the six Saforo factors in order to qualify as a trade secret." Wal-Mart Stores, Inc. v. P.O. Mkt., Inc., 347 Ark. 651, 66 S.W.3d 620, 630 (2002). Furthermore, "the [Arkansas] supreme court [has] made it clear that a company must make reasonable efforts to restrict postemployment disclosure of confidential information for that information to be a trade secret." Id. (citations omitted).

To survive summary judgment on its trade secret claims, IDM must come forward with evidence from which a reasonable jury, drawing all reasonable and not merely speculative inferences in IDM's favor, could return a verdict for IDM. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348: Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Thompson Everett, 57 F.3d at 1323. Moreover, summary judgment is appropriate for any claim for which IDM has failed to proffer evidence supporting each element of that claim, provided defendants have moved for summary judgment on that basis. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548 ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...."). IDM has identified the following as the trade secrets misappropriated by May and Merkle.

1. Google Brazil Pricing

IDM claims May disclosed to Merkle IDM's pricing information in connection with a proposal Merkle was preparing for Google work in Brazil, which both Merkle and IDM were competing to win. IDM's theory is that Merkle employees got May to disclose IDM's trade secret pricing information which enabled Merkle to underbid IDM, causing Google to select Merkle for the Google Brazil project before IDM could submit its final proposal to Google. To support this claim, IDM relies on an e-mail chain among a handful of Merkle employees that took place during May's first week with Merkle. See May 11, 2014 Revised Numbers E-mail. The e-mail circulated Merkle's draft costs for its forthcoming proposal to Google. May's sole statement in this e-mail chain was: "Not that I have a ton to add here, but will the client have an issue on the $148 a lead number?" Id. Michael Donovan, a Merkle employee, responded:

Id. There is no evidence of any further response from May to this e-mail. Instead, the original sender, Karen Caulfield, asks Chandos Quill a couple days later to review and finalize the pricing, to which Quill responds. "Hi Karen I have reviewed and updated the lead pricing. It came down some," Id. Merkle's final price per lead was $140.50.

Based on this e-mail exchange, IDM argues that "May had IDM's Google pricing scheme and latest contract status;" "he told the Google team their price per lead was too high;" Donovan "asked May to divulge IDM's pricing strategy for its Google work;" "[t]here were a series of communications over the weekend regarding Merkle's pricing strategy to Google;" and "by the end of the weekend `the price came down some,' not coincidentally to just $1.50 per lead lower than IDM's pricing for Google." Pl.'s Opp'n May's MSJ 21. IDM purports that its "price for Google work is $1427 per lead in North America," Pl.'s Opp'n Merkle's MSJ 12 (citing Slater Deck Opp'n MSJ ¶ 17), although that figure was never revealed by IDM during discovery.

At some point after Merkle submitted its bid for the Google Brazil work, Google stopped communicating with IDM about the project. IDM Dep. 53-54, 65. As a result, IDM never finalized and submitted its own proposal for the Google Brazil work. See id. IDM's damages theory relating to the alleged misappropriation of its pricing information is that May revealed IDM's price for Google North America, enabling Merkle to underbid IDM on Google Brazil, leading to Merkle winning the Google Brazil work and thereby being unjustly enriched by that win.

Although the parties seem to agree that Donovan should not have asked May about IDM's pricing approach, defendants argue that there is no evidence in the record that May ever responded to Donovan's inquiry and, accordingly, no evidence that Merkle used any such information in formulating its final proposal for the Google Brazil work. In his deposition, May testified that later the next week, he spoke with Donovan over the telephone and said something to the effect of "probably shouldn't have done that." May Dep. 355-56. May elaborated that he said this because Donovan's inquiry would have required May to disclose confidential and proprietary pricing information of IDM.8 Id. at 357-58.

Donovan was also deposed, during which he stated that May never responded to his inquiry and never gave him any information regarding Merkle's pricing proposal for the Google Brazil work. Donovan Dep. 130-31. In addition, Quill stated in her deposition, "I was responsible for pricing and I didn't use it." Quill Dep. 31. The parties have not attached the previous page of Quill's deposition containing the particular question posed, but Merkle states in its reply brief that the above-quoted response from Quill was in reference to Merkle's proposed Google Brazil pricing and whether she used any information from May. See Merkle's Reply Supp. MSJ 8. Therefore, there is no direct evidence that May disclosed any IDM pricing information to anyone at Merkle in connection with Merkle's Google Brazil bid.

Although there is no direct evidence of such a pricing disclosure, if IDM can point to reliable evidence in the record that Merkle in fact dropped the price in its Google Brazil bid to just below a known-IDM price, following Donovan's inquiry, that might be sufficient circumstantial evidence to create an issue of fact precluding summary judgment, given that a jury would be entitled to find that pricing information in this context could constitute a trade secret. IDM, however, has produced no such evidence. Instead, IDM has proffered, in a very problematic declaration by Slater submitted for the first time in opposing summary judgment, that its price for Google work in North America is $142 per lead and that May knew that price based on his work for Google while employed by IDM. See Slater Decl. Opp'n MSJ ¶ 7. There is no further explanation in Slater's declaration or in IDM's summary judgment opposition briefs of where this $142 figure comes from or why it was not specifically revealed during discovery, despite Slater being deposed for two full days in both his individual capacity and as the corporate designee for IDM.

Indeed, when Slater testified as IDM's corporate designee, he repeated numerous times that IDM did not use a price per lead pricing system and that he could not give defendants' attorneys any estimated price per lead for work IDM had done for Google. For example:

IDM Dep. 65. IDM was then asked whether it had ever performed work in Brazil for Google:

IDM Dep. 68-69.

