EarthCam, Inc. v. OxBlue Corp. (49 F. Supp. 3d 1210, 2014)

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Plaintiff EarthCam, Inc’s (“EarthCam”) Motion for Summary Judgment [232], Defendant Richard Hermann’s Motion for Summary Judgment (“Hermann”) [230], Defendants OxBlue Corporation’s, Chandler McCormack’s, John Paulson’s, and Bryan Mattem’s (collectively, the “Oxblue Defendants”) Motion for Summary Judgment [228], and EarthCam’s Motion to Reopen Discovery [237].

I. BACKGROUND

A. Facts

1. The Parties

In this action, EarthCam alleges that its competitor, OxBlue Corporation (“Ox-Blue”), engaged in various forms of corporate espionage to misappropriate its trade secrets. OxBlue has filed counterclaims against EarthCam for copyright infringement, trademark infringement, false advertising, false designation of origin, unfair competition, and violation of the Georgia Uniform Deceptive Trade Practices Act.

EarthCam is a privately held company, based in New Jersey, that markets and sells high-end web-based camera systems, including traditional security applications, megapixel robotic panoramic cameras, and high-definition streaming video devices. OxBlue is a company based in Atlanta that offers high-end web-based camera systems and streaming video technology. OxBlue’s primary client base is the construction industry, and its remote camera monitoring products are utilized in a variety of construction projects.

Defendant Chandler McCormack (“McCormack”) is the President and Chief Executive Officer of OxBlue. Defendant Bryan Mattern (“Mattern”) is the Chief Technology Officer of OxBlue. Defendant John Paulson (“Paulson”) is a silent financial partner of OxBlue. Hermann is a former employee of EarthCam. Between 2005 and June 2008, Hermann worked at EarthCam as a product technician and camera installer of robotic megapixel cameras. After ending his employment with EarthCam, Hermann became an independent contractor of OxBlue.

2. OxBlue Defendants’ Motion for Summary Judgment

i. The 2006 “Brute Force” Attack

In March and April of 2006, Defendant Mattern wrote a script to collect information available on the webpages of EarthCam’s customers. Mattern described the script as a “very small script that any CS 101 person or anybody could have written.” Mattern Dep. at 245: 5-7. The script created over 400,000 Uniform Resource Locator (“URL”) combinations to estimate the current URL combination and location of an EarthCam’s customer’s webpage. EarthCam alleges that OxBlue utilized the script to gather confidential information on its customers, including customer names, camera names, images from customer cameras, the URL to the image for each camera, and the date and time stamped on the last image taken from a camera. There is no dispute that the basic script written by Mattern did not involve decrypting a password or otherwise breaking into any secure server. EarthCam’s Vice President of Technology, Bill Sharp, admitted at his deposition that the information gathered by the OxBlue Defendants during the so-called “brute-force” attack was not password protected. See Sharp Dep. at 107: 11-17.

ii. Access to Customers’ Webpages

On September 10, 2008, Paulson received a username and password from Benning Construction (“Benning”), an EarthCam client, for Benning’s EarthCam customer webpage. Paulson forwarded to McCormack an email containing Benning’s login credentials. EarthCam claims the OxBlue Defendants used the login credentials they received from Paulson to access information on Benning’s customer web-page. EarthCam has not presented any evidence to support this claim.

On May 20 and May 21, 2011, Chip Foley of Forrest City Ratner (“FCR”), an EarthCam client, provided FCR’s login credentials for its customer webpage to the OxBlue Defendants to determine whether OxBlue could provide a solution to certain issues it had encountered with EarthCam’s cameras. Foley initially provided a series of screenshots from FCR’s EarthCam account to the OxBlue Defendants. Foley also sent to OxBlue a screenshot from one of FCR’s cameras. The forwarded information was not enough for OxBlue to troubleshoot and advise FCR on its problems. As a result, Foley sent FCR’s login credentials to OxBlue. The OxBlue Defendants logged into FCR’s account, and provided Foley with three possible solutions to the problem FCR had encountered. Two of those solutions did not involve using OxBlue’s services. FCR took OxBlue’s advice into consideration, and continued to do business with Earth-Cam. After logging into FCR’s EarthCam account, Correy Potts, an OxBlue employee, took screenshots from FCR’s webpage, and provided a link to a directory containing the screenshots to OxBlue’s marketing department. EarthCam has not presented any evidence that the marketing department ever viewed the screenshots, or that OxBlue used the screenshots to develop its products or otherwise use them in its business.

EarthCam’s customers are required to enter into an End User License Agreement (“EULA”) that prohibits the unauthorized access, display, and copying of EarthCam’s information. The EULA does not prohibit EarthCam’s customers from sharing their passwords with a third party, and there is no evidence that the OxBlue Defendants knew any of the EULA’s provisions when they logged into the FCR account. On October 15, 2012, Mr. Sharp admitted at his deposition that the EULA is presented to the customer when the customer first logs into his or her account, and it does not appear again unless there is a change in the EULA’s terms. See Sharp Dep. at 147: 11-148:25. Mr. Sharp also admitted at his deposition that there is no evidence that the OxBlue Defendants were presented with, or were otherwise aware of, the EULA when they accessed FCR’s EarthCam account. Id. at 148:23-149-16.

EarthCam concedes that some of its customers “elect” to have their websites and information made public, but insists that the majority of its customers’ websites are not in the public domain. In other words, EarthCam does not require its customers to shield their “user interface” experience from the public to maintain the secrecy of EarthCam’s alleged “trade secrets.” EarthCam also has a live demonstration of its services on its website that provides a graphical representation of how the cameras appear on a customer account.

EarthCam claims that “administrative access” to a password protected account allows the user to interact with Earth-Cam’s hardware, and view the actual code that operates the camera. This claim, however, is not relevant here because Mr. Sharp, at his October 15, 2012 deposition, conceded that there is no evidence the OxBlue Defendants either viewed or copied EarthCam’s code, or accessed and manipulated EarthCam’s hardware from FCR’s account in May, 2011. See Sharp Dep. at 56:12-20; 57:20-58-12.

iii. Information Received from Hermann

EarthCam alleges that between May 2008 and August 2010, Hermann provided the OxBlue Defendants with information that EarthCam considered “trade secrets,” including detailed information about EarthCam’s cameras, customers, suppliers, and pricing information. This claim is based on EarthCam’s claimed interpretation of the email correspondence between Hermann and the OxBlue Defendants from 2008-2010. Because the parties are unable, or unwilling, to agree on what was said or described in these emails, the Court has examined the email correspondence between Hermann and the OxBlue Defendants. The Court’s conclusions regarding whether these emails contain EarthCam’s trade secrets can be found in Section II(B)(2)(ii) of this Order.

