CHARLES BARFIELD, Plaintiff, v. GUIDEONE MUTUAL INSURANCE COMPANY, Defendant CIVIL ACTION NO. 1:19-CV-0053-ODE United States District Court, N.D. Georgia, Atlanta Division Filed March 24, 2020 Counsel William Ralph Carlisle, Jr., Carlisle Law Firm, Winder, GA, for Plaintiff. Anderson B. Scott, JonVieve Hill, Matthew Rudolph Simpson, Fisher & Phillips LLP, Atlanta, GA, for Defendant. Evans, Orinda D., United States District Judge ORDER *1 This civil action is before the Court on Defendant's Motion for Summary Judgment [Doc. 16], Plaintiff's Motion for Summary Judgment [Doc. 28], Defendant's Amended Motion for Summary Judgment on Plaintiff's Claims and Motion for Summary Judgment on Defendant's Counterclaims [Doc. 52], and Defendant's Motion for Sanctions [Doc. 55]. For the reasons provided below, the Court GRANTS Defendant's Amended Motion for Summary Judgment on Plaintiff's Claims [Doc. 52], GRANTS Defendant's Motion for Summary Judgment on Defendant's Counterclaims II through IV [Doc. 52], DENIES Plaintiff's Motion for Summary Judgment [Doc. 28], DENIES Defendant's Motion for Summary Judgment on Defendant's Counterclaim under the Georgia Trade Secret Act [Doc. 52], and DENIES Defendant's Motion for Sanctions [Doc. 55]. Defendant's first Motion for Summary Judgment is DENIED AS MOOT [Doc. 16].[1] I. INTRODUCTION As a preliminary matter, Plaintiff failed to respond to GuideOne's Statement of Material Undisputed Facts. Therefore, under Local Rule 56.1(B) (2), GuideOne's Statement of Material Undisputed Facts is deemed admitted. L.R. 56.1(B)(2); Rives v. Lahood, 605 F. App'x 815, 818 (11th Cir. 2015) (“The magistrate judge did not abuse her discretion in deeming [the defendant's] statement of undisputed material facts admitted because [the plaintiff] did not respond to the statement as required by Local Rule 56.1[.]”); BMU, Inc. v. Cumulus Media. Inc., 366 F. App'x 47, 49 (11th Cir. 2010) (“Because [the plaintiff] failed to file a response to [the defendant's] statement of undisputed facts, the district court did not err by deeming all of the facts ... admitted.”) (internal quotation marks and citation omitted). Plaintiff Charles Barfield (“Plaintiff”) began selling insurance for Defendant GuideOne Mutual Insurance Company (“GuideOne”) and its affiliates in 1989 [Doc. 52-2 at 2 ¶ 3]. Plaintiff's responsibilities included “soliciting applications for insurance, collecting initial premiums, countersigning and delivering policies, reinstating and transferring business, and assisting policyholders in reporting and handling claims” [Doc. 52-2 at 2 ¶ 4 ]. On June 18, 2012, the parties signed the most recent of a series of employment contracts—known as Special Agent's Contracts (“SAC”)--defining the parties' performance and payment obligations in relation to Plaintiff's role as an insurance agent [Doc. 52-2 at 3 ¶ 9, 4 ¶ 13]. Part I of the contract contained a Non-Disclosure Provision which states, in pertinent part: It is agreed between the parties that ... all information regarding names, addresses and ages of policyholders of the Company, the description and location of insured property, and expiration or renewal dates of Company policies acquired by the Agent during the effective period of the contract, or any prior contract between the parties, shall constitute trade secrets wholly owned by the Company. It is further agreed that the Agent will not use any of the information described in this paragraph for any other purpose, either directly or indirectly, and will not provide such information to any other person or organization. *2 [Doc. 52-6 at 2 ¶ 11]. Part II of the contract (hereinafter, the “Termination Clause”) defines the parties' responsibilities upon termination of the contract [Doc. 52-2 at 5 ¶ 17]. The relevant portions of the Termination Clause are located at ¶¶ 2(C), 6, and 6(E). Paragraph 2(C) states: The Agent will not, for a period of one year following the termination of this contract, either personally or through any other person, agency or organization, (1) induce or advise any policyholder of the Company to lapse, surrender or cancel any coverages of the Company or (2) solicit any such policyholder to purchase or accept any offer of such policyholder to purchase any insurance coverages of the types sold by the Company. [Doc. 52-3 at 17]. Paragraph 6 states: Within a reasonable time after termination of this contract, the Company will pay the Agent a contingency payment if the Agent meets the qualifications as set out