District Judge Richard J. Sullivan
The Next plaintiffs sued defendant Viber for contract breach, misappropriation of trade secrets, and unjust enrichment over Viber’s alleged theft of Next’s videoconferencing technologies. Phase I discovery closed on Aug. 23, 2016. On Oct. 11, 2016, Viber sought summary judgment, arguing that the materials contained in Next’s phase I production did not include an trade secrets or proprietary information within the meaning of their June 2012 Nondisclosure and Confidentiality Agreement (NDA).The court found Viber entitled to summary judgment. Next failed both to identify its alleged trade secrets with sufficient specificity, and also failed to adduce adequate evidence that its information was in fact secret. Next did not show what protected materials were disclosed to Viber, and the court observed that it and the parties were forced to play a game of trade-secret “whack-a-mole.” Nor did Next adequately support its claim that Viber breached the NDA by using its proprietary in Viber’s own business or disclosed that information to third parties. Among other things Next apparently conceded that the NxGn App was publicly available for download for 99 percent of the time since 2012, the year before Next demonstrated the NxtGn App to Viber.