Free Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-00413-JLK (BNB) M.D. MARK, INC., Plaintiffs, v. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. ________________________________________________________________________ JURY INSTRUCTIONS ________________________________________________________________________

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Section 1.0

General Instructions

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INSTRUCTION NO. 1.1 Description of the Case In order to help you understand this case, I will give you a brief summary of the claims and defenses. The party who filed this case is called the plaintiff. The opposing parties are called the defendants. In this case, the plaintiff is M.D. Mark, Inc. and the named defendants are Oryx Energy Company ("Oryx") and Kerr-McGee Corporation ("Kerr-McGee Corp.") M.D. Mark has sued Oryx and Kerr-McGee Corp. for breach of contract and misappropriation of trade secrets. In 1999, Oryx merged into Kerr-McGee Corp. and no longer exists as a separate entity. Some of Plaintiff's claims are based on conduct of Oryx that took place before the merger, and Oryx is named as a separate Defendant to that extent. As a result of the merger between Oryx and Kerr-McGee Corp., however, Kerr-McGee Corp., which will also be referred to as "Kerr-McGee," for short will be responsible for both its conduct and any pre-merger conduct of Oryx for which you find liability to M.D. Mark. In other words, while you may hear reference to "Defendants" and the conduct of "Oryx" and "Kerr-McGee," there is, in effect, only one Defendant for purposes of liability and damages, and that is Kerr-McGee Corporation. First, a brief overview of the facts and circumstances leading up to the filing of this lawsuit:
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M.D. Mark has ownership rights to geophysical surveys used in oil and gas exploration known as "seismic data." The seismic data at issue in this case were originally acquired and owned by a company called Professional Geophysics, Inc. ("PGI"). PGI originally licensed the PGI Data to oil and gas exploration companies for use in oil and gas exploration in exchange for a licensing fee. M.D. Mark asserts these geophysical surveys (the "PGI Data") are "trade secrets," which it acquired from a creditor of PGI in the wake of PGI's bankruptcy. Kerr-McGee does not dispute that the PGI Data are trade secrets. M.D. Mark, which retains the original PGI Data, and other seismic data brokers continue to license copies of the PGI Data to oil and gas exploration companies for use in oil and gas exploration through licensing agreements. M.D. Mark has asserted several claims against Kerr-McGee Corporation relating to the PGI Data. 1. According to M.D. Mark, Oryx breached license agreements into which it

had entered with PGI in: a. causing, through its subsidiary Sun Exploration or otherwise, PGI Data

in its possession since 1985 to be transferred as part of the 1999 merger to one of KerrMcGee's post-merger subsidiaries in a manner not authorized by any Oryx/PGI license agreement. b. failing to return thousands of miles of PGI Data which Kerr-McGee

Corp., post-merger, cannot account for.
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2.

According to M.D. Mark, Kerr-McGee Corp. breached license agreements

with PGI and/or M.D. Mark in: c. failing to return all the PGI Data licensed to it after receiving notice of a

breach of the license agreements. d. account for. M.D. Mark claims Kerr-McGee Corporation is liable for both Oryx's and is own actions in breaching one or more PGI data licensing agreements. 3. According to M.D. Mark, Kerr-McGee Corp. misappropriated M.D. Mark's trade secrets by: a. wrongfully gaining access to and possessing approximately 3100 miles of PGI Data which Kerr-McGee Corp. never licensed and does not have the right to possess; and b. Oryx, through transfers to Sun Exploration or otherwise, wrongfully transferring and disclosing the PGI Data to a subsidiary of KerrMcGee Corp. On behalf of itself and the company formerly known as Oryx, Kerr-McGee Corp. denies M.D. Mark's claims and allegations. Oryx merged with Kerr-McGee Corp. on
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losing hundreds of miles of PGI Data which Kerr-McGee Corp. cannot