below. Therefore, such payments shall be reduced by any debit balance in the Agent's account and shall not be payable if prior to termination the Agent has (1) violated or breached the provisions of this contract, (2) misappropriated any funds collected on behalf of the Company, or (3) at termination the Agent fails to return or make available to the Company representative all property of the Company. [Doc. 52-3 at 17]. Paragraph 6(E) states (the “Vesting Payments Provision”): In the event that the Agent, at any time following the date of termination, (1) personally or through any other person, agent or organization solicits or sells to the Company's policyholders or accepts business from the Company's policyholders, any insurance of the type sold by the Company, or (2) engages in the property or casualty insurance business within 25 miles of the city limits of the city in which the Agent's principal place of business was located at the date this contract was terminated as a licensed agent, solicitor or broker for any kind of insurance written by the Company, no further payment will be due or payable to the Agent. [Doc. 52-3 at 18]. Plaintiff resigned from GuideOne on June 30, 2015 [Doc. 52-2 at 10 ¶ 33]. As of the date of his resignation, Plaintiff qualified for a vesting payment of $190,632.00 to be paid in thirty-six equal monthly installments [Doc. 52-2 at 10 ¶ 34]. GuideOne made six monthly installments of $5,296.00 from September 2015 through June 2016 [Doc. 52-2 at 10 ¶ 34, 11 ¶ 37]. However, GuideOne later learned information that made it believe Plaintiff had breached the SAC. Specifically, GuideOne believes Plaintiff (1) violated paragraph 6(E) of the Termination Clause by partnering with a man named Glenn Melson (“Melson”) and competing in the insurance business within twenty-five miles of GuideOne; (2) violated paragraphs 2(C) and 6(E) by soliciting GuideOne policyholders for business; and (3) violated the Non-Disclosure provision by sharing GuideOne's policyholder information with Melson. Below is a summation of the evidence GuideOne cites to support its argument that Plaintiff breached the SAC: *3 • Plaintiff's deposition testimony in which Plaintiff admits to: (1) sending e-mails from Charles@BarfieldINS.com with the signature line reading “Barfield Melson/Corporate Risk Advisors” [Doc. 52-4 at 32, 36, 42]; (2) operating out of 707 Whitlock Avenue, Suite D-33 in Marietta, Georgia, the same office he operated out of as a GuideOne agent [Doc. 52-4 at 33; Doc. 52-4 at 43]; (3) receiving an e-mail from Melson that Melson “was working on the GuideOne customers' quotes” [Doc. 52-4 at 35]; (4) being compensated for insurance business between July 1, 2015 and February 2, 2016 [Doc. 52-4 at 41]; (5) posting a sign that said “Barfield-Melson Agency” on Facebook [Doc. 52-4 at 42]; (6) owning the office space out of which the agency operated [Doc. 52-4 at 43]; and (7) paid for the utilities for the office space [Doc. 52-4 at 43]. • An e-mail from Melson to Plaintiff dated May 29, 2015, in which Melson says: I thought we had a very productive meeting yesterday and I look forward to coming in starting in July. I think that might be best due to your Guideone contract. I have attached a BOR for you guys to use starting now and if your current customers want to be move [sic] their business with you we can start writing them this month. I just need and [sic] email with their information from you or Donna. [Doc. 52-13 at 2]. The letter continues: [Plaintiff] will work as he desires selling business and referring to me and Donna for completing the application process and servicing. [Plaintiff] will be paid 40% of the new commissions and 30% upon renewal for all business written with CRA from his current customer list or any customers that he develops.... [Plaintiff's] contract will inforce [sic] until he desires to retire at which time Glenn Melson will have first rights to purchase [Plaintiff's] ... commercial book.... Glenn will receive 60% of the new commissions and 70% of the renewal commissions on any of [Plaintiff's] previous customers or any new customer's [sic] that [Plaintiff] develops. Glenn will also service [Plaintiff's] current commercial book of business without compensation in exchange for [Plaintiff] covering all office, phone, internet and Donna's salary from that book of business. [Doc. 52-13 at 2]. • An e-mail from Plaintiff to Melson dated July 31, 2015 in which Plaintiff lists GuideOne policyholders and information about their insurance policies [Doc. 52-21 at 2]. • An e-mail from Plaintiff to Melson dated August 21, 2015 in which Plaintiff forwards policy information about a GuideOne policyholder to Melson [Doc. 52-22 at 2]. • A letter dated September 25, 2015 in which Plaintiff announced his retirement from GuideOne and merger with Melson [Doc. 52-32 at 2]. The letter enclosed a list of quotes, and it listed Plaintiff and Melson's contact information [Doc. 52-32 at 2].