ORDER

J.P. STADTMUELLER, District Judge.

Litigation is often the story of regret, and the underlying facts in this case present the quintessential example of such a tale. Undoubtedly, the defendant, A.O. Smith Corporation ("AOS"), wishes it had never contacted the plaintiff, Fail-Safe LLC ("FS"), in 2002 regarding the safety device that FS had developed for use in swimming pools. Similarly, the plaintiff likely laments the fact that it never entered into a written agreement with AOS either formalizing the two companies' relationship or, at the very least, protecting the confidentiality of the information FS was imparting to AOS in discussions with AOS representatives. Moreover, if FS could turn back the hands of time, it surely would have filed its complaint in this case sooner than April 11, 2008. (Docket #1). In short, the instant case, as it stands today, is a product of a series of questionable business decisions by both sides, causing each respective party a considerable amount of angst and regret. Against this backdrop, the court must resolve the defendant's January 5, 2010 motion for partial summary judgment (Docket #121), the motion identified by all of the parties as the issue on the clerk's docket that the court should first decide. (Docket #186). This order will also discuss several other pending motions and the future course of this litigation. The court's hope is that, through this order, the parties' tale of regret will soon reach its final chapter. The court begins by noting the undisputed facts animating the defendant's motion for summary judgment.

UNDISPUTED FACTS1

This case centers on the two parties' efforts to develop appropriate technology to effectively combat "pool suction entrapment" accidents. Pool suction entrapment occurs when a swimmer is trapped by the suction forces created by water rushing out of a drain in an artificial pool, such as a swimming pool, hot tub, or spa.2 Pool suction entrapment can be quite serious. During the period 1999 to 2009, the Consumer Product Safety Commission reported ninety-four incidents of "circulation entrapments, including 12 fatalities ... and 79 injuries." See Kevin Gipson, 1999-2009 Reported Circulation/Suction Entrapments Associated with Pools, Spas, and Whirlpool Tubs, 2010 Memorandum, UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, (May 24, 2010) http://www. cpsc.gov/library/foia/foia10/os/entrap10.pdf (last visited August 27, 2010). Threatened by costly litigation, the swimming pool industry, including the two parties, has endeavored to eliminate accidents caused by pool suction entrapment by developing a safety vacuum release system3 ("SVRS"), the general term used to refer to a drain entrapment release device. The court begins by discussing FS's initial efforts to develop a successful SVRS.

A. FS, the FBSI, and the Suction Safe Pump

Founded in 1997 by Joe Cohen ("Cohen"), FS is a Colorado limited liability company that manufactures anti-entrapment devices. FS's initial attempt at creating a SVRS was its Flow Blockage Suction Interrupt ("FBSI") valve, a "mechanical valve" that operated by letting "air into [a pool's] piping," releasing the vacuum that was creating the suctioning of water and, in turn, releasing the bather. (PPFF ¶ 122). The FBSI valve was triggered "when the vacuum in a pool's circulation system reache[d] a designated level." (PPFF ¶ 122). However, the valve, by removing water from the pool's piping, caused the well-pump motor in the pool to overheat, as "the heat of the motor running without water would damage or destroy the attached pump." (PPFF ¶ 122). The flaw with the FBSI valve prompted FS to "approach" outside companies to seek a solution to the problem with the valve, including the Franklin Electric Company ("Franklin"). (DPFF ¶ 26).

Around 1987, Franklin had developed a technology called the "Pumptec," later known as the "Loadtec" (McAfee Dep. 16), that was used initially in jetted-bathtubs and in submersible wells.4 Franklin's invention was an "underload sensing device" that would determine "when a pump ... [was] not running full," such as when the water level in a jetted bathtub "didn't cover the jets," and would "shut down" the motor. (McAfee Dep. 13-14). "Franklin was awarded patents5 related to detecting the unloading of pump motors by measuring a decrease in the motor's power factor.6" (DPFF ¶ 18). The Loadtec product that was sold by Franklin in the "early 1990s" had a feature that allowed for a two-minute delay on start-up, (McAfee Dep. 25), and would shut off in response to "situation where the flow was blocked if the power factor dropped below" a certain trip point.7 Id. at 229.

FS hoped that it could use Franklin's technology in conjunction with the FBSI valve to shut down a pool's well-pump motor at the appropriate time. As a consequence, "FS and Franklin entered into a written agreement in July 1999," (DPFF ¶ 27), where FS "acquire[d] the exclusive marketing rights of the Loadtec Technology with respect to swimming pool circulation pumps in order to sell a Franklin pump motor along with the [FS] valve as a complete safety package." See Docket #122 Ex. 16 ("Agreement Between Franklin Electric Co., Inc. and Fail-Safe, LLC for the License of the Franklin Loadtec Technology"). Several adjustments had to be made to Franklin's technology to have it operate properly with FS's valve. For example, a "soft-start feature" was added, which "slowed acceleration when the motor started up" in order to "reduce pressure spikes in the circulation system." (PPFF ¶ 126). The nature of the other adjustments that were made to Franklin's technology and who was responsible for such adjustments are disputed by the parties.8 It is undisputed, however, that the motor, as modified, contained a "startup logic delay, a means to detect loss of water flow, the use of a soft-start as applied to a swimming pool pump motor, and a means to enable pool pump motors to accommodate the varying electrical power level available to the pump."9 (PPFF ¶ 135). The motor and valve collectively were known as the "Suction-Safe Pump."

The Suction-Safe Pump was "offered for sale [to the public] beginning in 1999 and [was] demonstrated at trade shows." (DPFF ¶ 29). The product was not terribly successful though, as the estimated sales for the device through 2003 were "approximately 300 to 350 units." (DPFF ¶ 30). The Suction-Safe Pump "suffered from nuisance trips" (Pl.'s Resp. DPFF ¶ 31) and, in August of 2001, FS, in conjunction with Franklin, conducted tests on the altered load-sensor, finding the "trip points for hazards and the normal operating parameters to avoid shutting down [the motor] in the wrong circumstances."10 (PPFF ¶ 131). Franklin independently tested the load-sensor "about two and a half months" after FS tested the product. (McAfee Dep. 222). However, despite FS's and Franklin's efforts, FS eventually stopped selling the Suction Safe Pump, and the exact reasons production stopped on the Suction Safe Pump are disputed.11

B. AOS's Initial Efforts at Creating a SVRS

The court briefly pauses its discussion of the undisputed facts regarding FS and its efforts to built an anti-entrapment device and shifts to the other party in this case, AOS. The defendant, a Delaware corporation with its principal place of business in Milwaukee, Wisconsin, manufactures motors for pool and spa pumps. AOS's efforts in developing an anti-entrapment device began in late 2000. In November of 2000, William Mehlhorn ("Mehlhorn"), an engineer for AOS, and other representatives from the company attended an industry trade show in Orlando, Florida. Mehlhorn and the other AOS employees visited several booths at the trade show, including FS's booth, witnessing demonstrations of devices "aimed at detecting suction entrapment events."12 (DPFF ¶ 8-9). Upon witnessing the demonstrations from the other companies, Mr. Mehlhorn "wonder[ed] if [AOS] could" develop a similar SVRS device using electronic load sensors. (Mehlhorn Dep. 60). Mehlhorn's thoughts developed into a "skunk works project"—a side project that, as Mehlhorn described in his deposition testimony, he would work on "about a day a month." (Mehlhorn Dep. 60). The following year, 2001, Mehlhorn began crafting "schematics" and the physical "circuit boards" for a "pool pump suction detector," that would "measure a motor's power factor and shut-off at a certain amount of decrease in that power factor reading."13 (DPFF ¶ 11). By the late spring of 2002, Mr. Mehlhorn had spent about eighteen days working on the SVRS project.

C. AOS and FS's Initial Interactions

Around the same time period, Mike Metzler ("Metzler"), AOS's marketing manager, "saw an ad [for FS's products] in... Pool and Spa News," a trade publication. (Metzler Dep. 73). In April of 2002, intrigued by FS's Suction-Safe Pump, as the product was "the only thing [he] saw... in the pump market that was along the lines of" complying with potential regulations regarding pool suction entrapment prevention, (Metzler Dep. 74), Metzler requested that AOS sales representatives ask the Colorado company about the product. Soon after, conversations between FS's Cohen and AOS's Metzler occurred. The exact subject matter of the initial conversations between Cohen and Metzler is disputed,14 but it is undisputed that those conversations: (1) did not result in any sort of formal arrangement between the parties; and (2) did not touch on the question of confidentiality regarding the information discussed between the parties.

Meanwhile, in May of 2002, AOS accelerated its efforts on Mr. Mehlhorn's SVRS project, as Mehlhorn and his supervisor, Ron Bartos ("Bartos"), and Metzler, "visited Sta-Rite Industries in Delavan, Wisconsin, to discuss potential solutions to the suction entrapment problems facing the swimming pool industry." (DPFF ¶ 12). The agenda for the meeting included "discussion on how Sta-Rite [understood] the current `anti-entrapment safeguard' market conditions and future trends" and "Sta-Rite's relationship with" FS. (PPFF ¶ 154). The parties agree that FS's technology was discussed at this meeting.

That same month, Mehlhorn tested the well-pump motor he had been working on, with a "test setup consist[ing] of [the motor] and a barrel of water." (PPFF ¶ 142). Later tests were performed using a horse trough. During testing, although the exact date is disputed, Mehlhorn, after "rigorous analysis," concluded that the pump's "input power," as opposed to its "power factor," would be the most appropriate means to measure a motor's load.15 (Mehlhorn Dep. 121-22). In October of 2002, AOS's engineering department "recommended that [the pump protector circuit] be made a [formal] `project' for 2003." (PPFF ¶ 157). In the late fall of 2002, Mr. Mehlhorn "began working to design a circuit to economically measure motor input power."16 (DPFF ¶ 16). Mehlhorn, in his sworn testimony, identified schematics from the spring of 2003 that displayed the preliminary "circuit developments" used to create a device that measured motor input power. (Mehlhorn Dep. 137).

