USA Power v. PacifiCorp

2010 UT 31
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
USA Power, LLC; USA Power 	No. 20080176
Partners, LLC; and Spring
Canyon Energy, LLC,
Plaintiffs and Appellants,
v.
PacifiCorp; Jody L. Williams; 	F I L E D
and Holme Roberts & Owen, LLP,
Defendants and Appellees. 	May 14, 2010
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 050903412
Attorneys: 	Peggy A. Tomsic, Eric K. Schnibbe, J. Ryan Connelly,
Salt Lake City, for plaintiffs
Thomas R. Karrenberg, Stephen P. Horvat, Salt
Lake City, for defendant Jody L. Williams
Peter W. Billings, Sr., Michael G. Jenkins,
P. Bruce Badger, Salt Lake City, for defendants
PacifiCorp and Holme Roberts & Owen
---
NEHRING, Justice:
INTRODUCTION
¶1 	In this appeal, we review a district court’s grant of
summary judgment on three claims: 	misappropriation of trade
secrets, breach of a confidentiality and nondisclosure agreement,
and breach of an attorney’s fiduciary duties of confidentiality
and loyalty.
¶2 	In August 2002, USA Power, LLC, a power plant
developer, entered into negotiations with PacifiCorp, a utility
company, to construct a power plant named Spring Canyon in Mona,
Utah. 	PacifiCorp signed a confidentiality and nondisclosure
agreement as part of those negotiations. 	Within a year,
PacifiCorp decided that rather than purchase Spring Canyon from

No. 20080176 	2
USA Power, it would build a similar power plant named Currant
Creek outside Mona. 	As a result, USA Power sued PacifiCorp for
misappropriation of trade secrets and breach of the
confidentiality and nondisclosure agreement.
¶3 	USA Power also sued its water law attorney Jody
Williams and her law firm Holme Roberts & Owen, LLP (“HRO”) for
breach of their fiduciary duties of confidentiality and loyalty.
USA Power alleges that Ms. Williams represented USA Power and
PacifiCorp at the same time and disclosed to PacifiCorp
confidential information that she obtained through her
representation of USA Power.
¶4 	The district court granted summary judgment in favor of
PacifiCorp, Ms. Williams, and HRO. 	USA Power appeals. 	We
reverse.
BACKGROUND
I. 	USA POWER CLAIMS THAT PACIFICORP MISAPPROPRIATED ITS TRADE
SECRET
¶5 	The first issue on appeal concerns whether USA Power
provided PacifiCorp with information about developing a power
plant that constituted a trade secret, and if so, whether
PacifiCorp misappropriated that trade secret when it chose to
develop its own power plant.
A. 	USA Power Develops the Spring Canyon Project
¶6 	USA Power was formed in 1996 for the purpose of
locating, acquiring, and developing electric power generation
sites. 	As a general practice, USA Power accumulated the assets
necessary for a power plant but did not necessarily develop or
operate the plants. 	In 2001, USA Power decided to focus on
developing a power plant in Utah. 	After researching the area,
USA Power selected Mona, Utah, as a viable site for a power
plant. 	USA Power named the project “Spring Canyon” and formed
Spring Canyon Energy, LLC to hold the necessary assets.
¶7 	After consulting with multiple engineering and
feasibility experts, USA Power designated Spring Canyon as an
approximately 550 megawatt, air-cooled, gas-fired, combined cycle
plant in a 2x1 configuration with 7FA GE turbines, duct firing,
and zero water discharge technology. 	USA Power then made efforts
to accumulate other necessary assets, including securing an
option to purchase the identified property, obtaining a zoning
variance, securing options to purchase water rights, preparing

3 	No. 20080176
documents to change the point of diversion for the purchased
water rights, preparing and submitting an air quality permit
application, designating a wastewater, gas line and power
transmission corridor, and preparing development plans. 	USA
Power also obtained a commitment from Questar corporation to
provide natural gas to Spring Canyon and a Federal Energy
Regulatory Commission (“FERC”) determination that Spring Canyon
qualified as an exempt wholesale generator. 	Many of the
documents filed, including the Notice of Intent (“NOI”) filed
with the Utah Department of Environmental Quality’s Division of
Air Quality, are public documents. 	The NOI laid out many of the
details of the proposed plant, including USA Power’s planned
technology.
¶8 	One year later, USA Power marketed Spring Canyon. 	USA
Power met with PacifiCorp on August 22, 2002, to discuss
PacifiCorp’s potential purchase and development of Spring Canyon.
PacifiCorp was represented by Mr. Rand Thurgood. 	USA Power
claims that it informed PacifiCorp that it would not discuss the
project in detail until PacifiCorp signed a confidentiality
agreement. 	After PacifiCorp signed a Confidentiality and
Non-Disclosure Agreement at the parties’ next meeting on
September 11, 2002, USA Power provided PacifiCorp three binders
of information concerning Spring Canyon marked “confidential.”
About one month prior to receiving the three binders, PacifiCorp
had already received a copy of the public NOI filed by USA Power,
which revealed certain details about Spring Canyon.
¶9 	On March 14, 2003, after a series of offers and
counteroffers, PacifiCorp expressed interest in purchasing Spring
Canyon for three million dollars and a five-year development
agreement. 	On March 17, however, PacifiCorp informed USA Power
that rather than purchase Spring Canyon, it would instead issue a
Request for Proposals (“RFP”), a regulatory process by which a
utility company may collect bids to fulfill its identified power
needs. 	USA Power submitted four bid proposals. 	According to an
e-mail between PacifiCorp employees, at least two of USA Power’s
bids came in second to the next best alternative.
B. 	PacifiCorp Develops the Currant Creek Project
¶10 	Around the same time that USA Power was developing
Spring Canyon, Panda Energy, a power plant developer from Texas,
also initiated plans to develop a power plant adjacent to
PacifiCorp’s switching station near Mona, Utah. 	On February 20,
2003--after PacifiCorp had received the three confidential
binders from USA Power--PacifiCorp purchased the assets
accumulated by Panda, which included property purchase

