On December 1, 2001, Bell entered into a Basic Ordering Agreement for Temporary Labor Services with Global Technical Services, Inc. (“Global”). Pursuant to the agreement, Global supplied the plaintiff, Wayne A. Fowler, to Bell in September 2002 to perform reliability-centered-maintenance (“RCM”) analysis. RCM analysis is performed using a military database computer program known as IRCMS. The data contained within IRCMS must be manually typed into IRCMS via a keyboard.

Fowler developed a computer software program called L2RF that would automatically load or transfer data into IRCMS. Fowler maintains that he wrote L2RF prior to beginning work at Bell and was promised that he would be compensated for the program; Bell avers that the program was written while Fowler worked at Bell. Regardless of when it was written, Fowler brought L2RF to Bell, uploaded it onto the central network, and configured it to work with IRCMS. Once it was functional, Fowler submitted an invoice to Bell. Bell refused to pay the invoice, and Fowler sent a cease-and-desist letter to Bell regarding its continued use of L2RF. Fowler terminated his employment at Bell in May 2003. Prior to leaving, Fowler took some copies of documents from Bell because he feared they would be destroyed after he left. In response to Fowler's cease-and-desist letter, Bell terminated its use of L2RF and developed a similar program, VB-IRCMS.

Fowler brought suit against Bell on June 16, 2003; an amended complaint was filed on February 4, 2004. In his amended complaint, Fowler makes claims for copyright infringement,[1] breach of contract, promissory estoppel, theft of trade secrets, and violation of the Texas Theft Liability Act. Bell filed an amended counterclaim on April 12 making claims against Fowler for copyright infringement, breach of contract, violation of the Texas Theft Liability Act, conversion, violation of the Computer Fraud and Abuse Act, and misappropriation of trade secrets. Bell also seeks a declaratory judgment. Bell moved for partial summary judgment on May 7.

Summary judgment is proper when the record establishes “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “An issue is considered “genuine” if “it is real and substantial as opposed to merely formal, pretended, or a sham.” Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir.2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir.1945)). Facts are considered “material” if they “might affect the outcome of the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. & Tool Works, 910 F.2d 167, 178 (5th Cir.1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir.1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir.1989).

*2 In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir.1988). Rule 56, however, “does not impose on the district court a duty to sift through the record in search of evidence to support” a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir.1992). Thus, parties should “identify specific evidence in the record, and ... articulate” precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir.1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.

To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir.1994); Lavespere, 910 F.2d at 178.

To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir.1988).

When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Arbaugh v. Y & H Corp., 380 F.3d 219, 222 (5th Cir.2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also FED. R. CIV. P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5 th Cir.1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.

*3 Bell seeks summary judgment on its request for a declaratory judgment that Bell is the exclusive owner of, and owns all rights and titles to, the application contained within L2RF. As a condition of his employment, Fowler signed a Confidentiality Agreement with Global regarding his employment at Bell. In the Confidentiality Agreement, Fowler

(App. in Support of Def.'s Mot. for Partial Summ. J. at 1 (Confidentiality Agreement at ¶ 5)). The Confidentiality Agreement also stated that “[a]ll proprietary information of [Fowler] shall remain the property of [Fowler].” (Id. (Confidentiality Agreement at ¶ 4)).

Bell argues that L2RF was developed during Fowler's employment at Bell using Bell's information and capabilities, thereby making L2RF Bell's proprietary information pursuant to the Confidentiality Agreement. Fowler contends that he created L2RF at home on his personal computer between September 11-14, 2002. Fowler avers that the only work performed on L2RF while employed at Bell and using Bell's information and capabilities was L2RF's configuration to Bell's system.