[2] • An e-mail dated January 11, 2016, in which Plaintiff forwarded an e-mail containing a GuideOne policyholder's auto and home insurance information to Melson [Doc. 52-35 at 2]. The e-mail specifically states “FYI He is a GuideOne customer” [Doc. 52-35 at 2]. • Plaintiff advertised the new “Barfield-Melson Insurance Agency” on his personal Facebook account [Doc. 52-33]. • The Declaration of Glenn Melson in which Melson states: 4. In February 2015, I met with [Plaintiff] to discuss a partnership to sell insurance.... 6. Our business arrangement, although never memorialized in a formal contract, was as follows: • Our business name would include Barfield, Melson, and Corporate Risk Advisors. • [Plaintiff] would work at his leisure selling insurance and referring it to ... me to complete the application process and servicing of accounts. • I would service our joint personal insurance policyholders and would pay [Plaintiff] a percentage of those commissions. • [Plaintiff] would pay the utilities at the office .... 9. From June 2015 through early 2016, [Plaintiff] forwarded numerous emails to ... me containing GuideOne policyholder contact and policyholder information so that we could try to sell them insurance. *4 10. In or around July 2015, [Plaintiff] provided ... me with numerous hardcopies of GuideOne policyholder declaration pages. We, including [Plaintiff] divided the policyholder declaration pages up amongst ourselves and organized them according to expiration date. Our plan was to conduct a book roll to transition those policies to ... other competitive insurance companies. We were able to transition several of [Plaintiff's] former policyholders from GuideOne to a new insurance company. [Doc. 52-15 at 3]. • The Declaration of Terre Wofford (“Wofford”), GuideOne's Sales Director, in which Wofford states that fifteen (out of thirty-three) of Plaintiff's former commercial policyholders did not renew their policies with GuideOne and 137 (out of 488) of Plaintiff's personal policy holders did not renew their policies with GuideOne [Doc. 52-9 at 4 ¶ 13]. • The Statement of Jeanette Bonney (“Bonney”) [Doc. 52-3], GuideOne's Agency Manager, in which Bonney contends that Plaintiff “engag[ed] in the sale of insurance from his office in Marietta, GA” [Doc. 52-3 at 4 ¶ 11]. Based on this information, GuideOne notified Plaintiff in December of 2015 that GuideOne would be terminating his payments pursuant to the parties' SAC [Doc. 52-2 at 17 ¶ 65]. On December 7, 2018, Plaintiff filed a complaint against GuideOne in the State Court of Gwinnett County, Georgia [Doc. 1-1 at 4] alleging GuideOne breached the SAC by terminating Plaintiff's payments. On January 3, 2019, GuideOne removed the case to this Court [Doc. 1 at 1].[3] On January 7, 2019, GuideOne answered the complaint [Doc. 2]. On April 5, 2019, GuideOne moved for summary judgment [Doc. 16]. Plaintiff responded in opposition to GuideOne's summary judgment motion on April 26, 2019 [Doc. 26]. On May 3, 2019, Plaintiff moved for summary judgment [Doc. 28]. On May 6, 2019, Plaintiff filed a Motion for Leave to Amend Complaint And/Or to Modify Scheduling Order [Doc. 30]. GuideOne responded in opposition to Plaintiff's motion to file an amended complaint on May 22, 2019 [Doc. 34] and to Plaintiff's motion for summary judgment on May 24, 2019 [Doc. 35]. Plaintiff then replied to GuideOne's response to Plaintiff's summary judgment motion on May 31, 2019 [Doc. 36]. On October 28, 2019, this Court granted Plaintiff's Motion for Leave to Amend Complaint And/Or to Modify Scheduling Order, but left the parties' summary judgment motions pending [Doc. 39]. However, the Court directed the parties to file any needed amendments to their summary judgment motions based on the amended complaint within ten (10) days of the close of discovery. Plaintiff's Amended Complaint was filed October 28, 2019 [Doc. 42]. GuideOne answered the complaint and filed counterclaims on October 28, 2019 [Doc. 43]. GuideOne brought four counterclaims against Plaintiff for misappropriation of trade secrets under the Georgia Trade Secrets Act (“GTSA”), O.C.G.A. § 10-1-760 et seq, and breach of contract. Plaintiff responded to GuideOne's answer and counterclaims on December 17, 2019 [Doc. 50]. *5 Discovery concluded on January 21, 2020. Therefore, the parties had until February 26, 2020 to file any amendments to their summary judgment motions [Doc. 47]. GuideOne filed its Amended Motion for Summary Judgment on Plaintiff's Claims and Motion for Summary Judgment on Defendant's Counterclaims on February 26, 2020 [Doc. 52].