In November 2002, the plaintiff "terminated" its relationship with Franklin, and "as soon as" FS signed the termination agreement, Mr. Cohen called AOS's Metzler. (Cohen Dep. 10/21/09 218). After a few conversations between Cohen and Metzler,17 on January 6, 2003, Cohen wrote to the AOS executive to formally inform AOS that "after experiencing [a] 25% failure [rate] in the field with the Franklin Loadtec Motor, we have elected to notify Franklin Electric Company that we are terminating our agreement with them." (Docket #122 Ex. 18). Moreover, the letter stated that FS "would like to go forward with [AOS's] development of [FS's] pump-protector pool pump motor." (Docket #122 Ex. 18). The January 6, 2003 letter also included a short "description of several desired features of a pump protector motor that could be supplied by AOS." (DPFF ¶ 37). The January 6, 2003 letter did not contain any discussion of confidentiality.

Mr. Metzler responded to Mr. Cohen's letter on January 16, 2003, writing that AOS "would be pleased to work and develop concepts for suction entrapment with" FS. (Docket #122 Ex. 19). Metzler further noted that AOS "already [has] some prototypes18 at [the company's] Corporate Technology Center in Milwaukee." Id. AOS's marketing manager suggested a "meeting date to begin development together in 2003-2004." Id. Additionally, Metzler proposed an "18-month exclusivity" period "once the first shipment occurs." Id. Mr. Metzler closed the letter by stated that: "We look forward to setting a meeting date and beginning the process." Id. Mr. Cohen stated in his deposition testimony that he "assume[d] that when [he] got a letter from a major corporation like [AOS] ... that [FS and AOS were] in a joint venture" and "had a fiduciary duty at that time." (Cohen Dep. 10/21/09 221). No letters or documents stated that FS and AOS were actually in a joint venture at that time, nor can FS point to any words expressed by AOS to indicate that they were in a joint venture with FS.

D. AOS's Efforts in Developing a Motor for FS

In the months that followed, FS and AOS had numerous conversations to discuss AOS developing a motor for FS. Mr. Cohen asserts that those conversations implied that the companies were "moving forward in a joint venture." (Cohen Dep. 10/21/09 223) ("We discussed the fact that... we were moving forward in a joint venture."). Mr. Metzler testified that the conversations were "strictly" related to AOS "developing a motor for his pump." (Metzler Dep. 85). On March 10, 2003, Mr. Cohen sent Mr. Metzler a letter described internally as a "project outline for the development of a new `Pump-Protector Motor,'19 designed to eliminate common operational problems which are destructive to centrifugal pumps, as used for the circulation of water in aquatic facilities." (Docket #122 Ex. 17). The letter initially provided AOS "background" on FS's history with Franklin, noting that the motor developed by Franklin was "unreliable, as 25% failed in the field," and "required too much current to operate in normal conditions." Id. The letter further "summarized FS's desired features for a load-sensing motor," (DPFF ¶ 40), such as "dry-run protection," "soft-starting," a "notched end bell," "leak protection," and a "corrosion-proof motor case."20 (Docket #122 Ex. 17). The letter also included over twenty pages of "test results of the Franklin Loadtec Pump Motor," which included the "trigger points" for the Loadtec motor at which the motor would cease to operate.21 Id. The parties dispute what other information the test results provided.22 Mr. Cohen testified that, after he sent the March 10, 2003 letter, he discussed in more detail the data map with Mr. Metzler. (Cohen Dep. 10/21/09 223). Nothing in the March 10, 2003 letter indicates the letter or its accompanying test results were meant to be confidential. Moreover, FS does not provide any evidence that Mr. Cohen affirmatively told Mr. Metzler to treat FS's information as confidential during any of their conversations.23 Additionally, nothing in the March 10, 2003 letter provides evidence of any sort of agreement to go forward with the project by the two parties.

On March 31, 2003, Mr. Cohen traveled to Milwaukee to meet Metzler and several of AOS's engineers, including Jaime Watkins ("Watkins"), Mr. Mehlhorn, and Mr. Bartos. During the meeting, FS's president signed AOS's "standard confidentiality agreement." (DPFF ¶ 43). The confidentiality agreement pledged that FS, as a "supplier of research consulting services," would "maintain confidential for a period of fifteen ... years from the date [of the agreement] all information" made available to FS by AOS. (Docket #157, Ex. TT). Notably, there was no similar agreement requiring that AOS would maintain the confidentiality of information provided by FS to AOS, despite the fact that "FS, through Mr. Cohen, had entered into other various confidentiality agreements [protecting FS's intellectual property rights] prior to his work with AOS."24 (DPFF ¶ 99). FS, however, as it had done in its relationship with Franklin, opted to share information with AOS without a confidentiality agreement protecting the Colorado company's information.

In addition to signing the confidentiality agreement at the meeting, FS shared information regarding what features the Colorado company thought "would be important... to have in the" device, discussed the desired features of the product as outlined in the March 10, 2003 letter, and then had discussions with and made recommendations to AOS regarding the "hydraulic rationale for [the] features [in the device], how to correct [AOS's] test stand,25 and how to test any prototype." (PPFF ¶ 171). Moreover, the parties "discussed the features of the Loadtec at the March 31, 2003 meeting." (PPFF ¶ 172).

The parties' proposed findings focus considerably on Mr. Mehlhorn's impressions regarding the March 31, 2003 meeting, presumably as evidence of the nature of the relationship between FS and AOS at the time of the meeting. The court notes before discussing Mr. Mehlhorn's impressions of the meeting that Mr. Mehlhorn is an engineer for AOS and quite readily admitted in his testimony that he was "not familiar with business issues" at AOS. (Mehlhorn Dep. 157). AOS's engineer stated in his deposition testimony that he "found out" at the meeting that "high fail rates" with the motors produced by Franklin created a "desire to get some kind of business relationship between the two companies," prompting the meeting. (Mehlhorn Dep. 177-78); (PPFF ¶ 174). Mehlhorn answered affirmatively to a question asking him if it was "ever explained to you that you would be working with [FS] to develop" the pump protector motor. (Mehlhorn Dep. 158). However, Mr. Mehlhorn clarified his statement later in the deposition with the following dialogue:

(Mehlhorn Dep. 202).26 Mr. Mehlhorn later described the project as an endeavor where "AOS [was] preparing [a] product prototype for FS to replace the Franklin motor."27 (Mehlhorn Dep. 220).

Following the March 31, 2003 meeting, Mr. Mehlhorn contacted Mr. Cohen to discuss "vacuum spike issues" and the "test stand." (PPFF ¶ 177). With regard to the test stand, Mr. Cohen "suggested that AOS make the test stand adjustable to simulate different pump heights relative to the pool, increase the length of piping in its test stand, install a vacuum gauge, and add a valve to the suction side of the pump." (DPFF ¶ 82). In doing so, Mr. Cohen noted the "technical standards promulgated by" the American Society of Mechanical Engineers ("ASME") and the Association for Testing and Materials ("ASTM") "related to the requirements for testing and implementing SVRS systems." (DPFF ¶ 83). FS has not presented any evidence suggesting that Mr. Cohen told Mr. Mehlhorn that their conversations would be confidential.

In April of 2003, "Mr. Cohen provided AOS one of its publically available Suction-Safe pumps with a Loadtec motor for testing purposes." (DPFF ¶ 46). Mr. Mehlhorn tested the Franklin motor "in April and May."28 (PPFF ¶ 178). By August of 2003, Mr. Mehlhorn and Mr. Cohen discussed AOS's efforts, contemplating "whether [a] product would be available in time for the next swimming pool season." (PPFF ¶ 181). One month later, Mr. Mehlhorn "made arrangements to send a prototype [of the motor] to Mr. Cohen ... for testing on Cohen's test stand." (PPFF ¶ 182). In October of 2003, Mr. Mehlhorn continued to work on the project, recognizing "various mistakes and problems." (PPFF ¶ 183). By late October 2003, Mehlhorn had reported to Mr. Cohen that a prototype of the motor "would be shipped to [FS] in a couple of weeks." (PPFF ¶ 184). Mr. Mehlhorn also reviewed Franklin's patents to ensure that there were "no patent infringement issues." Id. An inter-office weekly report dated October 31, 2003, from Mr. Mehlhorn to Mr. Bartos states that "as far as we know, all the functions Joe Cohen needs for his testing are operational." (Docket # 157, Ex. C). There is no evidence that Mr. Mehlhorn was actively talking with upper-management at AOS, such as Mr. Metzler, at this time, nor is there any evidence that Mr. Mehlhorn knew at the time in question of the exact relationship FS had with AOS. (Mehlhorn Dep. 157, 220).

