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Ameritox, Ltd. v. Savelich

United States District Court, D. Maryland, Northern Division

March 11, 2015

AMERITOX, LTD., Plaintiff,
v.
ROBERT SAVELICH, Defendant

Page 390

For Ameritox, Ltd., Plaintiff: Kaiser H Chowdhry, LEAD ATTORNEY, Morgan Lewis and Bockius LLP, Washington, DC; Benjamin H Field, Blair Joseph Robinson, Michael S Burkhardt, PRO HAC VICE, Morgan Lewis and Bockius LLP, Philadelphia, PA.

For Robert Savelich, Defendant: John Edward McCann, Jr, Stephanie Kaye Baron, LEAD ATTORNEYS, Miles and Stockbridge PC, Baltimore, MD.

Page 391

MEMORANDUM OPINION

William D. Quarles, Jr., United States District Judge.

Ameritox, Ltd. (" Ameritox" )[1] sued Robert Savelich for breach of contract and other claims. ECF No. 1.[2] On February 25, 2015, the Court granted Ameritox's motion for a temporary restraining order (" TRO" ). ECF No. 12.[3] On March 9, 2015, the Court held a preliminary injunction

Page 392

hearing. ECF No. 19.[4] For the following reasons Ameritox's motion for a preliminary injunction will be denied.[5]

I. Background

From April 16, 2010 to January 2015, Savelich worked for Ameritox as a District Manager responsible for the Northwest district. ECF No. 9-5 (" Hopkins Decl." ) ¶ ¶ 6, 12.[6] On April 12, 2010, Savelich signed a Confidentiality[7] and Noncompetition[8] Agreement (" Agreement" ).[9] Id. ¶ 7; Hopkins Ex. 2.[10] On April 13, 2010 Savelich signed an Employee Agreement on Inventions, Improvements, Copyright, and Trade Secrets (" Trade Secrets Agreement" ),[11] and an Employee Confidentiality and HIPAA Privacy Agreement (" HIPAA

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Agreement" ).[12] Id. ¶ ¶ 8, 9; Hopkins Ex's. 3, 4.[13] All agreements were signed by Savelich at his Oregon home. Savelich Decl. ¶ 10.

On December 19, 2014, Savelich informed James Tully, Ameritox Regional Manager, that he would be resigning from Ameritox to work for Ameritox's competitor, Physicians Choice Laboratory Services (" PCLS" ). ECF No. 10-4 (Tully Decl.) ¶ 25; Tully Ex. 1 (Savelich resignation email). Savelich told Tully that he did not think the Agreement would present any issues because PCLS focuses on different product lines, although Savelich would be responsible for Washington, Oregon, and other western states. Tully Decl. ¶ ¶ 26-27.[14]

In February 2015, upon learning that a PCLS recruiter had solicited an Ameritox employee, and had mentioned its successful recruitment of Savelich, Ameritox reviewed Savelich's Ameritox email account. Id. ¶ ¶ 29-30; see also ECF No. 9-6 (" Carr Decl." ) (describing the efforts of Eric Carr, Network, Security and Compliance Manager, to search for emails from Savelich's work account to external accounts). Ameritox learned that, on December 23, 2014, and December 29, 2014, Savelich had sent several emails from his work account to his personal account,[15] to which he allegedly attached Confidential Information.[16] They include:

o A December 23, 2014 email with the subject line " IMS.7z," to which Savelich attached a spreadsheet containing data on about 35,000 healthcare providers in Savelich's region. ECF No. 20 (" Field Decl." ) ¶ 5; Field Ex.'s A, A -1; Tully Decl. ¶ 32(a).[17] Those providers are Ameritox's past, present, and potential customers. Tully Decl. ¶ 32(a). Ameritox purchased the health provider information from IMS Health (" IMS" ). Tully Decl. ¶ 9. Savelich also attached customer lists from Ameritox's proprietary " Territory Management Tool" (" TMT" ). Field Decl. ¶ 5(b); Field Ex. A-2; Tully Decl. ¶ ¶ 11, 32(b).
o A December 23, 2014 email with the subject line " Business Plans and Pipelines.7z," to which Savelich attached account data for certain Ameritox customers,

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and notes on customers Ameritox had been targeting. Field Decl. ¶ 6; Field Ex.'s B, B-l, B-2; Tully Decl. ¶ 3 2 (d), (e).
o A December 23, 2014 email with the subject line " Jan 2013 one day meeting.7z," to which Savelich attached Ameritox's compensation rates for various services. Field Decl. ¶ 9; Field Ex.'s E, E-l; Tully Decl. ¶ 32(e).
o A December 29, 2014 email with the subject line " Emailing: Interview Guide," to which Savelich attached Ameritox's " Basic Interview Guide: Version 1.3." Field Decl. ¶ 10; Field Ex.'s F, F-l. The Interview Guide " contains customizable questions, checklists, [and] sample questions" designed " to help recruit sales employees best suited to implement Ameritox's sales strategies." Field Ex. F-l at 1; Tully Decl. ¶ 32(g).
o A December 29, 2014 email with the subject line " AAA New Business Development.7z." Field Ex. C. Savelich attached several spreadsheets containing information on Ameritox customers' account type, account name, anticipated volume per month, and notes about the customers' accounts. Field Decl. ¶ 7(a); Field Ex. C-l; Tully Decl. ¶ 32(c). Savelich also attached information on Ameritox business targets in his region. Field Decl. ¶ 7(b); Field Ex. C-2; Tully Decl. ¶ 32(h).
o A December 29, 2014 email with the subject line " Roberto.7z," to which he attached Ameritox's confidential " Financial Practice Profile" prepared for the State of Oregon. Field Decl. ¶ 8(a); Field Ex.'s D. D-l. Savelich also attached a lengthy PowerPoint presentation titled " A Proposal for a Comprehensive Approach to Chronic Opioid Management," which Ameritox had prepared for Aetna. Field. Ex. D-2. Ameritox had developed the PowerPoint as part of its " efforts to expand its business with major health insurance providers." Tully Decl. ¶ 32(f).

On February 23, 2015, Ameritox sued Savelich for breach of contract, misappropriation of trade secrets, and breach of duty of loyalty. ECF No. 1. That day, Ameritox moved for a TRO and preliminary injunction barring Savelich from, among other things, soliciting or attempting to solicit Ameritox customers or employees, or using or disclosing Ameritox's documents, information, or data. ECF Nos. 8, 10 (amended). On February 25, 2015, the Court granted the TRO. ECF No. 12. On February 26, 2015, the Court granted in part and denied in part Ameritox's motion to expedite discovery. ECF No. 17.[18]

On March 3, 2015, Savelich began producing electronic information, and has returned about 370 pages of hard copy documents to Ameritox, including those listed above. ECF Nos. 24-1 at 8 n. 4; 24-3 (" Supp. Field Decl." ) ¶ 4 .[19] On ...


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