Contrary to Slater's deposition testimony. IDM now insists that it has used a price per lead of $142 for Google work and that Merkle reduced its bid to $140.50 to undercut IDM. In his declaration, Slater backtracks on his deposition testimony by explaining that "the price per lead generated is always inherently incorporated into such proposals, and price per lead can be readily calculated from a total cost of the bid by simple mathematics." Slater Decl. Opp'n MSJ $ 16. Slater then states, "IDM's price for Google work is [$1429] per lead in North America. May knew by virtue of his work with IDM, including his work on Google for IDM, that IDM's price for Google work is [$142] per lead." Id. ¶ 17 (emphasis added). IDM does not explain why Slater was able to identify the $142 price per lead in his declaration filed in opposition of summary judgment when he could not give even an estimated price per lead during his depositions. Moreover, the $142 figure is stated in connection with Google North America. Most confusing was that during IDM's deposition, Slater "conceded that if [its] unsubmitted proposal for work in Brazil had been sent to Google, the price per lead would have been calculated at $11.20." Merkle's Reply Supp. MSJ 9 (citing IDM Dep. 74-75). At the August 21 hearing, IDM's counsel explained that the $11.20 price per lead was not a comparable figure because it was a discounted price that IDM charged Google for a test performed in Brazil in an attempt to win the larger Google Brazil contract. See Tr. Aug. 21 Hr'g 20-21. Therefore, no evidence has been presented as to what pricing IDM was considering using in its never-finalized proposal for the Google Brazil project.

At the August 21, 2015, hearing, IDM explained for the first time that the $142 figure is derived from Statements of Work ("SOWs") between IDM and Google for work in North America which were purportedly produced by IDM in discovery but have not been presented to the Court. IDM's counsel claimed, without citing to record evidence, that May retained possession of those SOWs after he began working for Merkle and could have calculated the $142 price per lead from them and thereby disclosed that figure to Merkle, See Tr. Aug. 21 Hr'g 20. Despite having enlisted a forensic computer expert to examine May's external hard drive, who then reported on the files retained on May's hard drive after his termination date, IDM has not cited to any evidence from that expert showing that May in fact retained the SOWs at issue, nor has IDM submitted those SOWs to the Court as evidence of its claim that it used a $142 price per lead for its Google North America work, Without such evidence, Slater's eleventh hour declaration, devoid of any explanation of the basis for that figure, does not provide adequate evidence from which a reasonable jury could find in favor of IDM's price-undercutting theory. Accordingly, summary judgment will be granted for the defendants to the extent this claim is raised under the ATSA.

In addition to IDM's claim under the ATSA against both defendants, IDM argues that it also has a claim against Merkle under the North Carolina Trade Secrets Protection Act ("NCTSPA") based on the same price-undercutting allegations because Donovan was working at Merkle's location in North Carolina when he sent the e-mail asking May about pricing. See Pl.'s Opp'n Merkle's MSJ 22 n. 17. Assuming IDM can bring a claim under the NCTSPA, the same conclusion results because the substantive state law does not change the summary judgment standard in Fed.R.Civ.P. 56, as applied by federal courts. Merkle has put forth substantial evidence that it did not receive or use any IDM pricing information in preparing its Google Brazil bid. The sole evidence IDM has put forth is Slater's "own, self-serving and conclusory affidavit." without any corroborating evidence, which "is insufficient as a matter of law to counter [Merkle's] substantial evidence ... and to stave off summary judgment." Malghan v. Evans, 118 Fed.Appx. 731, 733 (4th Cir.2004). Therefore, this claim fails.

2. IDM's Fuzzy Matching CDI

IDM's next trade secret misappropriation claim focuses on a telephone conversation between Brian Wiedower ("Wiedower"), who was then IDM's Director of Data Integration, and Joseph Tobey ("Tobey"), who is Merkle's Director of DataSolutions Operations. Specifically, IDM alleges that during May's second week at Merkle, he set up a conference call for May 15, 2014, between Wiedower and Tobey, during which Wiedower disclosed IDM trade secret information to Tobey. It is undisputed that this telephone conference occurred and that the participants discussed Alteryx, a commercially available software package that anyone may purchase. Alteryx can be used to perform data hygiene and data analytics, see Decl. Joseph Tobey ("First Tobey Decl.") ¶ 3 (June 14, 2015), and can be utilized for customer data integration, see Wiedower Decl. ¶ 4. Alteryx comes with built-in features, including its Fuzzy Matching Tool which can be used to identity similar records from multiple data sources.10 See First Tobey Decl. ¶ 6. Alteryx can also be customized for a user's needs through programming. See Wiedower Decl. ¶ 4.

The only evidence IDM provides as to its claim that trade secret information was revealed in this conversation are a declaration from Wiedower and a May 13, 2015, e-mail from Merkle employee Scott Cone ("Cone") to Tobey.11 In that May 13 e-mail, Cone asked Tobey the following: "Joe — do we have a copy of Alteryx in house? Maybe that can help the company name matching problem that Thomas and Steven are working on for google." MERKLE_000054. Apparently on the same day, May set up a conference call for May 15 between Wiedower and Tobey. See Wiedower Decl. ¶ 10. May also sent Wiedower an e-mail invitation to the conference call on the morning of May 15. See id. Ex. A. According to Wiedower's declaration:

Defendants provide two declarations from Tobey.12 In his first declaration, Tobey avers that Wiedower only explained "the basic functionality of Alteryx and its Fuzzy Matching Tool" and that the information Wiedower provided was "general in nature and was very similar to the information provided on Alteryx's public website or by using the templates provided in the software package." First Tobey Decl. ¶ 9. Tobey further avers that "at no time during this call do I recall ever discussing any customer data integration (`CDI') rules or ever discussing with Mr. Wiedower how IDM utilizes Altery[x]." Id. ¶ 13.

Assuming that Merkle's "company name matching problem" was a topic of conversation during the conference call, which Tobey denies,13 defendants argue that IDM's failure to specifically identify what Wiedower disclosed is fatal to its claim. Specifically, defendants contend that merely stating the generic descriptor "fuzzy matching techniques" fails to identify any alleged confidential information or trade secret and therefore is not sufficient to create a triable issue of fact. See, e.g., May's Reply Supp. MSJ 18 ("Alteryx is a publicly-available data program and like any program such as Microsoft Word, PowerPoint or other programs, different users can have greater familiarity with a program's functionality. Thus, Mr. Wiedower's declaration that he helped solve an Alteryx problem provides no insight.").

Given that Wiedower is IDM's witness, and IDM chose to obtain a declaration from him, there is no reason why IDM could not have had Wiedower articulate in his declaration what proprietary IDM information regarding "fuzzy matching techniques" he disclosed to Tobey. Merely stating "information regarding ... fuzzy matching techniques" does not provide enough evidence from which a reasonable jury could determine whether the disclosed information satisfies the ATSA definition of a trade secret and the Saforo factors, particularly because that term would seemingly cover the built-in functions of Alteryx's Fuzzy Matching Tool, which are publicly available to all who purchase that software.

