CAUSE NO. DC-19-10651
`
`CBG SURVEYING TEXAS, LLC,
`
`Plaintiff/Counter-Defendant,
`
`Vv.
`
`BURNS SURVEYING, LLC, TIMOTHY
`J. BURNS, KYLA BURNS, JOHN
`THOMAS GARZA, BARRY RHODES,
`LAURA MERRITT, MICHAEL
`PERKINS, and KEVIN BROTHERTON,
`
`Defendants,
`
`
`BURNS SURVEYING, LLC,
`
`Counter-Plaintiff/Third-Party
`Plaintiff,
`
`V.
`
`JESSICA WIGGINS,
`
`Third-Party Defendant.
`
`QPLPGRLPQPILI))GROnWO?WOROPI?(GPOQQRWO?LI)LI)LnLI?OPLO)LI
`
`FILED
`8/29/2022 3:26 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Marissa Gomez DEPUTY
`
`IN THE DISTRICT COURT
`
`134TH JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`COUNTER-DEFENDANT CBG SURVEYING TEXAS, LLC AND THIRD-PARTY
`DEFENDANT JESSICA WIGGINS’ TRADITIONAL AND NO-EVIDENCE MOTION
`FOR SUMMARY JUDGMENT
`
`Onthebrief:
`
`MAYER LLP
`
`ll
`
`
`
`Kunal Shah
`State Bar No. 24104253
`Brandon Maxey
`State Bar No. 24092777
`Nina Dinh
`State Bar No. 24106772
`
`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`Counter-Defendant, CBG Surveying Texas, LLC (“CBG”) and Third-Party Defendant, Jessica
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`Wiggins (“Wiggins”) file this Traditional and No-Evidence Motion for Summary Judgment (the
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`“Motion’’) for dismissal of Defendant Burn Surveying, LLC’s (“Burns Surveying”) claims brought
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`under the Texas Uniform Trade Secrets Act (“TUTSA”) against CBG and Wiggins (the
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`“Counterclaim’”) and state as follows:
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`I.
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`INTRODUCTION
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`Burns Surveying’s Counterclaim is, at best, an attempt to create a cause of action for
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`moonlighting—onethat is not recognized by law. Defendant argues on a hunch, and without
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`evidence, that because Wigginsbriefly worked at both CBG and Burns Surveying, and had access
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`to both companies’ SurveyStars systems over a five-day period, she Had to have misappropriated
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`Burns Surveying’s trade secrets for CBG. Wiggins denied misappropriating, using, or disclosing
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`Burns Surveying’s information under oath—simple testimony for which Defendants TJ Burns,
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`Laura Merritt, and Kevin Brotherton asserted their Fifth Amendment Privilege regarding their
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`hacking and misappropriation. Despite Burns Surveying’s efforts to liken Wiggins’ conductto the
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`hacking of TJ Burns, Kevin Brotherton, and Laura Merritt, the Lawsuit and Counterclaim could
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`not be more different because Wiggins had authorized access to both companies’ SurveyStars.
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`Wiggins admits she worked at both entities over a five-day period—for Burns Surveying
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`during the day and for CBG during the evenings, Wigginsdid not have a confidentiality agreement,
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`nor an agreementrestricting moonlighting or otherwise preventing her from working two jobs
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`concurrently. In fact, Burns Surveying did not have any written policies for its employees during
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`Wiggins’ employment. Wiggins was not even the only Burns Surveying employee working for
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`another competing land surveyor simultaneously—three other employees also worked for
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`competitors while simultaneously working for Burns Surveying and had access to multiple
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`companies’ SurveyStars, one of whom is Burns Surveying’s designated corporate
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`representative.
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`The truth of the matter is, Defendant brought this Counterclaim in bad faith and in
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`retaliation against CBGforfiling its lawsuit against Burns Surveying. From the inception of the
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`Counterclaim, CBG and Wigginshave arguedits frivolous nature to the Court, especially since all
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`claims were brought“upon information andbelief.” In the limited testimony actually elicited from
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`Burns Surveying’s owner, Defendant TJ Burns, he expressly stated he would allow his employees
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`to share information on Burns Surveying’s SurveyStars with persons outside of the company and
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`would even permit his employeesto share this information with CBG:
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`A.