E. FS's Proposal to Develop a Stand-Alone SVRS Motor

On September 22, 2003, Mr. Cohen wrote to Steve O'Brien ("O'Brien"), an executive at AOS, with the purpose of "communicat[ing] a clear understanding of [FS's] perspective of the swimming pool pump motor development project in progress between our companies." (Docket # 122, Ex. 21). First, Mr. Cohen summarized the relationship of the companies to date, stating that because FS was "experiencing an untolerable [sic] failure rate with the Franklin motor, [the company] terminated [the] agreement with Franklin." Id. FS's president further stated that he had "contacted Mike Metzler," who had "presented that [AOS] was ready and willing to immediately begin to develop [a] new swimming pool pump motor under [FS's] direction" to replace the Loadtec motor. Id. Mr. Cohen also referenced Mr. Metzler's January 16, 2003 letter and FS's visit to Milwaukee. Next, the September 22, 2003 letter shifts focus, stating that Mr. O'Brien had "informed [Cohen] that [AOS] is interested in promoting" the product that they had been working on as a "life saving device," as opposed to a "pump protecting device." Id. Mr. Cohen then wrote that "if [AOS] is willing to market this new motor as a stand-alone ... SVRS... [FS] would be very much in favor of that." Id. Then, Mr. Cohen issued a formal "proposal to move forward and commercialize," stating the following:

Id. (emphasis added). Mr. Cohen concluded his letter by listing ten formal points to a potential agreement between the companies with respect to developing the pump as a SVRS.29

F. The Decline of FS's and AOS's Relationship

It is unclear if AOS ever formally responded to Mr. Cohen's September 22, 2003 proposal. Moreover, the parties dispute the exact nature of conversations that took place in late 2003. Mr. Schlanger testified that in "late December" Mr. O'Brien called Schlanger to tell him that, per a conversation with AOS's legal department, the "project" invited "too much liability" and that AOS was "cancelling this project." (Schlanger Dep. 275-76). Mr. O'Brien disputes that this conversation occurred and claims that in "early 2004" he was informed by Mr. Schlanger "that [FS] had chosen not to continue to invest in their valve." (O'Brien Dep. 89). However, it is undisputed that in January 2004 Mr. O'Brien "asked Mr. Mehlhorn to not talk to [FS] anymore." (PPFF ¶ 200).

Starting in January of 2004, a series of letters led to the demise of the working relationship between the parties. On January 2, 2004, Mr. Cohen sent a letter to seventeen different pump manufacturers, stating that "pump manufacturers must act now to protect the pool industry as well as the swimming public" to prevent suction entrapment. (Docket # 122, Ex. 22). The letter noted in bolded font that: "We have developed the solution." Id. The letter further asserted that "in conjunction with [AOS] ... we have developed a load-sensor pump motor." Id. The letter closed by inviting pump manufacturers to contact AOS to express support for the load-sensor motor.

On January 19, 2004, Mr. O'Brien responded to Mr. Cohen's January 2, 2004 letter, writing to the pump manufacturers that Mr. Cohen's "letter contain[ed] inaccuracies [AOS] believes must be corrected," as the letter did not "reflect the opinions of AOS or its employees" and was "written without any consultations with or participation of anyone" at AOS. (Docket #122, Ex. 23). First, AOS noted that despite FS's claims that it was working with AOS to develop a load-sensor pump motor, "the only arrangement between [the parties] involves [AOS] agreeing to consider development of a pump protector motor."30 Id. The letter further disputed FS's claims that a motor was designed that would pass the latest standards for SVRS technology and that prototype motors are "already constructed and waiting to be tested." Id. Finally, the letter concluded that "developing an electronic pump shut off device to the point that it is ready to manufacture would take months or even years in our estimation." Id. Mr. O'Brien also sent a letter directly to Joe Cohen with respect to his January 2, 2004 letter. (Docket # 155 Ex. 24). The letter noted that "the only project between [FS] and [AOS] involves [AOS] agreeing to consider developing a `pump protector pool motor.'" Id. The letter further accused Mr. Cohen of breaching the March 30, 2003 confidentiality agreement and insisted that Cohen "cease further communication about this project immediately." Id. The January 19, 2004 letter also noted that the confidentiality agreement contained language that inventions conceived of as a result of the joint efforts of the company are "the property of" AOS. Id. Finally, the letter closed by clarifying that: (1) AOS had "not yet determined that a load sensor device, when used with a motor and a pump, is a viable method for reducing the occurrence of suction entrapment"; and (2) "the only device [AOS has] agreed to develop for [FS] is the dry running pump motor protector device, and [AOS] has not yet delivered prototypes to [FS]." Id.

The correspondence between the two companies became even more heated with a January 22, 2004 letter from Mr. Schlanger to Mr. O'Brien. (Docket # 122, Ex. 25). Schlanger began the letter by stating "We are glad to see that you like our intellectual property enough to claim ownership of it for yourself." Id. Schlanger then opted to "revisit the facts" of FS's work with trying to develop SVRS devices. Specifically, Schlanger noted that AOS "approached [FS] in 2002, to see if [FS] would direct the development of an [AOS] motor with similar features" to that of the Franklin Loadtec motor. Id. The letter further asserted that after FS's relationship with Franklin ended, FS "contacted Mike Metzler ... to see if the Company was still interested in developing the [pump-protector] motor." Id. The letter continued by stating that FS, through Metzler's January 16, 2003 letter, could "claim rights to the `pump protector motor.'" Id. The letter then disputed the validity of the confidentiality agreement signed by Joe Cohen, stating it was "never executed by [AOS], and "there was no valid consideration." Id. Mr. Schlanger's letter further noted that "even if" the confidentiality agreement is valid, it would not "cover" any inventions conceived of in 1999, before the parties contemplated working on a pump protector motor. Finally, the letter stated that FS was "elect[ing] to withdraw [its] offer of licens[ing] out technology to [AOS] made in" the September 22, 2003 letter. Id. Schlanger warned AOS that FS was "pursuing a U.S. Patent on [the] technology." Id. The letter closed with Schlanger ominously stating that "perhaps another motor company will be interested in acquiring technology that could allow them to increase their pool industry share." Id. It is unclear if there were any letters from AOS to FS directly responding to Mr. Schlanger's January 22, 2004 letter.

There is evidence in the record, however, that Mr. O'Brien, in phone calls to Mr. Schlanger in February of 2004, "represent[ed] that [AOS had] decided to move forward with the load sensor SVRS motor." (Docket # 122, Ex. 27). On February 23, 2004, an internal memorandum written by Mr. O'Brien provided an "update" regarding AOS's dealings with FS. The memorandum stated the following:

(Docket #157, Ex. KKK). Testimony from Mr. O'Brien further supports that AOS was actively determining whether to "involve" FS in the project, depending on the validity and merits of FS's patent rights. (O'Brien Dep. 194-95).

The following day, Mr. Schlanger sent another letter to Mr. O'Brien. (Docket # 157, Ex. UU). Schlanger, referencing dialogue between the parties that apparently occurred since the January 22, 2004 letter was written, thanked Mr. O'Brien "for keeping [FS] advised on the status of [the] product development project," as O'Brien had "indicated that [AOS] had decided to move forward to commercialize the new load sensor swimming pool pump motor." Id. Mr. Schlanger further stated that FS was "ready and willing to assist [AOS] with the development of this new motor," but "in order for [such a project] to move forward, [FS] feel it imperative that [FS] enter into an agreement with [AOS] which honors [the plaintiff's] intellectual property rights." Id. FS's Chief Financial Officer asked Mr. O'Brien to consider several points when "evaluating [FS's] stake in [the] project," including that FS "applied for U.S. patent protection... for the use of ... any load sensor device as a means of providing a [SVRS]" and that "[AOS] clearly approached [FS] to head up design of this new motor." Id. Moreover, Schlanger asserted that the "lifesaver motor," while "programmed differently" and is a "different product" from the "pump protector motor" that the parties "originally set out to develop," "utilizes [FS] intellectual property" and is, therefore, "clearly covered under [the] agreement" providing FS "with the first 18 months of marketing rights once the motor is commercially available." Id. The letter closed with the statement that: "We would like to work with [AOS] as a team to develop this new motor and bring it to market as quickly as possible." Id. That same month, FS, through Mr. Cohen, issued a press release stating that the company had "applied for U.S. Patent protection for the use of an electrical load sensor as a [SVRS]." (Docket #157, Ex. UU).

In the spring of 2004, "Mr. O'Brien contacted [FS] to discuss the technical side of the project and relevant legislative proposals." (PPFF ¶ 209). "O'Brien stated that he would prepare a proposal to memorialize the parties' ventures and forward it to FS." (PPFF ¶ 210). "Shortly thereafter, Mr. O'Brien told Mr. Schlanger that he had drafted an agreement for" FS and had given it to AOS's "legal department to review." Id. AOS never provided a formal proposal to FS, however. (Schlanger Dep. 293).

Around the same time period, in April of 2004, Mr. O'Brien authored an internal AOS memorandum entitled "Pool Pump Load Sensor Device: Project Plan," discussing, in relevant part, the defendant's relationship with FS. Specifically, the memorandum read:

(Docket # 157, Ex. UU). Internal documents also indicate that AOS was concerned that FS had expressed a "belie[f that] they have a patent of the motor concept and [a desire] to be paid royalties." Id. The same documents show that AOS was planning on "reject[ing FS's] request" for royalties, but did leave open the possibility that AOS would "keep [FS] involved since this company is considered the biggest advocate of suction protection." Id.

In July of 2004, Mr. O'Brien stated that "he would fly to Denver, Colorado to meet with [FS] to discuss the financial details of [a potential joint-]venture and execute the agreement."31 (PPFF ¶ 211). However, the following day, Mr. O'Brien changed his mind and stated that he would not be coming to Denver. Id. The parties' impasse lingered into the fall. On October 13, 2004, Mr. Schlanger emailed Mr. O'Brien, "check[ing] with [him to] see how the SVRS Motor project was progressing." (Docket # 155 Ex. S). Schlanger also asked in the email whether AOS was "still planning to roll [the SVRS motor] out at [a trade] show in Las Vegas." Id. Two days later, Mr. Schlanger reached Mr. O'Brien by phone, and Mr. O'Brien "declined to discuss any potential work with FS."32 (DPFF ¶ 58). At Mr. Schlanger's deposition, he responded affirmatively to the question of whether on October 15, 2004, he "knew things weren't going to work out the way [FS] wanted" with AOS. (Schlanger Dep. 314). There are no other documents that the parties cite to the court regarding any formal communications between Schlanger or Cohen and O'Brien or Metzler after October 2004.33

G. The eMod and the Guardian

In December of 2004, "AOS introduced" a product called the eMod at the "National Pool and Spa Expo and began selling the eMod in May of 2006." (DPFF ¶ 60). There is no evidence in the record that FS attended the 2004 Pool and Spa Expo. Moreover, FS did not obtain a physical sample of the eMod motor until 2006. However, AOS's introduction of the eMod was a not a complete surprise for FS, as there is plenty of evidence in the record showing that FS knew that AOS had crafted a load sensor pump using FS's alleged trade secrets as early as 2004.34 Mr. Cohen stated emphatically in his November 20, 2009 deposition that he knew AOS had a "prototype load sensor pump motor built" in October of 2004, as Mr. Mehlhorn had informed FS of such information. (Cohen Dep. 11/20/09 145). Moreover, Cohen noted that the "prototype that Bill Mehlhorn built was using ... [FS's] trade secrets." Id. Moreover, Mr. Schlanger testified that he was "justified in writing" letters in "early 2004" to AOS because the defendant was using "the information [FS] provided to" AOS as the "foundation for the development of its [load sensor] motor."35 (Schlanger Dep. 313-14).

