Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DELIVERY KICK

HOLDINGS, INC.,

Plaintiff,

v. Case No. 8:24-cv-1506-KKM-NHA

RJ BROOKSHER LLC,

and RILEY BROOKSHER,

Defendants.

___________________________________

ORDER

Delivery Kick Holdings, Inc., (DKH) sues RJ Brooksher LLC (RJB) and

Riley Brooksher for breach of contract, breach of fiduciary duty, and

misappropriation of trade secrets related to the parties’ development of a food

delivery application. See 2d Am. Compl. (Doc. 58). DKH moves for partial

summary judgment, DKH MSJ (Doc. 132), and to exclude or limit the opinions

of the defendants’ software expert, DKH Daubert Mot. (Doc. 133). The

defendants move for summary judgment on all claims and on DKH’s request

for damages, RJB MSJ (Doc. 136), and to exclude or limit the testimony of

DKH’s software expert, RJB Daubert Mot. (Doc. 138). For the below reasons, I

grant in part and deny in part DKH’s motion for partial summary judgment,

deny DKH’s Daubert motion, and grant in part and deny in part the

defendants’ motion for summary judgment and Daubert motion.

I. BACKGROUND

A. Business Relationship

Nicolas Kimball is a restaurant owner and operator. See Kimball Decl.

(Doc. 134-1) ¶ 3. In late 2022, Kimball “began the project for Grubermates,”

later renamed Delivery Kick, a “centralized space where customers could view

all their options (Grubhub, Uber, Postmates, etc.) in one place, ensuring faster

results, higher quality product, and less stress on the restaurant operator.” Id.

¶¶ 3–4. Kimball hired programmers through a company called Mindbowser

and “commissioned them to develop . . . scrapers, which are automated

programs that collect defined data fields from multiple third-party websites.”

Id. ¶ 4; Joint Statement of Undisputed Facts (JSUF) (Doc. 131) ¶ 5. “The

Mindbowser team also developed the backend processing and management

software to be used with an application program interface (‘API’) to be used by

end users to search for food based on zip code.” Kimball Decl. ¶ 5. In December

2022, “Kimball registered the domain name deliverykick.com,” JSUF ¶ 4, “with

the expectation that a company would ultimately be formed to monetize the

Delivery Kick project,” Kimball Decl. ¶ 6.

That same month, Kimball met Riley Brooksher, “a computer

programmer and software developer” who “provides computer programming,

software development and other IT services to third parties for a fee” through

his company, RJ Brooksher LLC (RJB). JSUF ¶¶ 2–3. According to Kimball,

he “asked Brooksher to . . . consult on the Delivery Kick project, which initially

involved setting security permissions and bug testing the software being

developed by Mindbowser,” and “contracted with Brooksher . . . to manage and

secure the data and code from [the] third-party developers [whom Kimball] had

already engaged.” Kimball Decl. ¶ 8. Although “[t]he contractual relationship

with Brooksher began prior to the formation of DKH,” Kimball maintains that

it “was for the benefit of DKH,” to which he eventually “assigned the contract.”

Id. ¶ 9. “Under the consulting contract,” which could be terminated at any

time, “Brooksher and his company regularly prepared and submitted invoices

detailing the tasks he performed.” Id. ¶ 10. Invoices were paid by Kimball but

listed the “DeliveryKick” project. Id.; see (Doc. 59-1).

In April 2023, Kimball proposed forming DKH with Brooksher, and the

two “agreed on the formation of DKH with each of us [as] directors[,] and

documents were prepared to form DKH.” Kimball Decl. ¶ 13. In this

“handshake deal,” Kimball and Brooksher “agreed that [Kimball] would own

75% of DKH because [Kimball] was funding the startup and operation, and

after two years Brooksher’s 25% interest would vest,” in exchange for

Brooksher reducing his hourly consulting rate by half. See Kimball Decl. in

Supp. of Prelim. Inj. (Doc. 12-1) ¶ 14; Kimball Dep. (Doc. 137-18) 47:7–59:5,

206:10–208:20.

In Brooksher’s telling, he and Kimball “agreed that [Brooksher] would

continue to provide [his] services but at half [his] rate in exchange for an

ownership interest in a company,” to vest in two years. Brooksher Decl. (Doc.

137-1) ¶¶ 29–33. Slack messages between Kimball and Brooksher in April

2023 indicate that they discussed a 2-year incremental vesting period. (Doc.

137-11) at 4. Although Kimball describes those discussions as “prenegotiations

to setting the stage for forming the entity,” Kimball later testified that “[t]here

was an agreed vesting period that [Brooksher] agreed to cut [Brooksher’s]

rate.” Kimball Dep. 55:4–8, 17–18; see id. 207:24–208:6. Brooksher claims that

under the proposed agreement, he “would maintain ownership of [his]

originally authored works.” Brooksher Decl. ¶ 30.

Later that year, attorney Lori Sandman prepared the documents to

incorporate DKH, see Kimball Decl. ¶ 13, and Delivery Kick Holdings, Inc., was

formed as a Florida Corporation in August 2023 with Kimball and Brooksher

listed as directors. JSUF ¶ 1; see Brooksher Decl. in Opp. to Prelim. Inj. (Doc.

48-1) ¶ 20; Ex. E (Doc. 144-1) at 89. Around that time, Kimball and Brooksher

met in Sandman’s office to review and sign a “package” of documents related

to the formation of DKH, including bylaws and a “Record of Action Taken by

Board of Directors of DK Holdings, Inc., by Unanimous Written Consent.” See

Sandman Dep. (Doc. 137-20) 88:5–10, 204:13, 229:3–19; Ex. E at 97 (listing

various DKH formation documents); Written Consent (Doc. 137-5). The bylaws

listed Brooksher as a director and the consent form resolved to appoint

Brooksher as a director and issue him equity, “subject to a vesting period of

two years.” Written Consent at 1; Bylaws (Doc. 137-12). Brooksher did not sign

either document. See Sandman Dep. 102:3–103:1; Brooksher Decl. ¶¶ 25, 37;

Brooksher Decl. in Opp. to Prelim. Inj. (Doc. 48-1) ¶ 18. And the bylaws were

never filed. Sandman Dep. 204:16–18. Ultimately, Brooksher claims that he

“never authorized Kimball to” list him as a director of DKH, nor was he aware

that Kimball had done so or that DKH had been incorporated. Brooksher Decl.

in Opp. to Prelim. Inj. ¶ 20; see (Doc. 137-19) at 208:2–15; Brooksher Decl.

¶¶ 25–27.

Despite this, Kimball avers that Brooksher “routinely sent emails from

his DKH-specific email address, rbrooksher@deliverykick.com, identifying

himself as DKH’s Chief Technology Officer” (CTO). Kimball Decl. ¶ 14; see Ex.

E at 90. Brooksher also signed a statement of work with a third-party API

provider, Zyte Group, on behalf of DKH, purportedly as its CTO. Ex. E at 91–

95. And Brooksher was a signatory to paperwork opening DKH’s bank account.

Id. at 82–84; see Brooksher Decl. in Opp. to MSJ (Doc. 146-1) ¶ 11.

B. Software Development

As with the nature of their business arrangement, the parties disagree

about the substantive development of the Delivery Kick application and the

related database.1

According to Kimball, “[b]y January 2023, the Mindbowser team had an

operable API and user interface, which was running on a server [Kimball]

owned at the time.” Kimball Decl. ¶ 7. “By February 2023 Brooksher was

tasked with setting up a database for integration with the Delivery Kick food

delivery application.” Id. ¶ 16. Kimball wanted the database to include “details

on the restaurant[,] hours of operation and location(s), menu items,

customizations, etc[.],” id., so he “authorized the creation of an AWS [Amazon

Web Services] environment to store the millions of records we were collecting—

which included not just restaurant names, but every possible menu item and

modification,” id. ¶ 17. “At all times, this infrastructure and the resulting data

were created under [Kimball’s] direction and for the benefit of DKH.” Id.

Although the “AWS account [was] in [Kimball’s] personal name,” he

“tasked Brooksher with configuring an AWS account limited specifically for the

Delivery Kick Project and http://deliverykick.com.” Id. By April 2023,

1 Notably, DKH includes a fourteen-paragraph “statement of undisputed facts” in its

motion for partial summary judgment, the bulk of which relate to development of the

Delivery Kick food delivery application. DKH MSJ at 3–6. The defendants dispute

nearly every one of these statements. See RJB Resp. to MSJ at 9–13.

Brooksher “had configured and migrated a database to the ‘DK specific AWS

account,’ ” which continued to accumulate “third-party data . . . scraped in

tranches . . . through 2023 and 2024.” Id. ¶ 20. Kimball “paid approximately

$7,734 on behalf of DKH for the AWS infrastructure to run, store, and

maintain the system software, database and http://deliverykick.com.” Id;

Kimball Dep. 204:10–11; see Brooksher Dep. (Doc. 134-2) at 43:2–9 (“I believe

it was Kimball or one of his entities was paying the AWS bills.”);2 but see

Brooksher Decl. in Opp to MSJ ¶ 4 (“I and Kimball both at times paid for the

AWS account, while DKH never did.”). Brooksher testified that it was “correct”

that “the database in 2023 was in an EC2 instance under a Delivery Kick dot

com e-mail address.”3 Brooksher Dep. 44:2–6.

Further, “[a]ccess to the contents of the database was and is password

protected,” and “[o]ther than Brooksher’s access . . . no other individual had or

could have accessed the password protected DKH AWS account, nor the DKH

2 Rather than attaching deposition transcripts, the parties have attached excerpts of

deposition transcripts to various filings. The excerpts of the Brooksher Deposition at

(Doc. 134-2) are the most complete. Unless otherwise noted, “Brooksher Dep.” refers

to (Doc. 134-2).

3 According to the defendants’ expert, Donald Waldhalm, EC2 or “Elastic Compute

Cloud” “allows users to rent virtual computers (called ‘instances’) on which they can

run their own applications.” Waldhalm Report (Doc. 134-4) at 5. Kimball describes

the “EC2 instance” as “DKH’s virtual server.” Kimball Decl. ¶ 28. Brooksher testified

that, “[to] give the technical description, I believe AWS [Amazon Web

Services] . . . owns the E2 instance itself.” Brooksher Dep. 44:17–20.

database.” Kimball Decl. ¶ 24; see Brooksher Dep. 146:18–147:3 (testifying

that Brooksher “was the only individual with access” to the AWS account).