No. 20080176 	4
agreements, environmental assessment reports, as well as water,
air, and meteorological data reports. 	USA Power alleges that in
comparison to Spring Canyon, Panda’s project was limited; it
never obtained water rights, an air permit, rezoning, or a
transmission agreement for the Mona substation.
¶11 	In 2003, PacifiCorp hired the engineering firm
Shaw/Stone & Webster to help convert the Panda assets into
PacifiCorp’s own power plant named Currant Creek. 	Shaw/Stone &
Webster had recently designed, engineered, and constructed the
Apex 1 power plant in Las Vegas, Nevada, for the Mirant
Corporation. 	In April 2003--after PacifiCorp had decided to
issue an RFP rather than purchase Spring Canyon from USA Power--
PacifiCorp requested a cost analysis for Currant Creek from
Shaw/Stone & Webster; the analysis was delivered to PacifiCorp on
June 9, 2003. 	After combining the information from Shaw/Stone &
Webster and its own experience, PacifiCorp submitted the Currant
Creek plans as a “next best alternative” by which to measure
other bids in the RFP process.
¶12 	In support of its contention that it did not
misappropriate any confidential information provided by USA
Power, PacifiCorp argues that both the Apex 1 and Currant Creek
designs are based on Shaw/Stone & Webster’s standard design for a
2x1 combined-cycle power plant with air cooling and that both
plants are virtually identical. 	PacifiCorp also argues that any
peculiarities specific to Spring Canyon were publically disclosed
in the NOI. 	In contrast, USA Power argues that the short time it
took Shaw/Stone & Webster to prepare the cost analysis shows that
PacifiCorp improperly used the confidential information USA Power
disclosed in the three binders, especially information concerning
the viability of a dry-cooled plant in Mona.
C. 	Rather than Purchase Spring Canyon From USA Power, PacifiCorp
Pursues Its Own Currant Creek Power Plant
¶13 	By August 2003, PacifiCorp determined that its own
Currant Creek power plant, as the next best alternative, was more
economically feasible than the other bids. 	In September 2003,
PacifiCorp’s board of directors approved Currant Creek for
construction and announced that it had awarded itself the bid on
November 3, 2003, when it filed an application with the Public
Service Commission (“PSC”) for a Certificate of Convenience and
Necessity (“CC&N”). 	The PSC awarded PacifiCorp the CC&N in March
2004, stating “review of the alternative actions discussed above
[including Spring Canyon] shows no better alternative at the
present time than proceeding with building [the Currant Creek
plant].” 	Approval of the CC&N effectively eliminated the

1 When USA Power first retained Ms. Williams, she was a
partner at the law firm Kruse, Landa & Maycock. 	In July 2002,
Ms. Williams terminated her relationship with that firm and
became a partner at the law firm HRO. 	Ms. Williams maintained
her representation of USA Power after switching to HRO.
5 	No. 20080176
possibility of constructing any other power plant, including
Spring Canyon, in Mona.
II. 	USA POWER CLAIMS THAT ITS WATER LAW ATTORNEY AND HER LAW
FIRM BREACHED THEIR FIDUCIARY DUTIES OF LOYALTY AND
CONFIDENTIALITY
¶14 	The second issue on appeal concerns USA Power’s claim
that attorney Jody Williams and her law firm HRO breached their
fiduciary duties of confidentiality and loyalty. 	USA Power
alleges that Ms. Williams represented both USA Power and
PacifiCorp at the same time and disclosed to PacifiCorp
confidential information she obtained in the course of her
representation of USA Power.
A. 	Ms. Williams’ Representation of USA Power
¶15 	In 2001, USA Power retained Ms. Williams, a water law
attorney, as part of its efforts to develop Spring Canyon. 1 	The
parties dispute both the scope of Ms. Williams’ representation of
USA Power and the date her representation terminated.
¶16 	As to the scope of her representation, the parties
agree that Ms. Williams (1) filed the necessary documents to form
Spring Canyon Energy, LLC; (2) investigated potential water
rights for use in Mona and helped to secure options to purchase
water rights from two gentlemen, Mr. Keyte and Mr. Garrett, which
have since expired; and (3) in connection with those purchase
options, filed change applications with the State Engineer, a
letter regarding the Keyte and Garrett water rights and
transactions, and a memoranda addressing the due diligence
undertaken regarding those water rights. 	USA Power additionally
alleges that Ms. Williams assisted in other aspects of the Spring
Canyon project, such as drafting an option to purchase real
property, obtaining necessary zoning and air permits, contacting
PacifiCorp to negotiate an interconnection agreement, and
generally advising USA Power on the viability of Spring Canyon.
¶17 	The parties also dispute when Ms. Williams’
representation of USA Power terminated. 	USA Power alleges that
Ms. Williams actively represented it from April 2001 through

2 Ms. Williams acknowledges that she received a “single,
isolated question about air credits in September 2003” and
“referred the inquiry to another [HRO] attorney, who responded on
September 17, 2003.” 	But she rejects any contention that this
phone call shows continued representation of USA Power.
No. 20080176 	6
November 2003. 	Ms. Williams claims she completed all outstanding
work for USA Power on January 22, 2003. 2
B. 	Ms. Williams’ Representation of PacifiCorp
¶18 	In March 2003, Rand Thurgood, counsel for PacifiCorp,
contacted and retained Ms. Williams to assist PacifiCorp in the
purchase of water rights. 	Ms. Williams told Mr. Thurgood that
she had no existing conflicts with USA Power at that time because
her work for USA Power was completed.
¶19 	In July 2003, Ms. Williams became aware of water rights
through WW Ranches, LLC, a business specializing in the
acquisition and sale of water rights. 	WW Ranches suggested
PacifiCorp acquire water rights in another county, change the
diversion point, and use that water for its needs at Currant
Creek. 	In September 2003, WW Ranches and PacifiCorp entered into
a water rights purchase agreement, pursuant to which WW Ranches
sold PacifiCorp water shares and submitted the necessary change
applications to the Utah State Engineer.
¶20 	USA Power argues that Ms. Williams disclosed
confidential information obtained during her representation of
USA Power to benefit PacifiCorp. 	Specifically, USA Power argues
that “[Ms.] Williams contacted the very pool of potential sellers
that she had developed on USA Power’s dollar to attempt to
purchase water rights for PacifiCorp” and disclosed the range of
USA Power’s potential purchase prices to Mr. Thurgood. 	In
contrast, Ms. Williams maintains that her assistance was
unnecessary to obtain the water rights WW Ranches subsequently
located, acquired, and sold to PacifiCorp or to make the change
application to the State Engineer. 	Michael Jenkins, assistant
general counsel to PacifiCorp, testified in an affidavit that had
Ms. Williams declined to represent PacifiCorp, he was prepared to
contact other water law attorneys. 	Morever, other attorneys from
a different law firm, Michael Zimmer and David Ringer, aided USA
Power in its negotiations with PacifiCorp. 	Ms. Williams also
claims that she never discussed with PacifiCorp or WW Ranches the
price USA Power had agreed to pay for its own water rights, or
attempted to acquire water rights from Mr. Keyte or Mr. Garrett
on behalf of PacifiCorp.