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`I've never had conversations like that, no.
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`
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`Burns Surveying’s Counterclaim is the very definition of bad faith. Not only is the claim entirely
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`baseless, but it was clearly filed in retribution as its owner does not even believein it.
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`Il.
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`STATEMENT OF MATERIAL FACTS
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`Wiggins’ employment with Burns Surveying.
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`1.
`
`2.
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`Wiggins was employed by Burns Surveying through July 19, 2019.!
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`Wiggins worked for Burns Surveying as a researcher where she researched property
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`records and prepared them for field employees. Burns Surveying testified that Wiggins’
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`researching duties included “pulling the public records, like property appraisal, tax maps, plats,
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`deeds, easements” and uploading them onto SurveyStars.”
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`3.
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`While working for Burns Surveying, Wiggins had access to Burns Surveying’s
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`SurveyStars.*
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`4.
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`Wiggins tendered her resignation to Burns Surveying on July 9, 2019. Burns Surveying’s
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`corporate representative testified that she personally knew Wiggins was leaving to go work for
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`CBG.4
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`5.
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`Even after she gave her two-weeks’ notice, Burns Surveying admitted that Wiggins was
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`still asked to do quoting “for a few days,” wasstill tasked with “researching” where she would
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`have access to Burns Surveying’s SurveyStars to upload survey documents, and “still had access
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`to everything she did before.”
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`6.
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`Wigginstestified she started working nights for CBG during herlast days of employment
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`with Burns Surveying. Wiggins testified that her workstation for Burns Surveying wasset up in
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`her bedroom and that she “would work [her] normal hours with Burns Surveying from 8:00 to
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`5:00...[a]nd then after [she] clocked out...[she] would go to [her] kitchen workstation and clock
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`in at CBG and do workthere.’”®
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`' See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022, at {| 8.
`? See true and accurate excerptsof the deposition transcript of Burns Surveying’s Corporate Representative, Elizabeth
`Lasecki, dated August 5, 2022 at 10:24-11:3, 18:12-19:7, 28:15-29:3 attached hereto as Exhibit A.
`3 Id. at 23:6-24:1.
`4 Id. at 18:3-7, 27:11-16.
`5 Id. at 28:5-29:6.
`® See true and accurate excerpts of the deposition transcript of Jessica Wiggins dated September 14, 2021, at 14:1-
`15:1, 19:14-17, attached hereto as Exhibit B.
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`4
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`7.
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`SurveyStars records indicate that Wiggins had access to both CBG and Burns Surveying’s
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`SurveyStars between July 15, 2019 and July 19, 2019—afive day period.’
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`8.
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`Wigginstestified that she did not “use anything that [she] had learned at Burns [Surveying]
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`to help CBG”andthatshe did not “use anything learned at CBG to help Burns [Surveying].”®
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`9.
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`Wiggins did not have an employee handbook at Burns Surveying during her employment,
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`nor did Burns Surveying have any policies in place regarding moonlighting or disclosing potential
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`conflicts of interest.’
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`10.
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`Burns Surveying’s owner, TJ Burns,testified that he never prevented his employees from
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`sharing information stored on its SurveyStars with persons outside the company, including CBG,
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`because he believed the information wasnot confidential. '°
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`11.
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`As a result, Clint Moore, a non-party, also worked at both Burns Surveying and Rhodes
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`Surveying at the sametime."!
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`12.
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`Joe Mile, a non-party consultant, also worked at both Burns Surveying and a competitor
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`for two years through July 20, 2021 and also had authorized access to both companies’
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`SurveyStars. !”
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`13.
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`Burns Surveying’s corporate representative, Elizabeth Lasecki also worked for Arthur
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`Land Surveying and Burns Surveying in February 2018 and had authorized access to both
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`companies’ SurveyStars. °
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`? See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022, at J 8.
`8 Ex. B, at 137:2-4.
`° Td. at 180:8-17.
`10 See true and accurate excerpts of the deposition transcript of TJ Burns’ second deposition, dated July 27, 2021 at
`33:16-34:3, attached hereto as Exhibit C.
`Ex, B, at 180:9-12.
`1? Ex. C, at 36:10-37:15.