Finally, May argues, "IDM does not show how Mr. May is liable for Mr. Wiedower's decision to reveal any confidential information during a call or how Mr. May could distinguish between what information resid[ed] in Mr. Wiedower's head that IDM considered confidential or not." Id. IDM has not cited any authority for its position that because May set up the telephone conference and was present during the call, he should be liable for anything improper Wiedower may have said. Therefore, IDM's trade secret misappropriation claim based on the telephone call between Wiedower and Tobey does not survive summary judgment.

3. IDM's CPI for Blanking the Middle Name

IDM's next alleged trade secret relates to work that IDM and Merkle collaborate on for Dell, their mutual client. It is undisputed that Merkle houses Dell's Global Marketing Database ("GMDB") and IDM provides data to be entered into that database, See Pl.'s Opp'n Merkle's MSJ 6. In June 2014, Merkle discovered a problem with the way data contacts were being displayed in print-out form from the database for a particular marketing campaign. As a result of this discovery, an e-mail discussion ensued between Chris Treacy ("Treacy"), a Dell employee; various Merkle employees, including Carla Haller ("Hatler"); and Janice Grayson ("Grayson"), an IDM employee. See MERKLE_0000159 ("Blank the Middle Name E-Mail"). The following are the relevant portions of that e-mail exchange:

Later that same day, Merkle's Hatler provided an update to Dell's Treacy. IDM's Grayson was not part of the continued e-mail exchange:

At this point, it appears that Dell's Treacy forwarded the entire above e-mail exchange to May and then asked him the following: "Hey, bro. do you remember this from way back when? They are getting first name and dell feeds full name (with first). I remember long ago when we were dealing with address std we ran into this. Just so long ago, you were just starting." May responded to Treacy:

Blank the Middle Name E-Mail.

IDM contends that May's response constituted a disclosure of a confidential CDI rule of IDM's that amounted to a trade secret. Defendants argue that May's four-sentence, high-level e-mail cannot constitute disclosure of a trade secret or confidential information because it does not rise to the requisite degree of sophistication and because the information he conveyed was not a secret. Specifically, Merkle argues that May's e-mail does not satisfy the two Saforo factors that take into consideration "the extent to which the information is known outside the business" and "the extent of measures taken by [plaintiff] to guard the secrecy of the information." Wal-Mart, 66 S.W.3d at 630 (quoting Saforo, 991 S.W.2d at 120-21).

The information May conveyed to Dell's Treaty was clearly not a secret and was known by those outside of IDM. Before Treacy had forwarded the above e-mail exchange to May, Merkle employee Hatler had already suggested to Treacy the remedy of blanking out the middle names. See Blank the Middle Name E-Mail ("We can alter the CDI code to blank out the middle name in KL if it is equal to the first name. Thomas has already given the team approval to make this change."). Furthermore, in his deposition, Merkle employee Adam Mincham explained that "blanking a name is very common in CDI processing." See Mincham Dep. 85, 87. In addition, Slater, IDM's CEO, admitted in deposition that the "Jira ticket" May referenced was not anything recorded in an IDM system,14 see Slater Dep. 84-85; rather, a Jira ticket is an electronic record in Merkle's project-tracking software. See Mincham Dep. 75. Therefore, it is clear that May was not referring to any of IDM's proprietary information or trade secrets in this e-mail,

Defendants further argue that even if the "blanking the middle name" fix constituted confidential or trade secret information, it would belong to Dell under the SOW between Dell and IDM. In contrast, IDM contends that this particular CDI solution belongs to IDM. The parties rely on the language of the SOW, which states in relevant part:

IDM000325.

Defendants argue that the blank-the-middle-name fix constitutes a "deliverable" belonging to Dell. In support, they cite IDM's deposition, in which Slater admitted that the fix was a deliverable. See IDM Dep. 200.15 IDM argues that the fix constitutes a pre-existing methodology or process owned by IDM and the deliverable referenced by Slater was the dataset that resulted from the fix. IDM acknowledges, however, that any of its pre-existing methodologies and processes used in the context of that SOW were licensed to Dell "in perpetuity," See Pl.'s Opp'n Merkle's MSJ 16 ("[The SOW] specifies that all pre-existing methodologies and processes of IDM remain IDM's property, with Dell being granted a license on such information."). Therefore, even if, as IDM argues, the blank-the-middle-name fix was a solution owned by IDM rather than a deliverable, Dell was licensed to use that solution and May did not inform Dell (through Treacy) of any information to which Dell was not already privy. Accordingly, IDM has not proffered sufficient evidence, in light of defendants' substantial evidence on this point, from which a reasonable jury could find in its favor, and summary judgment will be granted for defendants.

4. List of Potential Vendors for Samsung

IDM claims that May disclosed IDM trade secret information by providing to Merkle employees the names of four IDM data vendors and an estimate of what those vendors might charge in connection with a proposal Merkle was preparing to obtain work from Samsung. The evidence related to this allegation is the following mid-May 2014 e-mail exchange16 between May and Merkle employees, including Mark Engelke ("Engelke") and Cathy MacDonald ("Macdonald"):

Two weeks later, Harold Schambach. another Merkle employee, asked MacDonald if she had looked into May's suggested sources yet. She responded:

May 16, 2014 Samsung Smartphone E-mail.

IDM argues that May's statements in the above e-mail exchange constitute a disclosure of IDM trade secret information because IDM expends considerable resources vetting potential data vendors, testing the quality of their data, and developing pricing models based off of the vendors' costs.17 Defendants argue that the data vendors listed by May are publicly known companies and simply naming those companies cannot constitute disclosure of confidential information or a trade secret.