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February 26, 1999 (the "Merger"), at which time Oryx ceased to exist. Specifically, KerrMcGee Corp. asserts the following defenses: Kerr-McGee denies it ever "misappropriated" the PGI Data. M.D. Mark's claim is that Oryx/Sun Exploration made unauthorized "transfers" of 16, 000 miles of PGI Data when the data passed to Kerr-McGee Oil & Gas Onshore, L.L. C, a subsidiary of KerrMcGee Corporation as part of the Oryx/Kerr-McGee Merger in 1999. This does not constitute an unauthorized disclosure or transfer, as is required for liability under a theory of misappropriation of trade secrets. Moreover, several of the PGI Agreements specifically permitted Oryx to disclose and provide copies of the PGI Data to "the surviving company in the event of a complete merger by Licensee [Oryx]," such as KerrMcGee Corporation. Other agreements were silent on the issue of merger, but do not contain any requirement that a transfer fee be paid by the surviving company to a merger. Further, M.D. Mark cannot prove misappropriation by Kerr-McGee simply because Kerr-McGee, or one of its subsidiary corporations, possesses certain PGI Data for which neither it nor M.D. Mark can produce corresponding license agreements. For these same reasons, none of the actions ascribed to Oryx constitute a failure to perform any obligations under those agreements as would support a claim for breach of license agreement.

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Nor did Kerr-McGee breach any of the PGI Agreements. None of the PGI Agreements between Kerr-McGee and M.D. Mark or between Kerr-McGee and PGI require Kerr-McGee to account for the physical location of the data, which is the sole basis for M.D. Mark's breach of contract claim against Kerr-McGee.

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INSTRUCTION NO. 1.2 ORDER OF TRIAL

The case will proceed as follows: First, lawyers for each side may make opening statements. What is said in the opening statements is not evidence, but an outline to help you understand what each party expects the evidence to show. A party is not required to make an opening statement. After opening statements, the plaintiff, M.D. Mark, will present evidence in support of its claims and Kerr-McGee's lawyers, on behalf of defendant Kerr-McGee and pre-merger Oryx, may cross-examine the witnesses. At the conclusion of the plaintiff's case, Kerr-McGee Corporation may introduce evidence in support of its defenses, and M.D. Mark's lawyers may cross-examine the witnesses. Kerr-McGee as the defendant is not required to introduce any evidence or to call any witnesses, as the burden of proof rests with the plaintiff in a civil case, not the defendant. I will instruct you more fully on the burden of proof in this case in a later instruction. If Kerr-McGee does introduce evidence, M.D. Mark, as plaintiff, may introduce rebuttal evidence. After the evidence is presented, the parties' lawyers make closing arguments explaining what they believe the evidence has shown. What is said in closing arguments is not evidence. I will then instruct you finally on the law that you are to apply in reaching your verdict, and you will decide the case.
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INSTRUCTION NO. 1.3 BENCH CONFERENCES From time to time it may be necessary for me to talk to the lawyers out of your hearing. The purpose of these conferences is to decide how certain questions or answers are to be treated under the rules of evidence. The lawyers and I will do what we can to limit the number and length of these conferences.

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INSTRUCTION NO. 1.4 STATUS OF CORPORATION

All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person. Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation.

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INSTRUCTION NO. 1.5 KNOWLEDGE OF CORPORATION

Knowledge of, or notice to, a corporation's director, officer or employee received while he or she is acting within the scope of his or her authority, is the knowledge of, or notice to, the corporation.

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INSTRUCTION NO. 1.6 Evidence ­ General It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not. At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true. The following things are not evidence and you must not consider them as evidence in deciding the facts of this case: Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other
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times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls. 1. Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it. 2. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. 3. Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses. You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are inductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

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INSTRUCTION NO. 1.7 Evidence ­ Direct and Circumstantial

Evidence can be either direct or circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true. You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial. The rules of evidence control the facts you may consider. When one lawyer asks a question or offers an exhibit and an opposing lawyer thinks that it is not permitted by the rules of evidence, the opposing lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore such evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

