Coal Cleaning Strategy Not Protected Trade Secret

was essentially a strategic recommendation between two generally known conjecture cannot be said to reliably measure cq's actual loss from a breach of 15 demonstrate the existence of a genuine issue of material fact. smith ex rel. estate alternatives. while this recommendation may have been based on cq's valuable cir. 2007). email to txu's don clevenger seeking clevenger's assistance in preparing the admissibility of expert testimony, and the discretion of the trial judge and his or using this information." selected cq from among the available bidders and intended to further negotiate 12 when a party breaches a confidentiality agreement. we disagree. under texas iii cq contends that the royalty calculus represents a reasonable estimation lignite. this evidence is sufficient to create a genuine dispute as to whether txu used the bid award constituted partial performance of the alliance agreement. however, no. 07-11134 rule 26 provides that "a party must, without awaiting a discovery request, initial report was no longer relevant at the time of txu's motion, and its in the united states court of appeals a consulting fee for its services if the final alliance agreement failed to accordingly, the statute of frauds bars enforcement of the purported services known as the clean coal alliance agreement. cq raised several partial summary judgment in favor of its contract claims, but the district court motion. the cross-cited pages contained argument and citations to the record claims. conjectural"). moreover, based on the foregoing analysis and the speculative "could have been done with no other design than to fulfill" the alliance court." robinson v. orient marine co. ltd., 505 f.3d 364, 365 (5th cir. 2007). on txu's use of the rom strategy was erroneous. accordingly, we consider only abraxas petrol. corp. v. hornburg, 20 s.w.3d 741, 760 (tex. app.--el paso 12, 23 (tex. app.--houston [1st dist.] 2000, pet. denied) (holding that a plaintiff cf. granite mgmt. corp. v. united states, 416 f.3d 1373, 1380�81 (fed. cir. 2005) (internal provide . . . a computation of each category of damages . . . [and] the documents judgment record but the nonmovant fails even to refer to it in the response to the denied). however, in order for this exception to apply, "[t]he partial performance november of 2004, txu began to explore cleaning lignite at several of its mines. countered that it should be permitted to present evidence of various other 312, 318 (5th cir. 2007) (affirming the district court's exclusion of expert motion for partial summary judgment. on one of the referenced pages, cq language does not satisfy the statute of frauds because it "is not confirmatory of that the parties would have negotiated an ongoing licensing agreement absent various addenda to the original rfb, and cq and the other bidders submitted in granting summary judgment against cq's misappropriation claim. been met, the burden shifts to the nonmovant "to demonstrate the existence of reiterates two of these arguments. "waste lignite" at the twin oak mine and (2) only clean high-quality "rom lignite" if speculative . . . ."). moreover, vollmar's assumptions in creating the hypothetical (2) vollmar's opinion was inadmissible under rule 702, and (3) the court had final contract; evidence of mere negotiation is not sufficient. see southmark may not recover damages under a non-binding sales agreement based on the that a district court must consider the evidence offered in a nonmovant's own lignite rather than waste lignite. the court reasoned that cq had failed to response brief failed to provide "more than a scintilla of evidence that txu [was] its discretion: (1) cq's explanation for its failure to disclose the evidence, (2) the cq first challenges the exclusion of vollmar's initial expert report. vollmar harmless."); nutrasweet co. v. x-l eng'g co., 227 f.3d 776, 785�86 (7th cir. frauds must be such as could have been done with no other design than to fulfill f.3d 365, 376 (5th cir. 1999) (emphasis added). has not identified any texas case in which a party has recovered a hypothetical royalty as part per the information below, we are requesting your guidance in first argument lacks merit. defendant-appellee clerk arguments in favor of the enforceability of the purported oral agreement, all of previously ruled that txu's had not used the rom strategy. for the reasons added). improper means, and (3) the defendant used the trade secret without plaintiff-appellant restatement of torts � 757 (1939)). "it differs from other secret information inc. v. altai, inc., 918 s.w.2d 453, 455 (tex. 1996) (quoting from the citations to the record. substantively, the cited evidence creates at least a concluded that cq failed to provide notice of these alternative computations as which were rejected by the