Later in the year and in the midst of this litigation, AOS introduced and sold the Guardian, another load-sensing pool pump motor. (Mehlhorn Dep. 266). Much of the proposed findings for each side involve whether the Guardian is a different product from the eMod.36 What is undisputed, however, is that the Guardian is a load-sensing motor that will shut down due to a "loss of prime, flow-blockage, and dead-head." (PPFF ¶ 220). The Guardian is also programmed to shut down within three seconds in the event of a loss of flow, to interrupt electrical power to the motor to shut down the motor, and to wait until the pump is primed before monitoring the motor's load. Id. However, Mr. Mehlhorn testified that the eMod and the Guardian are "not the same product."37 (Mehlhorn Dep. 167). Regardless of whether or not the two products are the same product, both sides concede that the Loadtec, the eMod, and the Guardian all serve the same general function and, accordingly, have some similar features.

H. What Information Did FS Provide to AOS for its eMod and Guardian Motors?

The court's extended discussion of FS's and AOS's efforts to create a successful SVRS device begs the question of what information FS provided to AOS, prompting FS's April 11, 2008 complaint (Docket # 1), alleging unjust enrichment, and misappropriation of trade secrets claims against the defendant. The complaint itself indicates that FS provided such information in the March 10, 2003 letter when Mr. Cohen provided Mr. Metzler with "an outline of potential new and innovative features that could be designed into the new pump motor as well as the proprietary data for the load-sensing and delay technology used on ... [the] Loadtec motor." (Compl. ¶ 16). FS's unjust enrichment claim indicates that FS shared with AOS "proprietary hydraulic testing and operational procedures for a load-sensing, suction entrapment-preventative motor." Id. at ¶ 31. FS's misappropriation of trade secrets claim states that FS conveyed information relating to the "design and manufacture of a load-sensing, suction entrapment preventative pool pump motor." Id. at ¶ 36. The court scoured the record and the parties' proposed findings of fact, finding that the following evidence supported FS's general claim that the plaintiff provided AOS with information that was useful to AOS in producing its eMod and Guardian motors.38

Mr. Mehlhorn testified that he incorporated into the initial 2003 version of the eMod, because of a "discussion" with Mr. Cohen, two features that: (1) removed power from the system to enable the motor to restart; and (2) "inhibited" the motor from shutting down for two minutes after the pump is "powered on to allow the pump to fully prime." (Mehlhorn Dep. 217). Mr. Mehlhorn further testified that during the "early versions of the eMod" the motor had a soft-start function—a means by which the motor would slowly accelerate at startup—that was inspired by a function on the Franklin motor.39 Id. at 217-18. Moreover, a specification sheet dated June 11, 2003, provides that the: (1) power removal function; (2) shutdown inhibitor on startup function; and (3) the soft-start function, were all part of AOS's initial specifications for the design of its pool pump protector motor.40 These three features are the only specific features that the plaintiff argues and supports with evidence in its proposed findings as features on a device created by AOS that were even somewhat attributable to the information that FS provided to AOS.41

FS asserts that the information the plaintiff imparted to AOS consisted of: (1) "project outlines" provided in the January 6, 2003, and March 10, 2003 letters to AOS that listed the specific features needed in the motor; (2) the general recommendations or "know how" provided orally by Mr. Cohen to AOS during meetings and phone calls regarding: (a) "the design features of the motor"; (b) the "rationale" for the features of the motor; (c) testing data; and (d) "how to construct a test stand to properly test a prototype";42 (3) the "testing data" provided in March 10, 2003 letter;43 and (4) the Suction Safe Pump FS provided to AOS for "use in developing the new motor in April 2003." (Pl.'s Resp. DPFF ¶ 69). Additionally, FS has provided expert testimony asserting the opinion that the information the plaintiff provided to AOS constitutes a "substantial amount of contribution" and allowed AOS "to create a functional prototype" of an anti-entrapment device, which became the precursor to AOS's eMod and Guardian products. (Neuhalfen Dep. 224).

The court also notes how AOS's products departed from the Loadtec motor and where AOS did not use FS's information when developing the eMod and the Guardian. The later versions of the eMod and the Guardian did not incorporate the soft-start feature and changed the logic delay on startup. (Mehlhorn Dep. 171). Moreover, neither the eMod or the Guardian have a "notched end-bell," id. at 172, a feature listed in FS's January 6, 2003, and March 10, 2003 letters to AOS. While the record indicates that the initial test stand used by Mr. Mehlhorn in 2003 was changed per Mr. Cohen's recommendations (Mehlhorn Dep. 192-193; Docket # 157, Ex. C), AOS's engineer testified that he changed the test tank and "kept making [his own] refinements" after FS's President provided his suggestions. (Mehlhorn Dep. 239-40). Additionally, in detecting and shutting off the motor in response to a loss of prime, the eMod and the Guardian do "not measure a change in power factor," like the Loadtec, but rather "measures the change in input power."44 (DPFF ¶ 108). Finally, Mr. Mehlhorn testified that he did not "use the data that [AOS] acquired from [FS regarding] ... how to set" the Loadtec motor in developing the eMod or the Guardian.45 (Mehlhorn Dep. 210). In fact, Mr. Mehlhorn testified that he had not seen the test data "until March of" 2007. Id. at 200.

The court, satisfied that whatever facts are in dispute or not in dispute has been resolved by the court, proceeds to evaluate AOS's motion, made pursuant to Fed. R. Civ. P. 56, and determine whether there is any "genuine issue as to any material fact" regarding whether: (1) FS's misappropriation of trade secrets claim should be dismissed in its entirety; and (2) FS's unjust enrichment claim should be "limited to any misappropriation occurring no later than December 2004." (Docket # 121).

DISCUSSION

Summary judgment is appropriate where the "pleadings, the discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Wis. Alumni Research Found. v. Xenon Pharms., Inc., 591 F.3d 876, 882 (7th Cir.2010). A genuine issue of material fact exists when a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "The initial burden is on the moving party ... to demonstrate that there is no material question of fact with respect to an essential element of the non-moving party's case." Delta Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir.2009) (quoting Cody v. Harris, 409 F.3d 853, 860 (7th Cir.2005)). Once the movant satisfies this initial burden, the burden then shifts to the non-moving party who "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Doe v. Cunningham, 30 F.3d 879, 883 (7th Cir.1994) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In ruling on a summary judgment motion, the court must view the evidence plus all inferences reasonably drawn from the evidence in the light most favorable to the non-moving party. TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir.2007). With these standards in mind, the court looks to the specific allegations made by the plaintiff beginning with FS's misappropriation of trade secrets claim.

A. Misappropriation of Trade Secrets

FS's second claim for relief is that AOS misappropriated trade secrets "relating to the design and manufacture of a load-sensing suction, entrapment-preventative pool pump motor." (Compl. ¶¶ 35-41). AOS, in its briefs supporting its motion, raises a bevy of arguments for granting summary judgment on the trade secret misappropriation claim. The court begins by examining AOS's first argument—"FS's claim for misappropriation of trade secrets should be dismissed because it is time barred." (Def.'s Br. 14).

1. Statute of Limitations Issue

Under Wisconsin law,46 which adopts the Uniform Trade Secret Act ("UTSA"), an action claiming misappropriation of a trade secret must "be commenced within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence." Wis. Stat. § 893.51. Moreover, "the unanimous conclusion of courts considering" the issue of when a claim for misappropriation of trade secrets arises for statute of limitations purposes have concluded that a claim arises "only once"—"at the time the initial misappropriation" is discovered. Amalgamated Indus. v. Tressa, Inc., 69 Fed. Appx. 255, 261 (6th Cir.2003) (emphasis added).47 The law, in turn, defines a "misappropriation of a trade secret" as either the acquisition of a trade secret through improper means or by "disclosing or using" the trade secret of another. Wis. Stat. § 134.90. FS only alleges that AOS "used" FS's trade secrets without its consent and does not claim that AOS acquired FS's trade secrets through unlawful means. (Compl. ¶ 39). The question for the court, therefore, is whether FS commenced its action claiming a misappropriation of a trade secret within three years after AOS's initial "use" of FS's trade secret was "discovered or should have been discovered by the exercise of reasonable diligence."

Slightly complicating matters is the fact that the parties entered into a "tolling agreement" on November 29, 2007, whereby AOS agreed that the time from the date of the agreement until January 15, 2008, would "not be counted in determining the time in which [FS] . . . shall be required by any applicable statute of limitations . . . to file an action against" AOS. (Docket #122, Ex. 32). The tolling agreement specifically stated, however, that the agreement would not "impact any of [AOS's] statute of limitations . . . defenses that may have accrued as of the date of [the] agreement or that may accrue after the termination of this agreement." Id. The parties belatedly provided the court with additional tolling agreements that indicated the tolling period was extended until April 11, 2008. On April 11, 2008, the plaintiff filed its complaint. (Docket # 1). Accordingly, the issue for the court changes slightly, as the court must determine on summary judgment whether there are disputed facts regarding whether FS "discovered or should have discovered" AOS's initial "use" of FS's trade secrets by November 28, 2004, three years prior to the date of the first tolling agreement.