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INSTRUCTION NO. 1.8 Stipulations The Parties have agreed to certain facts, called stipulations. You must treat these facts as having been proved. These facts are as follows:
1. Plaintiff M.D. Mark is a Texas corporation having a regular and established

place of business at 11767 Katy Freeway, Suite 410, Houston, Texas, and is the successor in interest to the Professional Geophysics, Inc. seismic data (" PGI Data"). At all times relevant to this lawsuit, Kerr-McGee Corporation was a Delaware corporation having a regularly established place of business at Kerr-McGee Center, Oklahoma City, Oklahoma.
2. Oryx Energy Company ("Oryx"), formerly known as Sun Exploration &

Production Company, was a Delaware corporation headquartered in Houston, Texas until it merged with Kerr-McGee on February 26, 1999 (the "Merger"), at which time Oryx ceased to exist.
3. On or about November 1991, Before the bankruptcy of Professional

Geophysics, Inc. ("PGI"), M.D. Mark acquired from ICF Resources, Inc., all ownership rights to certain seismic data previously owned by PGI (the "PGI Data").
4. Seismic data is scientific geophysical information used in oil and gas

exploration.
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5. The PGI Data are trade secrets of M.D. Mark, Inc. 6. Prior to the Merger, Oryx and PGI entered into various agreements for the

licensing of approximately 16,000 miles of the PGI Data.
7. On or about October 16, 1998, M.D. Mark requested that Kerr-McGee return

all PGI Data that had been previously licensed to Oryx unless Kerr-McGee agreed to pay a transfer fee.
8. Kerr-McGee initially decided to return the PGI Data in lieu of paying a transfer

fee, but reversed that decision after learning of two 1999 opinions by the Texas Court of Appeals involving M.D. Mark's claims holding that a corporate merger did not trigger a "transfer" of seismic data and Plaintiff therefore was not entitled to a transfer fee.
9. On or about August 8, 2002, after M.D. Mark filed this lawsuit, Kerr-McGee

returned to M.D. Mark the PGI Data that PGI had licensed to Oryx.
10. From 1979 to 1994, Kerr-McGee likewise licensed copies of certain PGI Data

from PGI, and continued to license copies from M.D. Mark after it acquired the PGI Data from ICF Resources, Inc. in 1991 as part of PGI's bankruptcy
11. M.D. Mark retains the original PGI Data and it and other seismic data brokers

continue to license copies of it to other companies.

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INSTRUCTION NO. 1.9 Court's Questions to Witnesses

I may direct one or more questions to the witnesses. You are not to assume that I hold any opinion on the matter concerning my question or questions. Remember that any witness's answer to any question that I may ask is of no greater value and of no greater weight than any other answer that may be given. Attorneys may object to my questions and you should not form any prejudices against any party because that party's attorney makes an objection.

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INSTRUCTION NO. 1.10 Filing of Lawsuit and Pleadings The fact that a claimant files a lawsuit is not evidence that the other party did anything wrong. The fact that a claimant complains that he has been damaged is not evidence that he has been damaged or that the other party violated the law. You cannot say, "Well, there must be something wrong here or the case would not be in court." This would be improper. By the same reasoning, the fact that an answer to the complaint has been filed is not evidence that the other party has not been damaged or that the answering party did not violate the law. The filing of a lawsuit and the pleading, including the complaint and the answer, are merely the mechanisms by which the case is brought to court for you to decide.

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INSTRUCTION NO. 1.11 Credibility of Witnesses In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it. In considering the testimony of any witness, you may consider: 1. The witness's opportunity and ability to see or hear or know the

things to which the witness testified; 2. 3. 4. The quality of the witness's memory; The witness's manner while taking the oath and while testifying; Whether the witness had an interest in the outcome of the case or any

motive, bias or prejudice; 5. Whether the witness's testimony is contradicted by anything the

witness said or did at another time, by the testimony of other witnesses, or by other evidence; 6. How reasonable the witness's testimony was in light of all the

evidence; and, 7. Any other facts that bear on believability.

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The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact. If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony.