district court on summary judgment. cq now reports of ronald vollmar, cq's expert on damages. the motion also sought to summary judgment and (2) excluding cq's evidence of damages. selected, txu reserved the right to further negotiate the proposed contract. was "too speculative and indeterminate" to serve as a measurement of contract damages). cq contends that the evidence may not be considered because the relevant citations court dismissed cq's claim for breach of the purported alliance agreement, lignite (the "rom strategy"). to prevail on a misappropriation claim under texas a genuine issue of material fact." id. all reasonable inferences are drawn in ultimately built and operated its own lignite-cleaning facility at the oak hill cq's benefit-of-the-bargain damages, cq alternatively argues that the report measures cq's alliance agreement," by which a chosen company would construct and operate fuel strategy. in discussions so far with cq, inc., both parties have (2) there was no evidence that txu actually used the rom strategy. the district short paragraph with the heading "txu improperly used cq's secret in a business in that it is not simply information as to single or ephemeral events advantage over competitors who do not know or use it." computer assocs. int'l, contract law. a hypothetical licensing agreement based on speculation and agreement; it was equally referable to the interim services contract acts of performance relied upon to take a parol contract out of the statute of no. 07-11134 of the basis for its motion and identifying those parts of the record that found that disputes of material fact precluded judgment as to either claim. txu sustained. by the operation of that rule, a party generally should be such cleaning, including cq. the rfb contemplated the formation of a "key 10 have been had the contract not been breached. characterized as cq's reliance, expectancy, or restitution interest--is not supported by texas evaluating expert testimony, the overarching concern is whether or not it is no. 07-11134 corp. v. life investors, inc., 851 f.2d 763, 767 (5th cir. 1988) ("under texas law benefits of cleaning rom lignite to txu, and (4) txu ultimately moved toward cleaning rom court committed several errors in (1) resolving the parties' cross-motions for 8 the dismissal of the claims underlying the initial report, vollmar produced a partnership agreement with cq inc. in regard to clean coal county, inc. v. riverside two, 249 f.3d 1132, 1135�37 (9th cir. 2001) (holding low-grade coal. txu mines lignite and sells it for commercial use as fuel. in of smith v. united states, 391 f.3d 621, 625 (5th cir. 2004). the party must also exclusion was proper. see fed. r. evid. 702; smith, 495 f.3d at 227 ("when materials on file, and any affidavits show that there is no genuine issue as to any refusing to consider the cited evidence of txu's use of the rom strategy.3 this dispute arises out of a failed partnership to clean lignite, a type of on a long-term arrangement. the intent was to "eventually" form an agreement the particular agreement sought to be enforced . . . ." id. at 439�40 (emphasis remote, contingent, speculative, or conjectural." city of dallas v. villages of prior to bidding, txu required cq and the other companies to sign a exchanged drafts of an "interim services contract" by which txu would pay cq materialize. in mid-june of 2005, txu requested documentation of the expenses cq alleged that the rom strategy was a trade secret that was reasonable royalty for use of the strategic recommendation. vollmar calculated we note that this is not a case in which the district court's exclusion of the evidence7 cross-motion for summary judgment). accordingly, the district court erred by motion because it found that "issues of material fact remain[ed]" as to whether never entered a written contract finalizing the purported alliance agreement. judgment, the nonmovant must identify specific facts within the record that accounts on whether a confidential intent was expressed. accordingly, the did not abuse its discretion in excluding the evidence pursuant to rule 37(c). creates a memorandum of the five-year alliance agreement. however, the before wiener, garza, and demoss, circuit judges. not simply information as to single or ephemeral events"). accordingly, the rom cq raises several challenges to the district court's resolution of the parties' after txu terminated the relationship, cq filed suit in state court for, . . . a writing that contemplates a contract to be made in the future does not testimony for abuse of discretion. smith v. goodyear tire & rubber co., 495 f.3d alliance is determined to be a `go project.' if the alliance does not testimony in part because it was based on "unsupported conjectures" and were not included in the body of cq's response brief. see smith, 391 f.3d at 625. damages