[4] GuideOne also filed a Motion for Sanctions [Doc. 55] that same day. Because Plaintiff did not file any amendments to his summary judgment motion, the motion remains pending before the Court. II. STANDARD OF REVIEW The Court will grant summary judgment when “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). To be material, a fact must be identified by the controlling substantive law as an essential element of the non-moving party's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party, always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). “The movants can meet this burden by presenting evidence showing there is no dispute of material fact[.]” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281 (11th Cir. 1999). Once the moving party has met its burden, the burden then shifts to the non-movant, who must offer affirmative evidence to establish the existence of a genuine issue of material fact. Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990) (the non-moving party “may not rest upon the mere allegations or denials in its pleadings. Rather, its responses, either by affidavits or otherwise as provided by [Rule 56(e)], must set forth specific facts showing that there is a genuine issue for trial.”). In reviewing the record, the Court must make all reasonable inferences in favor of the non-moving party. Id. at 255; Reese v. Herbert, 527 F.3d 1253, 1271 (11th Cir. 2008). A genuine dispute only exists, however, where a jury could reasonably find for the non-movant. Walker, 911 F.2d at 1576-77. Thus, “a mere scintilla of evidence supporting the opposing party's position will not suffice” to overcome a motion for summary judgment. Id. at 1577; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); see also Vicks v. Kniaht, 380 F. App'x 847, 851 (11th Cir. 2010). III. GuideOne's Motion for Summary Judgment A. Plaintiff's Breach of Contract Claim GuideOne argues it is entitled to summary judgment as to Plaintiff's breach of contract claim because ¶ 6(E) of the 2012 SAC is enforceable, and as such, GuideOne was entitled to terminate payment to Plaintiff upon learning Plaintiff was allegedly in violation of the contract. Plaintiff, however, contends that ¶ 6(E) is unenforceable under Georgia non-compete law, and, accordingly, Plaintiff is entitled to the remainder of the vesting payments. The Court therefore turns to the enforceability of ¶ 6(E). *6 The crux of the dispute between the parties is whether ¶ 6(E) contravenes Georgia's policy against non-compete provisions. Plaintiff argues that ¶ 6(E) is a forfeiture conditioned on an unenforceable restrictive covenant and should therefore be read out of the contract. With ¶ 6(E) read out, Plaintiff contends he is entitled to the vesting payments as they were “earned and expressly conditioned on job performance and events occurring prior to termination” [Doc. 28-2 at 14]. GuideOne argues that ¶ 6(E) “does not prohibit Plaintiff from competing with GuideOne. It only places conditions on whether Plaintiff is entitled to a post-retirement bonus” [Doc. 33 at 17-18]. It is settled public policy in Georgia that forfeitures are not favored. A.L. Williams & Assocs. v. Faircloth, 259 Ga. 767, 767 (1989). Although “forfeitures are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence.” Equitable Loan & Sec. Co. v. Waring, 117 Ga. 599, 599 (1903). Despite being disfavored, however, forfeitures may be enforced depending on the contract terms. Milhollin v. Salomon Smith Barney, Inc., 272 Ga. App. 267, 271 (2005). “[W]here a contract in unmistakable terms provides for a forfeiture, and is otherwise free from legal infirmity, neither a court of law nor a court of equity will relieve against the forfeiture.” Equitable Loan, 117 Ga. at 599. However, there is a caveat to this general rule in the employment context. Where forfeiture of post-termination income is conditioned on adherence to a restrictive covenant, the restrictive covenant must be valid. A.L. Williams, 259 Ga. at 768. Confronted with a forfeiture provision conditioned on a restrictive covenant, the Supreme Court of Georgia stated in A.L. Williams that “[i]t would be paradoxical to strike down a covenant as invalid, and at the same time uphold a forfeiture that is conditioned upon a violation of that very covenant. Hence, a forfeiture provision that is conditioned expressly upon an invalid covenant must be invalid[.]”