3. Hermann’s Motion for Summary Judgment

i. Non-Compete Agreement and Release

On July 10, 2006, Hermann and Earth-Cam executed a Noncompetition, Nondisclosure, and Inventions Agreement (“Employment Agreement”). The provision in the Employment Agreement that governs confidentiality provides:

Except as required by law, Employee will not, whether during or after the termination or cessation of his employment, reveal to any person, association, or company any of the trade secrets or confidential information concerning the organization, business, or finances of the Company so far as they have come or may come to the knowledge of the Employee, except as may be in the public domain through no fault of Employee or as required to be disclosed by law or court order, and Employee shall keep secret all matters entrusted to him and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated to injure or cause loss, whether directly, or indirectly, to the Company.

See PL’s Ex. A, attached to Ex. 50.

In June 2008, Hermann ended his employment with EarthCam. On June 20, 2008, Hermann requested EarthCam to pay certain employment related expenses, in the amount of $1,038.00, that he had incurred when working for EarthCam. Hermann threatened to file claims against EarthCam for these unpaid expenses if they were not paid. EarthCam requested Hermann to sign a release in consideration of settling his claim for unpaid expenses. Hermann rejected EarthCam’s request for a unilateral release, and demanded that EarthCam execute a mutual release. On July 24, 2008, EarthCam’s Vice President, Joe Nizza (“Nizza”), asked Hermann to draft the language Hermann wanted to include in the mutual release. Hermann refused to draft the mutual release language, and demanded payment for his expenses. Hermann did not sign the purported mutual release that Nizza proposed.

On August 13, 2008, Nizza sent Her-mann a check for $706.14 enclosed with a letter entitled “mutual release.” Nizza wrote that the check constituted “final reimbursement of [Hermann’s] expenses,” and the letter further stated that it

serve[d] as a mutual release for all claims, liabilities, liens, demands, and causes of action, known and unknown, fixed or contingent, which either you, Richard Hermann, or EarthCam may have or claim to have against each other and both parties hereby agree not to file a lawsuit to assert such claims.

There is no dispute that Hermann accepted and cashed the check for $706.14 that was sent to him in exchange for the mutual release.

ii. “OxBlue 3019”

“OxBlue 3019” refers to a file that contains more than 4 gigabytes of data that was discovered in this litigation on Ox-Blue’s computers. EarthCam contends that this information was transmitted from Hermann’s computer, but there is no evidence that Hermann transferred this information to the OxBlue Defendants. EarthCam suggests that Hermann transferred the data contained on OxBlue 8019 on June 19, 2009. This suggested transfer date is based on a June 19, 2009, email, that Hermann sent to McCormack, in which Hermann asked for an FTP site to upload a large amount of data. This email does not state or indicate that Hermann intended to upload data from OxBlue 3019. There is no evidence that this FTP request resulted in the transfer of any data. EarthCam alleges that OxBlue 3019 includes

• detailed, step by step photos of the EarthCam Robotic Megapixel System being built;

• Images of the internals of the Robotic Megapixel System;

• In-house assembly manual pages and photos;

• An entire system schematic including power and control diagrams for EarthCam proprietary cables;

• An installation manual for the Earth-Cam Robotic System; and

• Drawings and part lists for all proprietary mounts for the EarthCam Robotic Megapixel System.

To support this claim, EarthCam cites to information it drafted and which it included in its October 18, 2012, Supplemental Response to OxBlue’s Interrogatory Nos. 2, 5, and 8. This citation appears in EarthCam’s Statement of Material Facts in Opposition to the Motions for Summary Judgment filed by Hermann and the OxBlue Defendants. See EarthCam’s Statement of Material Facts in Opp. to Hermann’s Mot. for Summ. J. at ¶ 50; EarthCam’s Statement of Material Facts in Opp. to the OxBlue Defendants’ Mot. for Summ. J. at ¶41. EarthCam’s responses to the OxBlue Defendants’ interrogatories are not evidence. EarthCam has not presented any evidence to support its claim that OxBlue 3019 contained confidential or proprietary information that can be considered a trade secret under Georgia law. In Opposition to Her-mann’s Motion for Summary Judgment, EarthCam submitted a few photographs depicting the internal structure of an unidentified machine, a user manual to one of its cameras, and charts that appear to depict how a camera is connected with wires. Based on Mr. Sharp’s conclusory affidavit, EarthCam argues that these images contain “trade secrets,” and were not ■ “publicly available and gave Earth-Cam a competitive advantage.” Mr. Sharp does not explain why any of the information depicted in these images, or contained on OxBlue 3019, was not publicly available or otherwise gave EarthCam a “competitive advantage.”

Ip. EarthCam’s Motion for Summary Judgment

i. Construction Specifications

OxBlue created a construction specification for its “Web-Enabled Construction System” (“OxBlue Specification”) to assist individuals and organizations in the construction industry to prepare for use of OxBlue’s equipment on construction projects. Construction specifications are documents that provide directions on the methods and materials to be used on a construction project. The OxBlue Specification is modeled on the Construction Specification Institute’s (“CSI”) Mas-terFormat, 2004 Edition. The CSI Mas-terFormat is a standardized system of indexing and organizing construction specifications to assist architects, engineers, contractors and manufacturers. The OxBlue Defendants concede that the CSI MasterFormat provides “people a guideline, so when they' want to go in and find something they know where to look in a specification to find it.” McCormack Dep. at 97: 6-8.

The OxBlue Specification was first published on October 17, 2006. On March 13, 2012, OxBlue filed an application with the United States Copyright Office to register the OxBlue Specification. OxBlue claims that EarthCam infringed on its copyright by copying the numerical code sequence (or title) for the OxBlue Specification— 013234.01—and by copying portions of the OxBlue Specification, including

OxBlue’s Specification states:

The indoor/outdoor camera system shall consist of a tamper and impact resistant, discreet, fixed [wall] [and] [or] [pole] mount enclosure with integrated fixed camera, lens and controller.