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INSTRUCTION NO. 1.12 Single Witness The testimony of a single witness that produces in your minds belief in the likelihood of truth is sufficient for the proof of any fact, and would justify a verdict in accordance with such testimony, even though a number of witnesses may have testified to the contrary, if, after consideration of all the evidence in the case, you hold greater belief in the accuracy and reliability of the one witness.

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INSTRUCTION NO. 1.13 Burden of Proof This is a civil case. Therefore, M.D. Mark has the burden of proving its claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider each of M.D. Mark's claims in light of all the facts, you believe that claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of M.D. Mark and all of the evidence in favor of KerrMcGee Corp. on a scale, M.D. Mark would have to make the scale tip in its favor. If M.D. Mark fails to meet this burden on any of its claims, your verdict on that claim must be for Kerr-McGee Corp. In evaluating whether M.D. Mark has met its burden on its claims, you should also know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matter in issue at this trial. Nor does the law require parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

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INSTRUCTION NO. 1.14 Juror Conduct Your conduct as jurors is of the utmost importance. First, do not talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go the jury room to decide on your verdict. Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell them that you are a juror in a case and that I have ordered you not to tell them anything else about it until the case is over. Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone tries to talk to you, please report it to me immediately. Fourth, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with the case. Fifth, do not do any research, such as consulting the internet, dictionaries or other reference materials, and do not make any investigation about the case on your own. Sixth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.
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Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe the witnesses and listen to their testimony. Your note taking should merely assist you.

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Section 2.0 Instructions for Use During Trial

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INSTRUCTION NO. 2.1 Consideration of Deposition Testimony A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he or she made the statement under oath.

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INSTRUCTION NO. 2.2 Opinion Evidence and Expert Witnesses You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions. Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses. Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence. In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

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INSTRUCTION NO. 2.3 Charts, Summaries and Graphic Materials A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in the case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts. If such materials do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

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INSTRUCTION NO. 2.4 USE OF INTERROGATORIES Evidence will now be presented to you in the form of written answers of one of the parties to written questions, also called interrogatories, submitted by the other side. These answers were given in writing and under oath before this trial in response to written questions. You must give the answers the same consideration as of the answers were made from the witness stand.

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Section 3.0 Substantive Instructions

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INSTRUCTION NO. 3.1 CONSIDERATION OF THE EVIDENCE ­ CORPORATE PARTY'S AGENTS AND EMPLOYEES A corporation may act only through natural persons as its agents or employees. In general, any agents or employees of a corporation may bind the corporation by their acts and declarations made while acting within the scope of authority delegated to them by the corporation, or within the scope of their duties as employees of the corporation. A director, officer, or employee is acting within the scope of his or her authority when he or she is doing the work assigned by his or her employer, or is doing that which is proper, usual, and necessary to accomplish the assigned work, or is doing that which is customary in the particular trade or business to accomplish the assigned work.

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INSTRUCTION NO. 3.2 BREACH OF CONTRACT ­ NATURE OF THE CLAIMS Plaintiff M.D. Mark claims Defendant Kerr-McGee Corporation is liable for alleged breaches of several different seismic data license agreements, some of which were entered into between Defendant Kerr-McGee Corporation and Professional Geophysics Inc. (PGI), some of which were entered into between Oryx Energy Company and PGI before Oryx's merger with Kerr-McGee, and still other license agreements entered into between Defendant Kerr-McGee Corporation and Plaintiff M.D. Mark. Plaintiff M.D. Mark claims that Defendant Kerr-McGee Corporation breached these seismic data license agreements by not returning all seismic data licensed from Professional Geophysics Inc. and/or Plaintiff M.D. Mark following the February 1999 merger between Defendant Kerr-McGee Corporation and Defendant Oryx Energy Company. Defendant Kerr-McGee Corporation denies it breached these license agreements, asserting it was not required to return the any of the seismic data licensed from Profession Geophysics Inc. and/or Plaintiff M.D. Mark or pay a transfer fee following the 1999 merger. Plaintiff M.D. Mark also claims that Defendant Kerr-McGee Corporation breached these seismic data license agreements by losing some of the seismic data licensed from Professional Geophysics Inc. Defendant Kerr-McGee Corporation denies this claim and asserts that none of the applicable license agreements required Kerr-McGee to account for