. The Court recognizes that before A.L. Williams, there was a long line of cases--several cited by GuideOne—that distinguish forfeitures like ¶ 6(E) from non-compete provisions, upholding the former while disapproving of the latter. See Dronzek v. Vaughn, 191 Ga. App. 468, 469-70 (1989) (holding contract was not an unenforceable covenant not to compete because “[t]he agreement did not purport to obligate Dronzek to refrain from competing with the appellees” but “[r]ather, it obligated the appellee corporation to pay him ... in the event he chose not to engage in such competition”); Nat'l Consultants, Inc. v. Burt, 186 Ga. App. 27, 31 (1988) (finding “if the restriction in the contract does not preclude the employee from engaging in competitive activity, but simply provides for the loss of rights or privileges if he does so it is not in restraint of trade”); Sheppard v. Columbus Packaging Co., 146 Ga. App. 202, 203 (1978) (enforcing provision in employment contract that provided for deferred compensation so long as the former employee did not engage in competition); Brown Stove Works v. Kimsey, 119 Ga. App. 453, 455 (1969) (“[T]o make ... refraining from competitive activity a condition precedent to participation in a profit-sharing plan” is “separate and distinct” from “restrict[ing] [the] right to enter into a competitive activity ... by a contract in restraint of trade”). However, A.L. Williams expressly disapproved of this line of cases and “[a]ny earlier propositions of law ... contrary” to its holding. A.L. Williams, 259 Ga. 767, 768 n.1.[5] Accordingly, forfeiture provisions conditioned on compliance with an invalid non-compete agreement are invalid. *7 However, forfeiture provisions that are “mere conditions precedent to the formation of a contract” will not offend Georgia public policy. Stannard v. Allegis Grp., Inc., Civil Action File No. 1:08-CV-3357-TCB, 2009 WL 1309751, at *3 (N.D. Ga. Apr. 27, 2009). In Stannard, the parties' employment contract was clear that “all payments [were] contingent with” a restrictive covenant. Id. at *5. The Court found that “this clear and unambiguous language ma[de] compliance with the ... provision[ ] a condition precedent to receiving benefits under the [contract].” Id. Interpreted together, Stannard and A.L. Williams make clear that there exists a difference in treatment under Georgia law between forfeiture provisions in which adhering to a restrictive covenant is a condition precedent to contract formation and post-termination payment and those in which adhering, to a restrictive covenant is a condition subsequent to continued payment. If the former, the forfeiture provision is valid. See Stannard, 2009 WL 1309751, at *3. If the latter, however, the forfeiture provision is only valid if the restrictive covenant is valid. See A.L. Williams, 259 Ga. at 768. Therefore, the Court must assess whether ¶ 6(E) is a condition precedent or a condition subsequent. i. Conditions Precedent and Subsequent A condition precedent “is a specified act that a party must perform or refrain from performing as a prerequisite to contract formation.” Stannard, 2009 WL 1309751, at *4 (citing O.C.G.A. § 13-3-4). “Where a contract specifies a condition precedent that may be accepted or refused in the discretion of one of the contracting parties, no rights arise until the discretion is exercised.” Id. (internal marks and citation omitted). Therefore--unlike the non-fulfillment of a contract term--“failure to perform a condition precedent will not support a claim of breach.” ‘ Id. A condition subsequent, however, is a term of the contract whereby the parties intend that “the happening or non-occurrence of an event after the contract becomes binding upon the parties ... causes the contract to terminate without further duties and obligations on any party.” Sheridan v. Crown Capital Corp., 251 Ga. App. 314, 318 (2001). Conditions precedent are indicated by words such as “on condition that,” “if,” or “provided[.]” Self v. Smith, 216 Ga. 151, 153 (1960). Conditions subsequent are