Exhibit A to OxBlue’s Counterclaim [Dkt. No. 46]. EarthCam’s Specification states:

The indoor/outdoor camera system shall consist of a tamper and impact resistant enclosure with integrated camera and heavy-duty robotic pedestal to be mounted as a fixed pole, wall, parapet or nonpenetrating roof mount.

Exhibit B, C, & D to OxBlue’s Counterclaim [Dkt. No. 46]. OxBlue’s Specification states:

Camera: Integrated high definition camera and lens assembly consisting of a charge coupled device (CCD) camera with a remotely controlled focal length lens mounted as a permanent module with the following features:

Exhibit A to OxBlue’s Counterclaim [Dkt. No. 46]. EarthCam’s specification states:

Camera: Integrated 8 Megapixel high definition camera and lens assembly consisting of a charge coupled device (CCD) camera with a remotely controlled focal length lens with the following features: Exhibit B, C, & D to OxBlue’s Counterclaim [Dkt. No. 46].

ii. Keyword Searches

In the beginning of 2010, Work Zone Cam (“WZC”), a subsidiary of EarthCam, purchased a number of terms from several search engines as keywords for search engine advertising. The words purchased included “earthcam,” “earth cam,” “web-cam” and “oxblue.” Users that searched for the term “oxblue” would see a link to the Work Zone Cam’s website in the “Sponsored Links” section that appears next to the search results on a search engine’s webpage. Work Zone Cam did not use the term “OxBlue” on its website, or in the metadata for its website, except if there was a news article that mentioned Work Zone Cam and OxBlue. In May 2010, at McCormack’s request, EarthCam discontinued the use of the term “oxblue” as a keyword for the Work Zone Cam’s website. In 2003, OxBlue purchased the term “earthcam” as a keyword on Google in connection with an advertising campaign for OxBlue’s products.

OxBlue argues that, by purchasing the term oxblue on several search engines, EarthCam infringed on OxBlue’s trademark, and falsely designated OxBlue’s products and goodwill as its own. ,

in. False Advertising

In March 2009, OxBlue hired Mack McAleer and Ronald Grunwald to call EarthCam pretending to be customers looking for a camera solution. McAleer and Grunwald secretly recorded their conversations with Todd Michaels, an Earth-Cam sales representative. In a conversation about EarthCam’s solar powered camera offerings, Michaels told Grunwald that OxBlue’s cameras do not offer heaters to defrost the front glass of the camera housing. OxBlue’s solar cameras do not use heaters. Michaels also told Ox-Blue’s representatives that EarthCam’s competitors use experimental server technology, expose their customers to copyright infringement lawsuits, and that EarthCam has more employees in its customer service department than its competitors have in their entire company. There is no dispute that Michaels, in making his statements about competitors, did not specifically mention OxBlue. OxBlue submits that the statements made by Michaels were false misrepresentations that constitute false advertising under the Lanham Act.

OxBlue also brings a false advertising claim based on a chart prepared by Earth-Cam that compares EarthCam’s webcams with OxBlue’s cameras, highlighting the alleged advantages of EarthCam’s web-cams. The chart was created to assist EarthCam’s sales representatives in the marketing and sale of EarthCam’s cameras. The chart represents that OxBlue’s cameras do not offer, on all camera systems, detailed archived weather data, in-house 24/7 monitoring of cameras and in-house technical support, and professionally designed and integrated surge protection. OxBlue asserts that EarthCam’s chart, which was sent to one customer, contains false statements regarding OxBlue’s cameras. OxBlue has not presented any evidence to establish that the chart was widely disseminated or whether the statements contained in the chart were frequently represented to EarthCam’s customers in connection with a sales call or an advertising campaign.

B. Procedural History

The procedural history of this case is lengthy. EarthCam filed a Complaint against the Defendants on July 12, 2011, and an Amended Complaint on August 25, 2011. On March 26, 2012, the Court dismissed most of the claims alleged in EarthCam’s Amended Complaint.

On November 26, 2012, EarthCam filed a Second Amended Complaint against Hermann and the OxBlue Defendants, in which it alleged that the Defendants (i) obtained EarthCam’s trade secrets and then used those trade secrets in the development of OxBlue’s products, (ii) conspired to obtain and use EarthCam’s trade secrets; (iii) infringed on EarthCam’s copyright by copying portions of FCR’s user account; (iv) violated the Computer Fraud and Abuse Act (“CFAA”) by accessing FCR’s user account; and (v) conspired to violate the CFAA. The Second Amended Complaint also alleged that Hermann breached the terms of his employment contract with EarthCam, and that the Ox-Blue Defendants tortiously interfered with Hermann’s contract by inducing Hermann to disclose EarthCam’s confidential information.

On April 5, 2012, OxBlue filed its counterclaims against EarthCam, and alleged that EarthCam (i) infringed on its copyright by copying the OxBlue Specification; (ii) violated the Lanham Act prohibitions on trademark infringement, false designation of origin and false advertising, (iii) violated the Georgia Deceptive Trade Practices Act, (iv) and engaged in unfair competition under the Lanham Act and O.C.G.A. § 23-2-55.

On July 19, 2013, the Court granted the OxBlue Defendants’ Partial Motion to Dismiss the Second Amended Complaint in part, and denied Hermann’s Partial Motion to Dismiss. The Court granted the Ox-Blue Defendants’ Motion to Dismiss based on alleged copyright infringement and violations of the CFAA that occurred before July 12, 2008. The Court denied the Ox-Blue Defendants’ Motion to Dismiss with respect to all other claims.

On September 27, 2013, Hermann and the OxBlue Defendants moved for summary judgment on EarthCam’s claims, and EarthCam moved for summary judgment on the OxBlue Defendants’ counterclaims. In response to Hermann’s Motion for Summary Judgment, EarthCam stated that it is no longer pursuing its claims against Hermann for copyright infringement and conspiracy to violate the CFAA.