Kimball avers that he “discussed confidentiality and security with Brooksher

multiple times, including the need to keep the code, database, data, and

AWS/server materials protected from public access and from unnecessary

third-party access.” Kimball Decl. in Opp. to MSJ (Doc. 144-3) ¶¶ 9–10. In

Slack messages, Kimball inquired of Brooksher whether they had “any code

exposure, trade secrets stuff.” Id. ¶ 9. In text messages, Brooksher assured

Kimball that third parties were “not going to see our code or anything.” Ex E.

at 74. Thus, Kimball claims that “DKH’s software, code, database, data, and

AWS/server materials were not public” and “were stored in password-protected

repositories, password-protected AWS/server environments, and other

restricted systems.” Kimball Decl. in Opp. to MSJ ¶ 10.

Brooksher’s version of events differs. In his view, in early 2023 “[t]he

MindBowser project did not include a database,” only “scrapers [that] could

scrape [DoorDash, Grubhub, and Ubereats] websites for restaurant data but

could not store the data in a functional database.” Brooksher Decl. in Opp. to

Prelim. Inj. ¶ 8. Kimball also paid for software and source code relevant to the

scraping application that was authored by third-party programmers, Wilson

Chan and Sumit Dubey. See id. ¶ 24, 28 (referencing a GrubHub scraper built

by contractor Wilson Chan); Brooksher Decl. ¶ 13 (claiming that contractor

Sumit Dubey, hired through TopTal, “created a mobile application”).

Brooksher’s “work on the MindBowser Delivery Kick scraping application was

limited to setup of AWS permissions, testing and evaluation of new and

modified scrapers, as well as management of the consultants’ efforts.”

Brooksher Decl. in Opp. to Prelim. Inj. ¶ 9.

After Brooksher met with Kimball in March 2023, Brooksher “began

independently writing software and developing a database for a food delivery

service application which RJB would own and would allow our new food

delivery company to use.” Id. ¶ 13. Brooksher then “architected the entirety of

the database . . . first creating it on March 25, 2023,” Brooksher Decl. ¶ 10,

with the expectation that it would be licensed by RJB to the to-be-formed

company, id. ¶ 34; (137-19) at 28:2–7. Brooksher’s database “contains

restaurant data, tables for user information, and utility tables.” Brooksher

Decl. ¶ 4. Brooksher “created the food delivery service software on [his]

personal computer,” Brooksher Decl. in Opp. to Prelim. Inj. ¶ 15, and “was and

[is] the only person with the requisite [Secure Shell (SSH)] keys required to

access the EC2 instances the database is and was stored on,” Brooksher Decl.

¶ 10. Brooksher represents, however, that “[b]oth Kimball and [he] paid at

times for AWS infrastructure and Oxylabs bandwidth used by [his] system.”4

Brooksher Decl. in Opp. to MSJ ¶ 9.

Brooksher further represents that “Kimball never informed [him] that

anything he was doing was a trade secret or should be kept confidential,” nor

“that he required MindBowser or any of the independent consultants engaged

through Toptal to keep anything confidential.” Brooksher Decl. in Opp. to

Prelim. Inj. ¶ 38; see Brooksher Decl. ¶ 36. Although at least one other

contractor, Sumit Dubey, signed a work for hire agreement with DKH, (Doc.

137-3), it is undisputed that DKH and the defendants did not execute a written,

signed “work for hire or confidentiality agreement.” Brooksher Decl. ¶ 36; see

Brooksher Decl. in Opp. to MSJ ¶ 19–21.

C. Termination of Business Relationship

By mid-2024, Brooksher “decided not to proceed with Kimball” because

Kimball failed to raise capital or secure customers for Delivery Kick, lost

interest in the business, and “rarely provided feedback for the webpage.”

Brooksher Decl. in Opp. to Prelim. Inj. ¶ 27. “On June 10, 2024, Brooksher

notified Kimball that he was discontinuing their business relationship.” JSUF

¶ 7; (Doc. 131-2) at 2 (“This letter serves as confirmation that I have

4 “[P]roxy and data-access services from providers such as Zyte and

Oxylabs . . . facilitated large-scale data scraping to populate the database in the DKH

AWS account.” Kimball Decl. ¶ 20. Brooksher signed DKH’s agreement with Zyte as

DKH’s CTO. See Ex. E at 91–95.

terminated the business relationship between me and my company . . . and you

and your companies . . . .”).

The remaining sequence of events is largely undisputed. “Prior to June

2024 there were multiple AWS EC2 instances associated with

rbrooksher@deliverykick.com,” JSUF ¶ 6, an account to which Kimball “was

given equivalent admin permissions,” Brooksher Decl. in Opp. to MSJ ¶ 2.

Brooksher copied and moved “[t]he database that resided in the AWS EC2

instance associated with rbrooksher@deliverykick.com . . . into the AWS EC2

instance associated with rbrooksher@gmail.com.” JSUF ¶ 8. Brooksher

likewise testified that he transferred “[t]he storage volume for the database

instance as well as the storage volume for the container deployment instance.”

See Brooksher Dep. 54:3–23. “In May and June 2024, snapshots associated

with the AWS EC2 instances associated with rbrooksher@deliverykick.com

were deleted.” JSUF ¶ 9. In that same period, “the AWS EC2 instances

associated with rbrooksher@deliverykick.com were stopped/terminated.” Id.

¶ 10; see (Doc. 131-1) at p. 13, 75:10–19. “In May and June 2024, the AWS S3

buckets associated with rbrooksher@deliverykick.com were deleted.” JSUF

¶ 11. According to Brooksher, he “remove[d] ‘snapshots,’ from the account i.e.,

backups of AWS EC2 instances of the software that [he] authored that AWS

created as [he] was creating the software.” Brooksher Decl. in Opp. to Prelim.

Inj. ¶ 32. But Brooksher “did not remove the MindBowser data aggregation

software from Kimball’s AWS server and it can still be found today at

https://d2vu1oz3e319xu.cloudfront.net/.” Id.

Around that same time, “RJB obtained a copyright registration for the

food delivery software [Brooksher] created.” Brooksher Decl. ¶¶ 21, 38(d); (Doc.

137-17). Brooksher avers that he “authored all of the code covered by the

registration which is rightfully owned by RJB.” Brooksher Decl. ¶ 23; (Docs.

48-4, 48-5); (Doc. 48-3) (showing that “[f]irst 50 pages of software registered

with the Copyright Office.”). According to Brooksher, “RJB’s copyright

registration consists of software in the delivery_ui and delivery_backend

repositories with the exclusion of scrapers and framework standard code, also

known as boilerplate.” Brooksher Decl. ¶ 12. Neither Kimball nor DKH

obtained copyright in any of the Delivery Kick project’s software or source code.

See Sandman Dep. 143:19–144:4.

D. Procedural History

DKH brings claims against Brooksher and RJB for violations of the

Defend Trade Secrets Act (DTSA) (Count I), 18 U.S.C. § 1836, and the Florida

Uniform Trade Secrets Act, (FUTSA) (Count II), §§ 688.001–688.009, Florida

Statutes, as well as state law claims for breach of contract (Count III) and

breach of fiduciary duty (Count VI).5 2d Am. Compl. ¶¶ 32–83. The defendants

5 I previously dismissed DKH’s claims for civil conversion and fraud. See (Doc. 57).

assert affirmative defenses, including copyright preemption and the statute of

frauds. See Am. Ans. (Doc. 89).

DKH moves for partial summary judgment on its trade secret claims,

“specific[ally] [as] to the misappropriation of DKH’s trade secret data that is

contained in the DKH database,” and on the defendants’ preemption and

statute of frauds affirmative defenses. See DKH MSJ at 3; DKH Reply (Doc.

151). DKH also moves to exclude or limit the opinions of the defendants’ expert,

Donald Waldham. See DKH Daubert Mot. In turn, the defendants move for

summary judgment on all four of DKH’s claims and its request for damages,

see RJB MSJ; RJB Reply (Doc. 152), and to exclude or limit the opinions of

DKH’s software expert, Mark Fussell, see RJB Daubert Mot.

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment is appropriate if no genuine dispute of material fact

exists, and the moving party is entitled to judgment as a matter of law. FED.

R. CIV. P. 56(a). A fact is material if it might affect the suit’s outcome under

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The movant bears the initial burden of informing the district court of the

basis for its motion and identifying those parts of the record that demonstrate

a lack of genuine issue of material fact. See Clark v. Coats & Clark, Inc., 929

F.2d 604, 608 (11th Cir. 1991). When that burden is met, the burden shifts to

the nonmovant to present evidentiary materials (e.g., affidavits, depositions,

exhibits, and so on) demonstrating that there is a genuine issue of material

fact, which precludes summary judgment. Id. A moving party is entitled to

summary judgment if the nonmoving party “fail[s] to make a sufficient showing

on an essential element of her case with respect to which she has the burden

of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

I review the record evidence as identified by the parties and draw all

legitimate inferences in the nonmoving party’s favor. See Sconiers v. Lockhart,

946 F.3d 1256, 1262–63 (11th Cir. 2020). Here, to the extent that the record is

disputed or capable of multiple inferences, I draw them for the nonmovant.

B. Daubert Motion

Federal Rule of Evidence 702 governs expert testimony, providing:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if the proponent demonstrates to the court

that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.

FED. R. EVID. 702.

Trial courts must consider if “(1) the expert is qualified to testify

competently regarding the matters he intends to address; (2) the methodology

by which the expert reaches his conclusions is sufficiently reliable as

determined by the sort of inquiry mandated in Daubert; and (3) the testimony

assists the trier of fact, through the application of scientific, technical, or

specialized expertise, to understand the evidence or to determine a fact in

issue.” Thelen v. Somatics, LLC, 156 F.4th 1115, 1131–32 (11th Cir. 2025)

(quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). The

party seeking to introduce the expert at trial bears the burden of establishing

qualification, reliability, and helpfulness. Frazier, 387 F.3d at 1260. An expert

can be qualified to testify about certain matters based on his scientific training,

education, knowledge, or experience in the field. Id. at 1260–61.

To determine whether an expert’s scientific methodology is reliable,

courts consider:

(1) whether the expert’s theory can be and has been tested;

(2) whether the theory has been subjected to peer review and

publication; (3) the known or potential rate of error of the

particular scientific technique; and (4) whether the technique is

generally accepted in the scientific community.

Id. at 1262 (citation omitted). When applicable, these criteria “may be used to

evaluate the reliability of non-scientific, experience-based testimony.” See id.

(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).

Expert testimony generally helps the trier of fact to understand evidence

or decide a fact at issue if the testimony “concerns matters that are beyond the

understanding of the average lay person.” Id. Expert testimony generally will

not help the trier of fact if it “offers nothing more than what lawyers for the

parties can argue in closing arguments.” Id. at 1262–63. And, of course, simply

because expert testimony meets the Daubert standard does not mean that the

testimony is automatically admitted. See id. at 1263. Courts must still consider

whether that testimony satisfies the other Federal Rules of Evidence. See id.