`13 See Text Messages between Elizabeth Lasecki and TJ Burns from February 11, 2018 through February 13, 2018
`attached hereto as Exhibit D. As the Court is aware, these text messages may be incomplete due to messages withheld
`based upon TJ Burns’ assertion of his Fifth Amendment Privilege. These text messages were not produced until after
`Burns Surveying’s corporate representative deposition.
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`5
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`14.
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`Burns Surveyingtestified that its misappropriation claim is based solely off of SurveyStars
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`records showing that Wiggins had accessed both CBG and Burns Surveying’s SurveyStars for a
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`five-day period.'*
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`Alleged Trade Secret # 1: Quote for 6840 Coronado Avenue, Dallas, Texas.
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`15.
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`Burns Surveying alleges Wiggins and CBG acquired and misappropriated its quotes,
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`pending customer orders and customerlists stored on SurveyStars, and its quoting procedures.!°
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`16.
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`Burns Surveying specifically alleges CBG won a quote that Burns Surveying quoted and
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`lost for 6840 Coronado Avenue, Dallas, Texas on July 9, 2019.'°
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`17.
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`Though, Burns Surveying alleges CBG wonthis quote on July 9, 2019—it did not. In
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`reality, the title company requesting this quote never ordered the survey from CBG until May 22,
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`2020.'7
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`18.
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`Burns Surveyingtestified that its quoting procedure when Wiggins was employed “would
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`be -- the basic research would be uploaded, and then it would go -- an e-mail would go outto T.J.
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`and [Elizabeth Lasecki] with sometimes a suggested price, sometimes not, and one of us would
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`provide the quote for the property.” Defendant admitted this procedure was never memorialized,
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`noris it stored in Burns Surveying’s SurveyStars.!®
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`19.
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`Burns Surveyingtestified that surveys with “standard pricing” are priced using a “standard
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`formula for the size of the property, the size of the home, [and] the type of survey.” These type of
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`surveysare referred to as final survey[s].””
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`'VEx, A, at 31:7-33:24.
`'S See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022,at 4]
`29-34.
`6 Id. at | 13.
`"See Affidavit of Josh Connally attached hereto as Exhibit E. at 4 7-9.
`18 Bx. A, at 35:3-10, 37:2-3, 49:5-7.
`9 Td. at 20:5-17.
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`20.
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`On July 9, 2019, Esther Lim, an escrow officer at Chicago Title emailed Burns Surveying
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`requesting a final survey for 6840 Coronado Avenue, Dallas, Texas and stated she was “trying to
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`steal a deal from CBG.””°
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`21. Wiggins forwarded the email to Elizabeth Lasecki and TJ Burns and suggests standard
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`pricing at 3:34 p.m.”!
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`22.
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`Elizabeth Lasecki quoted $360 to Esther Lim at 3:42 p.m. Jessica Wiggins did not provide
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`the quoteto the client.”
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`Alleged Trade Secret # 2: Quote for 7240 Rose Hill Drive, Terrell, Texas.
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`23.
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`Burns Surveying also alleges “upon information and belief’ that CBG won a quote that
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`Burns Surveying quoted and lost for 7240 Rose Hill Drive Terrell, Texas on August 21, 2019—
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`over a month after Wiggins stopped working for Burns Surveying. This belief is predicated on an
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`internal CBG email from Wiggins where shestates “[p]retty sure we took this one from Burns
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`[Surveying].”?+
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`24,
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`CBG did win this quote on August 21, 2019. However, the evidence showsthat the client,
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`in its survey request sent to CBG,attached a request form for Burns Surveying:”*
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`0 See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022, at ] 13.
`21 7d,
`22 See a copy of Burns Surveying’s quote for 6840 Coronado Avenue, Dallas, Texas, produced as
`BurnsSurveying063759-063761 attached hereto as Exhibit F.
`3 See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022, at J 21.
`4 Ex. E, Connally Aff. at J 11.