II. DISCUSSION

A. Legal Standard

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Parties “asserting that a fact cannot be or is genuinely disputed must support that assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1).

The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir.1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Non-moving parties “need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings.” Id.

The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). “[Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury....” Graham, 193 F.3d at 1282. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here the record taken as a whole could - not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Analysis

1. EarthGam’s Claims against the OxBlue Defendants

i. Trade Secrets

“A claim for misappropriation of trade secrets under the Georgia Trade Secrets Act requires a plaintiff to prove that ‘(1) it had a trade secret and (2) the opposing party misappropriated the trade secret.’” Capital Asset Research Corp. v. Finnegan, 160 F.3d 683, 685 (11th Cir.1998) (quoting Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1410 (11th Cir.1998)).

A “trade secret” is defined as:

[I]nformation, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:

(A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

O.C.G.A. § 10-1-761(4).

That is, a trade secret requires the following elements: (i) information not commonly known by or available to the public, (ii) which derives economic value from not being generally known to or ascertainable by proper means by others who can obtain economic value from the information; and (ii) that was subject to reasonable efforts to maintain its secrecy. See Capital Asset Research Corp., 160 F.3d at 685. ‘Whether a particular type of information constitutes a trade secret is a question of fact.” Camp Creek, 139 F.3d at 1410-11. The plaintiff has “the burden of establishing each of these statutory elements as to each claimed trade secret.” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1158 (11th Cir.2004). This means that “a plaintiff who seeks relief for misappropriation of trade secrets must identify the trade secrets and carry the burden of showing that they exist.” Rent Info. Tech., Inc. v. Home Depot U.S.A, Inc., 268 Fed.Appx. 555, 557 (9th Cir.2008) (applying Georgia law).

A plaintiff also must allege and show that the claimed information “[djerives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use” and “[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” O.C.G.A. § 10-1-761(4). The claim fails if any of the elements are not shown. See Capital Asset Research, 160 F.3d at 686 (holding that “it was impossible for the Court to say” that the information met the definition of a “trade secret” because the plaintiff failed to present evidence that the information derived economic value from an element of secrecy that is known only to plaintiff and its employees).

A defendant “misappropriates” a trade secret when, among other things, it discloses or uses “a trade secret of another without express or implied consent” knowing at the time of the disclosure or use that the trade secret was “[acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.” O.C.G.A. § 10—1—761(2)(B); see Kuehn v. Selton & Assocs., 242 Ga.App. 662, 530 S.E.2d 787, 791 (2000). A non-disclosure agreement can be the basis for imposing a duty not to disclose a trade secret. See Penalty Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284, 1292 (11th Cir.2003).

As a general matter, any exploitation of the trade secret that is likely to result in injury to the trade secret owner or enrichment to the defendant is a “use”.... Thus, marketing goods that embody the trade secret, employing the trade secret in manufacturing or production, [and] relying on the trade secret to assist or accelerate research or development ... all constitute “use.”

The unauthorized use need not extend to every aspect or feature of the trade secret; use of any substantial portion of the secret is sufficient to subject the actor to liability.... [A]n actor is liable for using the trade secret with independently created improvements or modifications if the result is substantially derived from the trade secret.... However, if the contribution made by the trade secret is so slight that the actor’s product or process can be said to derive from other sources of information or from independent creation, the trade secret has not been “used” for purposes of imposing liability under the rules.

Id. at 1292-93 (first, second, and fourth omissions and first alteration in original) (quoting Restatement (Third) of Unfair Competition § 40 cmt. c (1995)).

It is well-established that, for a plaintiff to prove that a defendant “misappropriated the trade secret,” the plaintiff must “show that the defendant (1) disclosed information that enabled a third party to learn the trade secret or used a ‘substantial portion’ of the plaintiffs trade secret to create an improvement or modification that is ‘substantially derived’ from the plaintiffs trade secret.” Id. at 1293.

On July 12, 2011, EarthCam filed its Complaint against the OxBlue Defendants. EarthCam amended its Complaint twice. The crux of EarthCam’s misappropriation of trade secrets claim has consistently been that the OxBlue Defendants “obtained EarthCam’s trade secrets and then used those trade secrets in development of OxBlue’s own products and services.” Second Am. Compl. at ¶ 66. EarthCam has not presented evidence that the Ox-Blue Defendants misappropriated Earth-Cam’s trade secrets by obtaining the trade secrets through improper means, and using a substantial portion of the trade secrets to create a product that is substantially derived from EarthCam’s trade secrets. See Penalty Kick Mgmt. Ltd., 318 F.3d at 1293. EarthCam relies on three exhibits to argue that there is “substantial evidence OxBlue used Earth-Cam’s trade secrets.” EarthCam’s Resp. in Opp. to the OxBlue Defs.’ Motion for Summ. J. at 13. No reasonable juror would agree with EarthCam’s argued interpretation of these exhibits:

• Relying on a July 14, 2008, email exchange between Hermann, Mat-tern, McCormack and other unidentified individuals, EarthCam argues that “Mattern incorporated Earth-Cam technology provided by Her-mann into an OxBlue camera in 2008.” In this email exchange, Her-mann writes to the others and states that OxBlue’s graphical user interface looks “fantastic,” the “pre-set archiving method looks awesome,” and tells Mattern “to have fun” with the “24/ls.” The email exchange does not discuss or allude to any EarthCam technology. EarthCam does not explain why “pre-set archiving” techniques are not commonly known in the industry or known only to EarthCam and its employees. No reasonable juror would infer that this email exchange provides circumstantial evidence of misappropriation. See Ex. 45, attached to EarthCam’s Response to the OxBlue Defendants’ Motion for Summary Judgment.