III. ANALYSIS

I begin with the parties’ arguments for and against the defendants’

entitlement to summary judgment on DKH’s breach of contract and fiduciary

duty claims before turning to the cross-motions regarding DKH’s trade secrets

claims. Because the parties’ respective software experts primarily address

facts relevant to the trade secrets claims, I address the Daubert motions there

before concluding with the defendants’ motion for summary judgment on

DKH’s request for damages.

A. Breach of Contract

The defendants move for summary judgment on DKH’s breach of

contract claim, arguing that “the alleged oral contract between Brooksher and

DKH never existed.” RJB MSJ at 5. In the alternative, the defendants move

for summary judgment on their affirmative defense that DKH’s contract claim

is barred by Florida’s statute of frauds. See id. at 8. DKH opposes and moves

for summary judgment on the defendants’ statute of frauds and copyright

preemption affirmative defenses. See DKH MSJ at 16–19. For the below

reasons, I grant the defendants’ motion with respect to the contract claim.

To succeed on a claim for breach of contract in Florida, a plaintiff must

prove “(1) the existence of a contract; (2) a material breach of that contract; and

(3) damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d

1256, 1272 (11th Cir. 2009). “An oral contract . . . is subject to the basic

requirements of contract law such as offer, acceptance, consideration and

sufficient specification of essential terms.” St. Joe Corp. v. McIver, 875 So. 2d

375, 381 (Fla. 2004). Notwithstanding the enforceability of oral contracts,

Florida’s statute of frauds requires that any agreement “that is not to be

performed within the space of 1 year from the making thereof” must be made

in a signed writing. § 725.01, Fla. Stat.

In its amended complaint, DKH alleges that “Brooksher entered an oral

contract for IT consulting with DKH, for which services were billed through

RJB.” 2d Am. Compl. ¶ 54 (emphasis added). Brooksher, however, allegedly

“withheld the deliverables associate[d] with certain services he bill[ed]” and

“secretly began deleting software and data of DKH.” Id. ¶ 58. Based on the

record, the defendants have met their burden of showing that DKH was not a

party to any contract with Brooksher or RJB. In the alternative, the defendants

are also entitled to summary judgment on their statute of frauds defense.

1. DKH is Not a Party to the Contract

The fundamental problem with DKH’s breach of contract claim is that

DKH is not a party to the alleged contract with Brooksher and RJB. DKH fails

to rebut this conclusion by arguing theories of post-incorporation ratification,

third-party beneficiary status, and assignment of rights.

To start, it is undisputed that DKH did not exist when Kimball and

Brooksher first met. See JSUF ¶¶ 2–4. Nor did DKH exist in April 2023 when

Kimball and Brooksher reached a “handshake deal” that “in exchange for 25

percent of the company, [Brooksher] would . . . reduce his rate as his equity.”

Kimball Dep. 207:19–208:16; see id. at 227:9–16. DKH could not be a party to

the contract before it existed as a corporate entity. See Restatement (Third) of

Agency § 6.04, cmt. c (2006) (“If a promoter enters into a contract with a third

party on behalf of an entity that has not yet commenced legal existence, the

entity itself cannot be a party to the contract prior to its existence.”).

DKH likewise fails to identify evidence showing that it ratified the

agreement after its incorporation. See Nat’l Auto Lenders, Inc. v. SysLOCATE,

Inc., 686 F. Supp. 2d 1318, 1323 (S.D. Fla. 2010) (“Before one may infer that a

principal ratified the unauthorized act of his agent, the evidence must

demonstrate that the principal was fully informed and that he approved of the

act.”) (citation omitted). To be sure, “every invoice” sent by RJB to Kimball

from the start of their relationship “identified the Delivery Kick project.” DKH

Resp. to MSJ at 5 (citing Doc. 67-1). And that practice continued after DKH’s

incorporation. See id. But DKH does not explain how those invoice references,

to the extent they evidence Kimball and Brooksher’s intent to benefit DKH,

demonstrate DKH’s “approv[al] of the act,” Nat’l Auto Lenders, 686 F. 2d at

1323, or place DKH in privity with Kimball. I also fail to see how messages

between Kimball and Brooksher discussing “ ‘our’ [needs/ new test training

instance/ cloud/ codebase . . . ,” see DKH Resp. to MSJ at 7, bridge this gap to

show that DKH assented to a modification of any agreement.

Next, DKH also fails to provide support for the proposition that DKH is

a party merely because “Kimball testified that all work done on the Delivery

Kick project from the outset was ultimately for the benefit of DKH.” See id. at

6. “Although a third-party beneficiary may sue to enforce a contract, that

person is not a party to the contract and, therefore, not in privity.” O’Brien v.

Wells Fargo Bank, N.A., No. 8:25-CV-389-LSG, 2025 WL 3080244, at *2 (M.D.

Fla. July 2, 2025). Even if DKH were a third-party beneficiary, see DKH Resp.

to MSJ at 7, DKH never alleged this separate theory of liability, see RJB Reply

at 2; Romika-USA, Inc. v. HSBC Bank USA, N.A., 514 F. Supp. 2d 1334, 1341

(S.D. Fla. 2007) (“Florida law draws a distinction between parties to contracts

and third-party beneficiaries; the two are mutually exclusive.”). “The law is

well-established that a party cannot raise for the first time a new theory of

liability in summary judgment briefing.” US Thrillrides, LLC v. Intamin

Amusement Rides Int. Corp. Est., 767 F. Supp. 3d 1331, 1362 (M.D. Fla. 2025)

(citation modified); Joseph M. Still Burn Centers, Inc. v. Liberty Mut. Ins. Co.,

No. CV 108-090, 2010 WL 55471, at *10 (S.D. Ga. Jan. 6, 2010) (finding that

“Plaintiff has raised a new claim by asserting, for the first time on summary

judgment, a third party beneficiary claim”). DKH’s theory therefore does not

preclude awarding summary judgment to the defendants.

In the alternative, DKH contends that it is a party to an agreement with

the defendants because Kimball “assigned the contract with Defendants to

DKH.” DKH Resp. to MSJ at 6. This, too, is a new theory of liability that DKH

cannot raise for the first time on summary judgment. See Cacciamani v. Target

Corp., 622 F. App’x 800, 804 (11th Cir. 2015) (per curiam) (holding that the

plaintiff’s “new responsive theory at the summary-judgment stage was too

little, too late.”). In any event, “an assignment is considered a contract and, as

such, requires consideration, or ‘cause,’ to be valid.” See Pycsa Panama, S.A. v.

Tensar Earth Techs., Inc., 625 F. Supp. 2d 1198, 1246 (S.D. Fla. 2008), aff’d,

329 F. App’x 257 (11th Cir. 2009) (per curiam). DKH points to no evidence that

it provided Kimball adequate consideration, and in fact, even after Kimball

allegedly assigned the contract rights to DKH, Kimball—not DKH—continued

paying Brooksher’s invoices through other companies that he owned. See (Doc.

59-1); Kimball Dep. 57:24–59:17, 207:17–208:10. To prove assignment, DKH

relies exclusively on Kimball’s declaration that, “[o]nce DKH was formed, [he]

assigned the contract to DKH and continued to ensure payment of invoices on

its behalf.” Kimball Decl. ¶ 9. Ultimately, Kimball’s conclusory, self-serving

statements in an affidavit are insufficient to survive summary judgment. See

Leigh v. Warner Bros., 212 F.3d 1210, 1217 (11th Cir. 2000).

2. Statute of Frauds

Even had DKH established its right to sue, the defendants succeed on

the statute of frauds defense because the parties “intended and contemplated

that performance of the agreement would take longer than one year.” Dwight

v. Tobin, 947 F.2d 455, 459 (11th Cir. 1991) (citation omitted).

As Kimball testified, “the deal was, is that in exchange for 25 percent of

the company . . . [Brooksher] would reduce his [hourly] rate.” Kimball Dep.

207:24–208:6; Brooksher Decl. in Opp. to Prelim. Inj. ¶ 13 (“RJB billed my

development time to Kimball at half my normal billing rate because . . . I

expected to co-own the new food delivery business.”). “[I]f [Brooksher] didn’t --

if he didn’t make it to the two-year end point, then he would just -- he left before

the two years, then it would be a wash.” Kimball Dep. 208:7–10; see id. 51:22–

52:4 (“[A]fter two years Brooksher’s 25 percent interest would vest.”). Although

Kimball and Brooksher describe an agreement that could not be fully

performed within one year, DKH replies that “[t]he vesting schedule for the

offer of ownership was tied to the shareholders’ agreement,” not the “consulting

contract.” DKH Reply at 6. In DKH’s telling, the separate “consulting contract

had no time requirement” because it was terminable at-will and “was

performed not in years, but in increments measured in hours and days, as

documented in the written invoices under the contract for which payment was

received.” Id.

For DKH’s theory to hold water, the shareholders’ agreement—which

Brooksher never signed—must be independent from the “consulting contract,”

or, more precisely, each “consulting contract” contained within each invoice.

Cf. Odom v. Celebrity Cruises, Inc., No. 10-23086-CIV, 2011 WL 10636151, at

*4 (S.D. Fla. Feb. 23, 2011) (“[W]here one party trades a set of promises for the

other party’s set of promises, the contract is indivisible, making severance

inappropriate.”). But Kimball’s testimony contradicts any claim that “[t]he

two-year vesting period had nothing to do with the consulting contract.” DKH

Resp. to MSJ at 10. Instead, Kimball testified that “in exchange for 25 percent

of the company,” which could not vest earlier than two years, Brooksher agreed

to “reduce his rate” by fifty percent. See Kimball Dep. 207:24–208:6 (emphasis

added); id. 50:20–22 (“[Brooksher] wanted to be part of the company, which is

why he agreed to cut his rate to half to keep working on it.”); Kimball Decl. in

Opp. to MSJ ¶ 5; Brooksher Decl. ¶ 33. To the extent that DKH’s argument

turns not on severability but on a theory of partial performance, that argument

also fails: “[i]t is now well established that partial performance of a contract

for personal services is not an exception to the provisions of the Statute of

Frauds.” Johnson v. Edwards, 569 So. 2d 928, 929 (Fla. 1st DCA 1990) (citation

omitted).

Because the statute of frauds applies to the “oral contract” at the heart

of DKH’s claim, see 2d Am. Compl. ¶ 54, DKH must provide evidence of a

signed writing “contain[ing] all of the essential terms” of the parties’

agreement. Walsh v. Abate, 336 So. 3d 50, 53 (Fla. 4th DCA 2022) (citation

omitted). Although DKH suggests that this writing “can take almost any

possible form,” DKH Reply at 6, the invoices here do not suffice because they

lack any mention of Brooksher’s promised equity. Nor do Slack messages

between Kimball and Brooksher reduce this point to a signed writing, let alone

clarify the disputed ownership of the software for which Brooksher billed his

time. See (Doc. 137-11) at 4. At most, Brooksher wrote that “two years is

reasonable” for equity to vest but suggested he would “like to get it tightened

up as well.” Ex. E at 25–26. Despite those conversations, Brooksher claims that

“[n]egotiation on the finer points of corporate formation continued throughout

the engagement, but an agreement never materialized.” Brooksher Decl. ¶ 33;

see Sandman Dep. 102:3–103:1. DKH’s evidence does not rebut that claim.

