                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  November 6, 2003 Session

    B&L CORPORATION v. THOMAS AND THORNGREN, INC., ET AL.
                 JAMES EDWARD McCRONE

              A Direct Appeal from the Chancery Court for Davidson County
              No. 99-1853-III(II) The Honorable Carol L. McCoy, Chancellor



                   No. M2002-02355-COA-R3-CV - Filed February 10, 2004
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                           PARTIAL SEPARATE CONCURRENCE
                                ________________________


       I concur fully with the majority’s well-reasoned opinion except in one respect. The majority
concludes that the evidence preponderates against the trial court’s finding that B&L’s customer
information, such as customer names, prices charged for services rendered, customer contract
renewal dates and the identity of customer representatives, constituted confidential information. I
disagree with the majority’s reasoning on this issue.

         The majority first cites Brodbine’s testimony that the identity of customers could conceivably
be gleaned by making cold calls from the telephone directory, as demonstrating that the names of
B&L’s customers were “available to the public.” This strikes me as particularly unpersuasive. Out
of the universe of potential customers, B&L had expended considerable effort to identify and obtain
the business of those entities who would pay for B&L’s services. As noted in Venture Express, Inc.
v. Zilly, 973 S.W.2d 602, 606 (Tenn. Ct. App. 1998), consideration must be given to the effort and
expense of B&L in developing the list of customers and the difficulty with which the information
could be duplicated by others. To find that this information is “available to the public” because
potential customers are in the telephone directory would mean that no customer lists by any employer
would be deemed confidential.



       Equally unpersuasive is the reasoning that the information is available to the public because
customers are not prohibited from disclosing their business relationship with B&L, and because a
few customers “have on occasion been willing to reveal themselves upon request to do so.” Since
the defendants would have to know whom to ask in order for customers to “reveal themselves,” this
likewise does not mean that the list of B&L’s customers is available to the public. The trial court
found that the identity of B&L’s customers was confidential information, and that B&L took
extensive measures to keep the information confidential. I agree with the trial court’s analysis.

         The other information discussed by the majority, pricing information, contract renewal dates
and the identity of customer representatives, can be readily ascertained only if the identity of the
customer is known. The majority states that although it recognizes that “efforts to retrieve this
information through cold calls can be difficult, time consuming, and often unfruitful, we are unable
to conclude that this information is confidential simply because it can be difficult to obtain.” And
yet, this is exactly what the Venture Express decision states, that the effort, expense and difficulty
of developing the information is weighed into the determination of whether it is deemed confidential.
The trial court relied on this, and I agree with the trial court’s analysis on this issue.

        In the alternative, the majority also appears to rely on the fact that the identify of B&L’s
customers was “remembered” information, and since the defendants’ noncompete agreements had
expired, they could utilize this remembered information to compete with B&L. Other information
such as prices and contract renewal dates, could be obtained from the customer once the identity of
the customer was known. I agree with the result reached by the majority based on this reasoning,
but I disagree with its earlier analysis of whether the information would be deemed confidential.
Under the majority’s reasoning, if the defendants were subject to a noncompete agreement, this
information would be non-protectible and the defendants would be free to use it despite the difficulty
of finding customers and the measures B&L used to keep the information secure. This would clearly
be a wrong result.

       For these reasons, I concur separately.




                                               ________________________________________
                                               HOLLY M. KIRBY, J.




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