7 	No. 20080176
¶21 	The parties also dispute whether Ms. Williams played a
significant role in developing Currant Creek. 	USA Power alleges
that Ms. Williams became a member of PacifiCorp’s “development
team” where she attended meetings and advised PacifiCorp on all
aspects related to Currant Creek. 	USA Power further alleges that
Ms. Williams drafted documents to acquire water rights for
Currant Creek and reviewed change applications, including USA
Power’s.
¶22 	In contrast, Ms. Williams asserts she was not involved
in PacifiCorp’s decision to conduct the RFP, its evaluation of
bids, or its decision to construct Currant Creek. 	She also
asserts that none of USA Power’s bids came in higher than fourth
place in the RFP process. 	She further maintains that she neither
participated in the marketing of Currant Creek nor discussed USA
Power’s Spring Canyon project with PacifiCorp.
III. 	THE DISTRICT COURT GRANTS SUMMARY JUDGMENT TO PACIFICORP
AND MS. WILLIAMS ON BOTH ISSUES RESPECTIVELY
¶23 	USA Power sued PacifiCorp for misappropriation of trade
secrets and breach of contract, among other things. 	USA Power
also sued Ms. Williams and HRO for breach of their fiduciary
duties of confidentiality and loyalty. 	The district court
granted summary judgment in favor of PacifiCorp, Ms. Williams,
and HRO.
¶24 	As to PacifiCorp, the district court first determined
that contrary to Utah Rule of Civil Procedure 7(c)(3)(A), USA
Power merely “argu[ed] about the implication of the facts
asserted [by PacifiCorp] instead of ‘specifically controverting’
them with the factual record.” 	The court therefore deemed all
facts not “specifically controverted” as admitted. 	The district
court then granted summary judgment to PacifiCorp on USA Power’s
misappropriation of trade secrets claim because it determined
that USA Power failed to provide sufficient evidence that Spring
Canyon was a trade secret or that PacifiCorp more likely than not
misappropriated any possible trade secrets. 	The district court
also granted summary judgment to PacifiCorp on USA Power’s breach
of contract and breach of the implied covenant of good faith and
fair dealing claims because it concluded that USA Power presented
no evidence that PacifiCorp used the confidential information
disclosed in the three binders.
¶25 	As to Ms. Williams and HRO, the district court granted
summary judgment in their favor because it concluded that USA
Power did not present evidence from which a reasonable jury could
determine that Ms. Williams disclosed USA Power’s confidential

3 We hereinafter refer to Ms. Williams and HRO collectively
as “Ms. Williams.”
No. 20080176 	8
information to PacifiCorp. 	The district court further held that
even if Ms. Williams had breached her duty of loyalty, USA Power
had not presented evidence by which a jury could find that any
breach caused harm to USA Power.
¶26 	On appeal, USA Power asks this court to address whether
the district court erred when it (1) deemed as admitted many of
PacifiCorp’s statements of material fact on the basis that USA
Power failed to “specifically controvert” those facts under Utah
Rule of Civil Procedure 7(c)(3)(A), (2) granted summary judgment
to PacifiCorp on USA Power’s misappropriation of trade secrets
claim, and (3) granted summary judgment to Ms. Williams and HRO 3
on USA Power’s breach of fiduciary duty claims. 	We address each
issue in turn. 	This court has jurisdiction pursuant to section
78A-3-102(3)(j)(2008) of the Utah Code.
STANDARD OF REVIEW
¶27 	“‘[T]he interpretation of a rule of procedure is a
question of law that we review for correctness.’” 	State v.
Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610 (alteration in
original) (quoting Brown v. Glover, 2000 UT 89, ¶ 15, 16 P.3d
540). 	Similarly, whether a party has complied with a rule of
civil procedure is a question of law, and “we accord no
particular deference to the determinations of law made by the
trial court but review them for correctness.” 	See Avila v. Winn,
794 P.2d 20, 22 (Utah 1990).
¶28 	Furthermore, “[w]e review the district court’s summary
judgment ruling for correctness and view all facts and reasonable
inferences in favor of the nonmoving party.” 	W. Water, LLC v.
Olds, 2008 UT 18, ¶ 14, 184 P.3d 578 (citations omitted).
ANALYSIS
I. 	THE DISTRICT COURT ERRED WHEN IT DETERMINED THAT, UNDER UTAH
RULE OF CIVIL PROCEDURE 7(c)(3)(A), INFERENCES CANNOT BE USED TO
“CONTROVERT” A PARTY’S UNDISPUTED STATEMENT OF FACTS
¶29 	USA Power argues that the district court erred when it
deemed many of PacifiCorp’s statements of fact as admitted on the
basis that USA Power failed to “specifically controvert” those
particular facts. 	The district court found that USA Power had
“employed the practice contrary to rule 7(c)(3)(A) of arguing
about the implication of the facts asserted instead of

4 Specifically, the court deemed as admitted facts numbered
1-3, and 5-11, which “identify Panda Energy’s development of a
power plant in Mona, next to PacifiCorp’s transmission station,
PacifiCorp’s knowledge of Panda’s development before ever meeting
plaintiffs’ and PacifiCorp’s ultimate purchase of Panda’s assets
necessary for the development of the Currant Creek Power plant.”
The district court also deemed as admitted facts numbered 20-29,
“which identify PacifiCorp’s and Shaw/Stone & Webster’s design,
engineering and construction of the Currant Creek Power Plant.”
The court stated,
With respect to Shaw/Stone & Webster, it is undisputed
that they built a sister plant to the Currant Creek
Power Plant (Apex 1), and that the Currant Creek Power
Plant represents PacifiCorp’s and Shaw/Stone &
Webster’s own work . . . [that] all of their component
parts and technologies are well understood and widely
utilized in the electric power plant industry . . .
[and that] the design, engineering and construction of
the Currant Creek Power Plant was not based upon nor
utilized any information from or about USA Power, USA
Power Partners, Spring Canyon Energy or the Spring
Canyon Energy project.
Finally, the district court found that facts numbered 13 and 17
“demonstrate that plaintiffs’ concept, vision and claimed
confidential information were of public record, and . . . the
information contained therein being generally known and readily
ascertainable from the public record . . . cannot possibly
constitute trade secrets.”
5 PacifiCorp argues we should review the district court’s
decision to deem PacifiCorp’s statements of undisputed fact as
admitted for an abuse of discretion. 	We disagree. 	Utah Rule of
Civil Procedure 7(c)(3)(A) states, “Each fact set forth in the
moving party’s memorandum is deemed admitted for the purpose of
summary judgment unless controverted by the responding party.”
(emphasis added.) 	A trial judge therefore has no discretion in
deeming facts admitted unless controverted. 	The meaning of
“controverted,” and consequently whether the nonmoving party has
properly controverted a statement of fact, is therefore a
(continued...)
9 	No. 20080176
‘specifically controverting’ them with the factual record.” 	The
district court then deemed a number of PacifiCorp’s factual
assertions as admitted. 4
¶30 	Whether a party has complied with a rule of civil
procedure is a question of law that we review for correctness.
See Avila v. Winn, 794 P.2d 20, 22 (Utah 1990). 5 	Rule 7(c)(3)(B)