calculations, including (1) vollmar's reasonable-royalty opinion as remaining claims for breach of the confidentiality agreement, misappropriation services. in early july of 2005, txu terminated the relationship with cq. txu authorization from the plaintiff." gaia techs. inc. v. recycled prods. corp., 175 evidence, and (4) the availability of a continuance. see betzel, 480 f.3d at 707. no. 07-11134 not to the mining industry generally. see id. (explaining that a trade secret "is of its restitution interest. accordingly, the damages calculation in vollmar's report--whether confidentiality agreement. after reviewing the record, we agree that there is a satisfy the requirements of the statute of frauds. indeed, it is common sense that cq inc favor of the nonmovant. robinson, 505 f.3d at 366. technology. the alliance would be contingent upon the results of furthermore, the contract at issue in qaddura was a trademark-lawsuit settlement. thus, a contract already in existence." see southmark corp., 851 f.2d at 767 (internal evidence pursuant to rule 37. marine, inc., 940 f.2d 948, 952 (5th cir. 1991). here, we agree with txu's txu mining company lp secret claims that provided the substantial basis for the report. accordingly, the entered a take-nothing judgment. cq now appeals, arguing that the district the parties filed cross-motions for summary judgment. cq moved for contract is just compensation for the loss or damage actually $110,419.17 in fees and cq dismissed its claims for promissory estoppel and watkins email unambiguously disavows the present existence of the alliance of trade secrets. txu removed the case to federal court pursuant to diversity f i l e d clean waste lignite, (2) cq recommended focusing on rom lignite, (3) cq explained the purported to measure the damages resulting from txu's breach of the united states court of appeals here, cq's response to txu's motion for summary judgment included a provide a basis for the forthcoming alliance agreement (if the clean information disclosed during negotiations for any purpose "except the analysis, been harmless. see hoffman v. constr. protective servs., inc., 541 f.3d 1175, expert testimony as "too speculative to be admissible under rule 702"). 3 year and at the end of the year, txu will compensate cq for those information." this paragraph lacked any argument that txu used the rom cq "fail[ed] even to refer to" the relevant argument and evidence in its response cross-motions for summary judgment. "we review a district court's grant or technology project. the intent is to eventually form an alliance or 16 brief. see smith, 391 f.3d at 625; see also fair hous. council of riverside to $110,419.17--the amount indicated in cq's invoice for work performed. cq allege that the rom strategy itself involved a previously unknown process or relevant and reliable."). to trial, txu filed a motion in limine seeking to limit evidence of cq's damages further evidence on damages, txu moved for a take-nothing judgment on cq's law, contract damages are defined by the plaintiff's actual loss: conjectural. nowhere in the confidentiality agreement is there any discussion txu's initial rfb indicated that txu intended to (1) focus on cleaning low-quality1 for the northern district of texas abuse of discretion. smith, 495 f.3d at 226. however, the court's ruling based on its "speculative premises"); hammond v. coleman co., 209 f.3d 718, 2000 wl stated in part ii.b of this opinion, the district court's summary-judgment ruling the amount stated in cq's invoice. txu argued that cq failed to disclose any 224, 226 (5th cir. 2007). "district courts enjoy wide latitude in determining the agreed that cq inc. will be performing work this year that will despite our holding, we note that the better practice for litigants is to include the3 which is used in one's business and presents an opportunity to obtain an 227 (quoting watkins v. telsmith, inc., 121 f.3d 984, 988 (5th cir. 1997)). we quotation marks omitted) (finding that the alleged "value conferred" on the breaching party court's resolution of the parties' cross-motions for summary judgment in favor the district court apparently agreed, as it failed to acknowledge the cross-citation 1179�80 (9th cir. 2008) ("later disclosure of damages would have most likely damages--the $110,419.17 in cq's invoice to txu--on which cq could proceed to trial. modified bids in response. expert, ron vollmar, and (2) various non-expert evidence of damages pursuant nonbreaching party is generally entitled to all actual damages costs. (emphases added) emilio m. garza, circuit judge: no. 07-11134 the proposed lignite-cleaning operation. cq periodically asked when a long-term mine, but chose not to clean lignite at the twin oak mine. existence." (internal quotation marks omitted)). that (1) vollmar's reasonable-royalty approach was "not supported by texas law," 17 judgment against cq's breach-of-contract claim. unless the failure was substantially justified or is harmless." fed. r. civ. p. confidentiality or non-use contract. however, qaddura involved the disgorgement of actual ii no. 07-11134 forest hills, l.p., phase i, 931 s.w.2d 601, 605 (tex. app.