• EarthCam claims that OxBlue upgraded its cameras to include “low voltage disconnect or deep-cycle batteries” after Hermann provided Ox-Blue with information about these features, and disclosed the identity of EarthCam’s supplier to OxBlue. To support this claim, EarthCam relies on an email exchange between McCormack and Hermann that does not mention “low voltage disconnect or deep-cycle batteries.” There is no reference to EarthCam or any of its products in this email. EarthCam does not explain why the incorporation of “low voltage disconnect or deep-cycle batteries” into its products is known only to EarthCam and its employees. To the extent that EarthCam implies that Sunwize was EarthCam’s exclusive supplier, the email indicates that McCormack had independent knowledge of Sunwize. McCormack asked Hermann “have you ever been in Sunwize’s office in Rochester? I’m thinking about going in late January to meet with them.” Hermann replies and states “Sunwize ..., I used their equipment quite often but never visited their HQ.” In context, the email demonstrates that Hermann did not disclose EarthCam’s allegedly “exclusive” relationship with Sunwize, and McCormack sought to establish a relationship with Sunwize on his own. EarthCam also does not explain why its relationship with Sun-wize is a trade secret. See Ex. 46, attached to EarthCam’s Response to the OxBlue Defendants’ Motion for Summary Judgment.

• EarthCam relies on a declaration submitted by its founder, Brian Curry, to argue that OxBlue used Earth-Cam’s confidential information regarding pre-set archiving. See Ex. 47, attached to EarthCam’s Response to the OxBlue Defendants’ Motion for Summary Judgment. Mr. Curry declares that, based on his evaluation of Hermann’s emails produced in discovery, footage from one of OxBlue’s cameras showed that OxBlue’s cameras had “the same glitch that early EC preset cameras had while archiving.” Curry Aff. at ¶ 7. That is, Mr. Curry assumes that OxBlue used EarthCam’s trade secrets because of a technical “glitch” common to both products. Mr. Curry’s speculative gut feeling is not evidence. OxBlue has presented evidence that the technical “glitch” is caused by a limitation on certain hardware produced by a third party provider. EarthCam has not produced any evidence to rebut Ox-Blue’s explanation, and it is not reasonable to infer that the “glitch” originated in information purportedly acquired from EarthCam.

a. Failure to show EarthCam’s trade secrets at issue.

The Court’s independent evaluation of EarthCam’s exhibits demonstrates that there is no evidence OxBlue used and incorporated EarthCam’s trade secrets into its products. The Court’s description of EarthCam’s “evidence” shows that Earth-Cam’s “ends justify the means” pleading and litigation tactics did not produce evidence to support the claims it asserted. EarthCam has fundamentally failed to meet its statutory burden under the Georgia Trade Secrets Act to plead and prove “each ... statutory element[ ] as to each claimed trade secret.” Peat, Inc., 378 F.3d at 1158. With respect to the documents outlined above, EarthCam also does not explain why the information contained in them “[d]erive[s] economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from [the information’s] disclosure or use” and “[are] the subject of efforts that are reasonable under the circumstances to maintain [their] secrecy.” O.C.G.A. § 10-1-761(4).

For example, EarthCam does not explain why it “derives economic value” from the use of pre-set archiving and deep-cycle batteries, or its relationship with Sunwize, from not “being generally known to or readily ascertainable” by the public. There is no argument, or evidence, presented to the Court that allows the Court to properly evaluate whether the litany of information presented by Earth-Cam is even a “trade secret.” This observation applies to all the “evidence” on which EarthCam relies for its .trade secret claim against the OxBlue Defendants and Hermann.

The information that the OxBlue Defendants accessed through FCR’s EarthCam account is not a trade secret because EarthCam allows its customers to either publicize the contents of their web-page or choose to keep the webpage private. Put another way, EarthCam fundamentally fails to meet what is required to assert a trade secrets claim. EarthCam’s trade secrets claim based on access to FCR’s account fails on the most basic element. The information claimed to be a trade secret was “commonly known by or available to the public.” Wachovia Serv., Inc. v. Fallon, 299 Ga.App. 440, 682 S.E.2d 657, 662 (2009). EarthCam also has a live demonstration on its website that provides a graphical representation of how the cameras appear on a customer account. EarthCam’s argument that “administrative access” to some of its customer accounts allows the user to interact with hardware and view the actual code that operates a camera is inconsequential. EarthCam’s Vice President of Technology admits that there is no evidence the OxBlue Defendants either viewed or copied EarthCam’s code, or accessed and manipulated the hardware from FCR’s account in May, 2011.

With respect to the so-called “brute-force” attack, EarthCam contends that, in 2006, OxBlue utilized a script to gather confidential information from EarthCam’s customers’ webpages, including customer names, camera names, images from customer cameras, the URL to the image for each camera, and the date and time stamped on the last image taken from a camera. The OxBlue Defendants dispute that the script accomplished what EarthCam argues.

Even if the Court assumes that the script accessed all of the information alleged—even though there is no evidence it did—EarthCam has the burden to show that the customer information gathered in 2006 “(1) derive[s] economic value from being a secret not readily ascertainable by proper means, and (2) [ ] [is] the subject of reasonable efforts to maintain its secrecy.” Vito v. Inman, 286 Ga.App. 646, 649 S.E.2d 753, 757 (2007) (holding that plaintiff failed to prove both prongs because he admitted that his competitors “would not seek to use the [customer] list to take his patients from him.”). EarthCam is “required to prove both prongs to be entitled to protection under the [Georgia Trade Secrets].” Id. This showing was not made. Some of the claimed “trade secrets,” including camera names and images taken from cameras, are patently frivolous, and doubtfully “derive economic value from being a secret not readily ascertainable by proper means.” Id. (emphasis added). EarthCam has not presented any evidence to support that the information gathered in 2006 even potentially derived economic value from not being generally known or readily ascertainable by proper means.

EarthCam has not presented any evidence to support its claim that OxBlue 3019 contains confidential or proprietary information that constitutes a trade secret under Georgia law. For the purpose of deciding the OxBlue Defendants’ Motion for Summary Judgment, even if the Court assumes that the information contained in EarthCam’s Supplemental Response to OxBlue’s Interrogatories is admissible evidence, EarthCam has not shown that the information is a protectable “trade secret.”

EarthCam does not explain why “installation and assembly manuals,” “power and control diagrams,” and “drawings and part lists” for the installation of a megapixel camera that incorporates third party technology “derive economic value” from an element of secrecy that is known only to EarthCam and its employees. EarthCam simply relies on Mr. Sharp’s affidavit to conclude that the information contained in OxBlue 3019 “was not publicly available and gave EarthCam a competitive advantage.” In his affidavit, Mr. Sharp does not specify why the information on OxBlue 3019 was “not publicly available and gave EarthCam a competitive advantage.” Mr. Sharp’s belief and eonclusory allegations are insufficient to survive summary judgment. See Ojeda v. Louisville Ladder, Inc., 410 Fed.Appx. 213, 214 (11th Cir.2010) (holding that con-clusory allegations in an affidavit have no probative value, and a nonmoving party cannot rely on the eonclusory allegations to avoid summary judgment).