That issue, of course, begs the further question of what a "use" of a trade secret entails, as the initial use is the touchstone for when the statute of limitations period begins. Unfortunately, the word "use" is "rarely defined" in trade secret case law, 1 Roger M. Milgrim, Milgrim on Trade Secrets § 1.01 n. 72 (2010), and the parties made no attempt to clarify the issue for the court. However, as the Restatement (Third) of Unfair Competition (herein "Restatement") explains, "misusing" a trade secret is quite a broad concept:

Restatement § 40 cmt. c; see generally Penalty Kick Mgmt. v. Coca Cola Co., 318 F.3d 1284, 1292 (11th Cir.2003) (finding it "prudent to consult the Restatement for guidance to determine what constitutes. . . `use' under the" UTSA). Accordingly, the court will need to determine whether there is a dispute regarding whether FS "discovered" an initial "use" of its trade secrets by AOS—such as AOS "employing [FS's] trade secret in manufacturing or production" or AOS "relying on the trade secret to assist or accelerate research or development" of AOS's products—on or before November 28, 2004. Restatement § 40 cmt. c.

While the court has explored what a "use" of a trade secret can be, the court must also examine what the word "discovers" means for purposes of determining the date FS's claim arose. The Seventh Circuit, in Sokol Crystal Prods. v. DSC Communications Corp., 15 F.3d 1427 (7th Cir.1994) (interpreting Wisconsin law), explained that, in order to "discover" the misuse of a trade secret, a plaintiff must have more than an "abstract concern" or mere "suspicions and fears" of misuse of their trade secret. Id. at 1430. Rather, the statute of limitations on a trade secret misappropriation claim does not begin to run until a plaintiff has sufficient information to make a "meaningfully colorable" claim. Porex Corp. v. Haldopoulos, 284 Ga.App. 510, 515, 644 S.E.2d 349 (Ct.App. 2007); see also Chasteen v. UNISIA JECS Corp., 216 F.3d 1212, 1218 (10th Cir.2000) (holding that the statute of limitations on trade secret misappropriation claims begins to run when the plaintiff possesses knowledge of sufficient facts from which a jury has the possibility of inferring misuse of the plaintiff's trade secrets); Knights Armament Co. v. Optical Sys. Tech., Inc., 636 F.Supp.2d 1283, 1293 (M.D.Fla.2009) ("Although suspicion alone is insufficient to run the limitations period, `when there is reason to suspect that a trade secret has been misappropriated, and a reasonable investigation would produce facts sufficient to confirm this suspicion (and justify bringing suit), the limitations period begins, even though the plaintiff has not conducted such an investigation.'") (internal citations omitted). A "meaningfully colorable" claim is one in which the lawsuit "could survive a motion to dismiss for failure to state a claim." In re Cygnus Telecomms. Tech., 536 F.3d 1343, 1357 (Fed.Cir.2008) (interpreting Minnesota's version of the UTSA).

Applying these various principles to the case at hand, the undisputed evidence confirms that FS knew of or should have discovered AOS's initial alleged trade secret misappropriation before November 28, 2004. FS's September 22, 2003 letter suggesting the parties "enter into a formal agreement to proceed with the development" of the pool pump motor as an SVRS device explicitly stated that FS had "not granted any rights to [AOS] for the commercial use of any proprietary intellectual property." (Docket # 122, Ex. 21). Mr. Cohen admitted in his deposition that Mr. Mehlhorn informed FS in October of 2003 that AOS had built a "prototype load sensor motor." (Cohen 11/20/09 Dep. 145). Given: (1) the lack of any agreement between FS and AOS for the latter company to use the plaintiff's proprietary information to develop an SVRS; and (2) FS's unwavering belief that AOS could not have produced a load-sensor motor without FS's help, Mr. Mehlhorn's disclosure in October of 2003 placed FS on clear notice that AOS was "employing" FS's proprietary information in manufacturing or producing a load sensing motor and "relying" on FS's information to "assist and accelerate" AOS's research and development of the SVRS device, a clear "use" of FS's trade secrets. Restatement § 40 cmt. c. Moreover, FS admitted without any qualifications in its January 2, 2004 letter to its manufacturers that AOS was employing FS's information to "develop the solution" to pool suction-entrapment through a load-sensing motor (Docket # 122, Ex. 22)—a stark claim, given that FS knew that AOS had "not granted any rights to [the defendant] for the commercial use of any proprietary intellectual property." (Docket #122, Ex. 21). Additionally, Mr. Schlanger's letter to Mr. O'Brien on January 22, 2004, formally accused AOS of "claiming ownership" of FS's "intellectual property."48 (Docket # 122, Ex. 25). Even more blatantly, Mr. Schlanger thanked Mr. O'Brien in his February 24, 2004 letter "for keeping [FS] advised on the status of [the] product development project," referencing the fact that Mr. O'Brien informed FS that the defendant "had decided to move forward to commercialize the new load sensor swimming pool pump motor." (Docket # 157, Ex. UU). Furthermore, Mr. Schlanger's October 13, 2004 email to Mr. O'Brien confirms that FS knew about AOS's "SVRS Motor project," as Mr. Schlanger openly asked how the project was "progressing" and if AOS was "still planning to roll [the SVRS motor] out at [a trade] show in Las Vegas." (Docket # 155 Ex. S). Finally, both Mr. Cohen and Mr. Schlanger unabashedly admit in their deposition testimony that they "knew" that AOS was producing a load-sensing motor using the information FS had provided in the summer and fall of 2004. (Cohen Dep. 11/20/09 145; Schlanger Dep. 313-14). None of the evidence suggests that FS had a mere "abstract concern" or slight "suspicion" that AOS was misappropriating FS's trade secrets; indeed, FS openly admitted it knew that AOS was using FS's trade secrets well before November 28, 2004.

The only argument that FS makes in rebuttal is that even though it "knew" that AOS was using FS's trade secrets in 2004, FS was only "speculating" about AOS's use in 2004 and could not confirm such use until FS inspected the AOS's eMod motor. (Pl.'s Resp. Br. 12). There are several problems with FS's contention. First, as discussed above, there is no evidence that FS was "speculating" about AOS's alleged misappropriation of FS's trade secrets in 2004: FS was emphatic, whether in its letters from 2003 and 2004 or in the deposition testimony of Mr. Cohen and Mr. Schlanger, that it "knew" AOS had misappropriated FS's trade secrets in 2004.49 The only "evidence" that FS has presented contradicting the premise that FS knew of AOS's misappropriation in 2004 is the affidavit of Mr. Cohen concluding that FS "did not know that [AOS] had misappropriated [FS's] trade secrets until we inspected and tested the actual functioning of the eMod motor in May of 2006." (Cohen Decl. ¶ 57). However, it is axiomatic that "parties cannot thwart the purposes of Rule 56 by creating `sham' issues of fact with affidavits that contradict their prior depositions." Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168 (7th Cir.1996); see also Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003) ("Conclusory allegations, unsupported by specific facts, will not suffice.")

Second, FS misreads the holding of the Seventh Circuit in Sokol Crystal to say that a statute of limitations period for a trade secret misappropriation claim begins when a plaintiff is "certain" of the misappropriation. The Sokol Crystal decision is largely a product of the facts presented to that court. In that case, the court had to determine when the plaintiff knew that the defendant was misusing the plaintiff's trade secret. 15 F.3d at 1430. The plaintiff in Sokol Crystal did not "discover" the defendant's misappropriation upon receiving a device created by the defendant that was "similar to" the plaintiff's device, as the plaintiff "did not yet know the use to which [the similar device was] going to be put." Id. Instead, the plaintiff in that case "discovered" the misappropriation when the defendant sold the device to a third party. Id. For the court, the mere creation of a device by the defendant that was similar to the plaintiff's product, which was very much allowed under the parties' confidential information agreement, merely provided a "suspicion" of misuse, which was insufficient to "start the clock of the statute of limitations." Id. Rather, it was only when the plaintiff discovered that the defendant was going to violate their information sharing agreement by selling the product in question that the statute of limitations period began. Id. Here, unlike in Sokol Crystal, there was no agreement between the parties allowing for AOS to employ FS's alleged trade secrets in manufacturing AOS's products or for AOS to use FS's alleged trade secret to assist AOS's research and development of the eMod. Id. at 1429 ("The agreement, in substance, prohibited Granger from using Sokol's confidential information for any purpose other than that for which it was received.") In fact, this case stands in contrast with Sokol Crystal because, in this case, the actual commercialization of the eMod was not the defendant's initial misuse of the plaintiff's proprietary information.50 The evidence, as discussed above, clearly indicates that FS knew AOS was "using" plaintiff's proprietary information before November 28, 2004.