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`7
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`Property Location: 7240 Rose Hill Drive, Terrell, TX 75160
`BE SUPER COMPETITIVE QUOTE SENT TO COMPETITION ALSO
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`SURVEY ORDER REQUEST
`Date Needed: August 22, 2019
`
`j
`
`|
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`L D
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`ate Raquested: August 19, 2019
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`Requested From:
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`Name and Address of Person/Company who requested the Survey and is Responsible for Payment:
`REFINANCE
`NEED NEW SURVEY
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`Deliver to: North American Title Company
`Contact: Shelly Hooper
`5435 N. Garland Ave.. Suite 180
`Garland, TX 75040
`
`(214)703-9608
`Fax:
`(214)703-9607
`Phone:
`FileNo.:=14702-19-0F276
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`To which Wiggins responded internally: “be super competitive [because the] quote [was] sent to
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`[competition] also.”
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`Feary:
`Sank:
`Te:
`Subject:
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`jennBebgealle.cor
`Wadraucay, duguet 2d, 2009 12:01 Ped COT
`Gach Shephare: Jobrany Quill: Jaek Carnal; Geyen Cannel: Rabart Gaara: Jeaglen Viiggina
`28282-Team Email Quete re: 720 AGRE FILL DRIVE
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`quote 2.3 acre lot kaufman
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`Accordingly, this post-employment theory of misappropriation is easily debunked.
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`Alleged Trade Secret # 3: Quoting Procedures.
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`25.
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`Burns Surveying alleges the following “New Quote Procedures” document created by
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`Wiggins as an employee of CBG on September30, 2019 was developed through information she
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`misappropriated from working at Burns Surveying:*°
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`25 See Defendant Burns Surveying, LLC’s Amended Counterclaim and Third-Party Claim dated June 2, 2022,at J]
`25-29; see Ex. E, Connally Aff. at J 10.
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`NEW QUOTE PROCEDURES:
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`Individual/ Commercial & Builder jobs prices are sent from CSR's name
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`- Quote is received and responded to by whoever receives the initial email, then forwarded to
`quote email
`- Quote clerk selects email -moves to completed folder when done
`. Create a quote in stars- leave in New status
`. Research quote- mave to Research status
`- Email quote from Stars to:
`a. Dallas: Josh, Bryan, Johnny, Robert 6.
`b. Houston; Josh, Bryan, Johnny, Robert G., Johnny
`c. East Texas: Robert R., Zach, Whitney
`. Move to waiting for price.
`.
`If it's a Rush quote include Cassie in email
`. Wait for email from Quoter saying “done” — they put in ready to send
`9. Wait for email from Cassie on Rush jabs to get turn time.
`10. Email the client the price thru Stars
`a.
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`6 F 8
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`26.
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`Next, on September 27, 2019, over two-months after her employment with Burns
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`Surveying ended, Wiggins emailed CBG personnel totell them that Burns Surveyingdid not quote
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`duplex properties as metes and bounds surveys.”° Defendant alleges this to be trade secret
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`information.
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`27.
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`CBGdid not misappropriate or interfere with Burns Surveying’s information, nor did CBG
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`ask Wiggins or any person to do the same. CBG did not obtain nor use any Burns Surveying’s
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`trade secrets.7’
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`SUMMARY JUDGMENT STANDARD
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`A. Traditional summary judgmentstandard.
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`A movantis entitled to summary judgment when it showsthat there are no genuine issues
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`of material fact and that it is entitled to judgment as a matter of law. Randall’s Food Mkts. v.
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`Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Property Memt. Co., Inc., 690 S.W.2d
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`546, 548-49 (Tex. 1985). To meet this burden, the claimant must conclusively prove all essential
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`*6 Ex. E, Connally Aff. at J 12.
`27 1d. at 4] 13-14.
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`elements of its clam. MMP,Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The moving party has
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`the burden of showing as a matter of law that no material issue of fact exists for the nonmovant’s
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`cause of action. See Arnold v. Nat'l County Mut. Fire Ins. Co., 725 S.W.2d 165, 166-67 (Tex.
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`1987). A matter is conclusively established if reasonable people could not differ as to the
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`conclusion to be drawn from the evidence. See City ofKeller v. Wilson, 168 S.W.3d 802, 816 (Tex.
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`2005).
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`B. No-Evidence summary judgment standard.