Citing to one unpublished case, IDM broadly argues that "[v]endor information... qualifies as a trade secret." Pl.'s Opp'n May's MSJ 22 (citing Illumination Station, Inc. v. Cook, No. Civ. 07-3007, 2007 WL 1624458 (W.D.Ark. June 4, 2007)). Before the court in Illumination was a motion to dismiss the tort claims in the plaintiff's complaint as preempted by the ATSA. The court stated:

Illumination, 2007 WL 1624458 at *3. IDM's reliance on Illumination ignores that court's specific finding that the vendor information at issue, which was not specified, "derive[d] value from the fact that only [the plaintiff] and its agents kn[e]w it," id., which is not the case for the four vendors listed by May, as MacDonald responded that Merkle was "definitely familiar with these vendors" and their general price offerings. See May 16, 2014 Samsung Smartphone E-mail. Therefore, Illumination is not dispositive of this issue. As IDM has urged many times, the determination of what qualifies as a trade secret is fact-specific; thus, to survive summary judgment, IDM must point to sufficient evidence from which a reasonable jury could find that May's list of four vendors revealed an IDM trade secret.

For evidence of the confidential and trade secret nature of the identities of the four vendors listed by May, IDM relies solely on the deposition testimony of two IDM employees, Rocky Beal ("Beal") and Frank Gangemi ("Gangemi"), and one Merkle employee, Marc Fanelli ("Fanelli"). The relevant portions of these depositions are as follows:

Beal Dep. 208-09.

Gangemi Dep. 182.

Fanelli Dep. 91-92. Nothing in any of these depositions provides evidence from which a reasonable jury could find that May's e-mail constituted a disclosure of confidential or trade secret information.

IDM's only other evidence appears in Slater's declaration, in which he avers that "though data vendors may be publicly searchable companies, their offerings are not necessarily publicly available, or even readily available in the industry — and the quality of the data is not available until purchased or tested." Slater Decl. Opp'n MSJ ¶ 20 (emphasis added). This statement provides no information about the four specific data vendors listed by May, provides no support for IDM's contention that the identities of those four vendors is a trade secret, and even acknowledges that some data vendors' offerings are publicly available.

Furthermore, in terms of the pricing information in May's e-mail, it is May's unrebutted testimony that he estimated the cost for those vendors based on his general knowledge of the market rather than any information he learned at IDM:

May Dep. 164. Therefore, there is no evidence that he used confidential or trade secret information in reaching his pricing estimate for the four vendors he listed.

Finally, IDM has not pointed to any evidence showing that Merkle used any of those four vendors in its work for Samsung; accordingly, there is no evidence that Merkle was unjustly enriched through use of any of IDM's vendor information. In addition, Samsung was never a customer of IDM; therefore, IDM has suffered no lost profits from Merkle's dealing with Samsung. In sum, IDM has not provided sufficient evidence from which any reasonable juror could find that May's identification of the above-four vendors, along with his statement that Merkle may be able to purchase the data it sought from these vendors at a cost of $30-35/CPM, satisfies all of the criteria to qualify as a trade secret under the ATSA, nor has IDM shown any damages it could recover on this claim, Therefore, this claim does not survive summary judgment.

5. IDM's New Business Trigger Program

IDM also alleges that May improperly disclosed information about its New Business Trigger Program. IDM bases this claim on one e-mail exchange. In September 2014, IDM employee Grayson forwarded to Dell and Merkle an IDM "workflow" for a new project that IDM was doing for Dell, called the New Business Trigger program. An internal conversation between Merkle employees discussed the implications of this new IDM program for Merkle. as both IDM and Merkle were working for Dell. May's only input during this Merkle-employee e-mail exchange was: "But my point is, there are still suppressions, knocking out customers, etc. that have to be accounted for in the process. How is that going to happen? The flow Anant forwarded would assume IDM had all of those files & customers onsite to do the work. To my knowledge, that does not exist, so how is that data going to be accessed?" See September 8, 2014 New Biz Trigger Disclosure E-mail. Anant Veeravalli, a Merkle employee, responded, "Dell is going to send a weekly source file to IDM and Terry/Mike told me that this processing intelligence is going to be managed at IDM. Not sure how." Id.

IDM claims that May's e-mail statement "disclosed specifics about IDM's capacities to fellow Merkle executives based on his information gained while working at IDM." Pl.'s Opp'n May's MSJ 24. IDM provides no further explanation or support for why May's statement about IDM not having files and customers onsite revealed confidential or trade secret information. To the extent that IDM claims that May disclosed other information about its New Business Trigger program, IDM has cited no evidence to support that claim. In fact. Beal. IDM's Executive Vice President for Client Services, admitted in his deposition that IDM gained its New Business Trigger work with Dell after May had already left IDM. See Beal Dep. 47-48. Moreover, it is May's unrebutted testimony that he did not know anything about that program, See May Dep. 439 ("Q: What is New Biz Trigger logistics? May: I have no idea."). Accordingly, IDM has not provided any evidence from which a reasonable jury could find that the contents of May's statement rise to the level of a trade secret under the ATSA.

6. May's Alleged Disclosures to Third Parties

In addition to arguing that May disclosed IDM information to Merkle, IDM contends that May disclosed IDM trade secrets to three additional parties: Todd Greer ("Greer"), an investor. see May's Dep. 218; Gerard Daher ("Daher"), the president and CEO of Speedeon Data LLC ("Speedeon"), which is a data vendor for IDM's "new mover program;" and Joy Garcia ("Garcia"), an employee of former-IDM client Stage Stores.

First, IDM asserts that May and Greer had "extensive discussions" about setting up a new business venture with Speedeon and, in April 2014, May met with Greer and Speedeon CEO Daher to further discuss their plans. See Pl.'s Opp'n May's MSJ 24 (citing May Dep. 223-24, 280). In preparation for that meeting, the following e-mail exchange occurred between May, Daher, and Speedeon employee Michelle Harness ("Harness"):

Michelle Harness E-mail (May-000307). May forwarded this e-mail exchange to Harness, to which she replied:

Id. IDM characterizes the above e-mail as Harness telling "May that Daher would be interested in May and Greer providing IDM information at the meeting to determine whether to invest in Greer and May's business." Pl.'s Opp'n May's MSJ 23. This e-mail exchange does not provide evidence from which a reasonable jury could conclude that May disclosed trade secret information to Daher, nor does IDM explain what trade secret information it claims May disclosed.