indicated by words of “defeasance, forfeiture or reversion,” but “[n]o precise technical words are required to create [one].” Munford, Inc. v. Citizens & S. Nat'l Bank, 151 Ga. App. 112, 113 (1979). Where “the contract's terms are clear and unambiguous and do not clearly establish a condition precedent, [a court] cannot construe the contract to create one.” Gen. Steel. Inc. v. Delta Bldg. Sys., Inc., 297 Ga. App. 136, 139 (2009). In fact, Georgia law expressly “favors conditions to be subsequent rather than precedent and to be remedial by damages rather than by forfeiture.” O.C.G.A § 44-6-41. GuideOne argues that ¶ 6(E) is a condition precedent, citing ¶ 6. Specifically, GuideOne cites the language that “[w]ithin a reasonable amount of time after termination of this contract, the Company will pay the Agent a contingency payment if the Agent meets the qualifications as set out below[ ]” [Doc. 15-5 at 4] (emphasis added). According to GuideOne, a natural reading of the contract would then direct the reader to two “qualifications.” The first qualification is related to any improper pre-termination activities by Plaintiff in ¶ 6: *8 Therefore, such payments shall be reduced by any debit balance in the Agent's account and shall not be payable if prior to termination the Agent has (1) violated or breached the provisions of this contract, (2) misappropriated any funds collected on behalf of the Company, or (3) at termination the Agent fails to return or make available to the Company representative all property of the Company. [Doc. 15-5 at 4], The second qualification, according to GuideOne, is related to improper post-termination activities by Plaintiff in ¶ 6(E): In the event that the Agent, at any time following the date of termination, (1) personally or through any other person, agent or organization solicits or sells to the Company's policyholders or accepts business from the Company's policyholders, any insurance of the type sold by the Company, or (2) engages in the property or casualty insurance business within 25 miles of the city limits of the city in which the Agent's principal place of business was located at the date this contract was terminated as a licensed agent, solicitor or broker for any kind of insurance written by the Company, no further payment will be due or payable to the Agent. [Doc. 15-5 at 5]. The Court agrees that the pre-termination activities identified in ¶ 6 are conditions precedent to GuideOne's obligation to pay Plaintiff. The language is clear that GuideOne owes no duty to pay “if prior to termination” Plaintiff breached the contract, misappropriated funds, or failed to return property [Doc. 15-5 at 4] (emphasis added). However, the Court disagrees with GuideOne that ¶ 6(E) is a condition precedent. First, there is no language indicating that GuideOne's obligation to pay is dependent on Plaintiff's compliance with 6(E). Rather, ¶ 6(E) begins “[i]n the event that,” indicating that GuideOne's obligation to pay is not dependent on Plaintiff's compliance with 6(E), but rather is terminated upon Plaintiff's failure to comply with 6(E) [Doc. 15-5 at 5].[6] But see Stannard, 2009 WL 1309751, at *5 (finding a condition precedent where contract provided that “[i]n order to earn Units allocated to an Employee ... the Employee shall not [compete]”) (emphasis added). Although GuideOne would have the Court interpret “qualifications as set out below” in ¶ 6 to apply to 6(E), GuideOne ignores ¶ 6 (A) which details the “method of qualifying” for payment and “the amount for which [Plaintiff] can qualify” [Doc. 15-5 at 4]. Paragraph 6(E), on the other hand, makes no mention of qualifications. It is therefore plainly evident that the “qualifications” in ¶ 6 refer to ¶ 6(A) and not ¶ 6(E). Because ¶ 6(E) does not clearly and unambiguously establish a condition precedent, the Court construes ¶ 6(E) as a condition subsequent. Accordingly, under A.L. Williams, the restrictive covenant on which ¶ 6(E) is conditioned must be valid under Georgia non-compete law. ii. Validity of ¶ 6(E)'s Restrictive Covenant Non-compete provisions that are overly broad “are contrary to Georgia public policy and therefore void.” Stannard, 2009 WL 1309751, at *3. “Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court.” W.R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (1992). To determine reasonableness, Georgia courts consider “the nature and extent of the trade or business, the situation of the parties, and all the other circumstances.” Id. (citation