Despite the existence of the Confidentiality Agreement, Bell's arguments for summary judgment fail because they are either successfully contradicted by Fowler or insufficiently supported by Bell's own extrinsic evidence. To support its argument that Fowler developed L2RF and continued to alter L2RF after beginning work at Bell, Bell offers several excerpts of Fowler's deposition testimony. These portions of Fowler's deposition testimony, however, only indicate that Fowler adjusted L2RF to work with Bell's system; Fowler very clearly distinguishes between the development of L2RF and its configuration to the Bell system. (App. in Support of Def.'s Mot. for Partial Summ. J. at 44-46 (Fowler Dep.)).[3] Bell does offer a declaration by Ovy Waddoups, one of Fowler's coworkers, in which Waddoups states that “Fowler did some of the development work on the computer process ... while at Bell.” (App. in Support of Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. 46, ¶ 6). Waddoups also indicated in a memorandum, however, that L2RF “was developed by [Fowler] off-site and was tested and utilized at [Bell] with the expressed permission of [Fowler].” (App. to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 185). The Court cannot say that there is no genuine issue of material fact regarding either when L2RF was developed or to what extent Fowler's “configuration” of L2RF fell within the terms of the Confidentiality Agreement. A determination as to which witness to believe, or as to what amount of development occurred at Bell and whether that is pertinent, is a question of fact for the jury.

*4 Furthermore, the record reflects that L2RF did not function properly when it was initially loaded onto Bell's system. (App. in Support of Def.'s Mot. for Partial Summ. J. at 85, 89-90 (Waddoups Dep.)). Although this could signify that the program was not complete at the time it was brought in for use at Bell, it could also reflect that the program was complete but merely needed to be configured to work within the Bell system. The Court cannot make an assumption on its own regarding this factual question-this type of determination is assigned to the jury, and not to the Court.

Bell also argues that some of the materials included in Fowler's copyright registration deposit[4] reference Bell's proprietary information. Waddoups confirms this allegation in his declaration. (App. in Support of Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 47-48, ¶ 11). Bell has not, however, provided any evidence outside of this declaration actually showing that the information in L2RF's registration deposit is Bell's proprietary information. Bell argues that queries included in the deposit contain links to Bell's databases that only could have been acquired after Fowler began work at Bell.[5] Bell neglects to include, however, evidence showing that the information contained within the queries actually comes from Bell's databases.[6] Bell also argues that L2RF includes Bell's product part numbers, descriptions, and RCM data and that Fowler included his Bell employee number in his copyright application. Bell makes no showing, however, of its product's part numbers, descriptions, or RCM data, and does not point the Court to any evidence providing Fowler's employee number.[7] Some evidential support is required to show that the information included within L2RF's deposit actually is what Bell claims it to be-Bell's proprietary information. The Court cannot accept these factual allegations to be true simply because Bell avers that it is so.

The Confidentiality Agreement provided that “[a]ll proprietary information of [Fowler] shall remain the property of [Fowler].” (App. in Support of Def.'s Mot. for Partial Summ. J. at 1 (Confidentiality Agreement at ¶ 4)). Thus, by the terms of the Confidentiality Agreement, if Fowler can prove that L2RF was his proprietary information when he began his employment at Bell, Fowler will also be able to establish that he did not assign his rights in L2RF to Bell pursuant to the Confidentiality Agreement.

Fowler contends that he wrote L2RF during September 2002, after he learned that he would be interviewing for a position at Bell. (Pl .'s Resp. to Def.'s Mot. for Partial Summ. J. at 4-5, ¶ 4.3). While Fowler admits that some work had to be performed on L2RF after he began his employment at Bell, he contends that it was only to configure L2RF to make it compatible with Bell's needs rather than to actually develop the program. Deposition testimony exists that supports this factual scenario. Fowler testified that he discussed bringing L2RF to Bell in order to shorten Bell's RCM-analysis time. (App. to Pl.'s Mot. for Partial Summ. J. at 23-24, 42 (Fowler Dep.)). Waddoups's deposition testimony and a memorandum written by Waddoups supports Fowler's testimony that Fowler brought some version of L2RF into Bell from home. (Id. at 84 (Waddoups Dep.); App. to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 185). Fowler's deposition testimony also indicates that he informed other workers at Bell that he expected to be compensated for his services. (Id. at 33, 42, 71-73). Furthermore, Fowler has offered the affidavit of an individual working in the data-recovery and computer-forensics field indicating that it would be an enormous task to reset the clock on the floppy discs containing Fowler's original code and that, in his opinion, Fowler authored the code in question. (App. to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 469 (Wiechman Aff.)).[8]