In late August and early September 2014, May and Greer were still in talks with Speedeon about setting up a new business venture, which they had begun referring to as "Junction Bridge."18 See GREER 000823. To this end, May, Greer, and Daher held another meeting on September 4, 2014. See id. IDM asserts that "[i]mmediately after" that meeting, "IDM's client The Home Depot (also a client of Speedeon's) inquired directly regarding IDM's data-processing methodologies." Pl.'s Opp'n May's MSJ 24. In support of that assertion, IDM cites only to one e-mail exchange between IDM employee Joel Lanphier ("Lanphier") and Home Depot employee Phil Wheaton ("Wheaton"), for which the subject line reads "New Mover Results-August 2014 Update," The exchange is as follows19:

IDM fails to explain what the connection is between Wheaton's question to IDM, which was apparently in direct response to an e-mail from IDM's Lanphier, and the meeting between May, Greer, and Daher. IDM also fails to explain how Wheaton's question provides any evidence that May disclosed any IDM trade secrets to anyone.

IDM further asserts that it "received a similar methodology-inquiry e-mail from Joy Garcia shortly after contact with May." Id. That email from Garcia to IDM employee Beal stated, "Can you confirm which 3 sources of SOW data we currently have available to us?" April 7, 2014 e-mail from Garcia to Beal. IDM fails to explain how Garcia's one-sentence e-mail provides evidence showing that May disclosed IDM trade secrets to Garcia. See Pl.'s Opp'n May's MSJ 23-24.

Lastly, IDM contends that May disclosed trade secret information to Greer in relation to yet another potential business venture the two worked on together, called Data Co. Specifically, IDM asserts that "[t]he sales plan of Data Co[.] is identical to the sales plan of IDM's retained by May on his hard drive, i.e., Data Co[.]'s sales plan is a virtual carbon copy of IDM's sales plan, right down to the formatting and text. (Ball Report.)" Id. at 24. Despite this assertion, Slater was unable to identify the IDM document at issue during his deposition as IDM's corporate designee. See May's MSJ 20-21 (citing IDM Dep. 344).20 Given that Slater apparently had no knowledge of the document, and that IDM has not even provided the document as an exhibit to its opposition briefs, IDM has failed to produce any evidence from which a reasonable jury could find that the document qualified as a trade secret under the ATSA and applicable Saforo factors. Moreover, IDM has not provided any evidence that Data Co. was ever formed or ever received any revenue; therefore, IDM cannot point to any damages or unjust enrichment from any misappropriation of this document.

7. Circumstantial Evidence of "Other" Misappropriation

During the August 21 hearing, in response to the Court's inquiry regarding exactly what trade secrets IDM believed were misappropriated, IDM's counsel argued that it should not be limited to the specific instances of alleged misappropriation discussed above:

Tr. Aug. 21 Hr'g 5-6.

Id. at 9-10.

Essentially, it is IDM's position that May and Merkle should be liable for all of the IDM information retained on May's hard drive regardless of the lack of evidence that any of that information was a trade secret and the lack of evidence that any information was passed on to Merkle or used by May, Merkle, or third parties to their benefit. Although circumstantial evidence can be sufficient to survive summary judgment, in this case, it is not, particularly in light of how weak the direct evidence discussed above is. IDM has had many months of discovery in this matter and still cannot point to direct or circumstantial evidence that May or Merkle actually used and benefited from particular confidential or trade secret information belonging to IDM.

Lastly, IDM contends that it may establish defendants' liability on the trade secrets claims based on the doctrine of "inevitable disclosure." under which "a plaintiff may prove a claim of trade-secret misappropriation by demonstrating that a defendant's new employment will inevitably lead him to rely on the plaintiff's trade secrets." Cardinal Freight Carriers, Inc. v. J.B. Hunt Transp. Servs., Inc., 336 Ark. 143, 987 S.W.2d 642, 646 (1999). Specifically, IDM argues that the Court should find that May would inevitably disclose IDM trade secrets by virtue of his employment with Merkle on accounts that were directly competitive with IDM, such as Google and Dell. See Pl.'s Opp'n May's MSJ 20.

May responds that "the mere fact a person assumes a similar position at a competitor does not, without more, make it inevitable that he will use or disclose trade secrets." May's Reply Supp. MSJ 8 (quoting Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468, 475 (1999)). For example, in Cardinal Freight, inevitable misappropriation was found based on specific evidence that the plaintiff's former employees' new employer, Cardinal, "had no compunction about using or disclosing information covered under [the plaintiff's] confidential agreement to gain an unfair competitive advantage." Cardinal Freight, 987 S.W.2d at 647. The evidence showed "that (1) Cardinal's president said that he would approve telling customers where Cardinal is better than [the plaintiff], and would approve comparing [the plaintiff's] future plans and operational capabilities; and (2) Cardinal or its employees expressed an intention to exploit the holes in [the plaintiff's] program (software)." Id. IDM has provided no such evidence of bad faith on Merkle's part. Moreover, to receive the benefit of the inevitable disclosure doctrine, a plaintiff must still identify information qualifying as a trade secret that will be inevitably disclosed, which IDM has not done. See ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725, 731 (2000) (reversing trial court's grant of an injunction based on a finding of inevitable disclosure because the information to be disclosed did not qualify as a trade secret).

For these reasons, summary judgment will be granted to May and Merkle on IDM's misappropriation of trade secrets claims, respectively Counts IV and V.

E. Conversion

The conversion claim in Count III alleges that May converted IDM's confidential and proprietary information. In his Motion for Summary Judgment, May challenged Count III as preempted by the Arkansas Trade Secrets Act. The Court has already concluded that the ATSA does not preempt claims that are not based upon misappropriation of trade secrets and has already found that IDM did not produce sufficient evidence from which a reasonable jury could find that any of the information specifically identified by IDM constitutes a trade secret. Therefore, Count III is not preempted.

May also argues that there is insufficient evidence of damages under Arkansas law.21 "The proper measure of damages for conversion of property is the market value of the property at the time and place of the conversion." Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877, 881 (1991). IDM responds that it has provided "evidence of financial information, with expenses incurred in labor and development, and supporting documents with calculations for the previous five years." Pl.'s Opp'n May's MSJ 29. In support, IDM cites to four pages of its deposition testimony and to Plaintiff's Third Supplement to Its Objections and Responses to Defendant Drew May's First Interrogatories to Plaintiff ("Third Supplemental Responses").