More broadly, the argument that Sokol Crystal stands for the proposition that the "statute of limitations on trade secret misappropriation claims begins to run . . . when a plaintiff can positively and directly prove misappropriation," such as through physically inspecting the product, is deeply flawed. Chasteen, 216 F.3d at 1218; see also Intermedics, Inc. v. Ventritex, Inc., 822 F.Supp. 634, 641 (N.D.Cal. 1993) (holding that the premise that a "`cause of action' cannot `accrue' for statute of limitations purposes unless and until it is clear that a plaintiff has, as a matter of historical fact, a winning claim, i.e., until a plaintiff is in a position to present evidence which will (regardless of what evidence the defense musters) establish facts which make liability a legal certainty" is fundamentally wrong). Such a proposition would obliterate the purposes of the statute of limitations, providing a perverse incentive to plaintiffs with potential trade secret misappropriation claims to be less than diligent in exploring their claims. Moreover, as the court in Intermedics concluded, requiring that the statute of limitations period begins only when the plaintiff "can unassailably establish a legal claim for trade secret misappropriation" would eviscerate the statute of limitations, as only claims that "ultimately proved to have merit," as opposed to those with specious or unsupportable claims, would have a clear limitations period. Id. In fact, taking FS's argument to its logical extreme, as no jury has yet found that AOS actually misappropriated FS's trade secrets, it is still not absolutely certain that AOS misused FS's information, and, as such, under FS's logic, the limitations period has not yet begun to run. Setting a standard of near certain knowledge of misappropriation as the measure by which the limitations period's clock starts would be absurd and, as such, this court is persuaded that a claim for trade secret misappropriation accrues when the plaintiff merely has sufficient information to make a "meaningfully colorable" claim, Porex Corp., 284 Ga.App. at 515, 644 S.E.2d 349,—that is, sufficient information to state a claim that could survive a motion to dismiss.51 In re Cygnus Telecomms. Tech., LLC, 536 F.3d at 1357. Moreover, as discussed above, the record indicates that as of the summer of 2004, if not the fall of 2003, FS had "discovered" AOS's use of FS's proprietary information, starting the statute of limitations period.52

Finally, the court notes that the plaintiff has failed to present any information or any evidence relevant to the court's inquiry that FS discovered upon its examination of the eMod device in 2006. FS's April 11, 2008 complaint did not allege that the examination of the eMod device provided any sort of insight as to how AOS had misused the information FS provided; in fact, FS fails to mention anything in its complaint regarding its 2006 examination of the eMod, the event that supposedly confirmed that AOS had misappropriated the information FS provided to AOS. In short, the trade secret misappropriation claim that FS alleged in the April 11, 2008 complaint could have easily been made years earlier based on what FS knew in 2004. The undisputed evidence indicates that FS knew that AOS was allegedly misappropriating AOS's trade secrets well before November 28, 2004.53 Accordingly, the court is obliged to dismiss FS's misappropriation of trade secrets claim, as the claim is barred by the statute of limitations.54

2. Measures Taken By FS to Guard the Secrecy of its Proprietary Information

In the alternative, even if the court found that there was a triable issue of fact regarding the statute of limitations issue, the court would still grant summary judgment in favor of the defendant on the trade secret claim because FS did not take reasonable steps to maintain the confidentiality of its alleged trade secrets. In order to qualify as a "trade secret," the UTSA requires that the information in question be the "subject of efforts to maintain its secrecy that are reasonable under the circumstance." Wis. Stat. § 134.90. "[F]ailure to take reasonable steps to prevent gratuitous disclosure" of alleged trade secrets forfeits any protection for that information. BondPro Corp. v. Siemens Power Generation, Inc., 463 F.3d 702, 708 (7th Cir.2006) (interpreting Wisconsin law). Absolute secrecy is not required to maintain a trade secret, and the "mere fact that [a trade secret owner] disclosed its trade secrets to a `limited number of outsiders for a particular purpose'—[does] not forfeit trade secret protection." Rockwell Graphic Sys., Inc. v. DEV Indus., Inc., 925 F.2d 174, 177 (7th Cir.1991) (interpreting Illinois law). However, "one who claims a trade secret must exercise eternal vigilance in protecting its confidentiality," RTE Corp. v. Coatings, Inc., 84 Wis.2d 105, 119, 267 N.W.2d 226 (1978), and disclosure of a trade secret outside a confidential relationship "destroys the legal protection." Flotec, Inc. v. Southern Research, 16 F.Supp.2d 992 (S.D.Ind.1998) (Hamilton, J.). Moreover, in determining whether a claimant took reasonable steps to protect information as a trade secret, "the presence or absence of confidentiality agreements or other means to convey confidentiality. . . has a significant and predictable bearing on the outcome of the case." CMBB LLC v. Lockwood Mfg., 628 F.Supp.2d 881, 885 (N.D.Ill.2009). Ordinarily, "whether the measures taken by a trade secret owner are sufficient to satisfy the [UTSA's] reasonableness standard . . . is a question of fact for the jury." Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 725-26 (7th Cir.2003); see also Rockwell Graphic Sys., 925 F.2d at 179 ("Only in an extreme case can what is a `reasonable' precaution be determined on a motion for summary judgment, because the answer depends on a balancing of costs and benefits that will vary from case to case.") However, in "some circumstances. . . it may be readily apparent that reasonable measures [to maintain the confidentiality of a trade secret] simply were not taken." Tax Track Sys. Corp. v. New Investor World, Inc., 478 F.3d 783, 787 (7th Cir.2007).

Here, the undisputed facts indicate that this case is the "extreme case"—no reasonable jury could find that FS took reasonable efforts to keep its proprietary information confidential so as to warrant protection under the UTSA. In fact, FS failed to take even the most elementary steps to protect its alleged trade secrets. None of the letters or data that FS sent to AOS beared any symbol denoting that the information contained therein was confidential. Moreover, there is no evidence that FS even told AOS that the Colorado company considered the information in question confidential. FS never obtained a confidentiality agreement from AOS protecting any information FS conveyed to AOS. The latter fact is truly remarkable, given that: (1) FS was a sophisticated business operative that had entered into confidentiality agreements with companies who were doing business with the plaintiff in the past;55 and (2) AOS and FS entered into an agreement ensuring the confidentiality of AOS's proprietary information. Additionally, there is no evidence in the record that AOS ever gave FS the impression that it believed the information in question was confidential or was going to keep the information confidential. Finally, even after the relationship between the two companies soured, FS did not ask for its data map or Loadtec motor back, strongly indicating that it did not consider the information in question confidential. The undisputed facts of this case, which manifest the utter failure of FS to take precautions to ensure that its information was protected,56 stand in stark contrast to cases where courts have denied summary judgment with respect to the issue of whether a claimant took reasonable precautions to protect its trade secrets. Cf. Rockwell, 925 F.2d at 176-77 (holding that it was a jury question where plaintiff stamped drawings confidential, required employees and vendors to sign confidentiality agreements, kept documents in a vault guarded by a security officer, and retained original drawings).

FS's central argument with respect to the "efforts" it employed "to maintain [the] secrecy" of the information it imparted to AOS is that the nature of the relationship between the parties made FS's "disclosure reasonable."57 (Pl.'s Resp. Br. 24). It is "well established" that the "formation of a confidential relationship imposes upon the disclosee the duty to maintain the information received in the utmost secrecy," and the formation of such a confidential relationship, including an oral confidentiality agreement, can, depending on the circumstances, constitute a "reasonable" effort to maintain the secrecy of a claimant's information. Learning Curve Toys, Inc., 342 F.3d at 725-26. The court notes, however, that even if some sort of confidential relationship existed between the parties, the evidence, when viewed in a light most favorably to the plaintiff, must still indicate that it was "reasonable" for FS to disclose its trade secrets to AOS without taking any other precautions. Id.; see also Wis. Stat. § 134.90(1)(c)(2) ("The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances."). Here, the court concludes that, even assuming that the parties had a relationship with implications that the information shared between the parties would be confidential, the undisputed evidence, even when construed most favorably toward the plaintiff, does not indicate that FS took reasonable precautions with respect to its proprietary information. As discussed above, FS did not take any affirmative steps to protect the information it was providing to AOS, such as even mentioning to the defendant the information FS disclosed to AOS was expected to be kept confidential. Moreover, unlike in Learning Curve Toys, the only case that FS can cite to where the existence of a confidential relationship was evidence that a party took reasonable precautions to protect its information, in this case the undisputed facts show: (1) the plaintiff did not have any explicit discussions with the defendant regarding keeping confidential the plaintiff's trade secrets; and (2) the parties involved in this case are not "small," "unsophisticated" parties.58 342 F.3d at 725-26. The evidence of an oral confidentiality agreement and the lack of sophistication of the parties was at the heart of the court's holding in Learning Curve Toys. Id.

However, even if the court accepted FS's argument that the existence of a confidential relationship in and of itself is enough of an "effort" protecting a trade secret to avoid summary judgment,59 FS has not presented enough evidence that a confidential relationship existed between the parties. The Restatement provides the relevant framework for determining when a recipient of a trade secret disclosure is bound by a duty of confidence. Restatement at § 41. A person "to whom a trade secret has been disclosed owes a duty of confidence to the owner of the trade secret. . . if:

Id.; see also RTE Corp., 84 Wis.2d at 117-118, 267 N.W.2d 226 ("Where what is thought to be a trade secret is disclosed, the question posed is whether under the circumstances, the recipient of the information knew or should have known that the information is a trade secret and that the disclosure was made in confidence.")

Applying these principles to the case at hand, the court first can easily conclude that here is no evidence that AOS made any sort of express promise of confidentiality prior to the disclosure of any of FS's trade secrets.60 The only issue is whether there are any facts from which a reasonable jury could conclude that an implied duty of confidence existed between the parties. However, the court is loathe to create out of wholecloth an implied confidentiality agreement where there the parties already signed an express confidentiality agreement that had clear provisions that were "one-way" in nature and did not require AOS to keep FS's information confidential. "It is well established that courts will not recognize implied obligations that are contrary to terms of a party's written confidentiality agreement." 61 BDT Prods. v. Lexmark Int'l, Inc., 124 Fed. Appx. 329, 332 (6th Cir.2005) (refusing to recognize an implied duty of confidentiality agreement when an express confidentiality agreement existed that did not protect the claimant's information) (citing to Ferroline Corp. v. Gen. Aniline & Film Corp., 207 F.2d 912, 922 (7th Cir. 1953)); see also 1 Roger Milgrim, Milgrim on Trade Secrets § 3.03 (2010) ("It should be kept in mind that where parties have expressly contracted . . . and have not provided for confidential disclosure or restrictions based on any confidential duty, the courts are not apt to imply the existence of such restrictions.")