Because the defendants are entitled to summary judgment on DKH’s

breach of contract claim, or alternatively, on the statute of frauds affirmative

defense, I do not reach the defendants’ copyright preemption argument.

B. Breach of Fiduciary Duty

DKH claims that Brooksher served as its director and CTO and thus

owed DKH a fiduciary duty. See 2d Am. Compl. ¶¶ 75–79. According to DKH,

Brooksher violated his fiduciary duty “by stealing the data and database,

software and source code of DKH, destroying DKH’s code repositories,

destroying the operability of the Delivery Kick Application, and attempting to

appropriate for his own the software and source code of DKH by filing for a

copyright registration.” Id. ¶ 80. The defendants move for summary judgment,

claiming that Brooksher was not a director of DKH and that he did not breach

a duty. See RJB MSJ at 8–18. Insofar as DKH pleads a claim for punitive

damages related to this breach, the defendants claim they are entitled to

summary judgment because “[t]here is no evidence that Brooksher had actual

knowledge of wrongfulness or the requisite intent.” RJB MSJ at 24–25.

Genuine disputes of material fact preclude summary judgment on this claim.

Under Florida law, a breach of fiduciary duty requires a showing of: (1)

the existence of a fiduciary duty; (2) the breach of that duty; and (3) damages

that stem as a proximate result of such a breach. Gracey v. Eaker, 837 So. 2d

348, 353 (Fla. 2002). The parties’ relationship need not be evidenced by a

contract. Doe v. Evans, 814 So. 2d 370, 374 (Fla. 2002). “If a relation of trust

and confidence exists between the parties . . . that is sufficient as a predicate

for relief.” Id. (quoting Quinn v. Phipps, 113 So. 419, 421 (1927)) (emphasis

omitted). A fiduciary duty may be implied by law, and such relationships are

premised upon the specific factual situation surrounding the transaction and

the relationship of the parties. See Capital Bank v. MVB, Inc., 644 So. 2d 515,

518 (Fla. 3d DCA 1994). Notably, “[o]fficers and directors of a corporation are

liable for damages to the corporation which result from a breach of their trust,

a violation of authority or neglect of duty.” Taubenfeld v. Lasko, 324 So. 3d 529,

538–39 (Fla. 4th DCA 2021) (citation omitted).

Although Brooksher disputes that he was an officer or director of DKH,

DKH identifies sufficient record evidence to create a genuine dispute of

material fact. Notably, Kimball claims that he and Brooksher “agreed on the

formation of DKH with each of [them] directors” and that “documents were

prepared to form DKH.” Kimball Decl. ¶¶ 13–14. DKH was then incorporated

on August 1, 2023, with both Kimball and Brooksher listed as directors. JSUF

¶ 1; Ex. E at 89. Kimball then forwarded multiple documents—including the

articles of incorporation—to Brooksher. See Ex. E at 96–97. Kimball separately

sent Brooksher messages on Slack linking the online record of DKH’s

incorporation and confirming that he “sent the delivery kick corp folder to your

gmail.” Id. at 81. Brooksher tagged the message with a “heart” emoji. See id.

Brooksher argues that none of the above suffices because “[h]e never

authorized Kimball to list him as a director and he never took any action as a

director.” RJB MSJ at 10. Brooksher also refused to sign bylaws identifying

him as a DKH director—which Sandman confirmed were never filed—and did

not sign the “Written Consent” appointing him as director. See Brooksher Decl.

¶¶ 25, 37; Sandman Dep. 102:3–103:1, 203:16–204:23; Written Consent (Doc.

137-5). Without his signature, Brooksher contends that the Written Consent is

ineffective under Florida law. RJB MSJ at 12 (citing § 607.0821(2), Fla. Stat.).

Brooksher also argues that he was never appointed CTO and thus had no duty

as an officer. Id. at 8–10. In support, Brooksher avers that there is no “board

resolution appointing Brooksher as CTO,” no bylaws, and no evidence that

Kimball “notified Brooksher in writing that he was CTO.” RJB MSJ at 10

(citing Kimball Dep. 227:7–228:10). These deficiencies are dispositive,

Brooksher says, because, under Section 607.08401(1), Florida Statutes, “[a]

corporation shall have the officers described in its bylaws or appointed by the

board of directors in accordance with the bylaws.”

Brooksher’s factual counterpoints reiterate the dispute regarding

whether he consented to serve as a director in the first place. As for the claim

that his appointment was never legally effective, Brooksher does not contest

that DKH was lawfully incorporated, see JSUF ¶ 1, and he fails to explain “how

pre-incorporation activities could violate statutes governing ongoing corporate

formalities,” DKH Resp. to MSJ at 12. The written consent, which is a “Record

of Action Taken by Board of Directors,” presupposes the existence of DKH’s

directors, see Written Consent, and Brooksher provides no basis to conclude

that articles of incorporation are insufficient to appoint a corporation’s initial

slate of directors. Indeed, Florida law provides that the articles of incorporation

“must set forth . . . [t]he names and addresses of the individuals who are to

serve as the initial directors.” § 607.0202, Fla. Stat.; cf. Heron at Destin W.

Beach & Bay Resort Condo. Ass’n, Inc. v. Osprey at Destin W. Beach, 94 So. 3d

623, 629 (Fla. 4th DCA 2012) (“Bylaws are rules adopted by an organization

for its internal governance; however, these rules are subordinate to the Articles

of Incorporation or the organization’s constitution.”).

Post-incorporation, Brooksher’s conduct suggests that he understood his

role as a director or officer of DKH. Weeks after DKH was incorporated,

“Brooksher met Kimball at the bank to open the DKH bank account with both

listed as signatories.” DKH Resp. to MSJ at 12; Ex. E at 82–84, 86. Brooksher

held himself out as DKH’s CTO in an email sent to a third party in October

2023, Kimball Decl. ¶ 14; Ex. E at 90, and the next month he executed a

contract with Zyte on behalf of DKH, representing himself as CTO, Ex. E at

91–95. A reasonable jury could conclude that Brooksher owed DKH a fiduciary

duty “premised upon the specific factual situation surrounding . . . the

relationship of the parties.” Capital Bank, 644 So. 2d at 518.

In turn, if Brooksher owed DKH a duty, there is also a dispute of fact

regarding whether Brooksher breached that duty by deleting software and

source code from AWS infrastructure purportedly owned by DKH.

“[D]isloyal conduct — such as fraud, self-dealing, usurping corporate

opportunities, diverting revenues, or other betrayal of trust — constitutes a

breach of fiduciary duty under Florida law.” Peyton v. Grant, No. 24-CV-21649,

2026 WL 327936 (S.D. Fla. Feb. 6, 2026). According to Brooksher, in March

2023 he began writing “software and developing a database for a food delivery

service application which RJB would own and would allow [Brooksher and

Kimball’s] new food delivery company to use.” Brooksher Decl. in Opp. to

Prelim. Inj. ¶ 13. And Brooksher “discussed” with Kimball that Brooksher

would own all work that invoiced for after that point. See Brooksher Dep.

85:14–21. Kimball, on the other hand, maintains that “[a]t all times, this

infrastructure and the resulting data were created under my direction and for

the benefit of DKH.” Kimball Decl. ¶ 17; Kimball Dep. 48:10–15, 227:9–16.

Because a factfinder could reasonably credit Kimball’s testimony over

Brooksher’s, that same factfinder could also conclude that Brooksher engaged

in self-dealing and breach of trust by deleting “snapshots associated with the

AWS EC2 instances associated with rbrooksher@deliverykick.com” and “the

AWS S3 buckets associated with rbrooksher@deliverykick.com,” even if

Brooksher authored the code therein in the first place. JSUF ¶¶ 9, 11. That is

all the more true because Brooksher testified that the food delivery application

he was building—while being paid by Kimball—“would be competitive with”

Kimball’s envisioned application. See Ex. E at 14.

To the extent that Brooksher resists this conclusion by asserting that

“DKH has not demonstrated ownership of any software or source code” that he

authored, RJB MSJ at 13, I disagree. As explained below with respect to the

trade secrets claims, there is a genuine dispute of material fact surrounding

which source code Brooksher authored (and whether it was derivative of code

authored by DKH’s contractors), who possessed that specific code as well as

the scraped data within the AWS infrastructure funded by Kimball, and

whether Brooksher’s deletion of data from that infrastructure rendered the

Delivery Kick platform inoperable.6 Based on evidence pointing in each

direction on these questions, the defendants do not convince me that a

reasonable jury would be unable to find for DKH on the fiduciary duty claim.

For largely the same reasons, and because Kimball testified that

Brooksher removed data knowing it belonged to DKH, a reasonable jury could

6 Because Brooksher’s alleged misappropriation of trade secrets forms nearly the

entire basis of DKH’s fiduciary-duty claim, it is possible that the FUTSA displaces

the claim. See Miner, Ltd. v. Sanacore, No. 8:25-CV-1538-KKM-TGW, 2025 WL

2410641, at *2 (M.D. Fla. Aug. 20, 2025) (concluding that the FUTSA displaced the

plaintiff’s fiduciary duty claim that the defendant “misappropriate[ed] [the plaintiff’s]

trade secrets and confidential information for the benefit of himself and his new

employer while continuing to have ownership interest in MHS, and to the detriment

of [the plaintiff].”). The defendants, however, do not raise this argument.

also find that DKH “prove[d] evidence of fraud, malice, or misconduct that

would justify punitive damages.” Wells Fargo Bank, N.A. v. Gopher, 397 So. 3d

1033, 1034 (Fla. 4th DCA 2024); § 768.72(2), Fla. Stat. The defendants’ motion

is denied with respect to DKH’s claim for punitive damages.

C. Trade Secrets Claims

DKH asserts trade secrets claims under both the FUTSA and DTSA,

which may be analyzed together because the statutes are largely the same. See

Compulife Software Inc. v. Newman, 959 F.3d 1288, 1311 n.13 (11th Cir. 2020)

(analyzing FUTSA and DTSA claims together); Freedom Med., Inc. v.

Sewpersaud, 469 F. Supp. 3d 1269, 1275 n.6 (M.D. Fla. 2020) (same). To prevail

on a claim under either statute, the plaintiff must show that “(1) it possessed

a trade secret and (2) the secret was misappropriated.” Compulife, 959 F.3d at

1310 (quoting Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279,

1297 (11th Cir. 2018)); see § 688.002, Fla. Stat.