EarthCam also does not explain why its submission of photographs that depict the internal structure of an unidentified machine, a user manual for one of Earth-Cam’s cameras, and charts that appear to depict how a camera is connected with wires “derive[ ] economic value from being a secret not readily ascertainable by proper means, and (2) [] [are] the subject of reasonable efforts to maintain [their] secrecy.” Vito, 649 S.E.2d at 757.

b. EarthCam has not presented evidence of use of purported trade secrets.

EarthCam has failed to meet its statutory burden to prove that OxBlue used its trade secrets, even assuming there were any at issue in this case, and summary judgment is thus granted in favor of the OxBlue Defendants. There is no evidence trade secrets are at issue here and there is no evidence, direct or circumstantial, that EarthCam’s alleged trade secrets were used by the OxBlue Defendants. Recognizing that its “use of trade secrets” claim is factually unsupported, EarthCam argues, for the first time in its Response to the OxBlue Defendants’ Motion for Summary Judgment, that misappropriation may occur through “acquisition of a trade secret of another by a person who knows or had reason to know that the trade secret was acquired by improper means.” See O.C.G.A. § 10-1-761-(2)(A). The Federal Rules of Civil Procedure do not allow EarthCam to raise new claims or new theories of the case at the summary judgment stage. “A plaintiff may not amend [its] complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir.2004). EarthCam’s newly raised claim is not properly before the Court, and the Court is not required to consider it. Id. Even if the Court considered EarthCam’s new theory of the case, the OxBlue Defendants are entitled to summary judgment because there is no evidence that they improperly acquired EarthCam’s “trade secrets.” EarthCam fundamentally failed to prove its trade secrets claim.

Because the OxBlue Defendants are entitled to summary judgment on Earth-Cam’s claim for misappropriation of trade secrets, summary judgment is also granted on EarthCam’s claim that the Defendants conspired to violate the Georgia Trade Secrets Act. “A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. To recover damages for a civil conspiracy claim, a plaintiff must show that two or more persons, acting in concert, engaged in conduct that constitutes a tort. Absent the underlying tort, there can be no liability for civil conspiracy.” J. Kinson Cook of Georgia, Inc. v. Heery/Mitchell, 284 Ga.App. 552, 644 S.E.2d 440, 448 (2007) (quoting Mustaqeem-Graydon v. SunTrust Bank, 258 Ga.App. 200, 573 S.E.2d 455, 461 (2002)). EarthCam’s conspiracy claim is required to be dismissed because there is no evidence that the OxBlue Defendants misappropriated EarthCam’s trade secrets,

ii. CFAA

The CFAA, 18 U.S.C. § 1030, prohibits accessing a computer and obtaining information without authorization or by exceeding authorized access. EarthCam asserts violations of Sections 1030(a)(2)(C) and 1030(a)(4) of the Act. Section 1030(a)(2)(C) provides:

[Whoever] intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains ... information from any protected corn-puter if the conduct involved an interstate or foreign communication ... shall be punished.

18 U.S.C. § 1030(a)(2)(C) (emphasis added).

Section 1030(a)(4) provides:

[Whoever] knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value ... shall be punished.

18 U.S.C. § 1030(a)(4) (emphasis added).

Although principally a criminal statute, the CFAA provides that “any person who suffers damage or loss [as a result of a violation] ... may maintain a civil action ... for compensatory damages and injunctive relief or other equitable relief.” 18 U.S.C. § 1030(g). The CFAA' does not define “without authorization.” The CFAA defines “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). District courts in this circuit have held that a violation under the CFAA for access “without authorization” “occurs only where initial access is not permitted.” See Diamond Power Int’l, Inc. v. Davidson, 540 F.Supp.2d 1322, 1341 (N.D.Ga.2007); see also Lockheed Martin Corp. v. Speed, No. 6:05-cv-1580-ORL-31, 2006 WL 2683058 (M.D.Fla. Aug. 1, 2006).

EarthCam argues that the OxBlue Defendants violated the CFAA by using Chip Foley’s password and username to access FCR’s EarthCam account. The Eleventh Circuit and the district courts within this Circuit have not yet addressed whether a defendant can be liable under the CFAA for using a third party’s login credentials to access a customer account that a plaintiff would not otherwise authorize the defendant to use or access. There are, however, federal cases outside this Circuit that are instructive on this issue.

In SecureInfo Corp. v. Telos Corp., an individual authorized to use the plaintiffs software provided the defendants with access to software in violation of the license agreement. 387 F.Supp.2d 593, 608 (E.D.Va.2005). The court found that the defendants had “permission and authorization [from the licensee] to use the [ ] server and view what was contained therein,” and that even if the defendants were provided with access in violation of the licensing agreement, they were entitled to obtain information on the server because the licensee authorized the defendants to access the software. Id. at 609.

In State Analysis Inc. v. American Fin. Serv. Assoc., the district court declined to dismiss a claim brought under the CFAA where the plaintiff alleged that the defendant used another organization’s login credentials to access plaintiffs proprietary material. 621 F.Supp.2d 309, 316 (E.D.Va.2009). The court determined that the defendant, “a former client of [the plaintiff] that employed [plaintiffs] former marketing director, was presumably familiar with the terms of [plaintiffs] agreement and with the scope of authority granted to licensees.” Id. (emphasis added). For this reason, the Court declined to dismiss the CFAA claim.

EarthCam relies on State Analysis to argue that it has a viable claim under the CFAA. EarthCam’s reliance is misplaced. First, this case is different from State Analysis because EarthCam’s EULA from 2011 did not prohibit its customers from sharing their passwords with third parties. Second, Mr. Sharp admitted at his deposition that there is no evidence the OxBlue Defendants were familiar with the EULA, or that the OxBlue Defendants viewed the EULA when they accessed FCR’s Earth-Cam account. Unlike State Analysis, there is no evidence here that the OxBlue Defendants were “presumably familiar with the terms of the [EULA] and with the scope of authority granted to licensees,” and the EULA did not prohibit FCR from sharing its password in the first place. Id. (emphasis added).