However, even if this court were willing to accept that the law allows it to craft an implied duty of confidentiality despite the existence of a contemporaneous written confidentiality agreement where that duty was wholly absent, the undisputed facts in this case, when viewed in a light most favorably to FS, simply do not support an implied duty of confidentiality. Returning to the framework from the Restatement § 41(b)(1), there is no evidence that AOS actually knew that FS considered any information provided to it to be a trade secret. The question, therefore, is whether AOS should have known that FS considered the information to be a trade secret, which can only be answered by considering "all of the circumstances as they appeared to [the defendant] when the information was disclosed." Flotec, Inc., 16 F.Supp.2d. at 1006 (citing to Rockwell Graphic Systems, 925 F.2d at 179-80) (emphasis added). As discussed above, FS provided no indication to AOS that the information FS was providing was intended to be kept in confidence. In fact, Mr. Cohen disclosed trade secrets without any prompting by AOS as early as January 6, 2003, in a letter that provided the initial offer to AOS regarding FS's interest in doing business with the defendant, indicating to AOS that FS was willing to disclose its proprietary information even before any business relationship was even close to being formalized.62 (Docket #122, Ex. 18). Moreover, the fact that FS willingly agreed to a confidentiality agreement that clearly protected AOS's proprietary information, but did nothing to protect FS's information provided an obvious signal to AOS that FS "knew how to ask that information be considered confidential if it really thought the company's crown jewels were at risk." Flotec, Inc., 16 F.Supp.2d at 1007. Furthermore, FS's September 22, 2003 letter informed AOS that the plaintiff had "not granted any rights" to AOS for the use of FS's proprietary information and that FS believed there was "no formal agreement" in place. (Docket #122, Ex. 21). The September 22, 2003 letter is incredibly strong evidence that FS was willing to disclose its trade secrets outside the context of an actual agreement providing rights to AOS to use FS's information.

The closest that FS comes to persuading the court that AOS "should have known" that FS considered the information in question to be confidential is the argument that the parties had a joint-venture, which by its very nature implies that disclosures made in the context of such an arrangement were confidential. (Pl.'s Resp. Br. 24-25) (citing to Jolin v. Oster, 44 Wis.2d 623, 629, 172 N.W.2d 12 (1969) for the duties that exist when parties are joint adventurers). No party details to the court in its briefs what a "joint-venture" entails under Wisconsin law, which is surprising given the centrality of that legal issue to FS's argument. Nonetheless, under Wisconsin law, a joint-venture can only be established by: (1) contribution of money or services by each of the parties; (2) joint proprietorship and mutual control over the subject matter of the venture; (3) an agreement to share profits; and (4) an express or implied contract establishing the relationship. Ruppa v. American States Ins. Co., 91 Wis.2d 628, 645, 284 N.W.2d 318, 325 (1979). The parties' agreement must also establish a relationship whereby each co-venturer is both a principal and an agent of the others. Edlebeck v. Hooten, 20 Wis.2d 83, 88, 121 N.W.2d 240 (1963) ("Each must agree expressly or impliedly to a community of interest as to the purpose of the undertaking and to stand in the relation of agent as well as principal to the other coadventurers with equal right of control of the means employed to carry out the common purpose.") The burden of proving such a relationship existed is upon the party asserting the joint venture. Troy Co. v. Perry, 68 Wis.2d 170, 177, 228 N.W.2d 169 (1975).

Here, there is no evidence that a joint venture relationship existed between the parties. Instead, the record indicates that, at best, AOS was employed by FS as a successor to Franklin in producing a load-sensing pool pump motor. The plaintiff asserts that the relationship was not established until after "ten to fifteen conversations" regarding a "suction entrapment preventative motor" and "numerous letters" were exchanged between FS and AOS.63 (PPFF ¶ 196). However, the evidence that FS cites to support its finding of fact does not indicate that the parties actually had reached an agreement to jointly-develop a pool pump where the two parties would be sharing the profits of such a venture or exercising joint control over each other in the project; rather, the evidence shows the parties were merely bantering back and forth about a potential project where AOS was to produce a device for FS. (Cohen Dep. 10/21/09 213-14) ("I verified that they, [AOS], had the interest in developing a load sensor pool pump motor") (emphasis added); id. at 220 ("We were excitedly talking about the features that could be designed into the motor, and I believed he requested that I put together the feature outline") (emphasis added); (Metzler Dep. 85) ("Yeah, I definitely had talked to Joe by the 6th of January, but it was strictly developing a motor for him") (emphasis added).64

FS's evidence that there was a joint-venture in place between the companies apparently stemmed from Mr. Cohen's reading of a January 16, 2003 letter sent from AOS to FS.65 (Cohen 10/21/09 221) ("He sent a letter that said we were co-developing, the way I read it.") Mr. Cohen's interpretation of what AOS's letter to FS meant or what a "joint-venture" entails is completely irrelevant to the issue at hand, however; the main question is whether there is any evidence, including the January 16, 2003 letter, that a joint-venture actually existed between FS and AOS, given Wisconsin law on the matter.66 The letter Cohen references in his deposition testimony, even when viewed in a light most charitable to FS, does not even begin to rise to the level of placing AOS on notice that the parties were in some sort of joint venture relationship. While AOS's January 16, 2003 letter proposes that AOS would like to "work and develop concepts for suction entrapment" with FS, the letter does not solidify any sort of relationship between the parties. The January 16, 2003 letter, at best, indicates a general and non-specified interest on the part of AOS to work with FS with regard to developing SVRS technology. (Docket # 122, Ex. 19).

Moreover, the fact that FS cannot cite to a single conversation or any other evidence that the parties actually agreed to engage in mutual control over a venture, share profits or proceeds of a project, or be principals and agents for each other, solidifies the court's conclusion that there was no joint-venture relationship between the parties. FS does indeed have evidence where AOS admits that it was "working with" FS in developing a pool pump motor, such as Mr. Mehlhorn's deposition testimony (Mehlhorn Dep. 158), AOS's internal documents referring to a "working agreement" with FS (Docket # 157, Ex. ZZ), or Mr. Schlanger's deposition stating that AOS considered its work on the motor a "project." (Schlanger Dep. 275-76). All of that evidence merely indicates that, at best, AOS and FS had some sort of business arrangement, but it begs the question of whether that arrangement was a joint-venture. Here, the evidence is quite one-sided that the parties did not have "mutual control" over the subject matter of the arrangement. Mr. Mehlhorn's deposition testimony indicates that the business arrangement was one where FS provided the general requirements or features for the motor that it wanted, but that AOS had complete autonomy in developing a motor according to its own specifications. (Mehlhorn Dep. 202). In fact, FS and AOS did not "work together on any specifications" of the circuitry of the load sensing pool pump motor, and FS did not provide any "input into the development" of the device. Id. While Mr. Mehlhorn chatted with Mr. Cohen during the summer of 2003 regarding the motor, there is absolutely no evidence that FS or AOS had the ability to exercise control over the other party with respect to their business arrangement. See Trustmark Ins. Co. v. General & Cologne Life Re of Am., 424 F.3d 542, 548 (7th Cir.2005) ("These parties could not exercise any control over each other's operations or policies whatsoever, and therefore we affirm the district court's grant of partial summary judgment on the joint-venture claims for lack of mutual control") (interpreting synonymous Illinois law). Moreover, the plaintiff has provided simply no evidence that the parties shared profits or proceeds of a project or acted as principals and agents for each other, necessary elements of a joint-venture. Ruppa, 91 Wis.2d at 645, 284 N.W.2d 318.

Perhaps most importantly, there is little to no evidence of an agreement in place between the parties to engage in a joint-venture; in fact, the best67 evidence in the record with regard to whether there was ever any sort of agreement, whether express or implied, between the parties is FS's September 22, 2003 letter, which informed AOS that the plaintiff had "not granted any rights" to AOS for the use of FS's proprietary information and that FS believed there was "no formal agreement" in place. (Docket # 122, Ex. 21). More broadly, the court finds that no reasonable jury could conclude that two sophisticated business entities, like FS and AOS, would formalize a joint-venture project without putting it into writing. This is particularly true in the context of this case, given that the only other alleged "joint-venture" the plaintiff participated in—FS's business arrangement with Franklin—FS actually had a written agreement with the other party.68 (DPFF ¶ 27).

The court concludes its discussion of the possibility that the parties engaged in a joint venture by citing the well-reasoned comments of Judge William Griesbach, included in a 2008 decision, which this court finds equally appropriate for this case:

Studio & Partners, s.r.l. v. KI, No. 06-CV-0628, 2008 WL 426496, at *14, 2008 U.S. Dist. LEXIS 11321, at *43-35 (E.D.Wis. Feb. 14, 2008).

Given that there was no agreement in place between the parties to engage in a joint-venture, the court can easily conclude that the defendant did not have "reason to know that [FS's] disclosure [of information to AOS] was intended to be in confidence." Restatement § 41(b)(1). Moreover, the court also concludes that there is no evidence that FS "reasonably inferred" that AOS had consented to an obligation of confidentiality.69 Id. at § 41(b)(2). FS does not discuss in its brief to the court or its many findings of fact that AOS even provided the slightest indication to FS that the defendant agreed to keep FS's information confidential. As such, the court does not hesitate in finding that there is a lack of evidence establishing that a confidential relationship between the two parties existed and, with that, a lack of any evidence from which a reasonable jury could find for FS on its trade secret claim, even if it was not time barred.70 FS simply "did not take reasonable precautions which would prevent [the defendant] from becoming a competitor if a satisfactory arrangement could not be worked out with" AOS. Besly-Welles Corp. v. Balax, Inc., 291 F.Supp. 328, 346 (E.D.Wis.1968).71 FS "should have taken steps to insure the confidentiality of the information" it gave to AOS but did not, warranting judgment for AOS on the trade secret claim.72 Id.