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the physical location of the data, and that there is no evidence that any of the data have been disclosed to a third party. Finally, Plaintiff M.D. Mark claims that Oryx and Kerr-McGee Corporation breached their seismic data license agreements by transferring possession or control of PGI data in the possession of both of them at various times to one of Kerr-McGee's subsidiary corporations following the 1999 merger. Defendant Kerr-McGee contends that the applicable license agreements permit its wholly-owned subsidiaries to access and/or possess the data without any liability for wrongdoing.

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INSTRUCTION NO. 3.2.1 BREACH OF CONTRACT ­ ELEMENTS OF LIABILITY M.D. Mark claims Kerr-McGee Corporation breached various seismic data license agreements into which Kerr-McGee and Oryx before it had entered with M.D. Mark or its predecessor PGI by (1) failing to return all PGI seismic data following the 1999 KerrMcGee/Oryx Merger; (2) losing some of the seismic data; and (3) by allowing its wholly owned subsidiary corporations like Kerr-McGee Oil & Gas to take possession or control and/or to have access to the seismic data following the 1999 merger. For Plaintiff M.D. Mark to recover from Defendant Kerr-McGee Corporation on its breach of contract claim, Plaintiff M.D. Mark must prove, by a preponderance of the evidence, that all of the following statements are true: 1. Plaintiff M.D. Mark and PGI did substantially all of the things that these

agreements required Plaintiff M.D. Mark and PGI to do. 2. Oryx and/or Kerr-McGee Corporation failed to do something that these

agreements required them to do or did something that these agreements prohibited them from doing. I may instruct you further on what Oryx and Kerr-McGee's obligations were under various agreements as the case progresses. If you find that any of these two statements (1) and (2), have not been proved, then your verdict must be for Defendant Kerr-McGee Corporation. If you find that both statements have been proved, then your verdict on M.D. Mark's claim for breach of

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contract must be for M.D. Mark, and you will proceed to determine what damages, if any, M.D. Mark has proved were caused by any breach of Kerr-McGee or pre-merger Oryx.

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INSTRUCTION NO. 3.3

Misappropriation of Trade Secrets - Nature of the Claim M.D. Mark claims Kerr-McGee Corporation misappropriated trade secrets, namely the PGI Data, by wrongfully gaining access to and continuing to possess approximately 3100 miles of PGI Data which Kerr-McGee Corporation never licensed and has no right to possess; by losing thousands of miles of PGI Data; and by Oryx ­ either itself before the merger or through its pre-merger subsidiary Sun Operating Limited Partnership ­ wrongfully transferring and disclosing PGI Data to a subsidiary of Kerr-McGee Corporation that M.D. Mark claims is not authorized to possess the Data. Kerr-McGee denies it wrongfully accessed or possessed the approximately 3100 miles of PGI Data M.D. Mark claims it did; the mere fact that neither side can produce corresponding license agreements does not constitute misappropriation. Kerr-McGee also contends that Oryx's licenses to PGI Data became Kerr-McGee's as a result of the merger. Finally, Kerr-McGee contends that the license agreements permit its whollyowned subsidiaries, like Kerr-McGee Oil & Gas Onshore, L.L.C., to access and possess the PGI Data. It is your responsibility to determine whether M.D. Mark has proven its claim of misappropriation of trade secrets by a preponderance of the evidence.

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INSTRUCTION NO. 3.3.1 Misappropriation of Trade Secrets - Elements of Liability. For M.D. Mark to recover from Kerr-McGee Corporation on its claim of misappropriation of trade secrets, you must find by a preponderance of the evidence that: 1. Kerr-McGee Corporation, or Oryx before it, misappropriated all or a

portion of these trade secrets. I will define what constitutes "misappropriation" for purposes of M.D. Mark's claim in a separate instruction. 2. The misappropriation caused damage to M.D. Mark.