The Court’s interpretation of State Analysis is consistent with how other federal courts have interpreted the decision. In AtPac, Inc. v. Aptitude Solutions, Inc., the district court found that State Analysis applies where the defendant uses subterfuge to gain access to a plaintiffs website, computers, and servers, or otherwise engages in fraudulent conduct. 2:10294 WBS KJM, 2010 WL 1779901, at *6 (E.D.Ca. April 29, 2010). Here, there is no evidence that the OxBlue Defendants engaged in subterfuge or orchestrated a fraud on EarthCam. The OxBlue Defendants received an unsolicited request from an EarthCam client that was unsatisfied with EarthCam’s services to provide a business solution, and the OxBlue Defendants accessed FCR’s account with FCR’s permission. EarthCam does not argue that FCR was prohibited from sharing its password with the OxBlue Defendants. The facts here are, in all relevant ways, similar to the facts in Securelnfo because FCR authorized the OxBlue Defendants to access its EarthCam account.

The EULA did not prohibit EarthCam’s customers from sharing their passwords with third parties, and the OxBlue Defendants were not “presumably familiar” with the EULA’s terms. The OxBlue Defendants simply are not civilly liable under the CFAA. See AtPac, 2010 WL 1779901, at *6; SecureInfo, 387 F.Supp.2d at 608. The OxBlue Defendants’ Motion for Summary Judgment on EarthCam’s CFAA claim is granted.

Because the OxBlue Defendants are entitled to summary judgment on Earth-Cam’s CFAA claim, they also are entitled to summary judgment on EarthCam’s claim that the Defendants conspired to violate the CFAA. See J. Kinson Cook of Georgia, Inc., 644 S.E.2d at 448 (quoting Mustaqeem-Graydon, 573 S.E.2d at 461).

iii. Copyright Infringement

To establish a claim of copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541-42 (11th Cir.1996); see also BellSouth Advertising & Publishing Corp. v. Donnelley Info. Publishing, Inc., 999 F.2d 1436, 1440 (11th Cir.1993) (en banc). There is no infringement if the portion of the copyrighted work actually taken is not entitled to copyright protection. Bateman, 79 F.3d at 1541-42. In other words, “in some cases, the amount of material copied will be so small as to be de minimis, and will not justify a finding of substantial similarity.” MiTek Holdings, Inc. v. Arce Eng’g Co., Inc., 89 F.3d 1548, 1560 (11th Cir.1996). The de minimis doctrine provides that the law does not impose legal consequences when unauthorized copying is sufficiently trivial. Ringgold v. Black Entm’t, 126 F.3d 70, 74 (2d Cir.1997).

With respect to computer programs and software, “substantial similarity” between the copyrighted work and the alleged infringed material refers to “the program as whole, not constituent elements of the program.” MiTek, 89 F.3d at 1560 n. 26. In MiTek, the Eleventh Circuit affirmed the district court’s finding of no infringement where four of the five protected elements of the Computer program were substantially similar, but the elements lacked significance to the computer program as a whole. Id.

EarthCam claims that the OxBlue Defendants infringed its copyright to the Control Center Software by capturing screenshots of FCR’s customer account in May 2011. The Control Center Software claims a copyright in “new and revised computer program, new and revised text, and compilation on screen displays.” EarthCam’s Statement of Material Facts at ¶ 61.

In Sony Computer Entertainment America, Inc. v. Bleem, LLC, a case that is helpful here, the Ninth Circuit analyzed the protectability of screenshots captured from a video game. 214 F.3d 1022, 1028 (9th Cir.2000). The Ninth Circuit noted that the video game and the unauthorized use of the game’s screenshots “are both commercial video game products; although the copyrighted work is creative in nature generally, a screenshot is not necessarily so. A screenshot is merely an inanimate sliver of the game ... inasmuch as these games involve plots that can be controlled interactively by the player and may elapse over several hours, it also seems true that a screenshot is of little substance to the overall copyrighted work.” Id. (citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 565, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)).

In analyzing the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Ninth Circuit concluded that this “factor will almost always weigh against the video game manufacturer since a screenshot is such an insignificant portion of the complex copyrighted work as a whole.” Id. The Court is persuaded by the Ninth Circuit’s reasoning in Sony. A user controls the Control Center Software interactively, and the screenshots captured by the OxBlue Defendants are an “inanimate sliver” of the user interface that “is of little substance to the overall copyrighted work.” Id. The burden to show the significance of the screenshots is on the copyright owner, and EarthCam here has failed to meet that burden. MiTek, 89 F.3d at 1560. Earth-Cam has failed to demonstrate the significance of the screenshots to the Control Center Software as a whole, and a reasonable juror would not find evidence to support that the amount of material copied is sufficient for an actionable infringement claim. The OxBlue Defendants’ Motion for Summary Judgment on EarthCam’s copyright infringement claim is granted.

iv. Tortious Interference with Contract

“Tortious interference claims, whether asserting interference with contractual relations, business relations, or potential business relations, share certain common essential elements: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.” Kirkland v. Tamplin, 285 Ga.App. 241, 645 S.E.2d 653, 655-56 (2007).

EarthCam argues that the OxBlue Defendants tortiously interfered with Her-mann’s employment contract by inducing Hermann to reveal EarthCam’s trade secrets and confidential information. Earth-Cam has failed to identify any evidence of “improper action or wrongful conduct” that can be attributed to the OxBlue Defendants. “Improper action or wrongful conduct” “generally involves predatory tactics such as violence, fraud, misrepresentation, defamation, use of confidential information, abusive civil lawsuits, and unwarranted prosecutions.” Kirkland, 645 S.E.2d at 656. EarthCam has failed to present any evidence that the OxBlue Defendants misappropriated EarthCam’s trade secrets or acquired EarthCam’s claimed confidential information from Her-mann. Without evidence of improper conduct, the facts alleged by EarthCam do not support a claim for tortious interference with Hermann’s employment contract. See CS-Lakeview at Gwinnett, Inc. v. Simon Prop. Grp., 283 Ga.App. 686, 642 S.E.2d 393, 398 (2007); Project Control Serv., Inc. v. Reynolds, 247 Ga.App. 889, 545 S.E.2d 593, 598 (2001).