5 (...continued)
question of law, which we review for correctness.
No. 20080176 	10
of the Utah Rules of Civil Procedure requires that a memorandum
in opposition to a motion for summary judgment “contain a
verbatim restatement of each of the moving party’s facts that is
controverted,” and “provide an explanation of the grounds for any
dispute, supported by citation to relevant materials.” 	If not
properly controverted by the nonmoving party, “[e]ach
[uncontroverted] fact set forth in the moving party’s memorandum
is deemed admitted for the purpose of summary judgment.” 	Utah R.
Civ. P. 7(c)(3)(A).
¶31 	Both parties place the weight of their argument on the
meaning of the word “controverted.” 	PacifiCorp argues that a
party must specifically controvert a statement of fact with
another statement of fact; USA Power argues that even if a
particular fact is undisputed, that fact can be controverted by
presenting a contrary inference or theory of what that particular
fact implies. 	We agree with USA Power.
¶32 	Even absent a “complete conflict as to certain facts,”
a dispute of “the understanding, intention, and consequences of
those facts” may defeat summary judgment. 	Sandberg v. Klein, 576
P.2d 1291, 1292 (Utah 1978). 	We have stated that “[t]he [trial]
court must recognize that a party’s claim that there are no
issues of fact relates to that party’s theory of the case and
should not be construed as support for the adversary’s argument
or motion.” 	Newman v. White Water Whirlpool, 2008 UT 79, ¶ 15,
197 P.3d 654 (alteration in original) (internal quotation marks
omitted). 	Thus, “the standard is not whether these parties’
minds differ--which they obviously do--but whether reasonable
jurors, having been properly instructed by the trial court, would
be unable to come to any other conclusion.” 	Id. ¶ 11.
¶33 	We begin with the well-recognized statement that in a
summary judgment proceeding, all facts and the reasonable
inferences to be made therefrom should be construed in a light
favorable to the non-moving party. 	Mountain States Tel. & Tel.
Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1261
(Utah 1984). 	In some cases, the parties may agree on the
objective statement of the facts, but may fundamentally disagree
on the reasonable inferences to be made from those facts. 	In
such instances, if we were to hold that the nonmoving party must
present a specific fact to controvert a statement of fact by the
moving party, we would diminish the important role reasonable
inferences play in a district court’s decision to grant summary
judgment. 	Even if the moving party’s objective statement of the

11 	No. 20080176
facts are agreed upon, reasonable inferences made from those
undisputed facts can indeed create a genuine issue of material
fact. 	That the objective facts are undisputed does not mean that
no genuine issues remain as to those facts.
¶34 	We address a few of the facts deemed admitted by the
trial court to demonstrate the ways in which the nonmoving party
may present the reasonable inferences to be made from a statement
of fact such that an issue of material fact remains. 	PacifiCorp
stated to the district court:
In late 2000 and early 2001 a successful
power plant developer from Texas, known as
Panda Energy, began its development of a
combined cycle power plant site immediately
adjacent to PacifiCorp’s switching station
near the town of Mona, in Juab County, Utah.
The Deseret News reported Panda’s plans in an
article published July 19, 2001.
USA Power responded as follows:
Disputed. 	PacifiCorp’s description of Panda
as “successful” is not a material fact but a
self-serving statement. 	In fact, Panda never
took any substantive steps to develop the
Mona project besides buying the land (“which
was amazingly cheap”) and acquiring the
meteorological data . . . Panda’s initial
objective in 2001-2003 was to build a
merchant plant, but the project had become
“kind of iffy” when Panda’s financing began
to dwindle.
¶35 	PacifiCorp is correct in its assertion that at no point
did USA Power properly cite to relevant materials that showed,
for example, that Panda Energy began development on a different
day or location, or that Panda Energy did not begin to develop a
combined-cycle plant. 	We conclude, however, that USA Power
controverted PacifiCorp’s statement of fact by presenting to the
district court contrary inferences to be made from the objective
facts. 	For example, USA Power presented to the court the
argument that a fact-finder could reasonably infer that the
purchase of the Panda assets had little to no bearing on whether
PacifiCorp misappropriated USA Power’s trade secret.
¶36 	Another example shows the extent to which an inference
controverts an undisputed statement of fact. 	PacifiCorp stated:

No. 20080176 	12
The design, engineering and construction of
Currant Creek represents Shaw/Stone &
Webster’s own efforts. 	Shaw/Stone & Webster
did not use any information from, or about,
USA Power, USA Power partners, Spring Canyon
Energy, or the Spring Canyon Energy project,
in any aspect of the Currant Creek power
plant, whatsoever.
USA Power responded:
Disputed. 	As stated in [other responses],
Shaw did not become involved in the Currant
Creek project until two months after
PacifiCorp had purchased the Mona site and
committed all its resources to developing a
project there. 	This decision - which was the
only tangible response by Thurgood’s group in
acquiring an option to respond to
PacifiCorp’s own RFP - was made in January -
February 2003 after PacifiCorp reviewed all
the confidential information and work product
of Spring Canyon for developing an air-cooled
500-megawatt combined cycle power plant at
that site. 	Shaw/Stone & Webster had no role
in that process.
¶37 	USA Power controverted PacifiCorp’s statement of fact
in this instance because it indicated that even accepting
PacifiCorp’s statement as true, the statement did not support a
reasonable inference that PacifiCorp never, at any point,
misappropriated a trade secret. 	This is exactly the type of
dispute as to “the understanding, intention, and consequences of
those facts” that could create a material issue of fact, which
arises from an inference. 	Sandberg, 576 P.2d at 1292. 	The
district court then is only left to determine whether the
resulting factual inference, as determined by reading together
PacifiCorp’s statement of fact and USA Power’s contravention of
that fact, is reasonable.
¶38 	The district court therefore erred in its determination
that USA Power could not controvert PacifiCorp’s statements of
fact by presenting to the court the contrary inferences to be
made from those facts. 	Had the district court found each fact
controverted, it would have been required to determine whether
the inferences argued by USA Power fell under the meaning of
“reasonable.” 	We do not address the reasonableness of each