If you find that M.D. Mark failed to prove any one or more of these elements by a preponderance of the evidence, then your verdict must be for Kerr-McGee. If, on the other hand, you find that M.D. Mark proved each and every one of these elements by a preponderance of the evidence, then your verdict must be for M.D. Mark.

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INSTRUCTION NO. 3.3.2 "Misappropriation" ­ Defined The term "misappropriation" of trade secrets means the unauthorized disclosure of a trade secret, acquisition of a trade secret by improper means, or with knowledge or reason to know that the trade secret was acquired by "improper means"; or use of a trade secret without express or implied consent, after having used "improper means" to acquire the trade secret. For purposes of this instruction, "improper means" include theft, bribery, misrepresentation, or breach ­ or inducement of a breach ­ of a duty to maintain secrecy or not to disclose a trade secret. To find in favor of M.D. Mark on its claim that Kerr-McGee "misappropriated" its trade secret, you must find that any one of the following statements is true: (a) Kerr-McGee Corporation gained access to and possessed approximately

3100 miles of PGI Data through improper means; (b) Kerr-McGee Corporation, after the merger with Oryx, wrongfully

transferred control of the PGI Data from Oryx, or Oryx's previously wholly owned subsidiary Sun Operating Limited Partnership, to a subsidiary of Kerr-McGee Corporation.

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INSTRUCTION NO. 3.4 Damages ­ Introduction You must determine damages in accordance with these instructions. The fact I will instruct you on the measure of damages does not mean I am instructing you as to which party is entitled to your verdict, or that I am instructing you to award or not award damages. The questions of whether or not damages are to be awarded, and the amount of such damages, are for your consideration alone. If you decide to award damages, you should fix the amount using calm discretion and sound reason, not sympathy, prejudice, or speculation. Difficulty or uncertainty in determining the precise amount of damages does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

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INSTRUCTION NO. 3.5 BREACH OF CONTRACT ­ DAMAGES If you find in favor of Plaintiff M.D. Mark on its claim for breach of contract, then you must award Plaintiff M.D. Mark its actual or nominal damages. To award actual damages, you must find by a preponderance of the evidence that Plaintiff M.D. Mark had actual damages as a result of the breach, and you must determine the amount of those damages. To the extent that actual damages have been proved by the evidence, you must award as actual damages the amount necessary to place Plaintiff M.D. Mark in the position it would have enjoyed had the breach not occurred; that is, you must award Plaintiff M.D. Mark the benefit of its bargains (through PGI) with Defendant KerrMcGee Corporation and pre-merger Oryx. If you find in favor of Plaintiff M.D. Mark, but do not find any actual damages, you must nonetheless award Plaintiff M.D. Mark nominal damages in the sum of one dollar.

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INSTRUCTION NO. 3.6 Misappropriation of Trade Secrets - Compensatory Damages The purpose of the law of damages is to award, to the extent possible, just and fair compensation for the loss, if any, that resulted from a one party's violation of another party's rights. In this case, if you find that Kerr-McGee is liable to M.D. Mark for misappropriation of trade secrets, then you must award sufficient damages to compensate M.D. Mark for any damages proximately caused by that misappropriation. These damages are known as compensatory damages. Compensatory damages seek to make the injured party whole; that is, to compensate the party for the damages that it suffered and represent a sum of money that will fairly, adequately, and reasonably compensate a party for harm caused by another's conduct. Compensatory damages are not allowed as a punishment and cannot be imposed or increased to penalize a party found to be liable. With respect to any award of compensatory damages for M.D. Mark's misappropriation of trade secrets claims, you may consider the dollar amount of lost license fees, if any, that M.D. Mark established to a reasonable degree of certainty. You may also consider evidence regarding the actual value, if any, of the seismic data that M.D. Mark alleges to have been misappropriated to the extent that value reflects something other than or different from lost license fees. There is no exact standard for setting the compensation to be awarded for these elements of damages. Rather, you should use your sound discretion in making an award of damages, drawing reasonable inferences from the facts in evidence.
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INSTRUCTION NO. 3.7 Misappropriation of Trade Secrets ­ Exemplary Damages If you find in favor of the plaintiffs on their trade secret misappropriation claims and award them actual damages, then you shall also consider whether exemplary damages should be assessed against Kerr-McGee. If you find beyond a reasonable doubt that the injuries complained of were attended by circumstances of "fraud or willful and wanton conduct" then, in addition to actual damages, you may also assess a reasonable sum as exemplary damages not to exceed the amount awarded as actual damages. Exemplary damages, if assessed, are to be assessed as punishment of the defendants and as an example to others. Such damages may be assessed only upon proof "beyond a reasonable doubt." "Reasonable doubt" means a doubt based upon reason and common sense which arises from a fair and thoughtful consideration of all the evidence, or lack of evidence, in the case. It is not a vague, speculative, or imaginary doubt, but one that would cause reasonable persons to hesitate to act in matters of importance to themselves. "Willful and wanton conduct" means an act or omission purposefully committed by a person who must have realized that the conduct would damage another, and which conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights of others, particularly the plaintiff.