omitted), “A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Id. (internal quotation marks and citation omitted). Plaintiff challenges the duration of ¶ 6(E) and the scope of the activities restricted in ¶ 6(E) [Doc. 30-2 ¶ 47]. a. Duration *9 All restrictive covenants ancillary to employment contracts must be strictly limited in duration. T. V. Tempo, Inc. v. T. V. Venture, Inc., 244 Ga. 776, 778 (1979). The absence of such a time limitation is unreasonable and renders the covenant unenforceable. Id. (finding absence of a time limitation fatal). Plaintiff argues ¶ 6(E)'s language “at any time” is fatal to ¶ 6(E)'s enforceability. Although ¶ 6(E) does not contain a time limitation, the section immediately preceding ¶ 6(E) does. Specifically, ¶ 6(D) states that Plaintiff would “be paid in 36 equal monthly installments” [Doc. 15-5 at 5]. Because ¶ 6(E) concerns the termination of such installments, the contract is not void of a time limitation, but instead is limited to thirty-six months, or, three years. Accordingly, the question before the Court is whether three years is a reasonable time limitation. O.C.G.A. § 13-8-57 creates a rebuttable presumption that a time of two or less years is reasonable and any restraint greater than two years in duration is unreasonable. O.C.G.A. § 13-8-57; see also Matthew Focht Enters., Inc. v. Lepore, No. 1:12-cv-04479-WSD, 2013 WL 4806938, at *5 (Sept. 9, 2013) (“It is well-established that a post-termination restriction period greater than two years is facially unreasonable[.]”). Nothing in the record rebuts the presumption that ¶ 6(E)'s three-year duration is unreasonable. In fact, ¶ 2 (C)--another restrictive covenant in the contract--expressly contains a one-year time limitation, indicating the parties consider one year a reasonable restraint on trade. Thus, ¶ 6(E)'s three-year limitation is unreasonable under Georgia law. b. Scope of Activities Plaintiff next argues that the scope of activities he is prohibited from engaging in is overbroad and likewise unreasonable. Paragraph 6(E) prohibits Plaintiff from “solicit[ing] or sell[ing] to the Company's policyholders or accept[ing] business from the Company's policyholders, any insurance of the type sold by the Company” (hereinafter, the “Non-Solicitation Clause”) [Doc. 15-5 at 5]. It additionally prohibits Plaintiff from “engag[ing] in the property or casualty insurance business within 25 miles of [Marietta]” (hereinafter, the “Non-Compete Clause”) [Doc. 15-5 at 5]. The Court addresses each clause separately. A covenant restricting solicitation of customers may not validly preclude an employee from accepting unsolicited business from customers. See Orkin Exterminating Co. v. Walker, 251 Ga. 536, 537 (1983) (noting defendant “may properly protect itself from the risk that former employees might appropriate its customers ... but the company cannot prevent them from merely accepting overtures from those customers”); Singer v. Habif, Arogeti & Wynne, P.C., 250 Ga. 376, 377 (1982) (finding restrictive covenant unreasonable where it would prohibit employee “from accepting employment from a [former] client ... who comes to him”); Holland Ins. Grp., LLC v. Senior Life Ins. Co., 329 Ga. App. 834, 840 (2014) (noting a restrictive covenant “may not validly preclude the employee from accepting unsolicited business from customers of his former employer”). Put simply, ¶ 6(E) prohibits: (1) soliciting GuideOne's policyholders, (2) selling to GuideOne's policyholders, and (3) accepting business from GuideOne's policyholders. The prohibition against solicitation is valid under Georgia law. See Orkin, 251 Ga. at 537. However the prohibitions against selling to GuideOne's policyholders and accepting business from GuideOne's policyholders fail to differentiate between solicited and unsolicited business. Because ¶ 6(E)'s prohibitions against selling to and accepting business from GuideOne's policyholders would prohibit Plaintiff from accepting unsolicited business, the Court finds ¶ 6(E) overbroad and unenforceable. Turning to the Non-Compete Clause, an agreement restricting competition with a former employer is overbroad and unenforceable where it prohibits activities beyond those performed by the employee. See Wright v. Power Indus. Consultants, Inc., 234 Ga. App. 833, 834 (1998), overruled on other grounds by Advance Tech. Consultants, Inc. v. Roadtrac, LLC, 250 Ga. App. 317, 320-21 (2001) (finding covenant unenforceable where it prohibited activities