6 For instance, we note that some of USA Power’s responses
to PacifiCorp’s statements of fact say nothing more than the
following: 	“Disputed. 	The description in the above paragraph is
not supported by the citations.” 	This does not controvert
PacifiCorp’s statement of fact. 	To controvert a statement of
fact with an inference, the nonmoving party is required to
specifically state the inference to be made.
13 	No. 20080176
inference argued by USA Power here because it is not necessary
for the rest of this opinion. 6
II. 	THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO
PACIFICORP ON USA POWER’S MISAPPROPRIATION OF TRADE SECRETS CLAIM
BECAUSE IT FAILED TO CONSIDER THAT A CULMINATION OF INFORMATION
ALREADY IN THE PUBLIC DOMAIN CAN CONSTITUTE A TRADE SECRET
¶39 	To establish a claim for misappropriation of trade
secrets, USA Power must show “(1) the existence of a trade
secret, (2) communication of the trade secret to [PacifiCorp]
under an express or implied agreement limiting disclosure of the
secret, and (3) [PacifiCorp’s] use of the secret that injures
[USA Power].” 	See Water & Energy Sys. Tech., Inc. v. Keil, 1999
UT 16, ¶ 9, 974 P.2d 821. 	We discuss (1) whether the district
court erred in determining that USA Power did not present facts
to the district court from which the district court could
determine USA Power had a trade secret and (2) whether the
district court erred in holding that PacifiCorp did not
misappropriate USA Power’s trade secret as a matter of law.
A. 	A “Vision” or Compilation of Information Already Within the
Public Domain May Constitute a Trade Secret
¶40 	The district court held that because the “undisputed
material facts demonstrate that [USA Power’s] concept, vision and
claimed confidential information were of public record, and were
disclosed to PacifiCorp by the public record. . . . [such
information] cannot possibly constitute trade secrets as defined
by Utah Code Ann., § 13-24-2(4).” 	The court reasoned that the
documents and ideas that USA Power argued were trade secrets did
not constitute trade secrets because USA Power failed to “make
any effort to demonstrate specifically that PacifiCorp could not
have readily ascertained [the information] either through public
information, [USA Power’s] filings with the Utah Division of Air
Quality, knowledge generally known in the industry, the
independent analysis and evaluations performed by Shaw/Stone &
Webster, and PacifiCorp’s prior knowledge and purchase of the
Panda assets.”

7 The Trade Secret Act also requires that the trade secret
be “the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” 	Utah Code Ann. § 13-24-
2(4)(b). 	Because the issue before us is whether the Spring
Canyon vision can be a trade secret generally, and because the
district court did not address section 4(b), we do not discuss
whether USA Power took reasonable efforts to maintain the secrecy
of any alleged trade secret.
No. 20080176 	14
¶41 	When undertaking a trade secret analysis, the threshold
question is “whether, in fact, there is a trade secret to be
misappropriated.” 	Microbiological Research Corp. v. Muna, 625
P.2d 690, 696 (Utah 1981). 	Utah has adopted the Uniform Trade
Secrets Act. 	Utah Code section 13-24-2(4) (2009) describes a
trade secret as
(4) . . . information, including a formula,
pattern, compilation, program, device,
method, technique, or process, that:
(a) 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
obtain economic value from its disclosure or
use; and
(b) is the subject of efforts that are
reasonable under the circumstances to
maintain its secrecy.
¶42 	USA Power does not contend that each piece of
information presented to PacifiCorp is a trade secret; it
acknowledges that each piece, taken individually, is generally
known and readily ascertainable. 	Rather, USA Power argues that
the viability of a power plant in Mona, or in other words the
“Spring Canyon vision,” constitutes a trade secret. 	The district
court held that a “vision” alone is not a trade secret if the
plaintiff cannot articulate specific features that are not
generally known and not generally ascertainable. 	We must
therefore address whether an alchemy of information may
constitute a trade secret when its separate parts are each
generally known and readily ascertainable, but, when analyzed
together such parts derive independent economic value. 7
¶43 	“[A] unique combination of generally known elements or
steps can qualify as a trade secret, if it represents a valuable
contribution attributable to the independent efforts of the one
claiming to have conceived it.” 	Microbiological Research Corp.
v. Muna, 625 P.2d at 696 (internal quotation marks omitted).

15 	No. 20080176
“[A] trade secret may include a grouping in which the components
are in the public domain but there has been accomplished an
effective, successful and valuable integration of those public
elements such that the owner derives a competitive advantage from
it.” 	Enter. Leasing Co. v. Ehmke, 3 P.3d 1064, 1069 (Ariz. Ct.
App. 1999); see also Minn. Mining & Mfg. Co. v. Pribyl, 259 F.3d
587, 595-96 (7th Cir. 2001); 	Rivendell Forest Prods., Ltd. v.
Georgia-Pac. Corp., 28 F.3d 1042, 1045-46 (10th Cir. 1994)
(reversing summary judgment where the district court held that
computer software taken as a whole could not constitute a trade
secret if its components are known to the public).
¶44 	The compilation of information already within the
public domain, however, must not itself be generally known or
readily ascertainable. 	See Microbiological Research, 625 P.2d at
696. 	The “generally known or readily ascertainable” standard
“cannot be viewed as whether the information is generally known
and readily ascertainable to the general public, but, based on
the defendant[’s] knowledge and experience, whether the
information was known or ascertainable to [the defendant].” 	Utah
Med. Prods., Inc. v. Clinical Innovations Assocs., Inc., 79 F.
Supp. 2d 1290, 1312 (D. Utah 1999) (citing Microbiological
Research, 625 P.2d at 699). 	“It is not enough to point to broad
areas of technology and assert that something there must have
been secret and misappropriated.” 	Composite Marine Propellers,
Inc. v. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. 1992) (per
curiam); see also AMP Inc. v. Fleischhacker, 823 F.2d 1199, 1203
(7th Cir. 1987) (Plaintiff does not meet its burden by merely
“producing long lists of general areas of information which
contain unidentified trade secrets.”).
¶45 	We hold that a compilation of information within the
public domain may constitute a trade secret. 	To determine
whether the product, design, or vision constitutes a trade secret
is an intensely factual inquiry to be conducted by the trial
court. 	Although many factors may be taken into account, the
Restatement of Torts section 757 provides guidance on the factors
a court may consider. 	These include the following:
(1) the extent to which the information is
known outside of the business; (2) the extent
to which it is known by employees and others
involved in its business; (3) the extent of
measures taken by the business to guard the
secrecy of its information; (4) the value of
the information to the business and its
competitors; (5) the amount of effort or
money expended by the business in developing