--dallas 1996, no writ). cq cited to deposition testimony indicating that (1) txu was initially planning to2 every material detail, and which contains all of the essential elements of the cq next contends that the district court erred in granting summary summary judgment on its claim that txu breached the confidentiality strategy in particular; instead, it cross-cited to a span of four pages in cq's own charles r. fulbruge iii 13 injunctive relief. which each computation is based." fed. r. civ. p. 26(a)(1)(a)(iii) (emphasis specifically argues that txu used the rom strategy and provides supporting review of the record, we agree that cq failed to properly disclose the the court's conclusions that the supplemental report was not supported by texas resorting to oral testimony." conner v. lavaca hosp. dist., 267 f.3d 426, 432 (5th evidence of damages from cq's quantum meruit claim and (2) various non-expert they have done this year. cq is to document the costs accrued this that contract damages may not be "remote, contingent, speculative, or cir. 2001) (internal quotation marks omitted). this memorandum may consist this circuit has never addressed whether a nonmovant may satisfy its f.3d 489, 498 (5th cir. 2006). here, cq claims that the four months of work it performed following the antonio 1998, pet. denied). however, we do not believe that this tripartite formulation alters relevant argument and record citations in the body of the response brief. b we review the district court's decision to exclude evidence pursuant to rule 702 for4 no. 07-11134 no. 07-11134 cq has failed to offer a writing that demonstrates or even suggests that the agreement, so that the contract can be ascertained from the writings without alternative argument that the rom strategy was not a trade secret under texas of trade secrets, and quantum meruit. the district court granted the motion and defendants from "avoid[ing] trademark remedies . . . merely by agreeing to stop infringing only txu primarily focus on cleaning rom lignite at the initial facility. or proprietary nature." namely, the documents at issue were not expressly finding that the statute of frauds barred enforcement of the agreement. the method for cleaning lignite. in fact, the record indicates that txu contemplated 4 cq also appeals the district court's exclusion of cq's evidence of damages no. 07-11134 the universal rule for measuring damages for the breach of a misappropriation of various trade secrets. following the release of the initial 2000) (finding harm based on scheduling issues). accordingly, the district court no. 07-11134 otherwise disclosed the information "in a manner consistent with its confidential fifth circuit the alliance agreement and (2) cq's reasonable-royalty damages from txu's c be protected."). nor does it excuse the requirement that contract damages be non-speculative. law. "a trade secret is any formula, pattern, device or compilation of information agreement. no. 07-11134 of appellee txu mining company, l.p. ("txu"). cq also appeals the exclusion supplemental report on damages in september of 2007. the supplemental report cmt. b. decided to build any cleaning facilities and would compensate cq if txu agreement renders the oral contract enforceable. under the partial-performance purported alliance agreement ever left the negotiation stage. accordingly, cq's as indicated by the watkins email, the parties specifically contemplated that cq 14 although cq primarily characterizes vollmar's computation as a measurement of6 added). rule 37 provides that "[i]f a party fails to provide information or identify mar conservation dist., 594 s.w.2d 782, 789 (tex. civ. app.--san antonio 1980, writ ref'd n.r.e.). however, at least one writing must indicate the existence of a court also dismissed the majority of cq's trade-secret claims, including the claim over the next few months, cq continued to work with and advise txu on second, cq contends that its partial performance of the alliance expectation interest." o'farrill avila v. gonzalez, 974 s.w.2d 237, 247 (tex. app.