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`In a no-evidence summary judgment, the movant represents that no evidence exists as to
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`one or more essential elements of the non-movant’s claims, upon which the non-movant would
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`have the burden ofproofat trial. TEX. R. Cv. P. 166a(1); Jackson v. Fiesta Mart, 979 S.W.2d 68,
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`70-71 (Tex. App.—Austin 1998, no pet.). On review, an appellate court ascertains whether the
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`non-movant produced more than a scintilla of probative evidence to raise a genuine issue of
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`material fact. Jd. More than a scintilla of evidence exists if the evidence “rises to a level that would
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`enable reasonable and fair-minded people to differ in their conclusions.” King Ranch, Inc. v.
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`Chapman, 118 S.W.3d 742, 751 (Tex. 2003). If the evidence does no more than create a mere
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`surmise or suspicion of fact, less than a scintilla of evidence exists. Merrell Dow Pharms., Inc. v.
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`Havner, 953 8.W.2d 706, 711-12 (Tex. 1997). The non-moving party must present evidence that
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`raises a genuine fact issue on each of the challenged elements or the motion should be granted.
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`TEX. R. Civ. P. 166a(1). The non-movant cannot merely globally state facts to support its
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`conclusions as it sees them—rather, the non-movant must connect the facts to the challenged
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`elements of the cause of action. Brewer & Pritchard, P. C. v. Johnson, 7 S.W.3d 862, 869 (Tex.
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`App.—Houston[Ist Dist.] 1999), aff'd on other grounds, 73 S.W.3d 193 (Tex. 2002).
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`ARGUMENTS AND AUTHORITIES
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`10
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`

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`I.
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`Arguments and Authorities on Burns Surveying’s TUTSA Claim
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`A. Legal framework for TUTSAclaims.
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`The elements of trade secret misappropriation under the Texas Uniform Trade Secret Act
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`(“TUTSA”) are: “(1) ownership ofa trade secret; (2) misappropriation ofthe trade secret; and (3)
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`an injury to the plaintiff or unjust enrichmentto the defendant.” Morrison v. Profanchik, 2019 WL
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`3798182, at *5 (Tex. App.—Dallas Aug. 13, 2019), supplemented, No. 05-17-01281-CV, 2019
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`WL 5112268 (Tex. App.—Dallas Oct. 10, 2019, no pet.) (citing Tex. Civ. Prac. & Rem. Code
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`Ann. § 134A.002—.004). TUTSA defines a trade secret as:
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`[A]ll forms and types of information, including business, scientific, technical,
`economic, or engineering information, and any formula, design, prototype, pattern,
`plan, compilation, program device, program, code, device, method, technique,
`process, procedure, financial data, or list of actual or potential customers or
`suppliers, whether tangible or intangible and whether or how stored, compiled, or
`memorialized physically, electronically, graphically, photographically, or
`in
`writing if:
`
`(A) the owner of the trade secret has taken reasonable measures
`under the circumstances to keep the information secret; and
`
`(B) the information derives independent economic value, actual or
`potential, from not being generally knownto, and not being readily
`ascertainable through proper means by, another person who can
`obtain economic value from the disclosure or use of the information.
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`Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(6).
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`Misappropriation of a trade secret means the: “(A) acquisition of a trade secret of another
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`by a person who knowsor has reason to know that the trade secret was acquired by improper
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`means; or (B) disclosure or use of a trade secret of another without express or implied consent by
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`a person who...used improper means to acquire knowledge of the trade secret.” /d. at §
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`134A.002(3).
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`Damages for misappropriation include “both the actual
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`loss [to Plaintiff] caused by
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`[Defendants’] misappropriation and the unjust enrichment
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`[to Defendants]
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`caused by
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`11
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`misappropriation.” /d. at § 134A.004(a). Additionally, the Court may award reasonable attorney’s
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`fees if a claim of misappropriation is made in badfaith. /d. at § 134A.005.
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`B. Burns Surveyhasfailed to demonstrate its trade secrets were misappropriated by CBG
`or Wiggins.
`
`i.
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`CBG concedes information electronically stored on SurveyStars are trade secrets.
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`To the extent Burns Surveying alleges that its quotes, pending customer orders and
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`customerlists stored on SurveyStars are trade secrets, CBG concedesthat information stored on
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`SurveyStars are trade secrets.
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`ii.
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`Burns Surveying’s “Quoting Procedures” are not trade secrets.
