## Facts

- ECS Federal, Inc., a government contractor, employed Jacqueline D. Marsteller beginning November 30, 2006; by 2011 she was a Senior Vice President and Account Executive.
- At hire, Marsteller signed an Employment Proprietary Information, Inventions and Non‑Competition Agreement requiring confidentiality of ECS proprietary information during and after employment and requiring return of ECS materials upon departure.
- ECS notified Marsteller on November 3, 2011 that her employment would end in 2011; the parties later set her effective termination date as December 15, 2011.
- ECS alleged that on November 16 and November 30, 2011, Marsteller connected external storage devices to her ECS computer and copied highly sensitive and confidential materials, including ECS management-system documentation used to obtain and maintain ISO certification.
- Marsteller began working for Ausley Associates, Inc., a competitor government contractor, in late December 2011.
- Ausley received ISO certification on July 31, 2012; ECS alleged Ausley obtained certification using ECS’s copied documentation, causing competitive and economic harm to ECS.

## Issues

1. Whether ECS plausibly alleged that its ISO-related management-system documents qualified as “trade secrets” under the Virginia Uniform Trade Secrets Act (VUTSA) (economic value from secrecy and reasonable secrecy measures).
2. Whether ECS plausibly alleged “misappropriation” under VUTSA, including acquisition and “use,” based on circumstantial facts and timing.
3. Whether ECS plausibly stated counterclaims for breach of the proprietary information agreement and related business-tort theories under Rule 8, and whether any counterclaim failed under Rule 12(b)(6).

## Decision

- Marsteller’s Rule 12(b)(6) motion was denied as to Counts 1–5 of ECS’s counterclaims.
- The court held ECS adequately pled (i) trade-secret status of the ISO-related documentation and (ii) misappropriation, including plausible “use,” under VUTSA.
- The court held ECS adequately pled breach of contract and related tort counterclaims tied to alleged copying and failure to return ECS materials.
- The motion was granted as to Count 6, which was dismissed for insufficient factual support and/or legal deficiency.

## Legal Principles

- Under VUTSA, a trade secret must (i) derive independent economic value from not being generally known and (ii) be subject to reasonable efforts to maintain secrecy.
- At the pleading stage, allegations that confidential internal documentation supports valuable capabilities (such as obtaining ISO certification linked to eligibility for certain contracts) can sufficiently plead independent economic value.
- Reasonable secrecy efforts may be plausibly shown through confidentiality/return-of-materials agreements and limited internal access to sensitive materials.
- VUTSA “misappropriation” includes improper acquisition as well as unauthorized use or disclosure; “use” may be plausibly inferred from circumstantial allegations and timing, without direct proof at the Rule 12(b)(6) stage.
- Contract and related tort claims may proceed where a defendant identifies an enforceable agreement, the relevant duties (confidentiality and return), factual breach (unauthorized copying/retention), and resulting harm.

## Conclusion

The court allowed ECS’s core trade-secret, contract, and related tort counterclaims to proceed because ECS plausibly alleged that ISO-related internal documentation had economic value from secrecy, was protected by reasonable confidentiality measures, and was misappropriated and used as inferred from copying to external devices shortly before departure and a competitor’s later ISO certification; one additional counterclaim was dismissed for inadequate pleading.


Marsteller v. ECS Fed., Inc., No. 1:13cv593 (JCC/JFA), 2013 WL 4781786 (E.D. Va. Sept. 9, 2013)