Introduction and Summary
The American Bird Conservancy (“ABC”) and the Black Swamp Bird Observatory (“BSBO”) file this brief amici curiae in opposition to Plaintiff’s motion for summary judgment. We show below that Plaintiff’s argument that the number of birds and bats its turbines kill is a “trade secret” is demonstrably frivolous. Under Ohio’s Trade Secret Act, to prove that the mortality data is a trade secret and secure an injunction, Plaintiff bears the burden of showing by clear and convincing evidence that the mortality data would have real economic value to Plaintiff’s competitors. But Plaintiff has not identified any specific competition it has ever encountered from any other wind power company to build a wind project at any particular location, or explained how its mortality data could actually be used by a potential competitor to its advantage. Instead Plaintiff offers the sort of generic, conclusory statements about competition that Ohio courts have repeatedly ruled cannot establish the existence of a trade secret.
Indeed, if there were any doubt about the matter, it should be laid to rest by the recent release by Defendant Ohio Department of Natural Resources, in response to a request from BSBO, of the full range of mortality data from one of Plaintiff’s alleged competitors without its objection. That shows that bird and bat mortality is irrelevant to competition, for Plaintiff’s wind turbines and its supposed competitors’ wind turbines are technologically indistinguishable in their propensity to kill birds and bats.
The conclusion that the mortality data is not a trade secret is also strongly supported by the case law construing Ohio’s Public Records Act, which essentially establishes a presumption in favor of disclosure by the Defendant government agencies – a presumption that can only be overcome by clear and convincing evidence of a trade secret, which Plaintiff has not come even close to presenting.
Finally, we show that federal law under the Freedom of Information Act, the Bald and Golden Eagle Protection Act, the Migratory Treaty Bird Act, and the Endangered Species Act further supports the conclusion that Plaintiff’s data is not a trade secret. And we explain why Plaintiff misrepresents the facts when it tells the Court that the federal Fish and Wildlife Service has agreed that Plaintiff’s mortality data is a trade secret. Accordingly, the Court should deny Plaintiff’s motion for summary judgment.