*5 “A genuine issue of material fact exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party.” Geoscan, Inc. of Tex. v. Geotrace Techs., Inc., 226 F.3d 387, 390 (5th Cir.2000). The Court concludes that a rational trier of fact could find that Fowler developed L2RF prior to his tenure at Bell. Fowler has consistently maintained that he merely configured the program to accommodate Bell's system, and deposition testimony indicates that this could be the case. Furthermore, Fowler has offered evidence that it would be an enormous task to change the date and time stamps on his original program, and that he is the likely author of L2RF. In contrast, although Bell argues that Fowler has incorporated Bell's proprietary information into L2RF's copyright registration, Bell fails to provide the Court with persuasive evidence showing that the information and data cited therein actually belongs to Bell. A rational trier of fact, weighing the evidence, could conclude that Fowler developed the program at his home prior to bringing it to Bell for its use. As such, summary judgment in Bell's favor is unwarranted.

Bell also seeks summary judgment on its breach-of-contract claims against Fowler. Bell's first breach of contract claim is for Fowler's claim of ownership over the program contained within L2RF. Since the Court has already concluded that genuine issues of material fact remain as to whether L2RF was developed prior to or during Fowler's employment at Bell, and because Bell's ownership hinges on when L2RF was developed, genuine issues of material fact also remain regarding Bell's breach-of-contract claim for Fowler's claim of ownership over L2RF.

Bell also makes a breach-of-contract claim against Fowler for his removal of Bell records while still employed at Bell. The Confidentiality Agreement signed by Fowler included a statement that he would “not remove any [Bell] records of any kind, including, but not limited to, [Bell] equipment and [Bell] Proprietary Information, or otherwise use or disclose [Bell] Proprietary Information, unless provided [for in the Confidentiality Agreement] or specifically agree[d to] otherwise in writing.” (App. in Support of Def.'s Mot. for Partial Summ. J. at 1 (Confidentiality Agreement at ¶ 1)). Fowler admits that he took and emailed documents and proprietary information from Bell prior to the end of his employment without Bell's consent. (App. to Pl.'s Mot. for Partial Summ. J. at 36, 39, 48-49). Fowler argues that any breach that he committed by taking the documents and information from Bell is excused by Bell's prior, material breach of claiming ownership in L2RF.

“It is a fundamental principle of contract law that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance.” Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex.2004) (per curiam) (citing Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex.1994)). Bell argues that Fowler does not indicate what contract he thinks Bell breached, and that Fowler might only be excused from performance if Bell committed a material breach of that same contract. In his response to Bell's motion for partial summary judgment, however, Fowler clearly states that Bell “materially breached the contract between it and [Fowler] when it claimed ownership of L2RF.” (Def.'s Resp. to Pl.'s Mot. for Partial Summ. J. at 16). The Confidentiality Agreement specifically states that “[a]ll proprietary information of [Fowler] shall remain the property of [Fowler].” (App. in Support of Def.'s Mot. for Partial Summ. J. at 1 (Confidentiality Agreement at ¶ 4)). Should Fowler be successful in proving that L2RF was his proprietary information, Bell's claim of ownership in L2RF would be a material breach of the Confidentiality Agreement, the same contract that Bell avers Fowler breached by taking documents and proprietary information from Bell. The Court therefore concludes that the question of whether Fowler breached the Confidentiality Agreement by taking proprietary information from Bell rests on the same question already discussed-whether L2RF is Fowler's or Bell's proprietary information. Because genuine issues of material fact remain as to this question, the Court cannot grant summary judgment regarding this issue.

*6 Bell avers that Fowler's remaining causes of action are precluded because, pursuant to the Confidentiality Agreement, Bell owns L2RF. Because the Court has already concluded that it cannot grant Bell summary judgment on its request for a declaratory judgment regarding its ownership of L2RF, Bell's argument is unpersuasive.