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INSTRUCTION NO. 3.8 Multiple Recovery Prohibited A plaintiff in a civil action may recover only once for the same injury, even though it seeks an award of damages for that injury under several theories of relief. For example, a plaintiff who lost $100 as a result of defendant's conduct may recover only $100, even if plaintiff sought $100 in damages from defendant on one claim, and $100 in damages from defendant on a different claim. M.D. Mark has sued for the same damages on some of their different claims for relief. The claims for relief on which M.D. Mark has sued and on which you have been instructed are: misappropriation of trade secrets and breach of contract, I am instructing you on the rule prohibiting multiple recovery so that you will be aware of the law on this issue. It is I, rather than you, however, who will apply the rule. You are specifically instructed to consider each of M.D. Mark's claims independently. That is, you are to consider each of these claims as though it were the only claim in this case. If you find in favor of M.D. Mark on any one of its claims, you are to write in an award of damages on that claim without regard to your finding for or against M.D. Mark on any other claim. I will apply the rule when I issue my judgment on your verdict, whatever that may be. Perhaps it bears repeating that nothing in this or any other instruction is meant to suggest what your finding on any or all claims should be. My instructions on damages are only to be applied in the event you find liability.

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Section 4.0 Final Instructions

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INSTRUCTION NO. 4.1 Jury Deliberations ­ General Instructions

Each of you has a copy of the instructions to consult as you find it necessary. It is your duty to find the facts from all the evidence in the case. To those facts, you must apply and follow the laws contained in these instructions whether you agree with them or not. Your decision is called a verdict and is reached by applying those laws to the facts as you find them. You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. You have taken an oath promising to do just so. You must follow all of these instructions and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything I may say or do any suggestions as to what verdict you should return. Your verdict is a matter entirely for you to decide.

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INSTRUCTION NO. 4.2 Jury ­ Deliberations When you go to the jury room to begin your deliberations, you must elect one of you to serve as your Presiding Juror. He or she will preside over your deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreements if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with your fellow jurors, and listened to the views of your fellow jurors. I offer some suggestions on how you might do this in the next jury instruction, entitled "Jury - The Deliberations Process." Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight of the evidence simply to reach a verdict.

