Motions dismissed in TCT case

When it comes to civil cases in the court system, the number of charges, replies and other filed motions filed can take a considerable amount of time to get through. Case in point, the lawsuit filed Dec. 28, 2015 by Joe and Barbara Campbell against the Tri-county Telephone Association, Inc. (TCT). The most recent filing came on Wednesday, July 19, as Chief United Stated District Judge Nancy Freudenthal signed an order denying the Campbells motion for disqualification of counsel.

The original complaint from the Campbells claimed TCT board members, as well as the purchaser of TCT, robbed owners of the TCT co-operative of the value of their ownership after the co-op was sold.

In May 2017, TCT filed a complaint in U.S. Cheyenne District Court alleging Joe, a former TCT board member, maintained control of a company-issued laptop he was required to return. The complaint further alleges he took advantage of trade secrets on the laptop, shared information with others, caused fiduciary damage to TCT, and violated the Computer Fraud and Abuse Act.

The Campbells responded in June with a motion to disqualify counsel and dismiss the case against them. In their motion to disqualify, they stated they obtained legal advice from Chris Edwards, who was in the law firm currently representing TCT. They further stated the TCT complaint never states what secrets are at issue and fails to show any action taken by the Campbells was taken as interstate commerce.

Further, they stated the TCT complaint doesn’t invoke protection under the Defend Trade Secrets Act which became effective on May 12, 2016, as any alleged disclosure of secrets predates the Act’s effective date.

TCT responded, stating Edwards did help the Campbells with their estate planning in 2009, but there was nothing to show a further attorney-client relationship with the couple concerning TCT. This argument was bolstered by an affidavit from Edwards in which she states during meetings with Joe, and the Campbells together, she made it clear she could not represent him against TCT or in matters pertaining to TCT. She suggested they get an attorney to represent them personally.

In the July 11 filing of the Campbells’ reply in support of their motion to disqualify counsel and motion to dismiss, the Campbells state Edwards does not dispute Joe’s testimony that over 40 privileged communications listed in the motion to disqualify occurred, that she received confidential information from the Campbells and that she gave confidential legal advice pertaining to the matters at issue in the case.

Further, “She has drafted her affidavit with precision, and with that same precision, has made an active decision not to deny what Joe Campbell said about the legal advice she gave.”

The Campbells’ reply also addresses the affidavit of another attorney, Bill Simpson of the firm representing TCT, which they claim shows he sought to deflect responsibility for his action, and that he testified that Bar Counsel told him he did not have a conflict, though Bar Counsel’s recollection differs.

In an email from Wyoming Bar Counsel Mark Gifford attached to the Campbells’ filing, “Gifford states that he does not recall Bill Simpson reviewing with him the post-2011 communications between Chris Edwards and Joe and Barbara Campbell. Mr. Gifford's email makes clear that he had not been given complete information and should not have been asked to react to an incomplete set of facts. Having learned of the post-2011 consultations with Chris Edwards, Mr. Gifford states that he understands why the Campbells would be concerned that the Burg Simpson firm is now suing them.”

Gifford further stated if the Campbells disclosed confidential information to Edwards in the course of the more than 40 privileged communications, a rule states neither Edwards nor her firm “may represent may represent a client with interests materially adverse to the Campbells in the same or a substantially related matter if [Edwards] received information from the Campbells that could be significantly harmful to the Campbells.”

Further information in the Campbells’ filing states that they believed they were clients of the Burg Simpson firm until being sued by the firm, but even if they are not current clients, a rule bars conflicts with former clients on substantially related matters. Even if they had not become clients but disclosed confidential information to Edwards, as pointed out in Gifford’s email, a rule would prevent Simpson’s firm from representing clients with interests materially harmful to the Campbells.

However, according to the order signed by Judge Freudenthal, the court found the Campbells were not current clients of Edwards and although they are former clients of Edwards. The services provided to them are not the same or substantially related to the case so there is no conflict of interest requiring disqualification of TCT’s attorney.

The Campbells also encouraged the court to conduct an in-camera review of the advice given by Edwards, and interview the Campbells on advice given by Edwards with an in-camera discussion with Edwards.

As to the motion to dismiss the case against them, the Campbells state TCT has not said what the disclosed “trade secrets” are, nor addressed what economic value the Campbells sought to derive from a trade secret or what harm TCT has allegedly suffered.

It is further stated that interstate commerce is not alleged, and TCT has not alleged a misappropriation of a trade secret. Also, there is no alleged appropriation or use after the effective date of the Defend Trade Secrets Act. “Even if [TCT] had alleged a prohibited use or appropriation prior to the effective date of the Act continuing after the statute came into effect (neither of which [TCT] has alleged), this would not be enough. Simply alleging that the same information was disclosed again after the Act came into effect is not sufficient to avoid dismissal.”

The motion also states Joe’s having possession of a computer given to him does not constitute an attack on a computer system, there was only an allegation of intent to defraud with no allegation as to what the fraud is, and that the case was not filed within the statute of limitation.

The court found the Campbells motion to dismiss “for failure to state a claim upon which relief may be grant is granted in part and denied in part.” While the court dismissed TCT’s claim of misappropriated trade secrets without prejudice, it also found its claims that Joe accessed a computer without authorization and refused to return the computer survive, and the court continues to have subject matter jurisdiction.