The court could continue to analyze AOS's other arguments for granting summary judgment in the defendant's favor on the trade secret misappropriation claim, such as the contention that FS's information does not qualify as a trade secret because it is contains information that was "generally known or readily ascertainable by proper means." (Def.'s Br. 22). However, the court feels the proverbial "horse" is "dead" and is more than satisfied that FS will not be able to survive summary judgment on the trade secret misappropriation claim73 and will not delve into the remaining morass of the trade secret claim.74

B. Unjust Enrichment Claim

The remaining claim of relief that the plaintiff alleges in its complaint is an "unjust enrichment/misappropriation of business value" claim. (Compl. ¶¶ 30-34). Specifically, FS asserts that, after the plaintiff had "expended" considerable efforts "compiling" "testing" data and "operational protocols" for a "load-sensing, suction entrapment-preventative motor," the plaintiff "conferred a benefit upon [AOS] by" sharing the relevant information with the defendant, who, in turn, "realized a benefit" from the information provided by FS under circumstances that would be "inequitable for the defendant to retain the benefit without payment of its value." Id. On summary judgment, with respect to the unjust enrichment claim, the defendant argues that "FS has no evidence that AOS used any FS information ... after December 2004," and, accordingly, asks that the court enter judgment that AOS did not use FS's information after December of 2004. (Def.'s Br. 27).

The defendant's argument appears perplexing, as its not entirely clear why AOS's alleged "non-use" of FS's information after 2004 is even relevant to the unjust enrichment claim. While the issue of "non-use" of FS's information after December of 2004 is obviously relevant in the context of FS's trade secret misappropriation claim, where a plaintiff can prove such a claim by showing that the defendant "misused" a trade secret, Wis. Stat. § 134.90(2)(b), neither of the parties' briefs addresses why the issue of when AOS "used" FS's information is relevant to the unjust enrichment claim where the issue is whether FS "conferred a benefit on" AOS, AOS "knew of the benefit," and it would be inequitable to allow" AOS to "retain the benefit." Bilharz v. First Interstate Bank, 98 F.3d 985, 988 (7th Cir.1996) (citing Watts v. Watts, 137 Wis.2d 506, 531, 405 N.W.2d 303, 313 (1987)). In fact, AOS did not cite a single unjust enrichment case to support its contention that the lack of direct evidence that the defendant utilized FS's proprietary information after December of 2004 warrants a judgment of "no use of FS's information after December 2004" with respect to the unjust enrichment claim. (Def.'s Br. 28). The plaintiff's brief is equally unhelpful, as FS opted to focus on the issue of "use after December 2004" with respect to how it affected the trade secret claim and wholly ignored the unjust enrichment claim. (Pl.'s Resp. Br. 26-29).

Not withstanding the lack of adequate analysis from the parties' submissions, the unjust enrichment claim is premised on the general theory that AOS owes the plaintiff profits AOS earned through the unjust "use" of the plaintiff's information. See Gary Friedrich Enters., LLC v. Marvel Enters., 713 F.Supp.2d 215, 229 (S.D.N.Y.2009) (framing identical New York unjust enrichment law in the context of "use" of intellectual property). AOS asserts that there is no evidence supporting the claim that there was no "use" of FS's information after December 2004. AOS supports its contention by stating that the later versions of its eMod and the Guardian products: (1) do not have the same features75 as the Loadtec motor; (2) do not use a change in "power factor" as the means of detecting and shutting off the motor in response to an underload condition, as the Loadtec motor did; (3) do not use the exact "trip points" of the Loadtec motor; and (4) did not use the exact test stand "improved by [Mr.] Cohen's recommendations in 2003" in their development. Id. at 231-32. However, AOS's argument only raises the question of whether the defendant would have developed the later generations of its pool pump motor if not for the alleged benefit that FS provided to AOS in 2003 and 2004.76 The answer to that question remains in dispute as there is evidence in the record that AOS's SVRS devices were developed on a "continuum" and were continually adjusted and improved, raising the issue of whether the information FS provided to AOS was instrumental in allowing AOS to develop any of its pool pump motors. Moreover, FS has provided expert testimony that FS's information substantially contributed to AOS's anti-entrapment devices. (Neuhalfen Dep. 224). The jury could be persuaded that AOS "used" FS's information after December of 2004, in the sense that the load-sensing motors that AOS developed after that time period were, in part, a product of the information and advice FS initially provided to AOS.77 While the defendant asserts that it could not have been "enriched" because "AOS was already working on a motor that would shut down in the same conditions" as the Loadtec motor (Def.'s Br. 30 n. 11), the issue of whether AOS would have successfully developed any of its motors without FS's help is very much in dispute.78 As such, the court will deny AOS's motion for summary judgment of "no use of FS's information after December 2004 based on FS's lack of evidence." (Def.'s Br. 28).

C. Remaining Issues in the Case

With the resolution of AOS's summary judgment motion, the court notes that there are three major79 motions remaining on the docket for this case. First, FS filed a motion for "in-camera review" to determine whether certain documents have been improperly shielded from disclosure because of an assertion of the attorney-client privilege. (Docket # 90). Second, AOS has filed a motion to exclude FS's claim for future damages. (Docket #111). Third, on April 20, 2010, FS filed a motion for spoilation sanctions. (Docket # 176). The court has reviewed each of the remaining motions. The court largely views those motions as being premature in nature, given that they were filed before the court had an opportunity to review the summary judgment issue. A significant portion, if not the majority, of these materials are related to evidence that would have supported the trade secret claim, which has now been dismissed by the court. In general, the motions were all raised under the assumption that the trade secret claim remained a viable claim. The court also notes that AOS's motion to exclude FS's claim for future damages has been largely stalled by the delay in releasing supplemental expert reports relating to damages. While no new theories can be espoused in those supplemental reports, the court will require those reports to fully analyze the methodologies used by FS's experts, and the court would greatly benefit from the parties' own analysis of those supplemental reports as well. Instead of necessitating that the court delve into the remaining motions and attempt to separate the wheat from the chafe to determine how relevant those motions are in light of today's order, the court finds that the far more prudent course of action is to deny all three of the remaining motions without prejudice, allowing the parties an opportunity to determine whether they would like to continue to pursue the motions given the state of the case. If the parties do wish to resubm it any motions, the court would be greatly aided by the parties' efforts to revise and update their current briefs regarding those motions so that they focus exclusively on the plaintiff's remaining claim. However, given the court's comments in this order and during the July 9, 2010 hearing, it would greatly behoove counsel and their respective clients to candidly discuss with each other the course that lies ahead in this case. Such discussions should focus on whether it is in anyone's best interest to continue to protract this litigation any further.

Accordingly,

IT IS ORDERED that the plaintiff's motion for leave to file its motion for in camera review and exhibits under seal (Docket # 88) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that the plaintiff's motion for in camera review (Docket # 90) be and the same is hereby DENIED without prejudice;

IT IS FURTHER ORDERED that the defendant's motion to exclude "Fail-Safe's Claim for Future Damages" (Docket # 111) be and the same is hereby DENIED without prejudice;

IT IS FURTHER ORDERED that the defendant's motion for summary judgment (Docket # 121) be and the same is hereby GRANTED in part and DENIED in part. The court grants summary judgment as to the plaintiff's trade secret misappropriation claim against the defendant and denies summary judgment as to the plaintiff's unjust enrichment claim against the defendant;

IT IS FURTHER ORDERED that plaintiff's motion to "seal exhibits accompanying Rule 7.4 expedited non-dispositive motion to preclude introduction of expert testimony and written reports" (Docket # 130) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that the defendant's motion to seal "Exhibit E to Reichenberger Declaration in Support of AO Smith's Response to Motion to Allow Supplemental Expert Reports" (Docket # 133) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion to file "Exhibit Accompanying its Rule 7.4 Expedited Non-Dispositive Unopposed Motion for Extension Of Time to File its Summary Judgment Response and Motion For Extension of Time to File its Response to A.O. Smith's Motion to Exclude" under seal (Docket # 137) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that the defendant's motion for leave to file under seal its "memorandum in support of its motion for protective order to preclude Fail-Safe's Use of New Experts or Theories and Exhibits to Supporting Declaration" (Docket # 144) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that the defendant's motion to file "Response to A.O. Smith's Daubert Motion to Exclude Fail-Safe's Claim for Future Damages, Supporting Declarations, and Exhibits" under seal (Docket # 153) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion to seal "Response to A.O. Smith Corporation's Motion for Summary Judgment, Supporting Declarations, and Exhibits" (Docket # 155) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion to seal "Fail-Safe, LLC's Response and Supplement to A.O. Smith Corporation's Proposed Findings of Fact in Support of its Motion for Summary Judgment" (Docket # 160) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion to seal "Fail-Safe, LLC's Motion to File its Response to A.O. Smith Corporation's Motion for a Protective Order to Preclude Fail-Safe's Use of New Experts or Theories, Supporting Declaration, and Exhibits" (Docket # 162) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that defendant's motion for "Leave to File Under Seal its Reply in Support of its Motion for a Protective Order to Preclude Fail-Safe's Use of New Experts or Theories" (Docket # 168) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that defendant's motion for "Leave to File Under Seal its Reply Memorandum in Support of its Motion for Summary Judgment, Responses to Fail-Safe's Proposed Findings and Exhibits to Supporting Declaration" (Docket # 170) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion to seal "Fail-Safe LLC's Motion to File it Motion for Spoliation Sanctions, Supporting Declaration, and Exhibits" (Docket # 175) be and the same is hereby GRANTED;

IT IS FURTHER ORDERED that plaintiff's motion for sanctions (Docket # 176) be and the same is hereby DENIED without prejudice;

IT IS FURTHER ORDERED that defendant's motion to seal "Memorandum in Opposition to Plaintiff Fail-Safe, LLC's Motion for Spoliation Sanctions and Exhibits to Supporting Declaration" (Docket # 178) be and the same is hereby GRANTED; and

IT IS FURTHER ORDERED that plaintiff's motion to seal its "Reply in Support of its Motion for Spoliation Sanctions, Supporting Declaration, and Exhibits" (Docket # 183) be and the same is hereby GRANTED.