Under the DTSA, the plaintiff must prove that he was the “owner” of the

trade secret. See 18 U.S.C. § 1836(b)(1). “Owner” is defined as “the person or

entity in whom or in which rightful legal or equitable title to, or license in, the

trade secret is reposed.” Highland Consulting Grp., Inc. v. Minjares, 74 F.4th

1352, 1358 (11th Cir. 2023) (quoting 18 U.S.C. § 1839(4)). Similarly, under the

FUTSA, a plaintiff must show that he “possessed secret information.” Poet

Theatricals Marine, LLC v. Celebrity Cruises, Inc., 307 So. 3d 927, 929 (Fla. 3d

DCA 2020) (citation modified).

A trade secret is information that derives economic value from not being

generally known to others. See 18 U.S.C. § 1839(3); § 688.002(4), Fla. Stat.

Accordingly, a trade secret must be “the subject of efforts that are reasonable

under the circumstances to maintain its secrecy.” Premier Lab Supply, Inc. v.

Chemplex Indus., Inc., 10 So. 3d 202, 205 (Fla. 4th DCA 2009) (quoting

§ 688.002(4), Fla. Stat.). Entering into written confidentiality agreements,

restricting access to the trade secrets, and requiring the destruction of copies

of confidential materials are examples of reasonable measures to protect trade

secrets. Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 809 n.1 (Fla.

3d DCA 2014). For the FUTSA claim, “[w]hen there is no express agreement,

the party seeking protection must establish the existence of a ‘confidential

relationship . . . giv[ing] rise to an implied obligation not to use or disclose’ a

trade secret.” DePuy Synthes Prods., Inc. v. Veterinary Orthopedic Implants,

Inc., 990 F.3d 1364, 1372 (Fed. Cir. 2021) (applying Florida law) (quoting

Dotolo v. Schouten, 426 So. 2d 1013, 1015 (Fla. 2d DCA 1983)).

Misappropriation can occur by “acquisition, disclosure, or use.”

Compulife, 959 F.3d at 1311 (citing § 688.002(2), Fla. Stat.). Misappropriation

by acquisition requires that the defendant “knows or has reason to know that

the trade secret was acquired by improper means.” Compulife, 959 F.3d at 1311

(quoting § 688.002(2)(a), Fla. Stat.). “Misappropriation occurs whenever a

defendant acquires the secret from its owner ‘without his permission at a time

when he is taking reasonable precautions to maintain its secrecy.’ ” Compulife

Software, Inc. v. Newman, 111 F.4th 1147, 1162 (11th Cir. 2024), cert. denied

sub nom. Rutstein v. Compulife Software, Inc., 145 S. Ct. 1172 (2025).

Both parties move for summary judgment on DKH’s DTSA and FUTSA

claims, as well as on the defendants’ copyright preemption affirmative defense.

Specifically, DKH “seeks an [o]rder finding Defendants misappropriated data

of DKH stored in a database on its AWS account,” but not with respect to “any

limited internal testing activity.” DKH MSJ at 7–8. I start first with copyright

preemption before explaining why genuine disputes of material fact—

evidenced by competing, largely admissible expert opinions—preclude

awarding party summary judgment to either party.

1. Copyright Act Preemption

The Copyright Act does not preempt DKH’s state law claim for

misappropriation of trade secrets because DKH’s rights under the FUTSA are

not “equivalent to” the exclusive rights provided by Section 106 of the

Copyright Act. I therefore grant DKH’s motion for summary judgment on the

defendants’ preemption affirmative defense. See Am. Aff. Defs. (Doc. 89) ¶ 2.

As I explained in a previous order, “[t]here is ‘no doubt that the Florida

trade secret statute . . . satisfies the ‘extra element’ test’ because the breach of

duty requirement ‘qualitatively distinguishes” the claim from copyright

infringement.” (Doc. 57) at 8–9 (quoting Bateman v. Mnemonics, Inc., 79 F.3d

1532, 1549 (11th Cir. 1996)).

The defendants’ counterarguments do not disturb this conclusion. In

their affirmative motion, the defendants argue in a footnote that “[t]he claim

that Brooksher unlawfully ‘copied’ software or a database is preempted by the

Copyright Act.” RJB MSJ at 22 n.5. Elsewhere, the defendants elaborate that

Bateman is in their favor because the Eleventh Circuit there reversed the

district court’s judgment award to the plaintiffs “because of the lack of

substantial evidence establishing an obligation of confidentiality.” See RJB

Resp. to MSJ at 22 (citing Bateman, 79 F.3d at 1550). That is true. But the

plaintiffs’ failure to satisfy the “extra element,” i.e., a confidential relationship,

is distinct from preemption. So, even if the defendants were correct that the

evidence does not show a confidential relationship between DKH and the

defendants, the defendants would win on that basis alone, not on preemption.

DKH is entitled to summary judgment on this affirmative defense.

2. Daubert Motions

At the heart of the parties’ dispute is whether “the software for the

Delivery Kick project, DKH’s website and database/data contained therein, as

well as the configuration and assembly of its database and servers” are trade

secrets, whether DKH possessed or owned those trade secrets, and whether

Brooksher misappropriated the trade secrets by transferring them from AWS

servers associated with the deliverykick.com domain name. See DKH MSJ at

3. Both parties seek to introduce (and exclude) expert opinion testimony

relevant to each point of disagreement. I address each motion in turn.

a. Motion to Exclude or Limit the Opinions of Donald Waldhalm

The defendants’ software development expert, Donald Waldhalm, offers

opinions related to the authorship and possession of “software artifacts related

to this matter.”7 Waldhalm Report (Doc. 134-4) at 11. First, Waldhalm opines

“that Brooksher is the sole author of the code for which he requested

copyright.” Id. at 9. Waldhalm opines that “Brooksher has always had

exclusive possession of RJB-ui, RJB-backend, and RJB-database; and

Brooksher, Kimball, and Mindbowser have all possessed DeliverySite-ui and

DeliverySite-backend.” Id. at 11. DKH moves to exclude Waldham’s opinions,

or to limit Waldhalm exclusively to descriptive testimony, because his opinions

are neither relevant nor reliable. See DKH Daubert Mot. at 7. The defendants

primarily respond that DKH’s arguments “go to the weight and credibility,

rather than admissibility, of Waldhalm’s opinions.” RJB Daubert Resp. at 2

(Doc. 145). I agree.

7 “While source code represents the human-readable instructions, the artifacts

themselves are the executable, operational instances that ran in the AWS

environment.” Waldhalm Report at 13.

As to the relevance of Waldhalm’s first opinion, DKH asserts that

“[a]uthorship of code submitted for copyright is not a fact of consequence” for

evaluating its trade secrets claims, which focus on ownership or lawful

possession. See DKH Daubert Mot. at 7. To be sure, the copyright standard for

original authorship is distinct and not an element of DKH’s trade secrets

claims. Although “authorship” is not synonymous with ownership or possession

under the DTSA or FUTSA, the defendants persuade that “Brooksher’s

authorship of that code is one fact to consider” in making that determination,

as well as in assessing whether Brooksher acquired the code by improper

means. RJB Daubert Resp. at 4–5; see 18 U.S.C. §§ 1839(4)–(5). That is, it is

arguably more likely that Brooksher “owned” or “possessed” code that he

authored than code that he did not. Waldhalm’s opinion thus meets the

“liberal” standard for assessing relevance. Boca Raton Cmty. Hosp., Inc. v.

Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009).

Waldhalm’s methods are also sufficiently reliable to survive the Daubert

standard. To the extent “original authorship,” a term pertinent to copyright

protection, is relevant here, DKH contends that “Waldhalm’s opinion rests on

an unreliable premise: he equates Git commit metadata (who committed code

to a repository) with authorship (who created the underlying code and whether

it is sufficiently original).” DKH Daubert Mot. at 8. According to DKH,

Brooksher’s own deposition testimony refutes any basis “to conclude that the

person who saved a file into a Git repository is the” file’s author or owner. Id.

at 9–10 (citing, e.g., Brooksher Dep. 123:12–15 (Q: Well, the git commit record

doesn’t tell you who authored it. It just tells you who put it in the repository,

right? A: That’s correct.”). But Waldhalm bases his authorship opinion on more

than Git commit data, as he also “reviewed the contents of the code bases,”

Waldhalm Decl. (Doc. 145-1) ¶ 5, and the “access records” to the individual

repositories, id. ¶ 7; see Waldhalm Report at 9–11. Waldhalm then “used git-

blame on every file to aggregate all contributors,” Waldhalm Report at 9, which

revealed unique authors whose contributions Waldham discounted as

“germane neither to food delivery nor to the relatively advanced database

integration that separates RJBdelivery from the Mindbowser code set,” id. at

10. Ultimately, to the extent that DKH posits that Waldhalm’s methodologies

fail to support his authorship opinion or contradict Brooksher’s testimony,

DKH may raise these issues through “[v]igorous cross-examination” and the

“presentation of contrary evidence.” Daubert v. Merrell Dow Pharms., Inc., 509

U.S. 579, 596 (1993).

Turning to ownership, DKH again challenges Waldhalm’s opinion as

irrelevant and unreliable, contending that Waldhalm’s methodologies relate

only to Brooksher’s present possession of various artifacts, see DKH Daubert

Mot. at 13, even though Waldhalm claims that Brooksher “has always had

exclusive possession of RJB-ui, RJB-backend, and RJB-database,” Waldhalm

Report at 11 (emphasis added); Waldhalm Decl. ¶¶ 11–12. Once again, DKH’s

arguments go to the weight, and not admissibility, of Waldhalm’s opinion.

To investigate Brooksher’s alleged “possession” of the RJB-ui, RJB-

backend, and RJB-database artifacts, Waldhalm “reviewed Brooksher’s live

AWS account, on a screen-share session with him.” Waldhalm Report at 12.

Then, with respect to “three running EC2 instances,” Waldhalm reviewed the

authorized SSH keys and “observed no indication that anyone other than

Brooksher has a keypair that would gain access.” Id. Waldhalm confirmed this

observation by reading the transcript of Kimball’s deposition, wherein Kimball

testified that although he “had access to the AWS console,” he was not sure

whether Brooksher ever gave him private keys to access the EC2 instances.

See Kimball Dep. 202:4–204:19.

DKH avers that Waldhalm never investigated pre-June 2024 access to

the various RJB artifacts, and thus claims “[i]f remotely watching one long into

an online account or reading Mr. Kimball’s deposition is all that is required for

‘possession,’ any lay jury member is capable of these tasks.” DKH Daubert Mot.

at 14. But Waldhalm offers a bit more. He also reviewed Brooksher’s GitHub

account and “Brooksher’s AWS administrator credentials and IAM Config for

the account where Brooksher stored the software artifacts and database,”

albeit only “after May 2024.” RJB Daubert Resp. at 15; Waldhalm Report at 13

(“observ[ing] only one user–an admin credential with no console access”).

