United States District Court, D. Maryland
MARYLAND PHYSICIAN’S EDGE, LLC, et al.
NANCY BEHRAM, M.D.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
pending in this employment dispute case are cross motions for
summary judgment and motions to seal. The issues have been
briefed, and the court now rules, no hearing being deemed
necessary. Local Rule 105.6. For the following reasons,
Plaintiffs/Counter-Defendants’ motion for summary
judgment will granted and Defendant/Counter-Plaintiff’s
motion for summary judgment will be granted in part and
denied in part. The motions to seal will be granted as to all
but one exhibit.
Behram, M.D., Defendant/Counter-Plaintiff, is “a
board-certified physician specializing in obstetrics and
gynecology.” (ECF No. 72-4, at 2). She co-owned an
obstetrics and gynecological practice, OB-GYN Associates,
P.A. (“OBA”), with two other physicians, Bradford
Kleinman, M.D. and Carolyn Morales, M.D. (ECF No. 2-1, at 6).
The three owners sold OBA to Maryland Physician’s Edge,
LLC and Advantia Health, LLC (collectively
“MPE”), in May, 2014. (Id.). Dr. Behram
entered into three contractual agreements with MPE as part of
the sale: (1) an asset purchase agreement entered jointly
with Dr. Behram’s OBA co-owners to dispose of
OBA’s non-medical assets (ECF No. 2-1); (2) a purchase
agreement entered jointly with Dr. Behram’s co-owners
to dispose of OBA’s medical assets (ECF No. 2-2); and
(3) a senior physician employment agreement
(“SPEA”) entered independently and providing
terms for Dr. Behram’s employment with MPE following
the sale (ECF No. 63-4).
SPEA, Dr. Behram’s employment with MPE
“commence[d] as of the [e]ffective [d]ate” of the
SPEA and would “continue for a period . . . of five (5)
years[.]” (ECF No. 63-4, at 10). The SPEA’s
preamble initially defines the “Effective Date”
as May 29, 2014. Id. at 2. Later in the preamble,
however, the SPEA states that “this Agreement shall be
effective as of the closing date of the Transaction (the
“Effective Date”), which date shall be confirmed
by a letter from the Employer to the Physician[.]
Id. The closing date was September 2, 2014. (ECF No.
64-4, at 316:7-11).
three years later, in the spring of 2017, MPE attempted to
renegotiate their employment agreement with Dr. Behram. Dr.
Behram felt “pressured and bullied into signing a new
contract” at this time. (ECF No. 64-4 at 57:3-4). Dr.
Behram began to consider her options for alternative
employment. Id. at 57:9.
Behram’s husband, Steve Behram, M.D., also owns an
obstetrics and gynecology practice named Steve Behram, M.D.
& Associates, PC. (ECF No. 72-12, at 13:12-13). Dr. Steve
Behram’s practice goes by the business name
“Congressional OB-GYN.” (ECF No. 72-12, at 14:11).
Congressional OB-GYN became affiliated with Privia Medical
Group (“PMG”) in January 2016. (ECF No. 72-12, at
46:1-20). In June, 2017, Dr. Behram spoke to Dr. Steve Behram
and the chief financial officer of Privia
Health, David Mountcastle, about the possibility
of employment with Congressional. (ECF No. 72-13, at 2-3). As
part of these discussions, Dr. Behram sent her employment
agreement as well as certain of her “productivity
reports, ” to PMG. (ECF No. 72-4, 72-11, 72-12).
mid-July, Dr. Behram reset her Council for Affordable Quality
Healtchare (“CAQH”) password as part of the
necessary re-credentialing process that would come with a
change of employment. (ECF No. 63-1, at 2). Tracy Moran, an
administrator who had worked with Dr. Behram for years, had,
up until that point, been the primary manager of Dr.
Behram’s CAQH account. (ECF No. 63-20, at 24). On
discovering that the password had been reset, Ms. Moran grew
suspicious. (ECF No. 63-20, at 27-28).
a series of confused communications which appeared to link
Dr. Behram to her husband’s practice at Congressional
OB-GYN, Ms. Moran confronted Dr. Behram. In the ensuing
conversation, Ms. Moran “said I assume you are trying
to go with Steve and that is what prompted all of
this.” (ECF No. 72-5, at 217:9-13). Dr. Behram
responded to Ms. Moran by stating that she had “not
done anything with CAQH” and that she had “not
signed anything with Privia.” Id. Ms. Moran
reported this information to MPE executives Brent Westhoven,
Sean Glass, and Peter Glass. (ECF No. 72-19, at 88:2-13). MPE
launched an investigation following Ms. Moran’s report.