8 We recognize that these six factors are not included in
the Restatement (Second) of Torts because the field of Unfair
Competition is no longer dependent upon Tort law. 	See
Restatement (Second) Torts, Division 9, Interference with
Advantageous Economic Relations, Introductory Note (1979).
Nonetheless, we include these six factors here because we believe
they provide useful guidance in determining whether a compilation
of items or ideas in the public domain constitutes a trade
secret.
No. 20080176 	16
the information; (6) the ease or difficulty
with which the information could be properly
acquired or duplicated by others.
Restatement of Torts § 757 cmt. b (1939). 	See also Enter.
Leasing Co., 3 P.3d at 1069 n.6. (explaining that although these
six factors “are not required by the [Uniform Trade Secrets Act],
they provide additional guidance”). 8 	We hold these factors may
be useful to district courts in determining whether a compilation
of items or ideas already in the public domain constitutes a
trade secret.
¶46 	The district court therefore erred in holding that the
Spring Canyon vision did not constitute a trade secret as a
matter of law. 	The facts considered by the district court, even
if deemed undisputed under rule 7(c)(3)(A), require a trade
secret analysis of the “vision” as a whole.
B. 	The District Court Erred When It Concluded That USA Power
Failed to Provide Any Evidence, Direct or Circumstantial, That
PacifiCorp Misappropriated USA Power’s Trade Secret
¶47 	Having concluded that a “vision” or compilation of
information already within the public domain may constitute a
trade secret, we next address whether the district court erred
when it concluded that USA Power failed to provide any evidence
that PacifiCorp misappropriated any of USA Power’s trade secrets.
The Utah Uniform Trade Secrets Act defines “misappropriation” as
(a) acquisition of a trade secret of another
by a person who knows or has reason to know
that the trade secret was acquired by
improper means; or
(b) disclosure or use of a trade secret of
another without express or implied consent by
a person who:

17 	No. 20080176
(I) used improper means to acquire
knowledge of the trade secret; or
ii) at the time of disclosure or use,
knew or had reason to know that his knowledge
of the trade secret was:
(A) derived from or through a
person who had utilized improper means to
acquire it;
(B) acquired under circumstances
giving rise to a duty to maintain its secrecy
or limit its use; or
(C) derived from or through a
person who owed a duty to the person seeking
relief to maintain its secrecy or limit its
use; or
(iii) before a material change of his
position, knew or had reason to know that it
was a trade secret and that knowledge of it
had been acquired by accident or mistake.
Utah Code § 13-24-2(2) (2009).
¶48 	The district court assumed arguendo that Utah law
supported USA Power’s argument that it could show
misappropriation through a “web of circumstantial evidence from
which the jury [could] draw inferences which convince them that
it is more probable than not that PacifiCorp used plaintiffs’
trade secrets.” 	Nonetheless, the district court found that even
though the circumstantial evidence presented by USA Power showed
similarities between Spring Canyon and Currant Creek,
similarities alone do not constitute misappropriation. 	We thus
address whether a plaintiff may show misappropriation through
circumstantial evidence and the level of circumstantial evidence
that may meet the plaintiff’s burden at the summary judgment
stage.
1. 	Circumstantial Evidence Is Adequate to Overcome Summary
Judgment on the Issue of Misappropriation
¶49 	USA Power argues that it presented sufficient
circumstantial evidence from which a jury could find that
PacifiCorp misappropriated USA Power’s trade secret. 	Some courts
have held that a plaintiff may establish misappropriation of a
trade secret with circumstantial evidence that shows access to
similar information. 	Stratienko v. Cordis Corp., 429 F.3d 592,
601-02 (6th Cir. 2005); see also Leggett & Platt, Inc. v. Hickory
Springs Mfg. Co., 285 F.3d 1353, 1361 (Fed. Cir. 2002); Pioneer
Hi-Bred Int’l. v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1240

9 Some of these cases hold that upon presenting
circumstantial evidence of access and similarity, the burden then
shifts to the defendant to show that it did not misappropriate
the trade secret. 	To the extent we cite these cases as
supporting the admission of circumstantial evidence, we decline
to adopt a rule that would shift to PacifiCorp the burden of
proving that it did not misappropriate USA Power’s alleged trade
secret.
No. 20080176 	18
(8th Cir. 1994); Sokol Crystal Prods. v. DSC Commc’ns Corp., 15
F.3d 1427, 1432 (7th Cir. 1994); Eden Hannon & Co. v. Sumitomo
Trust & Banking Co., 914 F.2d 556, 561 (4th Cir. 1990); Electro-
Miniatures Corp. v. Wendon Co., 771 F.2d 23, 26 (2d Cir. 1985);
SI Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1261 (3d Cir.
1985); Droeger v. Welsh Sporting Goods Corp., 541 F.2d 790, 793
(9th Cir. 1976). 9 	This court implicitly adopted the access and
similarity rule in Water & Energy Systems Technology, Inc. v.
Keil, 1999 UT 16, ¶ 14, 974 P.2d 821. 	In Keil, we held that the
plaintiff had not presented evidence that a rival water
purification company copied its formulas. 	Id. ¶¶ 11-15. 	We
suggested, however, that had the plaintiff presented testimony
that the formulas were similar, combined with evidence that the
plaintiff’s former employee had disclosed the formulas to
defendant, a preliminary injunction may have been appropriate.
Id.
¶50 	Accordingly, we hold that a jury can infer
misappropriation under the Utah Trade Secrets Act if presented
with circumstantial evidence that shows access to information
similar to the trade secret at issue.
2. 	The District Court Erred in Determining That USA Power Had
Not Shown an Issue of Material Fact Concerning Misappropriation
¶51 	Having established the appropriate standard, we now
discuss whether the district court erred when it held that USA
Power failed to raise a genuine issue of material fact as to
misappropriation of its alleged trade secrets by PacifiCorp. 	The
district court held that USA Power had “not provided any
evidence, direct or circumstantial, that specifically identifies
any trade secrets that were used or misappropriated by
PacifiCorp.”
¶52 	The parties vigorously dispute the inferences to be
made from both the direct and circumstantial evidence presented.
PacifiCorp argues that any similarities between Spring Canyon and
Currant Creek are commonly found in the industry. 	USA Power
argues that the similarities are identical to unique features

19 	No. 20080176
that USA Power incorporated into Spring Canyon based on the
particular characteristics of the Mona site. 	Because USA Power
has presented evidence that PacifiCorp had access to its alleged
trade secret in the three binders and that Currant Creek is
substantially similar to Spring Canyon, we hold that a jury could
reasonably infer that PacifiCorp misappropriated USA Power’s
alleged trade secret when it built Currant Creek. 	The district
court therefore erred when it granted summary judgment to
PacifiCorp on the basis that USA Power had not raised an issue of
material fact concerning misappropriation.
III. 	THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO PACIFICORP ON USA POWER’S BREACH OF CONTRACT CLAIM
¶53 	The district court granted summary judgment to
PacifiCorp on USA Power’s breach of contract claim. 	The court
held that USA Power failed to present any evidence that
PacifiCorp used the confidential information in a manner that
breached the Confidentiality and Non-Disclosure Agreement. 	USA
Power argues this was error because it presented evidence from
which a jury could reasonably infer that PacifiCorp used the
confidential information in a way that violated the
Confidentiality Agreement.
¶54 	Paragraph 3 of the Confidentiality Agreement states,
Definition of “Confidential Information.” 	As
used in this Agreement, “Confidential
Information” means all information that is
identified as confidential or proprietary
when furnished to Receiving Party or its
Representatives by Disclosing Party that
concerns the Potential Transaction,
Disclosing Party, its partners or co-
venturers, affiliates, or subsidiaries, and
that is either confidential, proprietary, or
otherwise not publicly available. 	Any
information furnished to Receiving Party or
its Representatives by a director, officer,
employee, stockholder, partner, co-venturer,
consultant, agent, or representative of
Disclosing Party will be deemed furnished by
Disclosing Party for the purpose of this
Agreement. 	Notwithstanding the foregoing,
the following does not constitute
Confidential Information for purposes of this
Agreement: 	(i) information that is or
becomes publicly available other than as a