--san alliance agreement. testing and work we will be doing this year and upon txu's overall projections of output disclosed by txu. using this formula, the supplemental exception to the statute of frauds, a court may enforce an oral contract that has clean coal technology. we went through a formal bid process and profits over a fixed period of time, not a hypothetical long-term licensing agreement. id. i the final contract, as contemplated in the rfb. it is undisputed that the parties been partially performed if enforcement is necessary to prevent a virtual fraud. genuine issue as to whether txu used the rom strategy. however, txu2 best company for txu to go forward with on the clean coal strategy. vollmar reasoned that, had txu not breached the confidentiality evidence as to the amount of cq's contract damages. however, the district court jurisdiction. the parties agreed that texas law controlled the substantive `futuristic' language in a writing is not confirmatory of a contract already in cleaning rom lignite when it sent its initial request for bids. the rom strategy writing to satisfy the statute of frauds. under texas law, an "oral agreement 2001) (noting that an expert may not testify on unjust-enrichment damages when the advanced stage of the litigation, permitting the new evidence would not have contract would be formalized in writing. txu responded that it had not yet under the texas statute of frauds, an agreement that cannot be performed marked "confidential" on all relevant pages, and the parties provide conflicting to fed. r. civ. p. 37(c)(1). we review a district court's decision to exclude expert a result of the breach. see id. ("in order to put the aggrieved party in the same position he or c experience and effort, it was not a "process or device for continuous use" that 5 completing a contract with cq, inc.: law and was inadmissible under rule 702.4 computation in vollmar's supplemental report was not supported by texas cq argues that the watkins email, in combination with the bid documents, in excluding the report pursuant to rule 702. see hathaway v. bazany, 507 f.3d "computations" for the various "categor[ies]" of damages it now complains of. a of several different writings between the parties. cent. power & light co. v. del royalties over a ten-year period if txu had not breached the confidentiality necessary to put it in the same economic position in which it would 6 the district court excluded the supplemental report because it determined economically feasible. cq's initial bid proposed the opposite approach and recommended that 9 offered txu an advantage over its competitors. see id. moreover, the record will be rolled over into the final alliance compensation rates, if the evidence of damages pursuant to fed.r.civ. p. 26(a)(1)(a)(iii) and 37(c)(1). prior report in january of 2007, the district court dismissed the contract and trade- this royalty rate at $0.32 per ton, and then multiplied the rate by various nature of the supplemental report, the district court did not abuse its discretion no. 07-11134 v. no. 07-11134 excluded vollmar's reports and limited further evidence of damages as requested 37(c)(1); cf. kw plastics v. u.s. can co., 131 f. supp. 2d 1289, 1296 (m.d. ala. importance of the evidence, (3) the potential prejudice to txu in allowing the of the confidentiality agreement, (3) quantum meruit, and (4) misappropriation appeal from the united states district court exxon corp. v. breezevale ltd., 82 s.w.3d 429, 439 (tex. app.--dallas 2002, pet. fed. r. civ. p. 56(c). the movant "has the initial burden of informing the court arguing that (1) the rom strategy was not a trade secret under texas law and alliance agreement. the district court did not err in granting summary misappropriated by txu. txu moved for summary judgment on this point, contemplated in the watkins email. cq has failed to demonstrate conduct that or other evidentiary material, unless privileged or protected from disclosure, on inter alia, (1) breach of the purported five-year alliance agreement, (2) breach denial of summary judgment de novo, applying the same standard as the district "confidentiality agreement" that prevented either party from using confidential his rule 26 report disclosed only a calculation for lost-profit damages). after a court." id. (quoting malacara v. garber, 353 f.3d 393, 405 (5th cir. 2003)) 113, 117 (5th cir. 1993). the court found that cq had properly disclosed a calculation of i have been working with txu mining on a project regarding the rom strategy does not qualify as a trade secret under texas law. as no. 07-11134 in the conduct of the business . . . . a trade secret is a process or device for important to cq, it is not essential to cq's underlying recovery. moreover, given7 txu's overall fuel strategy.) in discussions so far with cq, it has and the parties' schedules supports a finding that the failure to disclose was not report concluded that cq could have expected approximately $17 million in txu sent out a request for bids ("rfb") to several companies that specialized in alternative computation of damages during discovery as required by fed. r. civ. the "universal rule" limiting contract damages to the actual loss suffered by the plaintiff as first, cq contends that the oral agreement was sufficiently documented in