In its Third Supplemental Responses, IDM listed its damages in four separate categories without tying any particular damages to any particular count in the Amended Complaint. The only category of damages that would relate to the conversion claim is the category of "value and development costs."22 See Pl.'s Third Suppl. Resp. 6. IDM explained its value and development costs as follows:

Id. In the version of the Third Supplemental Responses produced to the Court, there are no calculations demonstrating how the above amounts were determined.23

The portions of the four deposition pages cited by IDM as evidence of damages are as follows:

IDM Dep. 127-128.

IDM Dep. 235-36. Nothing in IDM's depositions or its Third Supplemental Responses provides sufficient evidence upon which a reasonable jury could calculate the market value of any converted information, as opposed to IDM's roughly estimated development costs.

Although it does not appear that IDM has produced sufficient evidence from which a reasonable jury could calculate the market value of any of its confidential and proprietary information with reasonable certainty, actual damages are not an essential element of conversion under Arkansas law.24 See Elliott, 817 S.W.2d at 880 (defining conversion as "any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner's right"). A finding of a lack of actual damages does not preclude a finding of liability for conversion. See, e.g., Schmidt v. Stearman, 98 Ark.App. 167, 253 S.W.3d 35, 43 (2007) ("[T]he jurors in this case, if they gave credence to the [defendant's] return of the property, were constrained to fill out their verdict form in favor of [the plaintiff] on conversion but award a reduced amount, possibly zero, in damages. The return of property could not support the jury's outright finding in favor of [the defendant], which amounts to a finding that no conversion took place."); see also Manhattan Credit Co. v. Skirvin, 228 Ark. 913, 311 S.W.2d 168, 170 (1958) ("We hold ... since there was a conversion and, consequently, an invasion of appellee's rights, he is entitled to nominal damages which we fix at $10."): Barlow v. Lowder, 35 Ark. 492, 493 (1880) ("It is doubtless true that some damages are always presumed to follow from the violation of any right, and therefore the law will in such cases award nominal damages, if none greater be proved."). Therefore, IDM's conversion claim will go forward, but the evidence of actual damages will be stricken as there is insufficient evidence in this record to support any actual damages.25 Accordingly, IDM will only be entitled to nominal damages and injunctive relief if the jury finds in its favor on Count III.

F. Breach of Fiduciary Duty

In Count II of the Amended Complaint, IDM alleges that "May breached his fiduciary duties to IDM by misappropriating and disclosing IDM's confidential information." Am. Compl. ¶ 73. No further description of this allegedly wrongful conduct is provided in Count II. Nevertheless, in its memorandum opposing May's Motion for Summary Judgment, IDM characterizes its breach of fiduciary duty claim in an entirely different manner by describing the breach as May's "setting up competing data-marketing tech companies while still employed, using IDM's computers, using IDM's Little Rock offices, and attempt[ing] to `poach IDMers' [i.e., IDM employees]." Pl.'s Opp'n May's MSJ 25 (citations omitted).

As May properly argues, it is well settled that "a plaintiff may not raise new claims after discovery has begun without amending his complaint," Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir.2009). There is no indication in Count II that IDM intended to include a claim for breach of fiduciary duty based on setting up competing enterprises, and there is no mention of May attempting to set up such enterprises anywhere in the Amended Complaint. Furthermore, IDM has not sought to amend the complaint to add such a claim based on any evidence it received during or after discovery. Therefore, any claim of breach of fiduciary duty based on May's attempts to start competing business ventures fails.

Even if IDM had sought leave to amend its breach of fiduciary duty claim based on its newly-asserted allegations, that claim would be meritless because there is no evidence that May actually set up any competing businesses or stole any IDM employees and, therefore, there is no evidence that IDM has been damaged or that May has been unjustly enriched based on that conduct.26 See Giroir v. MBank Dallas, N.A., 676 F.Supp. 915, 919 (E.D.Ark. 1987) (stating the elements of breach of fiduciary duty as "the existence of a fiduciary relationship between the parties, a breach of the defendant's duty to the plaintiff within that relationship, and the resultant damages to the plaintiff" (citing Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802, 808-10 (1958))); see also Golden Tee, Inc. v. Venture Golf Sch., Inc., 333 Ark. 253, 969 S.W.2d 625, 631 (1998) (plaintiffs' failure to allege individual injuries resulting from defendant's breach of fiduciary duty, among other reasons, caused that claim to fail). By the same reasoning, the breach of fiduciary duty claim as it is stated in the Amended Complaint also fails because IDM has not cited to any evidence showing either that it suffered actual damages or that May was unjustly enriched by misappropriating or disclosing any IDM confidential information. See Pl.'s Opp'n May's MSJ 19.

G. Intentional Interference with Business Expectancies

In Count VI of the Amended Complaint, IDM alleges "that there is a reasonable certainty that, absent May and Merkle's improper and intentional misconduct as set forth above [in the Factual Allegations section], including May's breach of his Confidentiality Agreement, IDM would have realized the expectancy of future business with Google, Dell, Stage Stores, and other clients." Am. Compl. ¶ 104. The only other IDM clients referenced in Count VI are J.C. Penney and Exclusive Resorts. See id. ¶¶ 101-02. In opposing summary judgment, IDM appears to have limited Count VI to its theory that May proximately caused Stage Stores to cease doing business with IDM by introducing Stage Stores to another entity, Infogroup's YES Lifecycle Marketing ("Infogroup" or "YLM"), which Stage Stores then began doing business with in lieu of IDM. See Pl.'s Opp'n May's MSJ 25-26; Pl.'s Opp'n Merkle's MSJ 29. IDM points to no evidence in the record of any tortious interference with respect to its other named clients, and none of the Stage Stores allegations involved conduct by Merkle, even though Merkle is included as a defendant in that count.

IDM asserts that Virginia substantive law governs Count VI. See Pl.'s Opp'n Merkle's MSJ 29 n. 22. "In Virginia, [c]ourts have listed the elements of a prima facie case of tortious interference with prospective business advantages and relationships as (1) The existence of a valid business expectancy with a probability of a future economic profit; (2) Defendant's knowledge of the expectancy; (3) A reasonable certainty that absent the defendant's misconduct, the plaintiff would have realized the expectancy; and (4) Damage to the plaintiff."27 Stone Castle Fin., Inc. v. Friedman, Billings, Ramsey & Co., 191 F.Supp.2d 652, 660 (E.D.Va.2002) (internal quotation marks omitted). "When a claim for tortious interference involves a business expectancy, "the plaintiff must show that the defendant's actions were improper." Id. (internal quotation marks omitted). "Under Virginia law, misuse of inside or confidential information, or breach of a fiduciary relationship, constitute improper actions." Id. (internal quotation marks omitted).