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`Defendant alleges the document created by Wiggins on September 30, 2019—over two
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`monthsafter her employment with CBG ended, with purported knowledge acquired from her time
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`at Burns Surveying, and her knowledge of how Burns Surveying’s quoted duplex properties,
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`shared with CBG personnel on September 27, 2019 are trade secrets. For brevity, CBG will
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`concedethat this information is business information, fulfilling the initial requirement of TUTSA’s
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`definition of a trade secret. Snowhite Textile & Furnishings, Inc. v. Innvision Hosp., Inc., No. 05-
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`18-01447-CV, 2020 WL 7332677, at *6 (Tex. App.—Dallas Dec. 14, 2020, no pet.). The inquiry
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`then turns to the remaining elements of a trade secret: (1) the economic value of the information
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`and (11) the efforts used to maintain the information's secrecy.
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`Agreements restricting use and disclosure of confidential and proprietary information are
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`conclusive of reasonable measures under the circumstances to keep information secret. See Title
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`Source, Inc. v. HouseCanary, Inc., 612 $.W.3d 517, 529 (Tex. App.—San Antonio 2020, pet.
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`filed) (signed contract restricting “TSI's use and storage of HouseCanary's confidential and
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`proprietary data” would allow a “reasonable factfinder [to] conclude HouseCanary took reasonable
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`measures underthe circumstances to keep the information at issue a secret”); Snowhite Textile,
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`12
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`2020 WL 7332677, at *7 (employees agreeing not to disclose confidential information for a period
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`post-employment was deemed an effort to maintain secrecy). Likewise, evidence of restricting
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`access with a passwordestablishes an owner’s reasonable efforts to maintain secrecy of the trade
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`secret information. /d; 360 Mortgage Group, LLC v. Homebridge Fin. Services, Inc., 2016 WL
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`900577, at *4 (W.D. Tex. Mar. 2, 2016) (evidence of password protection satisfies portion of
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`TUTSArequiring employer to take steps to maintain secrecy).
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`Burns Surveying admitted it did not have any employee policies regarding confidentiality,
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`or any policies whatsoever, during Wiggins employment. Burns Surveying also admitted that its
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`quoting procedures were not password protected information stored on SurveyStars. Therefore,
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`Burns Surveying took no measures to keep its quoting information secret, conclusively proving
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`that Burns Surveying’s quoting proceduresare not trade secret information.
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`ii.
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`Burns Surveying has no evidence that its electronically stored information on
`SurveyStars was misappropriated by Wiggins or CBG.
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`Misappropriation of a trade secret means the: “(A) acquisition of a trade secret of another
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`by a person who knowsor has reason to know that the trade secret was acquired by improper
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`means; or (B) disclosure or use of a trade secret of another without express or implied consent by
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`a person who...used improper means to acquire knowledge of the trade secret.” /d. at §
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`134A.002(3) (emphasis added).
`
`“Use” means “commercial use for the purpose ofprofit,” and includes “use likely to injure
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`the secret's owner, enrich the defendant, or aid the defendantin its own research and development.”
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`Malone v. PLH Group, Inc., 2020 WL 1680058, at *5 (Tex. App.—Houston [1st Dist.] Apr. 7,
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`2020, pet. denied) (quoting Eagle Oil & Gas Co. v. Shale Expl., LLC, 549 $.W.3d 256, 273 (Tex.
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`App.—Houston[Ist Dist.] 2018, pet. dism'd)). An exploitation of the trade secret that is likely to
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`injure the trade secret owneror result in enrichmentto the defendantis a ‘use’
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`“[including] relying
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`a 66
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`13
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`on the trade secret to assist or accelerate research or development....” /d. quoting Gen. Universal
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`Sys., Inc. v. HAL, Inc., 500 F.3d 444, 450-51 (Sth Cir. 2007).
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`Nota scintilla of evidence shows Wiggins acquired Burns Surveying’s trade secrets stored
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`on SurveyStars by improper means. It is undisputed that Wiggins’ access to SurveyStars was not
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`restricted or any wayaltered after she announced herresignation. In fact, Burns Surveying admits
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`that even after Wiggins gave her two-weeks’ notice, she was asked to use SurveyStars to provide
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`quotes and do research through the end of her employment. Therefore, her ability to access and
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`acquire information on Burs Surveying’s SurveyStars was authorized and done so by proper
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`means.