Although Waldhalm’s opinion is primarily based on the state of Brooksher’s

AWS account after he removed data from the “AWS EC2 instances associated

with rbrooksher@deliverykick.com,” JSUF ¶¶ 8–12, he explains that Kimball

could never have accessed Brooksher’s AWS account because Kimball “stat[ed]

that he never had the requisite SSH key, and would not have known how to

use it.” Waldhalm Decl. ¶ 14. To the extent that DKH seeks to cast doubt upon

the limits of Waldhalm’s review, it may do so through cross-examination.

For purposes of admissibility, I agree with the defendants that there is

not “too great an analytical gap” between Waldhalm’s proffered opinion and

the facts supporting it. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). DKH’s

motion is therefore denied.

b. Motion to Exclude or Limit the Opinions of Mark Fussell

The defendants move to exclude or limit the opinions of DKH’s software

expert, Mark Fussell, offered in both his initial and rebuttal reports. See RJB

Daubert Mot. More specifically, the defendants move to exclude Fussell’s

opinions that (1) DKH funded the development of the RJB code and database,

(2) the scraper code in the RJB software is based on the design of the CB-19X

(Mindbowser) code base, (3) the RJB code contained features absent from the

Mindbowser code base, (4) Brooksher spent less time working on Mindbowser

than on the RJB code and database, and (5) DKH owned the database and

software created by Brooksher. See id. at 4–10. The defendants argue that

these opinions are either irrelevant, based on unreliable methods, or

improperly raised for the first time in Fussell’s rebuttal report. See id. at 10–

14. Except for certain opinions that purport to offer legal conclusions and other

portions that DKH does not contest, I disagree.

i. Initial Report

To start, Fussell’s opinion in his initial report that Kimball and DKH

funded the development of the software is neither irrelevant to the trade

secrets (or breach) claims nor redundant of what DKH’s attorneys “can argue

in closing arguments.” Id. at 4 (citing United States v. Frazier, 387 F.3d at

1262–63). So too with Fussell’s related opinion about how Brooksher spent his

invoiced time. See id. at 7. Both opinions address Brooksher’s authorship of,

and entitlement to, the contested source code, as well as DKH’s potential

damages. As for helpfulness, the defendants even concede that Fussell did

more than simply review Brooksher’s invoices. Fussell also “compar[ed] the

descriptions of services in RJB’s invoices with records showing activity

occurring in the RJB software.” Id. at 4; see Fussell Dep. (Doc. 138-3) 24:19–

22, 32:1–14 (discussing the comparison of invoices with “activities summary,”

including “git repositories”). As DKH notes, Brooksher’s invoices are both

voluminous and their descriptions highly technical, beyond the understanding

of an average lay person. See DKH Daubert Resp. (Doc. 142) at 4–5 (arguing

that Fussell analyzed “code derivation, repository structure, and data location”

relative to Brooksher’s time entries). “It is certainly helpful to the jury to have

an analysis of the voluminous data from the [invoices and activity records]

provided to them rather than reviewing all the data [therein] themselves to

reach a [conclusion].” Sihler v. Glob. E-Trading, LLC, No. 8:23-CV-1450-VMC-

LSG, 2025 WL 1425400, at *7 (M.D. Fla. May 16, 2025).

Similarly, Fussell’s opinion that the scraper code in the RJB software is

based on the design of the Mindbowser code base and that the RJB code

contained features absent from the Mindbowser code base are directly relevant

to the trade secrets claims. See RJB Daubert Mot. at 6–8. Although the

defendants argue that they “have never claimed ownership of the Mindbowser

scraping code or of any of the scraping code,” id. at 6, Fussell’s opinion is not

so limited. Instead, Fussell opines that certain code allegedly possessed by

DKH (or Kimball) “has the same functionality as code Defendants now claim

to own.” DKH Daubert Resp. at 7 (citing Fussell Initial Report (Doc. 139-1)

¶¶ 86–87). Indeed, Fussell’s rebuttal report identifies hundreds of lines of code

that were registered by Brooksher but authored by others. See Fussell Rebuttal

Report (Doc. 139–2) ¶¶ 144–56. Because these opinions are relevant to DKH’s

purported possession of the trade secret material and whether the defendants

misappropriated it, the defendants’ motion fails on this point.

Next, in addition to claiming that Fussell’s opinions are irrelevant, the

defendants also argue that they are unreliable. See RJB Daubert Mot. at 7–8.

More specifically, the defendants claim that Fussell used two unverified tools—

“diff -y” and “CMR”—to compare the Mindbowser and RJB code sets. See id. at

7. As DKH explains, however, “diff -y” is “simply a utility in the Linux

operating system, that displays the comparison of code in a side-by-side

format.” DKH Daubert Resp. at 8 & n.3. And contrary to the defendants’

assertion, Fussell testified that he has used the “diff -y” program on “dozens of

occasions” to compare code, albeit not in a report submitted in litigation. See

Fussell Dep. 57:13–24. Similarly, CML, conventionally known as YAML, is a

“human-readable data serialization language,” DKH Daubert Resp. at 9 & n.4,

that has been used in the computer science field since the 1990s, see Fussell

Dep. 66:18–24. Courts routinely admit code comparisons using similar tools.

See Compulife, 959 F.3d at 1308 (noting that a side-by-side comparison of

source code evidenced copying); see also Xtec, Inc. v. CardSmart Techs., Inc.,

No. 11-cv-22866, 2014 WL 10250974, at *5 (S.D. Fla. Dec. 4, 2014) (admitting

expert testimony relating to the similarities revealed by a side-by-side

comparison of source codes). To the extent that the defendants seek to further

challenge Fussell’s code comparison methodologies, they may do so on cross-

examination and through the introduction of competing evidence.

ii. Rebuttal Report

The defendants also contend that Fussell’s rebuttal opinions regarding

possession, authorship, and development must be excluded because Fussell

was required to disclose those opinions—“offered in support of Plaintiff’s

burden of proof”—in his initial report. See RJB Daubert Mot. at 10–12 (citing

FED. R. CIV. P. 26(a)(2)(B)(i) and 37(c)(1)). But the defendants do not oppose

the introduction of Fussell’s rebuttal opinions “in the event [Defendants]

introduce opinion testimony on these topics during the defense case.” Id. at 11.

Ordinarily, “[a] plaintiff who knows that the defendant means to contest

an issue that is germane to the prima facie case (as distinct from an affirmative

defense) must put in his evidence on the issue as part of his case in chief.”

Timber Pines Plaza, LLC v. Kinsale Ins. Co., 192 F. Supp. 3d 1287, 1291 (M.D.

Fla. 2016) (citation modified). Accordingly, “[a] party may not offer testimony

under the guise of ‘rebuttal’ only to provide additional support for his case in

chief.” Id.; Bell v. Progressive Select Ins. Co., 692 F. Supp. 3d 1121, 1124–25

(M.D. Fla. 2023) (similar). At the same time, “[t]he rules do not require parties

or their expert witnesses to anticipate all foreseeable opposing arguments and

meet those arguments in their initial reports.” Teledyne Instruments, Inc. v.

Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274, at *17 (M.D. Fla. Oct.

25, 2013). A rebuttal opinion may still be introduced. “The test under Rule

26(a)(2)(D)(ii) is not whether a rebuttal report contains new information, but

whether it is ‘intended solely to contradict or rebut evidence on the same

subject matter’ of an opponent’s expert report.” Id. (citations omitted).

Here, Fussell’s rebuttal opinions satisfy the Rule 26 standard. In its case

in chief, DKH must prove that it possessed and safeguarded trade secrets and

that the defendants misappropriated them. In his initial report, Fussell offers

opinions relevant to those issues, including that DKH’s AWS infrastructure

was “password protected and automatically encrypted by default,” “[t]he entire

CB-635 [RJB] code base is related to the work provided to seed that code base,”

and that “[t]he evolution of CB-635 [the RJB codebase] was funded by invoicing

RJB made to DKH/Kimball.” Fussell Initial Report ¶¶ 113, 174–76. As

explained, to reach those conclusions, Fussell relied on RJB’s invoices, a side-

by-side comparison of the respective code bases, and the repository

commitment histories. See generally Fussell Initial Report.

By contrast, Fussell’s rebuttal report directly addresses the opinions of

Donald Waldhalm, opining that “RJB did not have exclusive possession of the

code within CB-635 and CB-636 [the RJB codebase],” “RJB was not the

exclusive author of the code within CB-635 and CB-636,” and that “RJB

significantly leveraged DKH resources for the development of [his food delivery

application].” See Fussell Rebuttal Report ¶¶ 219–223 (emphasis added).

Contrary to the defendants’ view, all three opinions “are intended solely to

contradict or rebut evidence on the same subject matter” of Waldhalm’s report,

which focused on the parties’ access to respective AWS systems.8 See Teledyne

Instruments, 2013 WL 5781274, at *17. Because DKH need not prove that its

possession, access, or authorship was exclusive to establish its “rightful legal

or equitable title to, or license in, the trade secret,” 18 U.S.C. § 1839(4), I

disagree that Fussell’s rebuttal report improperly “disguise[s] support for

his . . . case in chief as rebuttal evidence.” GLF Constr. Corp. v. Fedcon Joint

Venture, No. 8:17-CV-1932-T-36AAS, 2019 WL 13168545, at *6 (M.D. Fla. Oct.

16, 2019). Accordingly, Fussell may offer the above identified opinions in

rebuttal.

Next, in a challenge to a more limited portion of Fussell’s rebuttal report,

the defendants argue that Fussell’s “claims . . . that the UserQuery records are

valuable and not recoverable records of user interactions” is unreliable because

Fussell “did not review the data itself or check whether it was test data.” RJB

Daubert Mot. at 12. But that is not dispositive of whether those records were

valuable. Instead, Fussell’s opinion is based on sufficiently reliable methods

because he relied on “an additional breakdown of the time and records

contained in the database (including the user interaction data),” including

8 To the extent that the defendants fault Fussell for addressing Riley Brooksher’s

October 15, 2024 declaration, which was filed “one and a half years before Fussell

prepared his Initial Report,” see RJB Daubert Mot. at 11, Fussell did so only because

Waldhalm relied on that declaration in forming his opinion regarding possession, see

Waldhalm Report at 13.

“information about the query itself,” such as when it was made, “and

information about who made the query.” DKH Daubert Resp. at 12; Fussell

Rebuttal Report ¶¶ 83–103.