IDM's allegation that May improperly caused Stage Stores to cease doing business with IDM rests solely on a series of e-mails between Stage Stores employee Garcia and May, as well as e-mails between Garcia and Beak IDM's Executive Vice President of Client Services28:

In response, Merkle has submitted an affidavit from Garcia which contains the following relevant statements:

IDM first argues that Garcia's affidavit is contradicted by the e-mail exchange because, "contrary to paragraph 10 of her affidavit, Garcia not only spoke to May regarding IDM business after his termination from IDM, but Garcia first learned of [Infogroup] — the company to which IDM lost Stage Store's [sic] database business — from May himself while he was `onsite at Merkle' to finalize his deal." Pl.'s Opp'n to May's MSJ 25. The content of the e-mails reveals that Garcia and May discussed May's departure from IDM and Stage Stores' decision regarding which company to choose to "build out" its new database. Those conversations do not constitute discussions "regarding IDM business." Moreover, even if May had introduced Stage Stores to Infogroup, IDM has not cited any authority supporting a claim that such conduct was improper, given that May was no longer an employee of IDM on the date of his first e-mail to Garcia.

IDM next argues that Garcia's affidavit cannot be taken at face value because, "contrary to paragraph 9 of her affidavit, Ms. Garcia informed May that Stage Stores rejected IDM's business after his termination from IDM and upon direct questioning by May." Id. at 26 (emphasis in original). Although it is true the parties have stipulated that May's employment was terminated on March 11, 2014 (the date when Slater informed him of his termination), there was a period of time following March 11 during which IDM and May were winding down their relationship. For example, IDM offered May a Confidential Separation and Release Agreement, which he declined to execute, IDM had May's office belongings packed up and delivered to his home, and May told Garcia in his March 22 e-mail that his separation from IDM was not yet finalized. Any disagreement over whether Garcia told May about Stage Stores' decision before or after his employment with IDM ended is based purely on semantics and, in any case, is immaterial because IDM has not cited any authority showing that it was in any way improper for May to ask Stage Stores which company it chose to build its database, regardless of whether or not he was still employed by IDM.

Lastly, IDM attempts to dispute Garcia's affidavit by stating that "Garcia did not actually inform IDM until two weeks later, on April 23, 2014, that Stage Stores chose YLM and IDM had lost the business, and falsely told IDM that `I haven't heard from Drew .... did he land somewhere or is he opening his own database business.'" Id. There is no evidence that Garcia's statement that she had not heard from May is false, given that the last produced communication between the two of them had occurred two weeks earlier and May still had not been able to tell her at that point whether he would be joining Merkle or starting his own business. Once again. IDM cites no authority for why it would be improper on May's part for Garcia to have informed him of Stage Stores' decision before informing IDM.

Overall, the e-mails cited by IDM corroborate, rather than call into question, Garcia's stated reasons for Stage Stores' decision to choose a company other than IDM for its new database work. Drawing all reasonable inferences in IDM's favor, nothing in any of these e-mails provides any direct or circumstantial evidence of misconduct on May's part or casts doubt on the accuracy of Garcia's affidavit, and none of IDM's arguments provide a basis upon which any reasonable juror could find that May improperly interfered in any IDM business expectancy.

The sole basis for IDM bringing this identical intentional interference claim against Merkle is that May told Garcia that he would be onsite at Merkle during the first week in April, and then May inquired as to Stage Stores' decision on Monday of the second week of April. IDM fails to present any evidence that Merkle had any connection to Stage Stores. Because this claim is clearly meritless, defendants will be awarded summary judgment on Count VI.

H. Unjust Enrichment Claim and Other Relief Sought

In the final count in the Amended Complaint, Count VII, IDM alleges that by "improperly using IDM's proprietary and confidential information to compete against IDM, May and Merkle have been unjustly enriched." Am. Compl. ¶ 108. Specifically, IDM alleges that defendants have knowingly "received value and retained the value of the confidential and proprietary information obtained from IDM without just compensation," under circumstances in "which May stole and passed on IDM's information to Merkle," thereby rendering it inequitable for defendants to retain the benefit of IDM's information without paying value for it. Id. ¶¶ 109-11. The elements of a cause of action for unjust enrichment are "(1) a benefit conferred on the defendant by the plaintiff; (2) knowledge on the part of the defendant of the conferring of the benefit; and (3) acceptance or retention of the benefit by the defendant in circumstances that render it inequitable for the defendant to retain the benefit without paying for its value." Tao of Sys. Integration, Inc. v. Analytical Servs. & Materials, Inc., 299 F.Supp.2d 565, 576 (E.D.Va.2004); see also Robinson v. Fountainhead Title Grp. Corp., 447 F.Supp.2d 478, 493 (D.Md.2006) (same); Hatchell v. Wren, 363 Ark. 107, 211 S.W.3d 516, 522 (2005) ("[A]n action based on unjust enrichment is maintainable where a person has received money or its equivalent under such circumstances that, in equity and good conscience, he or she ought not to retain.").32

Aside from the information discussed in the context of the trade secrets claims, IDM has not identified any other specific information that May or Merkle are alleged to have used to their monetary benefit. Therefore, Count VII fails for all the reasons stated above with respect to the information underlying IDM's trade secrets claims, most notably because IDM has not provided sufficient evidence from which a reasonable jury could find that May or Merkle knowingly used any trade secret or confidential IDM information to benefit themselves. To the extent that IDM argues that it is entitled to relief on its other counts based on an unjust enrichment theory of damages, that argument fails as well for all the reasons stated in the discussion of those counts.

In opposing summary judgment, IDM argues for the first time that May has been unjustly enriched by his salary from Merkle because, IDM contends, Merkle hired May in large part because of his knowledge of IDM information. IDM cites no authority for the proposition that an individual's salary can constitute unjust enrichment and, in any case, Merkle pays May a lower salary than he received from IDM.