must be unequivocally referable to the agreement and corroborative of the fact april 9, 2009 agreement by using cq's confidential information. the district court denied the quotation marks omitted). cq's other written evidence is similarly inconclusive. in all respects. strategy was not a trade secret under texas law, and the district court did not err confidentiality agreement. the report focused on txu's alleged use of the rom a of fact and supported this allegation with a targeted cross-citation to cq's own analysis underlying the rom strategy in planning and operating its current facilities. of contract protect three interests: a restitution interest, a reliance interest, and an within one year is unenforceable unless it is documented in writing and signed the confidentiality agreement. see city of dallas, 931 s.w.2d at 605 (noting6 defendant's breach of a binding confidentiality provision). thus, cq's work was not "unequivocally referable" to a five-year alliance arguendo that we review this aspect of the ruling de novo. cf. lubke v. city of arlington, 455 cleaning rom lignite instead of waste lignite at the twin oak mine. cq does not her decision will not be disturbed on appeal unless manifestly erroneous." id. at cq next appeals the exclusion of vollmar's supplemental report. following undertaken by cq until that point. cq submitted an invoice for $110,419.17 in acquired through a breach of a confidential relationship or discovered by or the dispositive evidence in the record. we consider four factors in determining whether the district court abused dist.] 2006, pet. denied) ("plaintiffs cannot recover profits that are largely been agreed that the costs for the work that cq performs this year agreement discussed in the bid documents. txu contends that it merely responsive burden by cross-citing to its own motion for summary judgment. iv "articulate the precise manner in which the submitted or identified evidence material fact and that the movant is entitled to judgment as a matter of law." district court properly held that a genuine issue of material fact precluded anglo-dutch (tenge) l.l.c., 207 s.w.3d 801, 808 (tex. app.--houston [14th moved for summary judgment against all of cq's claims. in response, the district to enter an interim-services agreement precisely because they had not yet agreed for abuse of discretion. see betzel v. state farm lloyds, 480 f.3d 704, 707 (5th of royalties or licensing. cf. john wood group usa, inc. v. ico, inc., 26 s.w.3d5 investigation, and evaluation of the proposed business relationship." cq indicates that the recommendation was tailored to txu's initial cleaning project, information or witness to supply evidence on a motion, at a hearing, or at a trial, agreement by using the rom strategy, cq could have expected to negotiate a to breach that agreement once the trademark suit is dismissed with prejudice." id. at 889. for the foregoing reasons, we affirm the judgment of the district court agreement. see exxon corp., 82 s.w.3d at 439�40. that unambiguously created the alleged issue of fact. thus, we cannot say that judgment against cq's misappropriation claim as to its sixth alleged trade cq argues that qaddura v. indo-european foods, inc., 141 s.w.3d 882, 888�90 (tex.5 of its expert testimony on damages. for the following reasons, we affirm the motion for summary judgment, that evidence is not properly before the district defined by cq, the "rom strategy" was cq's recommendation that txu focus on while we decline to endorse a bright-line rule, we hold that cq's response was app.--dallas 2004, pet. denied), permits the recovery of a royalty when a party breaches a 2000, no pet.) (internal citations omitted and emphases added). moreover, "[a] thus, we turn to whether the district court abused its discretion in excluding the lignite-cleaning facilities at txu's twin oak and oak hill mines for a period of disgorgement of profits from the infringer's use of the trademark--in order to prevent future b 11 provide any evidence that txu used the rom recommendation. as to cq's no. 07-11134 as to whether txu used the rom strategy. in order to avoid summary five years. the rfb cautioned that, even once a "successful" bidder was the five-year alliance agreement: in may of 2005, txu's david watkins sent an as the trial approached, txu filed a motion to exclude the opinions and by txu. subsequently, the parties entered a settlement by which txu paid cq's through that process determined that the company `cq inc.' is the required by rule 26, and thus the court excluded further evidence pursuant to cq indicated that its information was "confidential" as required by the given the settlement of the fee liability and the court's order precluding must be evidenced by a written memorandum which is complete within itself in court granted summary judgment on the latter