Therefore, it is ORDERED that Bell Helicopter's Motion for Partial Summary Judgment [doc. # 50-1] is DENIED.

Bell was granted judgment on the pleadings on Fowler's copyright infringement claims on the same date as the issuance of this order.

The Confidentiality Agreement states that: “ ‘Proprietary information” ’ shall mean information, material, or data proprietary to [Bell] or designated as Proprietary Information by [Bell] and not generally known by non-[Bell] personnel which [Fowler] may obtain knowledge of or access through or as a result of [Fowler's] relationship with [Bell], including information conceived, originated, discovered, or developed in whole or in part by [Fowler] .” (App. in Support of Def.'s Mot. for Partial Summ. J. at 1 (Confidentiality Agreement at ¶ 3)). The Confidentiality Agreement also stated that proprietary information included concepts, software, data, processes, procedures, techniques, and other forms of information. (Id.)

The Court notes Bell's averment that Fowler made statements that “the compilation of the source code” was “added in after” his employment at Bell. The citation given for this statement, however, is inaccurate-no such statement could be found either on the page cited or its surrounding pages. Rule 56 “does not impose on the district court a duty to sift through the record in search of evidence to support” a party's motion for, or opposition to, summary judgment. Skotak, 953 F.2d at 915-16 & n. 7. Since Bell has failed to provide evidence that the above statement was actually made by Fowler, the Court will disregard Bell's allegation that the above statement was actually made.

This argument refers to the first registration certificate Fowler filed with the copyright office, certificate number TX5-680-222.

The Court notes that these pages are extremely dark and hard to read. To the extent that they are discernable, the Court has taken them into account.

The only possible connection discernable between Bell and Fowler's deposit is the word “OSPREY,” which is included within some of Fowler's code. (App. in Support of Def.'s Mot. for Partial Summ. J. at 141-44). Osprey is the name of the aircraft Fowler was hired to perform RCM analysis for. (Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 4, ¶ 4.1). Bell fails to make any connection between the two, however, instead leaving the Court to draw the inference on its own. Furthermore, the inclusion of “OSPREY” does not of its own show that L2RF was written during Fowler's employment at Bell. Any number of reasons could explain “OSPREY” 's presence in Fowler's code, including Fowler's position that he had to configure L2RF to Bell's system. Moreover, “OSPREY” in L2RF is generally attached to other pieces of code. While these could refer to Bell databases, Bell fails to provide any evidence indicating that L2RF's “OSPREY” references are connected to Bell's databases. The Court cannot assume that they are without some type of evidence indicating that it is so.

The Court takes note of Waddoups's statement in his declaration that Fowler's registration deposit contains data referencing “X00622113 Fairing,” which Waddoups states is an Osprey component part. (App. in Support of Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 47-48, ¶ 11). In reviewing the pages referred to by Waddoups, the Court notes that not only are the pages so dark that much of the information cannot be read, but “X00622113 Fairing” is not present on any of the pages. The Court cannot accept as truth that Fowler mentioned an Osprey component part simply because one of Bell's witnesses declares that it is so. Furthermore, Bell has not provided the Court with any evidence, aside from Waddoups's statement, that it is Osprey part numbers that are referenced in Fowler's deposit. The Court assumes that Bell has information concerning the part numbers and descriptions of its products, yet no such information was submitted to the Court. Bell simply requests the Court to accept that the code referenced in Fowler's deposit is Bell's proprietary information. Without evidence connecting Bell's averment and Fowler's deposit, the Court cannot make such a finding.

The Court notes that Bell has offered the opinion of an individual working in the field that it would be relatively easy to doctor the time and date stamps on the floppy discs containing Fowler's original code. (App. in Support of Def.'s Reply to Pl.'s Resp. to Def.'s Mot. for Partial Summ. J. at 54-64 (Racich Dep.). Any determination as to which expert to believe, however, belongs to the jury.