IDM also argues that summary judgment cannot be granted on the issue of unjust enrichment while its Motion to Compel Merkle to produce financial information relating to Merkle's profits from certain clients remains pending. Because none of IDM's claims against Merkle can survive summary judgment, no additional discovery into Merkle's financial information is appropriate. For this reason, IDM's pending Motion to Compel will be denied.

Finally, because the Court has already found that summary judgment is appropriate in favor of Merkle on all counts against it, the remainder of the parties' damages arguments with respect to those counts need not be addressed. For the same reason, IDM is not entitled to any injunctive relief against Merkle. Similarly, because summary judgment will be granted in May's favor on all counts except for conversion, the parties' remaining damages arguments with respect to the other counts need not be addressed. In addition, the only forms of relief IDM may receive against May depending on the outcome of trial are nominal damages and injunctive relief relating to the conversion claim.

III. IDM'S SPOLIATION MOTION AND MOTION FOR SANCTIONS

Also pending before the Court are IDM's Spoliation Motion and Motion for Sanctions. In its Spoliation Motion, IDM argues it is entitled to, among other remedies, judgment by default or, alternatively, an adverse inference that both May and Merkle misappropriated and used IDM's confidential and trade secret information based on May's deletion of IDM files from his external hard drive on four separate dates: July 16, September 7, September 19, and September 22, 2014. IDM also seeks the imposition of a monetary fine and reimbursement of its costs in engaging its forensic computer expert and in preparing its Spoliation Motion.

In its Motion for Sanctions, IDM seeks sanctions against both defendants for failure to produce certain documents in discovery, defense counsels' improper instructions to May not to answer certain deposition questions, and May's submission of a false affidavit to the Court. The sanctions sought by IDM include "judgment by default or, in the alternative, an adverse inference instruction, plus a monetary fine, and an award of attorneys' fees and costs to IDM for preparing this motion." Pl.'s Mot. Sanctions 26. In addition, IDM requests "that May be compelled to answer questions at his deposition that he refused to answer" and that the Court "review in camera any and all versions of May's affidavit as indicated on the privilege log of Merkle." Id. Both motions are fully briefed and on June 26, 2015, an evidentiary hearing was held, during which May testified and oral argument was heard on both motions. At the conclusion of the hearing, the Court made a finding that at least one of the statements in May's affidavit was false but declined to otherwise rule on the motions.33 See Tr. Spoliation & Sanctions Mots. Hr'g 39-41 (June 26, 2015).

The following facts are relevant to IDM's motions and are essentially uncontested or uncontestable. On Friday, September 5, 2014, IDM CEO Slater called Patrick Hennessey ("Hennessey"), Merkle's President of Vertical Markets, to inform him that he was filing suit against May on Monday, September 8, 2014. IDM filed its original Complaint as planned on September 8, and May was served on September 10, 2014. On Sunday, September 7, May deleted from his external hard drive the folder ("F:\drewmay\2013 & 2014 IDM Budget") and 574 files that Ball, plaintiff's forensic computer expert, asserts consisted primarily of IDM business data. See Ball Rep. 9.

On September 9, IDM filed a motion for a temporary restraining order ("TRO") and a preliminary injunction and also filed a motion for limited expedited discovery. On September 17. in opposing IDM's motion For a TRO and preliminary injunction, May submitted an affidavit in which he averred, "I did not keep any of IDM's information from that laptop or from any other source." May Aff. ¶ 9 (Sept. 17, 2014). Two days later, the parties appeared before a district judge for a hearing on IDM's motion for a TRO and then appeared before a magistrate judge for a hearing on IDM's motion for limited expedited discovery, At both hearings, May's then-counsel (who is no longer representing May) agreed to turn over May's external hard drive so that IDM could inspect it and determine whether it held any confidential IDM information. See Tr. TRO Mot. Hr'g 19-20, 28 (Sept. 19, 2014); Tr. Exp. Discovery Mot. Hr'g 11, 14 (Sept. 19, 2014). In addition, at the TRO hearing, May's counsel represented that "[f]ollowing [May's] separation from IDM, he realized that he still had that external hard drive. He reviewed it. He removed any personal items from it and he wiped it. He does not have that data any more." Tr. TRO Mot. Hr'g 19. On the same day as those hearings, May deleted 37 more files, including IDM business data. Ball Rep. 9. Three days later, on September 22, May deleted another 12 files, several of which contained IDM information. Id. May ultimately produced forensic images of his hard drive to IDM a few days after making the final deletion on September 22.

At the conclusion of the June 26 hearing, after hearing May's testimony and considering the evidence of the deletions that occurred so close in time to the submission of May's affidavit, the Court found that May's statement that he "did not keep any of IDM's information" was false.34 The Court now finds that May's submission of that false statement is sanctionable. In addition to being sanctionable, May's lack of candor regarding his retention of IDM files, coupled with his inflammatory text messages regarding stealing IDM's clients and employees, poisoned the well for settlement purposes and caused unnecessary additional litigation, including necessitating IDM filing both its Spoliation Motion35 and Motion for Sanctions. Accordingly, IDM will be awarded the costs associated with hiring its forensic computer expert, as well as its reasonable attorneys' fees and costs in preparing and prosecuting its Motion for Sanctions. All other relief requested in those motions will be denied.

IV. CONCLUSION

For the reasons stated above, Merkle's Motion for Summary Judgment will be granted in full, rendering IDM's Motion to Compel Merkle to produce additional financial information moot, and judgment will be entered in Merkle's favor on all counts (Counts V, VI, and VII). In addition, May's Motion for Summary Judgment will be granted as to Counts II (breach of fiduciary duty), IV (violation of the Arkansas and Virginia trade secrets acts), VI (intentional interference with business expectancies), and VII (unjust enrichment), and judgment will be entered in May's favor on those counts. May's Motion for Summary Judgment will be denied as to Count III, the conversion claim, and the parties may proceed to trial on that count alone.36 Lastly, IDM's Motion for Sanctions will be granted in part only as to the one false statement in May's affidavit, and its Spoliation Motion will be denied. An appropriate Order consistent with these rulings will be issued with this Memorandum Opinion.