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`Likewise, there is no evidence that CBG acquired any of Burns Surveying’s information
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`stored on SurveyStars or that Wiggins disclosed such information to CBG. To date, Burns
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`Surveying’s entire claim of misappropriation is brought “upon information and belief.” When
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`asked at Burns Surveying’s corporate representative deposition what this information and belief
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`was based upon, Burns Surveying testified that “it was based on [the] SurveyStars information.”
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`In other words, based on Wiggins “logging into both systems simultaneously.” But Wiggins had
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`permission from both employers to access their SurveyStars to complete her work for each
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`respective company.”® Moreover, in stark contrast to several Defendants in this case, Wiggins
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`actually testified that she did not “use anything that [she] had learned at Burns [Surveying] to help
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`CBG.”
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`Most importantly, there is no evidence that CBG used any of Burns Surveying’s trade
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`secrets stores on SurveyStars. The only “evidence” brought forward by Defendant of CBG’s use
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`is CBG winning a job that both entities quoted on July 9, 2019. The documentary evidence
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`28 Of note, three other Burns Surveying employers worked for competitors simultaneously, including the corporate
`representative.
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`14
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`

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`demonstrates that CBG did not win the job until May 2020—nearly a year later. Notwithstanding,
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`it was not even Wiggins who quoted the job as Elizabeth Lasecki was the person that provided the
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`quote with full knowledge that the client was “trying to steal a deal from CBG.” Asfully briefed
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`in CBG’s Motion for Summary Judgment against TJ Burns and Burns Surveying—CBGactually
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`proved that Defendants accessed a CBG quote before providing a lower bid on the same job by
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`actually producing documentary evidence of the exact date and time TJ Burns’ IP address accessed
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`CBG’s quote on SurveyStars, and then the instance Defendants made the lower quote to the client
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`minutes later. This is not what Burns Surveying has done here. Moreover, it is undeniable that
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`Wiggins’ access into both systemsdid not evenstart until July 15, 2019—-six-days after the July
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`9, 2019 job was quoted. This is a baseless argument predicated solely on Wiggins’ authorized
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`access into both systems.
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`iv.
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`Burns Surveying’s “Quoting Procedures” were not misappropriated.
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`For the reasons set forth above, Burns Surveying’s Quoting Procedures are not trade
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`secrets. Even if they were, evidence of a former employee misappropriating trade secrets acquired
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`during the employmentrelationship requires more than just the former employee's “general
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`knowledge, skill, and experience acquired during employment.” Bihner v. Bihner Chen Eng'g,
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`LTD., 2021 WL 4155798, at *7 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, no pet.) (quoting
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`Sharma v. Vinmar Intern., Lid., 231 S.W.3d 405, 424 (Tex. App.—Houston[14th Dist.] 2007, no
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`pet.). First, Burns Surveyingtestified the following to be its quoting procedure:
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`“the basic research would be uploaded, and then it would
`go -- an e-mail would go out to T.J. and [Elizabeth Lasecki]
`with sometimes a suggestedprice, sometimes not, and one of
`us would provide the quotefor the property.”
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`This is remarkably different than the process Wiggins created as a CBG employee months after
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`her Burns Surveying employmentended:
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`15
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`

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`NEW QUOTE PROCEDURES:
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`Individual/ Commercial & Builder jobs prices are sent from CSR’s name
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`. Quote is received and responded to by whoever receives the initial email, then forwarded ta
`quote email
`- Quote clerk selects email -moves to completed folder when done
`. Create a quote in stars- leave in New status
`Research quote- mave to Research status
`Email quote from Stars to:
`a. Dallas: Josh, Bryan, Johnny, Robert 6.
`b. Houston; Josh, Bryan, Johnny, Robert G., Johnny
`c. East Texas: Robert R., Zach, Whitney
`Moveto waiting for price.
`lf it’s a Rush quote include Cassie in email
`. Wait for email from Quoter saying “done” — they put in ready to send
`. Wait for email from Cassie on Rush jobs to get turn time.
`10. Email the client the price thru Stars
`a.