On July 19, 2013, the Court denied Hermann’s Motion to Dismiss EarthCam’s breach of contract claim based on the claim that the Employment Agreement was unenforceable under Georgia law. Hermann’s Employment Agreement contains a choice-of-law provision that calls for the application of New Jersey law to the interpretation and enforcement of the Employment Agreement. In its July 19, 2013, Order, the Court concluded that Hermann’s Employment Agreement was unenforceable under Georgia law, but found that the application of Georgia law would violate EarthCam’s due process rights because the dispute between Earth-Cam and Hermann lacked sufficient contact with the State of Georgia. The Court concluded that New Jersey law would apply to the contract dispute between Her-mann and EarthCam.

“A choice of law provision that relates only to the agreement will not encompass” related claims. Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1162 (11th Cir.2009). The choice of law provision in the Employment Agreement relates only to the breach of the agreement itself. “The contractual choice-of-law provision [in Hermann’s Employment Agreement] ... can have no bearing on the law controlling a tort action brought against a third person not a party to the contract.” Barnes Grp., Inc. v. C & C Products, Inc., 716 F.2d 1023, 1043 (4th Cir.1983); see also Grupo Televisa, S.A. v. Telemundo Commc’ns Grp., Inc., 485 F.3d 1233, 1246-47 (11th Cir.2007) (concluding that despite a choice of law provision that required application of Mexican law, tortious interference claim was governed by the substantive law of Florida because Florida was the “principal location where the defendant’s conduct occurred.”).

EarthCam’s tortious interference claim arises from Defendants’ alleged acts of inducement and wrongful conduct that occurred in Georgia. The Court concludes that Georgia law applies to EarthCam’s tortious interference claim. See Federated Rural Elec. Ins. Exchange v. R.D. Moody and Assoc., Inc., 468 F.3d 1322, 1326 (11th Cir.2006) (applying Georgia law because plaintiffs did not sue for breach of contract, and the subrogation claim arose from acts committed in Georgia).

EarthCam does not dispute that Her-mann’s Employment Agreement is unenforceable in Georgia. The OxBlue Defendants thus cannot be held liable for tortious interference with provisions of a contract that is imenforceable in this State. See Stahl Headers, Inc. v. MacDonald, 214 Ga.App. 323, 324, 447 S.E.2d 320, 322 (Ga.Ct.App.1994). The Court, therefore, grants the OxBlue Defendants’ Motion for Summary Judgment on EarthCam’s claim for tortious interference with Hermann’s Employment Agreement.

2. EarthCam’s Claims Against Hermann

i. Release

Under New Jersey law, “the scope of a release is determined by the intention of the parties as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances.” Bilotti v. Accurate Forming Corp., 39 N.J. 184, 203, 188 A.2d 24 (N.J.1963). “A general release, not restricted by its terms to particular claims or demands, ordinarily covers all claims and demands due at the time of its execution and within the contemplation of the parties.” Id. at 204, 188 A.2d 24. “When a release’s language refers to “any and all” claims, as here, courts generally do not permit exceptions.” Isetts v. Borough of Roseland, 364 N.J.Super. 247, 255-56, 835 A.2d 330 (App.Div.2003). The Court concludes that the August 18, 2013, letter, written by Nizza to Hermann, is a general release of “all claims, liabilities, liens, demands, and causes of action, known and unknown ... which either [Hermann] or EarthCam may have or claim to have against each other ...” at the time of its execution. See Hermann’s Statement of Material Facts at ¶ 60.

EarthCam argues that the mutual release is invalid for lack of mutuality because Hermann did not sign the release, and because Hermann fraudulently induced EarthCam to execute a mutual release. These claims are without merit. The August 18, 2013, letter, did not invite or require Hermann to sign the release. The letter simply stated that it served as a release of all claims in consideration of a check for Hermann’s unpaid expenses. EarthCam does not dispute that Hermann accepted and cashed the check. Agreement to a contract “may be evidenced by an express written document or implied from the parties’ conduct and the surrounding circumstances.” DirecTech Delaware, Inc. v. Allstar Satellite, Inc., No. 08-cv3527, 2010 WL 1838573, at *3 (D.N.J. May 6, 2010) (applying New Jersey law) (internal quotation marks and citations omitted). There is an enforceable contract between the EarthCam and Hermann because Hermann accepted EarthCam’s proposal to mutually release all claims when he accepted and cashed the check. Id. at *4 (finding that a failure to sign the contract was immaterial because Direeteeh’s performance on the contract manifested acceptance of the contract’s terms).

To state a claim for fraudulent inducement, a plaintiff must show “(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.” Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610, 691 A.2d 350 (N.J.1997). Earth-Cam’s inability to prove reliance is fatal to its fraudulent inducement claim. The evidence here shows that EarthCam induced Hermann to sign the release in exchange for the settlement of his claim. After Her-mann threatened litigation, EarthCam agreed to pay his unpaid expenses only if Hermann signed a release. At some point, the negotiations between the parties broke down, and EarthCam unilaterally sent Hermann an unsolicited offer to mutually release all claims on August 13, 2008, and a check for the expenses Hermann demanded EarthCam pay. Hermann did not make any material misrepresentations in connection with the general release, and EarthCam did not rely on any material misrepresentations made by Hermann when EarthCam unilaterally agreed to a mutual release of all claims the parties had against each other.

To support its fraudulent inducement argument, EarthCam relies on an isolated and irrelevant email exchange between Hermann and Nizza. On July 7, 2008, Nizza emailed Hermann and stated that EarthCam required departing employees to return EarthCam’s property. See Ex. B, attached to Hermann’s Statement of Material Facts. Nizza also reminded Her-mann of his responsibilities under the Non-compete Agreement, and stated that “this email serves as confirmation that you are not working for any of EarthCam’s suppliers/vendors or competitors.” Id. Hermann wrote a lengthy reply to Nizza discussing various issues unrelated to the dispute here, and concluded his email by stating in a postscript that he “respected the non-compete.” See Ex. C, attached to Hermann’s S