No. 20080176 	20
result of a disclosure by Receiving Party or
its Representatives; (ii) information that
was already known to Receiving Party on a
non-confidential basis prior to being
furnished to Receiving Party by Disclosing
Party; (iii) information that becomes
available to Receiving Party on a non-
confidential basis from a source other than
Disclosing Party or a representative of
Disclosing Party if such source, to Receiving
Party’s knowledge, is neither subject to any
prohibition against transmitting the
information to Receiving Party nor bound by a
confidentiality agreement with Disclosing
Party; and (iv) information that is
independently developed by Receiving Party or
its Representatives without use of or
reference to Confidential Information.
¶55 	We note at the outset that misappropriation of trade
secrets and breach of a confidentiality agreement are two
separate and distinct claims. 	A confidentiality agreement,
however, may serve as evidence that the parties expected
confidentiality and that, therefore, use of the trade secret
constitutes misappropriation. 	See Nilssen v. Motorola, Inc., 963
F. Supp. 664, 680 (N.D. Ill. 1997) (“Thus a contract that defines
the degree of confidentiality among the parties also serves to
establish--and to define--the duty of confidentiality required to
underpin [a Uniform Trade Secrets Act] claim.”). 	In this case,
the district court did not analyze to what extent dismissal of
the misappropriation claim affected the viability of USA Power’s
breach of confidentiality claim. 	Instead, the district court
determined that USA Power had not presented sufficient evidence
that PacifiCorp used the confidential information. 	We disagree.
¶56 	A claim for breach of a confidentiality agreement
presents the same evidentiary challenges as a misappropriation
claim; the parties cannot always present direct evidence of use.
To survive summary judgment, the plaintiff must present facts
that show a dispute exists over whether the contract was
breached, or in other words, whether the defendant used
confidential information in violation of the agreement.
¶57 	PacifiCorp’s statement of undisputed facts, as deemed
admitted by the district court, stated that Currant Creek
resembled the Apex I plan and that Shaw/Stone & Webster developed
the plans in a short amount of time because the elements of the
plant were well known. 	The facts deemed admitted by the district

21 	No. 20080176
court also do not dispute that Shaw/Stone & Webster began work on
the project in April 2003 and submitted the cost data to
PacifiCorp in June 2003.
¶58 	USA Power argues that the inferences to be made from
the undisputed facts--such as the similarities between Spring
Canyon and Currant Creek, the development of Currant Creek after
disclosure of the confidential three binders, Shaw’s astonishing
efficiency in preparing a Currant Creek development plan, and the
short length of time in which PacifiCorp developed Currant
Creek--created an issue of material fact as to whether PacifiCorp
impermissibly used the confidential information under the terms
of the Confidentiality Agreement. 	We agree with USA Power.
¶59 	The inferences to be made from the undisputed facts
create an issue of material fact such that a reasonable jury
could find that PacifiCorp more likely than not used the
information presented by USA Power in breach of the
confidentiality agreement. 	The district court therefore erred
when it granted summary judgment to PacifiCorp on USA Power’s
breach of contract claim.
IV. 	THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO
MS. WILLIAMS/HRO ON USA POWER’S BREACH OF FIDUCIARY DUTY CLAIMS
¶60 	Ms. Williams moved for partial summary judgment on USA
Power’s claims of breach of fiduciary duty of confidentiality and
breach of fiduciary duty of loyalty. 	The district court granted
summary judgment to Ms. Williams on each claim.
¶61 	The elements of a claim against an attorney for breach
of a fiduciary duty are “‘(1) an attorney-client relationship;
(2) breach of the attorney’s fiduciary duty to the client;
(3) causation, both actual and proximate; and (4) damages
suffered by the client.’” 	Christensen & Jensen, P.C. v. Barrett
& Daines, 2008 UT 64, ¶ 23, 194 P.3d 931 (quoting Kilpatrick v.
Wiley, Rein & Fielding, 909 P.2d 1283, 1290 (Utah Ct. App.
1996)). 	We address the district court’s grant of summary
judgment, addressing each claim in turn.
A. 	The District Court Erred When It Granted Summary Judgment to
Ms. Williams on USA Power’s Breach of the Duty of Confidentiality
Claim
¶62 	The district court acknowledged that “there are genuine
issues of material fact concerning the scope of the information
acquired by Ms. Williams,” and that “it is unclear whether this
information was truly confidential or generally known” or if it

10 We also note that a dispute still remains over whether
Ms. Williams’ representation of the two parties was in fact
simultaneous.
No. 20080176 	22
“was indeed virtually identical to the information previously
provided to PacifiCorp by the plaintiffs themselves.”
Notwithstanding these acknowledged disputes, the district court
granted summary judgment on the claim because USA Power had not
“presented actual evidence that [Ms. Williams] communicated [USA
Power’s] confidential information to PacifiCorp.” 	The court
concluded that “simultaneous representation . . . without more,
is not sufficient alone to support an inference that an attorney
has improperly used and/or disclosed confidential information.”
¶63 	USA Power argues that it did present direct evidence of
disclosure. 	In the alternative, USA Power also argues that the
district court erred in its statement of the law governing a
lawyer’s duty of confidentiality. 	It argues that the district
court erred when it required direct evidence of disclosure
because either (1) presentation of circumstantial evidence of
disclosure is enough to survive summary judgment or
(2) simultaneous representation alone creates a presumption, or
at least an inference, of disclosure.
¶64 	We begin with a discussion of the type of evidence, or
the necessary degree of proof of disclosure, that USA Power
needed to present to survive summary judgment. 	At the outset, we
reject a rule that would create a presumption of disclosure or
misuse simply based on a lawyer’s simultaneous adverse
representation of two parties because a presumption would prevent
a fact-finder from weighing the facts. 10 	Davis v. Provo City
Corp., 2008 UT 59, ¶ 20, 193 P.3d 86 (“A presumption requires the
trier of fact, in the absence of evidence . . . on that question,
to assume the existence of an ultimate fact from underlying basic
facts.” (alteration in original) (internal quotation marks
omitted)). 	Such a result would undermine the intensely factual
nature of a breach of confidentiality claim. 	It would also
require the defendant to prove a negative, that it did not
disclose confidential information, an unenviable task. 	We have
noted the danger of requiring a party to prove negative evidence,
recognizing that
[i]f the law were otherwise, anyone could
allege that he ate a mouse which was in a can
of pork and beans, and while he might or
might not be able to recover on the trial of
the action against the canner and distributor
of the food, he could win on a motion for