The defendants also seek to exclude Fussell’s rebuttal opinions that “RJB

has no valid claim on DK-DB-1 at all,” that “the DeliveryKick.com database as

it existed on and before June 10th, 2024 is owned by DKH,” RJB Daubert Mot.

at 8, or that “[e]ven if the [food delivery application] is validly solely possessed

by RJB, it was clearly provided and de-facto licensed to DKH to operate in the

DKH AWS production environment.” Fussell Rebuttal Report ¶¶ 201, 224.

According to the defendants, these statements constitute impermissible legal

opinions. See RJB Daubert Mot. at 8–9, 12–13. DKH contends that Fussell

offers a technical opinion, not a legal one, about who “ ‘owns’ the accounts and

resources therein.” DKH Daubert Resp. at 9. Both sides are partially correct.

To the extent that Fussell “provide[s] a technical analysis of both

software code and the associated database” and the location of RJB’s code on

the DKH AWS account, id. at 9, his opinions are admissible. And his

methodologies appear sufficiently reliable. Although the defendants are correct

that Fussell testified that he “d[id] not know whether any such evidence [was]

entered into this case” showing that DKH had access to the AWS account

before June 10, 2024, Fussell explained that he reviewed the “CloudTrail

analysis logs,” Fussell Dep. 120:13–25; see (Doc. 139-5). In part based on that

review, Fussell opined that “DKH had master administrative control

associated with the AWS account and could disable and takeover any AWS

credentials associated within that account.” Fussell Rebuttal Report ¶ 128.

Insofar as the defendants contend that the logs “show that Kimball’s access of

the account only occurred after all removal and deletion of RJB’s property,”

RJB Daubert Mot. at 13 (emphasis omitted), they may attack Fussell’s opinions

and methods on cross-examination and with competing evidence.

On the other hand, “an expert witness may not testify as to his opinion

regarding ultimate legal conclusions.” United States v. Delatorre, 308 F. App’x

380, 383 (11th Cir. 2009) (per curiam); Montgomery v. Aetna Cas. & Sur. Co.,

898 F.2d 1537, 1541 (11th Cir. 1990) (“A witness also may not testify to the

legal implications of conduct; the court must be the jury’s only source of law.”).

Fussell therefore may not testify to what software or source code DKH lawfully

owned or licensed, in effect the ultimate legal question of “rightful legal or

equitable title to” the trade secrets at issue. Highland Consulting, 74 F.4th at

1358. To that end, Fussell shall not use the “moniker” of “DKH-owned” that is

referenced throughout the rebuttal report, although he may testify to DKH’s

access or control of, or payment for, the relevant AWS account. See DKH

Daubert Resp. at 11 (conceding that this language could be “tweaked”); see also

Fussell Dep. (Doc. 137-5) 120:11–12 (“I am not a lawyer and I’m not giving

legal testimony on [ownership].”).

Finally, the defendants argue that “Fussell’s arguments as to human

readability of the React application built from RJB’s delivery_ui repository

(CB-636) are not based on facts” because “Fussell never evidences an attempt

to build the application” by “running the requisite ‘npm run build’ command.”

RJB Daubert Mot. at 13–14. The defendants do not explain why Fussell should

have run this command or how his failure to do so renders his opinion as to the

human readability of RJB’s “FDA ui” unreliable. Fussell Rebuttal Report ¶ 39.

The defendants’ motion is therefore denied as to this portion of Fussell’s report.

3. Genuine Disputes of Material Fact

In the light of the largely admissible expert opinions of Donald

Waldhalm and Mark Fussell, outstanding factual disputes on each element of

the DTSA and FUTSA claims preclude summary judgment.

Normally, the presence of non-conclusory conflicting expert testimony,

relevant to the issues under consideration, generally shows that summary

judgment is not proper. Crown Packaging Tech., Inc. v. Ball Metal Beverage

Container Corp., 635 F.3d 1373, 1384 (Fed. Cir. 2011); Tropic Sun Towers

Condo. Ass’n, Inc. v. Zurich Am. Ins. Co. of Illinois, No. 605CV-1284ORL-

18DAB, 2006 WL 3544854, at *2 (M.D. Fla. Dec. 8, 2006) (“This type of

disagreement between expert witnesses is a textbook example of when

summary judgment should be denied.”).

Start first with whether the restaurant records and related codebase on

the DKH-associated AWS servers qualify as a trade secret, i.e., whether it “has

independent economic value from being kept secret and is in fact subject to

reasonable efforts to maintain its secrecy.” Compulife, 111 F.4th at 1160. To be

sure, “even if individual [records] that are publicly available lack trade secret

status, the whole compilation of them (which would be nearly impossible for a

human to obtain through the website without scraping) can still be a trade

secret.” Id. at 1162. But “[t]he question of whether information constitutes a

trade secret is a question of fact normally resolved by a jury after full

presentation of evidence.” Trinity Graphic, USA, Inc. v. Tervis Tumbler Co.,

320 F. Supp. 3d 1285, 1293 (M.D. Fla. 2018).

According to DKH, “the 700,000 restaurant records contained in the

database that resided in DKH’s AWS account were harvested using

sophisticated engineering infrastructure, proxy/data-access systems, and

significant cost, time and technical expertise.” DKH MSJ at 4. And the

additional “approximately 700,000 records in the database were created from

proprietary user interactions with DKH’s own website.” Id. at 10. Because the

data “is organized in a way not available to the public,” DKH contends that it

is a trade secret. DKH Resp. to MSJ at 17; Kimball Decl. ¶ 22. The defendants

respond that “[t]he scraped restaurant data is not a trade secret because it is

not secret,” [s]ince anyone can use a web scraper program to scrape public

websites for the same restaurant data claimed to be owned by DKH.” RJB

Resp. to MSJ at 15–16. Further, “all alleged user data was the product of

internal testing and automation created by Brooksher.” Id. at 14; Brooksher

Decl. ¶¶ 3–6.

In addition to competing deposition testimony and communications

between Kimball and Brooksher capable of multiple inferences, the parties’

experts also disagree. Waldhalm contends that the “DeliverySite codebase

includes web scrapers that collect menu item data from publicly available

websites,” and thus “the data they collect is readily available to the public from

the same sources the scrapers access.” Waldhalm Report at 8, 13. Fussell

disagrees, contending that because the “production database [had] a goal of

many users using a large amount of information (in this case, hundreds of

thousands of restaurants),” “[t]he data, the schema, and the configuration all

provide significant value.” Fussell Rebuttal Report ¶ 81. In Fussell’s view, “it

seems reasonable to assume that performance limitations would make it take

multiple weeks of continuous activity to reproduce the 700K restaurants

within the DK-DB-1 database,” id. ¶¶ 91–95, whereas the user records “are not

equivalently recoverable at all,” id. ¶ 97. Those user records—and the query

table associated with it—“could be used for valuable analytics.” Id. ¶ 98. These

competing opinions are sufficient to create a dispute of material fact about

whether the database and associated source code derived independent

economic value from being kept secret.

There are also genuine disputes of material fact regarding whether DKH

made reasonable efforts to keep the information secret.

Brooksher claims that “Kimball never informed [him] that anything he

was doing was a trade secret or should be kept confidential,” and denies that

Kimball “required MindBowser or any of the independent consultants engaged

through Toptal® to keep anything confidential.” Brooksher Decl. in Opp. to

Prelim. Inj. ¶ 38; see Brooksher Decl. ¶ 36. And it is undisputed that DKH and

the defendants lacked a confidentiality agreement. On the other hand, Kimball

avers that he “discussed confidentiality and security with Brooksher multiple

times, including the need to keep the code, database, data, and AWS/server

materials protected from public access and from unnecessary third-party

access.” Kimball Decl. in Opp. to MSJ ¶¶ 9–10. In text messages, Brooksher

assured Kimball that unidentified third parties were “not going to see our code

or anything.” Ex. E at 74. To that end, Kimball declares that all data and code

was “stored in password-protected repositories, password protected

AWS/server environments, and other restricted systems.” Kimball Decl. in

Opp. to MSJ ¶ 10. Fussell supports Kimball’s position, as he claims that the

AWS infrastructure was “password protected and automatically encrypted by

default.” Fussell Initial Report ¶¶ 113, 174–76.

Although the lack of a written confidentiality agreement necessitates

that DKH show “an understanding of confidentiality” between the parties.

DePuy Synthes, 990 F.3d at 1372, DKH’s evidence suffices. A reasonable jury

could conclude that, based on Kimball and Fussell’s testimony and the

communications between Kimball and Brooksher, DKH took reasonable steps

to keep the information secret. As relevant here, “[r]estricting access to

information through authorized users via passwords may be considered as an

acceptable measure to establish trade secret protection.” Humanitary Med.

Ctr., Inc. v. Artica, No. 8:23-CV-1792-WJF-TGW, 2023 WL 8779956, at *3

(M.D. Fla. Dec. 19, 2023).

Finally, there is a genuine dispute of material fact about whether DKH

or the defendants “possessed secret information,” Poet Theatricals Marine, 307

So. 3d at 929, or are “the person or entity in whom or in which rightful legal or

equitable title to, or license in, the trade secret is reposed.” Highland

Consulting, 74 F.4th at 1358 (quoting 18 U.S.C. § 1839(4)). Because Brooksher

does not dispute that he “remove[d] ‘snapshots,’ from the account i.e., backups

of AWS EC2 instances of the software that [he] authored that AWS created as

[he] was creating the software,” Brooksher Decl. in Opp. to Prelim. Inj. ¶ 32;

JSUF ¶¶ 8–11, whether Brooksher misappropriated the data through

acquisition effectively collapses into the access or ownership inquiry. See

Compulife, 959 F.3d at 1311 (explaining that misappropriation can occur by

“acquisition, disclosure, or use”).

Once again, Waldhalm and Fussell disagree about who authored, had

access to, or owned the relevant dataset and codebase. Collectively,

Waldhalm’s opinion that the defendants exercised “exclusive possession of

RJB-ui, RJB-backend, and RJB-database,” see Waldhalm Report at 11, his

opinion that Brooksher authored the code, as well as Kimball and Brooksher’s

statements regarding DKH’s access, see Kimball Dep. 202:6–21; Brooksher

Decl. in Opp. to Prelim. Inj. ¶ 15, could permit a reasonable jury to conclude

that “Brooksher created the software and database on his own personal

computer and then kept copies on a repository that Brooksher alone

controlled.” RJB MSJ at 19.