The investigation revealed certain suspicious statements Dr.
Behram had made to patients about potentially leaving MPE.
(ECF No. 72-11, 30:19-22, 31:1-9).
terminated Dr. Behram on July 31, 2017 for “violation
of section 7(d)(vi)(A) and (F) of the [SPEA.]” (ECF No.
22-2, at 2). Section 7(d)(vi)(A) provided MPE the ability to
terminate Dr. Behram’s employment immediately if MPE
made a good faith determination that she “engaged in
any act of personal dishonesty, gross negligence, or willful
misconduct that ha[d] a material adverse effect on [MPE], its
business operations, financial condition, assets, prospects
or reputation[.]” (ECF No. 22-1, at 12). Similarly,
section 7(d)(vi)(F) provided MPE the ability to terminate Dr.
Behram immediately if MPE made a good faith determination
that she “knowingly disclosed any confidential or other
similar information, or breached any covenant against
competition or solicitation, including a violation of”
the restrictive covenants listed in the SPEA. (ECF No. 22-1,
her termination, Dr. Behram downloaded a filtered and
cultivated list of certain MPE patients. (ECF No. 22, at 6).
Dr. Behram also sent the aforementioned “productivity
reports” which contained financial information about
MPE, its services, and Dr. Behram’s work for MPE, to
Privia while still employed at MPE. (ECF No. 64-4, at 74-75).
MPE filed a complaint against Dr. Behram on September 15,
2017, alleging seven counts: (1) misappropriation of trade
secrets under 18 U.S.C. § 1836, et seq.
(“DTSA”); (2) misappropriation of trade secrets
under the Maryland Commercial Code, §§ 11-201, et
seq. (“MUTSA”); (3) breach of employment
agreement contract; (4) breach of non-medical asset purchase
agreement contract; (5) breach of medical asset purchase
agreement contract; (6) injunctive relief; and (7) breach of
implied covenant of good faith and fair dealing. (ECF No. 1,
at 12-19). In response, Defendant/Counter-Plaintiff filed an
answer and counterclaim on October 19, 2017, alleging five
counts: (1) declaratory judgment; (2) breach of contract; (3)
violation of the Maryland Wage Payment Collection Law; (4)
tortious interference with business expectancy; and (5)
injunctive relief and specific performance. (ECF No. 22, at
Motions to Seal
Dr. Behram filed motions to seal. A motion to seal must
comply with Local Rule 105.11, which provides:
Any motion seeking the sealing of pleadings, motions,
exhibits or other papers to be filed in the Court record
shall include (a) proposed reasons supported by specific
factual representations to justify the sealing and (b) an
explanation why alternatives to sealing would not provide
sufficient protections. The Court will not rule upon the
motion until at least 14 days after it is entered on the
public docket to permit the filing of objections by
interested parties. Materials that are the subject of the
motion shall remain temporarily sealed pending a ruling by
the Court. If the motion is denied, the party making the
filing will be given an opportunity to withdraw the
rule endeavors to protect the common law right to inspect and
copy judicial records and documents, Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978), while
recognizing that competing interests sometimes outweigh the
public's right of access, In re Knight Publ'g
Co., 743 F.2d 231, 235 (4th Cir.1984).
sealing any documents, the court must provide the non-moving
party with notice of the request to seal and an opportunity
to object. Id. This notice requirement may be
satisfied by either notifying the persons present in the
courtroom or by docketing the motion “reasonably in
advance of deciding the issue.” Id. at 234.
the court should consider less drastic alternatives to
sealing, such as filing redacted versions of the documents.
If the court decides that sealing is appropriate, it should
also provide reasons, supported by specific factual findings,
for its decision to seal and for rejecting alternatives.