23 	No. 20080176
summary judgment simply because there could
not be a counter affidavit filed saying that
there was no mouse in the can.
Fox v. Allstate Ins. Co., 453 P.2d 701, 704 (Utah 1969). 	The
district court therefore did not err in declining to recognize
such a presumption.
¶65 	USA Power next argues that simultaneous adverse
representation supports a sufficient inference of disclosure to
create a genuine issue of material fact. 	The Utah Court of
Appeals recently held that a plaintiff must “present
nonspeculative or nonconjectural evidence” that the defendant
attorney used or disclosed plaintiff’s confidential information.
Shaw Res. Ltd., L.L.C. v. Pruitt, Gushee & Bachtell, P.C., 2006
UT App 313, ¶ 29, 41 142 P.3d 560. 	While we believe the court of
appeals’ reasoning in Shaw Resources is sound, we note that at
the summary judgment stage of a case, the question is whether a
genuine issue of material fact remains, construing all facts and
inferences made therefrom in favor of the nonmoving party. 	Thus,
presentation of circumstantial evidence may create a genuine
issue of material fact foreclosing summary judgment. 	See Regan-
Touhy v. Walgreen Co., 526 F.3d 641, 651 (10th Cir. 2008) (“[W]e
agree that circumstantial evidence can suffice to defeat summary
judgment in appropriate circumstances; of course a plaintiff is
not required to prove his or her case by direct proof alone.”).
As in circumstances of misappropriation, it may be difficult for
a plaintiff to produce direct evidence that his or her attorney
disclosed or misused confidential information. 	We therefore hold
that inferences drawn from circumstantial evidence, including
inferences from simultaneous adverse representation, may create a
genuine issue of material fact.
¶66 	The district court required USA Power to present
“actual evidence” that Ms. Williams disclosed USA Power’s
confidential information. 	A review of the facts considered by
the district court reveals that the district court concluded as a
matter of law that noncircumstantial evidence of disclosure was
the “actual evidence” USA Power failed to produce. 	This was
error. 	The district court should have looked to whether USA
Power presented evidence, either direct or circumstantial, that
created a material issue as to Ms. Williams’ disclosure of
confidential information. 	We therefore hold the district court
erred when it granted summary judgment to Ms. Williams on USA
Power’s breach of the duty of confidentiality claim.

No. 20080176 	24
B. 	An Issue of Material Fact Remains Concerning Whether Any
Possible Breach of the Fiduciary Duty of Loyalty Caused Harm to
USA Power
¶67 	Ms. Williams also moved for partial summary judgment on
USA Power’s breach of fiduciary duty of loyalty claim. 	The
district court noted that genuine issues of material fact
remained “concerning the duration of [Ms. Williams’]
representation of [USA Power], the scope of that representation
and the scope of HRO’s representation of PacifiCorp with respect
to Currant Creek.” 	Nevertheless, the court granted Ms. Williams
partial summary judgment on the claim because USA Power had not
presented evidence that “but for [Ms. Williams’] breach of its
obligations, [USA Power] would have been benefitted.”
¶68 	We first note that the district court did not err when
it determined that a breach of fiduciary duty of loyalty claim
includes “but for” causation as an element. 	We are therefore
left to analyze the sole question of whether the district court
erred when it concluded that no genuine issue of material fact
remained concerning causation. 	The district court determined
that
[t]he undisputed material facts establish
that [Ms. Williams’] representation was not
necessary for PacifiCorp to acquire water
rights based upon the availability of equally
capable water rights lawyers in Salt Lake
City and PacifiCorp’s budget commitment of
$16.2 million for water rights in connection
with the Currant Creek Power Plant . . . [and
that USA Power’s] negotiations with
PacifiCorp were terminated prior to
PacifiCorp’s acquisition of water rights for
the Currant Creek project.
¶69 	USA Power claims that it presented material issues of
fact showing that Ms. Williams’ dual representation caused
PacifiCorp to withdraw its interest in purchasing Spring Canyon.
USA Power argues that the facts and resulting inferences
therefrom create a genuine issue of material fact as to whether
absent Ms. Williams’ representation of PacifiCorp, PacifiCorp
either would not have reneged on its intent to purchase Spring
Canyon or would not have been able to complete its competing
Currant Creek project in time to award itself the RFP. 	Moreover,
USA Power argues that because PacifiCorp had a short time to
develop Currant Creek before the RFP bidding process closed, Ms.
Williams was the only lawyer who could have successfully secured

25 	No. 20080176
the necessary water rights precisely because she was familiar
with water availability in Mona due to her prior representation
of USA Power. 	Ms. Williams refutes any such inference and
instead argues that (1) WW Ranches secured the water rights and
(2) any other water attorney in Utah could have duplicated her
services.
¶70 	We conclude that an issue of material fact remains
concerning causation. 	A reasonable inference can be made from
the facts presented to the district court that Ms. Williams’
prior representation of USA Power allowed PacifiCorp to designate
Currant Creek as the next best alternative within RFP time
constraints. 	The parties dispute whether Ms. Williams shared
information about Spring Canyon to PacifiCorp and if she used the
information obtained during her representation of USA Power to
expedite PacifiCorp’s decision to use WW Ranches instead of
private individual share owners to obtain the needed water
rights. 	PacifiCorp argues that even if it had not submitted
Currant Creek as the next best alternative, USA Power’s bid would
not have been chosen as it came in fourth place. 	Conversely, USA
Power argues its bid was second best to Currant Creek, and
presented evidence to the district court that at least two of its
bids came in second place. 	This is a genuine issue of material
fact that relates directly to causation. 	Therefore, the district
court erred in granting summary judgment on the issue.
CONCLUSION
¶71 	The district court held that the Spring Canyon “vision”
could not constitute a trade secret as a matter of law and that,
even so, USA Power had not shown misappropriation of the alleged
trade secret. 	The district court also held that USA Power had
not shown that Ms. Williams actually communicated confidential
information to PacifiCorp or that any breach of fiduciary duty
harmed USA Power. 	We reverse the district court and remand.
---
¶72 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.