ground, reasoning that cq's submitted a timely bid in response to the rfb. subsequently, txu proposed1 district court found that the statute of frauds barred any enforcement of the for the fifth circuit interpretation of texas law arguably presents an issue of law. accordingly, we assume no. 07-11134 a breach of the confidentiality agreement. see ramco oil & gas ltd. v. nonetheless, we may affirm a grant of summary judgment "on any ground as follows: formed the basis for the district court's decision." gulf island, iv v. blue streak cq primarily relies on one document to establish that txu agreed to enter that a contract actually was made." id. (internal quotation marks omitted). "the awarded neither less nor more than his actual damages. a discovery, rather than simply set a trial date. such modifications to the court's presented to the district court for consideration, even though it may not have (emphasis added). report purported to quantify (1) cq's lost-profit damages from txu's breach of in u.s. currency, 537 f.3d 504, 507 (5th cir. 2008). once this initial burden has cq contends that it provided sufficient evidence to create a genuine issue selected as the preferred alliance partner. the significance of this "selection" continuous use in the operation of the business." restatement of torts � 757, that txu misappropriated cq's recommendation to focus on cleaning rom the court specifically looked to trademark remedies under the lanham act--including 283165, at *1�2 (5th cir. 2000) (table) (affirming the district court's exclusion of licensing agreement, such as the ten-year duration, appear to be wholly a witness as required by rule 26(a) or (e), the party is not allowed to use that sufficient in this case: cq's response brief alleged that there was a material issue also review a district court's decision to exclude evidence pursuant to rule 37(c) she would occupy if the other party had fully performed, each of these [three] interests must ultimately decided against the project. in mid-april of 2005, the parties judgment of the district court. supports his or her claim." id. "[w]hen evidence exists in the summary genuine dispute as to whether cq marked the information as confidential or is hotly disputed. cq contends that txu orally agreed to the five-year alliance 2 7 party may not recover damages for breach of contract if those damages are judgment against its claim for breach of the purported alliance agreement. the of its actual loss. however, it requires numerous speculative leaps to conclude "restitution interest." it is true that some texas cases have stated that "[d]amages for breach coal technology methodology is a workable solution and if it fits into damages calculations or their underlying evidence. while the evidence is clearly cq first contends that the district court erred in denying cq's motion for 2002). cq's complaint alleged that txu orally agreed to a five-year contract for summary judgment is appropriate "if the pleadings, the discovery and disclosure p. 26(a)(1)(a)(iii). after considering the parties' briefing, the district court both in this contract dispute, appellant cq, inc. ("cq") appeals the district would provide such services prior to the possible entry of the alliance agreement. cq contends that texas law allows the recovery of a hypothetical royalty remaining claims, the district court denied txu's request for summary judgment. demonstrate the absence of a genuine issue of material fact." u.s. v. $92,203.00 by the person to be charged. tex. bus. & com. code � 26.01(a), (b)(6) (vernon summary judgment. see fed. r. civ. p. 56(c). no. 07-11134 happen, then txu mining would compensate cq for the work that prohibit any evidence supporting a damages calculation other than $110,419.17, significantly, cq has not offered any justification for its failure to disclose the required the court to create a new briefing schedule and perhaps re-open is a former accountant and a frequent expert on damages issues. his initial agreement. according to the plain text of the document, the parties were seeking accordingly, the district court did not err in determining that the damages constituted dismissal of the plaintiff's claims. see e.e.o.c. v. gen. dynamics corp., 999 f.2d law, "a plaintiff must show that (1) a trade secret existed, (2) the trade secret was law. cq next contends that the district court erred in granting summary "if the alliance [was] determined to be a `go project.'" this type of contingent interim services contract between cq and txu. the "watkins email" provided rule 37. finally, cq contends that the district court erred in excluding its other secret--cq's recommendation that txu focus on rom lignite rather than waste prior to trial. the district court excluded (1) two written reports from cq's in late february of 2005, txu called cq and indicated that cq had been