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INSTRUCTION NO. 4.3 Jury ­ The Deliberations Process Once you have elected your Presiding Juror as directed by the previous instruction, you are free to proceed as you agree is appropriate. Therefore, I am not directing you how to proceed, but I offer the following suggestions that other juries have found helpful so that you can proceed in an orderly fashion, allowing full participation by each juror, and arrive at a verdict that is satisfactory to each of you. First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be willing and able to facilitate productive discussions even when disagreements and controversy arise. Second, the Presiding Juror should let each of you speak and be heard before expressing his or her own views. Third, the Presiding Juror should never attempt to promote nor permit anyone else to promote his or her personal opinions by coercion or intimidation or bullying of others. Fourth, the Presiding Juror should make certain that the deliberations are not rushed to reach a conclusion. If the Presiding Juror you select does not meet these standards, he or she should voluntarily step down or be replaced by a majority vote. After you select a Presiding Juror you should consider electing a secretary who will tally the votes, help keep track of who has or hasn't spoken on the various issue
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make certain that all of you are present whenever deliberations are under way and otherwise assist the Presiding Juror. Some juries are tempted to start by holding a preliminary vote on the case to "see where we stand." It is most advisable, however, that no vote be taken before a full discussion is had on the issue to be voted on, otherwise you might lock yourself into a certain view before considering alternative and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes frequently lead to disruptive, unnecessarily lengthy, inefficient debate and ineffective decision-making. Instead, I suggest the Presiding Juror begin your deliberations by directing the discussion to establishing informal ground rules for how you will proceed. These rules should assure that you will focus upon, analyze and evaluate the evidence fairly and efficiently and that the viewpoints of each of you is heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions presented in the special verdict form or in chronological order or according to the testimony of each witness. Whatever order you select, however, it is advisable to be consistent and not jump from one topic to another. To move the process of deliberation along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to the less controversial ones and then come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order.

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It is very helpful, but certainly not required of you, that all votes be taken by secret ballot. This will help you focus on the issues and not be overly influenced by personalities. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity for improving the quality of your decision and therefore should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken. Each of you should listen attentively and openly to one another before making any judgment. This is sometimes called "active listening" and it means that you should not listen with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of your number is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else. You each have a right to your individual opinion, but you should be open to persuasion. When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views. Misunderstanding can undermine your efforts. Seek clarification if you do not understand or if you think others are not talking about the same thing. From time to time

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the Presiding Juror should set out the items on which you agree and those on which you have not yet reached agreement. In spite of all your efforts, it is indeed possible that serious disagreements may arise. In that event, recognize and accept that "getting stuck" is often part of the decision-making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move toward what may be an emerging decision. Such a belief is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times slower is usually faster. There is a tendency to set deadlines and seek to force decisions. Providing a break or more time and space, however, often helps to shorten the overall process. At times you may wish to express your mutual respect and repeat your resolve to work through any differences. With such a commitment and mutual respect, you will most likely render a verdict that leaves each of you satisfied that you have indeed rendered justice.

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INSTRUCTION NO. 4.4 Communications with Judge If it becomes necessary during your deliberations to communicate with me, you may send a folded note through the court security officer, signed by one of you. Do not disclose the content of your note to the court security officer. No member of the jury should hereafter attempt to communicate with me except by signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. You are not to tell anyone ­ including me ­ how the jury stands, numerically or otherwise, until you have reached a unanimous verdict and I have discharged you. If you send a note to me containing a question or request for further direction, please bear in mind that responses take considerable time and effort. Before giving an answer or direction I must first notify the attorneys and bring them back to the court. I must confer with them, listen to arguments, research the legal authorities, if necessary, and reduce the answer or direction to writing. There may be some question that, under the law, I am not permitted to answer. If it is improper for me to answer the question, I will tell you that. Please do not speculate about what the answer to your question might be or why I am not able to answer a particular question.

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In some instances jurors request that certain testimony be read to them. This cannot be done as it is inappropriate for the court to single out testimony. In those circumstances you must rely upon your own recollection.

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INSTRUCTION NO. 4.5 Unanimous Agreement and Jury Verdict Form You each have copies of a document called a Jury Verdict Form. You should to answer the questions in the Jury Verdict Form as directed. You must reach unanimous agreement on the answers to each of the questions you are directed in the form to answer. Upon arriving at an agreement, your Presiding Juror will insert each answer on the Jury Verdict Form. After all of the questions have been answered as directed by the Jury Verdict Form, your Presiding Juror will date the Jury Verdict Form, sign it, and then ask all of the other jurors to sign it. After you have filled out the Jury Verdict Form in this manner, your Presiding Juror should advise the court security officer stationed outside the jury room that you have reached a verdict.

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Section 5.0 Jury Verdict Form

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