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`But even if it were identical, it is based upon general knowledge, skill, and experience acquired
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`during years of employment. If this is actionable, then any information an employee learns on the
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`job—irrespective of there being agreements restricting use and disclosure of confidential and
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`proprietary information or password protection, would not be allowed to be used at subsequent
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`employers. This would eviscerate an employee’s ability to change jobs. This is not the intent of
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`TUTSAas it clearly requires an expectation of privacy as a result of the employer’s efforts to
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`maintain the information’s secrecy—through non-disclosure agreements or password protection.
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`This same logic can be applied to the knowledge Wiggins’ gained with respect to how Burns
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`Surveying quoted duplex properties. Such information was not password protected nor did Burns
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`Surveying have a reasonable expectation of privacy as it did not contract for Wiggins’ non-
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`disclosure. Moreover,
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`it is information based upon Wiggins’ general knowledge, skill, and
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`experience as a researcher.
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`C. Because Burns Survey failed to demonstrate its trade secrets were misappropriated by
`CBGor Wiggins,it has failed to establish damages.
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`Asset forth above, Defendanthasfailed to establish that CBG or Wiggins misappropriated
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`its trade secrets and has suffered no loss as a result of CBG or Wiggins’ conduct. Thoughit is
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`16
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`expected Burns Surveying will attempt to conflate the issue of damages with their wholesale loss
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`of surveys, quotes, clients, and business for reasons unrelated to CBG or Wiggins, such a showing
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`is a deliberate attempt to distract the Court from the very clear fact that no evidence exists to
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`support Burns Surveying’s misappropriation claim.
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`D. CBG and Wigginsare entitled to an awardof its reasonable attorney’s fees because Burns
`Surveying broughta claim of misappropriation in bad faith.
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`A showing of bad faith “requires evidence that the claim wasentirely baseless or specious
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`and that the claim was taken in subjective bad faith or for other improper purposes.” Stockade
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`Companies, LLC v. Kelly Rest. Group, LLC, 2018 WL 3018177, at *6 (W.D. Tex. June 15, 2018)
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`(citations omitted). CBG and Wiggins have briefed the issue of Defendant bringing this claim in
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`bad faith on more than one occasion. Since the Counterclaim’s inception, it has been supported
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`wholly “upon information and belief’ and not based in actual evidence. In an effort to legitimize
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`this illegitimate claim, Burns Surveying produced several thousands of pages of documents to
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`show what Wiggins lawfully accessed with express authorization from Burns Surveying. It also
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`peppered the production with several versions of the same lost quotes and cancelled orders from
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`July 9 through 19, 2019 to prove Burns Surveying sustained loss. But this loss is not abnormal as
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`admitted by Burns Surveying.In fact, their corporate representative did not know whetherthe jobs
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`lost in the subject time frame was any moreorless than the weeksprior.”’
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`Even more alarming is the fact that Burns Surveying employs others that work for
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`competitors and have had access to multiple companies’ SurveyStars at the same time. But the
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`most damning evidence of bad faith is the testimony from the owner of Burns Surveying,
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`Defendant TJ Burns, whosaid he would allow his employees to share information stored on Burns
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`29 Ex. A, at 57:9-17.
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`CBGandJessica Wiggins’ Motion for Summary Judgment
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`17
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`

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`15
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`A.
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`I've never had conversations like that, no.
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`Surveying’s SurveyStars with persons outside of the company and would even permit his
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`employees to share this information with CBG:°”
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`
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`If Burns Surveying’s owner would allow his employees to share information on SurveyStars with
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`CBGand does not believe the information is confidential, then whyfile this Counterclaim? If the
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`alleged wrongful conduct was neveran issue to Burns Surveying’s owner, then why are we even
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`here? The evidence on record is clear that this claim was brought in subjective bad faith and in
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`retaliation for CBG filing its lawsuit. Burns Surveying’s owner does not believe in this claim,
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`which wasfiled on the last possible day to do so, and designed solely to extend discovery and
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`increase movants’ litigation costs.*!
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`30 Ex. C, at 33:16-34:3.
`3’ Burns Surveying filed the Counterclaim on the last possible day to do so under the then-controlling scheduling
`order.
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`18
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`CBGan