Conversely, Fussell’s opinions could permit a reasonable jury to draw the

opposite conclusion, that “[t]he DKH database, and the dataset therein, resided

in its AWS account for http://deliverykick.com until June 10, 2024.”9 DKH MSJ

at 13; see Fussell Initial Report ¶ 188; Fussell Rebuttal Report ¶¶ 114–189. To

9 Insofar as the defendants argue that DKH neither owned nor possessed any trade

secrets “because DKH did not have a server to hold the data, and never paid money

to anyone for use of a server,” I disagree. RJB Resp. to MSJ at 19–20. There is

sufficient evidence for a jury to conclude that Kimball paid for software development

on behalf of DKH, to benefit and be owned by DKH, even though DKH was not

necessarily “a party to a contract with anyone for storing data, developing web

scrapers, or executing a scraping campaign.” See id.

the extent that Brooksher contends that he alone authored the code for which

he obtained a copyright registration, Fussell’s opinion that “[p]arts of the

materials submitted for copyright registration had code that was initially

written by another, and the RJB code bases had significant unattributed

contributions by other authors” creates a factual dispute for jury resolution.

See Fussell Rebuttal Report ¶¶ 221–22.

Finally, the collective record evidence—including communications

between Kimball and Brooksher, as well as Brooksher’s representations that

he was DKH’s CTO—is capable of an inference that Brooksher “kn[ew] or ha[d]

reason to know that the trade secret was acquired by improper means” at the

time he removed or “acquired” data from an AWS server for which he did not

pay. Compulife, 959 F.3d at 1311.

In the light of these factual disputes, bolstered by a battle of admissible

expert testimony, neither party is entitled to summary judgment on DKH’s

trade secrets claims under the DTSA or FUTSA.

D. Damages

Lastly, the defendants move for summary judgment on DKH’s claim for

damages because until the final day of discovery, DKH “failed to disclose any

damages, either in its Rule 26 disclosures, in answer to Defendants’ damage

interrogatory or in response to Defendants’ request for documents.” RJB MSJ

at 22–23; (Doc. 137-10). DKH responds that there is no basis “for the

proposition that producing evidence on before the discovery cutoff is a violation

of the Federal Rules.” DKH Resp. to MSJ at 19. DKH is largely incorrect.

Under Federal Rule of Civil Procedure 26(a)(1)(A)(iii), a party must,

without awaiting a discovery request, provide “a computation of each category

of damages claimed” and must also make available for inspection and copying

the documents or other evidentiary material on which each computation is

based. “A party is not excused from making its disclosures because it has not

fully investigated the case.” FED. R. CIV. P. 26(a)(1)(E). Under Rule 26(e), a

party who makes a disclosure under Rule 26(a) must supplement its disclosure

in a timely manner if the party learns the initial disclosure is incomplete or

incorrect, and if the additional or corrective information has not otherwise been

made known to the opposing parties during the discovery process or in writing.

Under Rule 37(c), if a party fails to provide information as required by

Rule 26(a) or (e), the party is not allowed to use that information to supply

evidence on a motion, at a hearing, or at a trial, “unless the failure was

substantially justified or is harmless.” The untimely party bears “the burden

of establishing that a failure to disclose was substantially justified or

harmless.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009)

(per curiam). “In determining whether the failure to disclose was justified or

harmless, [courts] consider the non-disclosing party’s explanation for its

failure to disclose, the importance of the information, and any prejudice to the

opposing party if the information [is] admitted.” Lips v. City of Hollywood, 350

F. App’x 328, 340 (11th Cir. 2009) (per curiam).

Here, DKH did not timely disclose its damages calculations under Rule

26(a). In its initial disclosures made in November 2024, DKH stated that it

“has yet to calculate the total damages resulting from Defendants’ actions, but

will supplement this information after receiving discovery.” (Doc. 137-4) at 3–

4. Then, in response to discovery requests served by the defendants in May

2025, DKH promised to produce non-privileged documents and claimed that it

“anticipates relying on expert testimony to articulate its damages theories, and

will timely produce an expert disclosure based on the schedule set by the

Court.” See (Docs. 137-7, 137-8, 137-9). DKH “did not disclose a damages expert

and did not disclose any damages by the February 2, 2026 [expert] disclosure

deadline.” RJB MSJ at 23. Just over a month later, on the final day of

discovery, DKH timely supplemented its responses and identified its damages:

“$326,961.84 in vendor expenses, the diminished value of the Delivery Kick

application and database, lost time in the market for the Delivery Kick

application, fees, costs and punitive damages.” Id. (citing Doc. 137-10).

Although the supplemental response was filed within the discovery

period, Rule 26(e) “ ‘does not give license to sandbag one’s opponent’ by

belatedly disclosing information that should have been included in the initial

disclosures.” Bespoke Studio, Inc. v. Gabbe Priv. Ltd., 348 F.R.D. 262, 265 (N.D.

Fla. 2024) (citation omitted). In other words, DKH could not “supplement” a

Rule 26(a) disclosure it never timely made in the first place. And DKH does

not adequately explain that its failure to comply with Rule 26 was

substantially justified. Nor does it persuade that its failure was completely

harmless, at least not with respect to all theories of damages.

On this front, DKH contends that the defendants “never requested or

took the deposition of a DKH corporate representative to ask about damages”

and “elected not to file a discovery motion on this issue.” DKH Resp. to MSJ at

19. But Rule 26 disclosures must be made “without awaiting a discovery

request.” FED. R. CIV. P. 26(a)(1)(A). And DKH points to no authority

mandating that the defendants move to compel Rule 26 damages disclosures

before seeking exclusion under Rule 37 (even if doing so is better practice).

Ultimately, “[t]he alleged lack of initiative on the part of Defendants does not

excuse Plaintiff’s failure to fulfill its affirmative responsibilities under Rule

26.” K3 Enters., Inc. v. Sasowski, No. 20-24441-CIV, 2022 WL 3306725, at *4

(S.D. Fla. Aug. 11, 2022).

In a similar vein, DKH suggests that its untimely disclosure was

harmless because the defendants “declined an invitation to depose DKH’s

corporate representative,” DKH Resp. to MSJ at 19, which DKH offered the

day after discovery closed, (Doc. 144-5) at 2. This argument also fails. “Implicit

in [DKH’s] argument is the implication that the harmfulness of [its] untimely

disclosure could be cured if the Court reopened discovery so that [the

defendants] can conduct discovery on [its damages] computation.” Direct

Components, Inc. v. Microchip USA, LLC, No. 8:23-CV-1617-VMC-SPF, 2025

WL 3763923, at *13 (M.D. Fla. Dec. 30, 2025). That concedes that failing to

disclose such information before the final day of discovery was harmful.

That said, the harm to the defendants is not equal across the categories

of DKH’s late-disclosed damages. As DKH notes, before discovery concluded

Kimball “testified that he believed the damages included ‘the damages that I’m

seeking because I’m having to repair . . . the stolen assets from my company,’

including money paid to ‘Mindbowser, Toptal, some developers off at Behance.

I mean, other developers.’ ” DKH Resp. to MSJ at 19 (quoting Kimball Dep.

172:20–173:3). To the extent that DKH’s supplemental disclosure identified

“$326,961.84 in vendor expenses,” RJB MSJ at 23, the defendants cannot claim

to be surprised by such figures. In fact, to the extent those expenses represent

“the total sum paid to develop the Delivery Kick application and database prior

to its theft by Defendants,” (Doc. 137-10) at 6, Brooksher invoiced Kimball for

much of that work and “produced countless emails referring to and approving

many of these expenses. He signed multiple contracts related to these

expenses.” (Doc. 144-5) at 3. I therefore do not find it appropriate to exclude

evidence of damages related to the cost to “develop the Delivery Kick

application and database prior to its theft by Defendants and the attempt to

rebuild the application thereafter.” (Doc. 137-10) at 6.

But the same cannot be said for “the diminished value of the Delivery

Kick application and database” and “lost time in the market for the Delivery

Kick application.” (Doc. 137-10) at 6. To start, proving these damages theories

damages will likely require “complex[] [] damages computations” to assess the

opportunity costs related to delay and the current value of the application

compared to what its present value would have been if Delivery Kick operated

as an ongoing concern from the projected start date. See Circuitronix, LLC v.

Kinwong Elec. (Hong Kong) Co., Ltd., 993 F.3d 1299, 1308 (11th Cir. 2021)

(citing Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1222 (11th Cir. 2010)). In

other words, requiring DKH to rebut these damages without having adequate

notice before trial of the specifics of these damages theories strongly suggests

harm. See id. But notwithstanding whether these categories are too

speculative or if DKH could prove them without expert testimony, DKH points

to no discovery before—deposition testimony or otherwise—that would have

fairly apprised the defendants of these damages theories or their ultimate

magnitude before the final day of discovery. See Mee Indus., 608 F.3d at 1222

(upholding the exclusion of a damages theory under Rule 37 when the party

failed to give timely notice of the theory). To the extent that DKH suggests that

the defendants should have accepted the invitation to depose DKH’s corporate

representative, “this implicitly acknowledges that [the defendants] [were] in

fact prejudiced by [DKH’s] untimely disclosure, as [the defendants] [were]

deprived of a meaningful opportunity to perform discovery and depositions

related to” these categories within the Court’s established discovery window.

See Direct Components, 2025 WL 3763923, at *13. Thus, DKH “is not allowed

to use that information . . . at trial.” FED. R. CIV. P. 37(c). The defendants’

motion for summary judgment is granted with respect to these two categories

of damages.

IV. CONCLUSION

I grant DKH’s motion for partial summary judgment with respect to the

defendants’ affirmative defense of preemption under the Copyright Act, see

Am. Aff. Defs. ¶ 2, but deny the motion insofar as it seeks summary judgment

on DKH’s claims under the DTSA and FUTSA. Because expert Donald

Waldhalm’s opinions are relevant and supported by sufficiently reliable

methodologies, I also deny DKH’s Daubert motion to exclude or limit

Waldhalm’s opinions or testimony.

I grant the defendants’ motion for summary judgment as to DKH’s claim

for breach of contract (Count III) and with respect to DKH’s request for

damages related to “the diminished value of the Delivery Kick application and

database” and “lost time in the market for the Delivery Kick application.” I

deny the defendants’ motion for summary judgment in all other respects.

Additionally, I grant in part the defendants’ Daubert motion to exclude or limit

the opinions or testimony of Mark Fussell regarding DKH’s legal ownership of

the disputed software in this matter. The motion is otherwise denied.

The matter shall proceed to trial on DKH’s claims for violations of the

DTSA (Count I) and FUTSA (Count II), as well as its claim for breach of

fiduciary duty (Count VI). The following is therefore ORDERED:

1. Delivery Kick Holdings, Inc.’s Motion for Partial Summary

Judgment (Doc. 132) is GRANTED IN PART and DENIED IN

PART.

2. Delivery Kick Holdings, Inc.’s Daubert Motion (Doc. 188) is

DENIED.

3. Defendants’ Motion for Summary Judgment (Doc. 1386) is

GRANTED IN PART and DENIED IN PART.

4, Defendants’ Daubert Motion (Doc. 138) is GRANTED IN PART

and DENIED IN PART.

ORDERED in Tampa, Florida, on September 14, 2026.

Kathryn’Kimball Mizelle

United States District Judge

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