Id. at 235.
parties seek to seal certain exhibits in connection with the
cross-motions for summary judgment. Both motions stand
unopposed after having been on the docket for several months,
and one of the two motions is in fact a consent motion. All
of the documents the parties wish to seal have been produced
under a stipulated protective order under a
“Confidential” designation. In this case, that
designation is mostly fitting.
exhibits which the parties seek to file under seal are: 1) a
draft employee agreement, 2) an actual employee agreement, 3)
a set of PowerPoint slides containing confidential terms,
conditions, covenants and agreements among the parties, and
4) Dr. Behram’s 2016 productivity reports, which, as
discussed below, contain sensitive information and may indeed
constitute trade secrets. Given that this action revolves in
large part around MPE’s efforts to prevent disclosure
of these materials, it is appropriate to seal them here.
See Int'l Ass'n of Machinists & Aerospace
Workers v. Werner–Masuda, 390 F.Supp.2d 479, 485
(D.Md.2005) (sealing materials that went to “heart of
th[e] case” concerning trade secrets); Padco
Advisors, Inc. v. Omdahl, 179 F.Supp.2d 600,
614–15 (D.Md.2002) (sealing materials in action
“based on enforcing a non-compete clause in an
employment contract in order to protect these trade
or taking other less restrictive measures, would defeat the
usefulness of the bulk of the exhibits in a case such as
this, where the court must get a complete view of these
materials to understand whether MPE is correct that they
never should have been disclosed.
other hand, redaction appears to be more fitting as to the
PowerPoint slides comprising Exhibit 26. While the other
exhibits are all, in some form, the basis of trade secret
litigation, the power point slides are not, and the
justification for their being sealed contains only
boilerplate recitations. Neither the motions to seal, nor the
information available to the court suggest that redaction
would not provide sufficient protection. The parties shall
have 21 days from the date of this order publicly to file
redacted copies of the PowerPoint slides.
Motions for Summary Judgment
Standard of Review
motion for summary judgment will be granted only if
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986);
Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). To prevail on a motion for summary judgment, the
movant generally bears the burden of showing that there is no
genuine dispute as to any material fact. Liberty
Lobby, 477 U.S. at 248-50. A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 249. In undertaking this
inquiry, a court must view the facts and the reasonable
inferences drawn therefrom “in the light most favorable
to the party opposing the motion, ” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 405 (4th Cir.
2005), but a “party cannot create a genuine dispute of
material fact through mere speculation or compilation of
inferences.” Shin v. Shalala, 166 F.Supp.2d
373, 375 (D.Md. 2001) (citation omitted). If a party
“fails to make a showing sufficient to establish the
existence of an element essential to that party’s case
... which that party will bear the burden of proof at trial[,
]” there can be no “genuine issue as to any
material fact, since a complete failure of proof concerning
an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.”
Celotex Corp., 477 U.S. at 323.
Dr. Behram’s Motion for Partial Summary
Behram seeks summary judgment as to four of MPE’s
claims. She does not seek judgment as a matter of
law on any of her own claims, nor does she seek judgment on
MPE’s three other claims. For the following reasons,
the court will grant Dr. Behram’s summary judgment
motion as to Counts VI and VII of MPE’s Complaint as
neither state cognizable, independent claims under Maryland
law. As to Counts I and II – the trade secret claims
– the court will deny Dr. Behram’s motion.
Trade Secret Claims (MPE Counts I and II)
their complaint, MPE alleges that the “confidential,
proprietary, and trade secret information” that forms
the basis of their Maryland Uniform Trade Secrets Act
(“MUTSA”) claim “relates to MPE’s
patient list.” (ECF No. 1, at 31). Likewise,
MPE’s Defend Trade Secrets Act (“DTSA”)
claim focuses exclusively on patient lists. Id. at
39. Dr. Behram addresses her motion for summary judgment not
just to the patient lists, but to the SPEA and certain
“productivity reports” which Dr. Behram allegedly
furnished to Privia. (ECF No. 69-1, at 30). In their reply in
support of their motion for summary judgment, however, MPE
makes no mention of the SPEA forming any basis of their MUTSA
or DTSA claims, but does allege that the patient
lists and productivity reports are trade secrets.
(ECF No. 73, at 38). Only those two items will be considered.
Under both DTSA and MUTSA, plaintiff must prove that the
alleged trade secret meets the respective statutory
definition. These definitions are similar, but distinct.
defines as a trade secret as:
information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can