beyond those employee performed for employer); Harville v. Gunter, 230 Ga. App. 198, 199 (1998) (finding restriction overly broad where it restricted employee from being an “officer, director, shareholder, or employee” for a competitor where employee did not work in any of those capacities for the employer). The Non-Compete Clause here prohibits Plaintiff from working in the property or casualty insurance business, which is precisely the work Plaintiff performed for GuideOne. The Non-Compete Clause is therefore reasonable as to the scope of activities it prohibits. iii. “Blue-Pencil” Rule *10 Despite having found ¶ 6(E)'s three-year time restriction unreasonable and its Non-Solicitation Clause overly broad, the Court need not strike ¶ 6(E) down in its entirety. It is true that “[b]efore 2011, Georgia law disfavored restrictive covenants [and] Georgia's constitution also forbade the General Assembly from authorizing restrictive covenants.” Becham v. Synthes USA, 582 F. App'x 387, 388 (11th Cir. 2012) (citations omitted). Under the old Georgia law, “if any portion of the restrictive covenant was invalid, the entire restrictive covenant was invalid and the court was not permitted to ‘blue-pencil’ or sever the offending portions.” Interra Int'l, LLC v. A1 Khafaji, CIVIL ACTION FILE NO. 1:16-CV-1523-MHC, 2017 WL 4866266, at *10 (N.D. Ga. Mar. 21, 2017). However in 2011, Georgia enacted the Georgia Restrictive Covenants Act. Id. Of relevance here, O.C.G.A. § 13-8-53(d) now permits courts to modify, or “blue pencil,” any portion of a restrictive covenant that “is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.” O.C.G.A. § 13-8-53; see also Cunningham Lindsey U.S. LLC v. Box, CIVIL ACTION FILE NO. 1:18-CV-4346-MHC, 2018 WL 6266554, at *8 (Oct. 23, 2018) (“Under O.C.G.A. § 13-8-53(d), the Court can “blue pencil” the agreement[.]); Kennedy v. Shave Barber Co., LLC. 348 Ga. App. 298, 304 (2018) (noting O.C.G.A. § 13-8-53(d) “permits a court to modify, or ‘blue pencil,’ a covenant). The 2012 SAC— executed on June 18, 2012—was made effective after the change in Georgia law on restrictive covenants [Doc. 15-5]. Thus, the Court is authorized to blue-pencil the offending portions of ¶ 6(E). Interra International, 2017 WL 4866266, at *10. Following guidance from the Georgia legislature, the Court will modify S[ 6(E) to “grant only the relief reasonably necessary to protect [all legitimate business] interests” and “to achieve the original intent of the contracting parties to the extent possible.” Looking to the contract as a whole,[7] the Court finds the contract's other restrictive covenant clause at ¶ 2(C) enlightening. There, the parties have a non-compete provision that is to last for a period of one year.[8] The Court therefore interprets ¶ 6(E) as being constrained by the same one-year limitation in ¶ 2(C) and will enforce ¶ 6(E) for a period of one year. As for the overbroad Non-Solicitation Clause in ¶ 6(E), the Court notes that it is very similar to the non-solicitation clause in ¶ 2(C) (2). The second restriction in ¶ 2(C)--like ¶ 6(E)—prohibits Plaintiff from soliciting GuideOne's policyholders.[9] The only difference between the two provisions is that the language in ¶ 6(E) also restricts Plaintiff from selling to GuideOne's policyholders and accepting business from GuideOne's policyholders. Because these were the unreasonable portions of ¶ 6(E), and because the parties already intended to be bound by the non-solicitation clause in ¶ 2 (C), the Court will enforce the Non-Solicitation Clause in ¶ 6(E) as written in ¶ 2(C). In sum, ¶ 6(E) as amended reads: *11 In the event that the Agent, for a period of one year following the termination of this contract, (1) induces or advises any policyholder of the Company to lapse, surrender or cancel any coverages of the Company, (2) solicits any such policyholder to purchase or accept any offer of such policyholder to purchase any insurance coverages of the types sold by the Company, or (3) engages in the property or casualty insurance business within 25 miles of the city limits of the city in which the Agent's principal place of business was located at the date this contract was terminated as a licensed agent, solicitor or broker for any kind of insurance written by the Company, no further payment will be due or payable to the Agent. iv. GuideOne's Alleged Violation of ¶ 6(E) GuideOne contends Plaintiff violated ¶ 6(E) by: (1) soliciting GuideOne policyholders to cancel their coverages; and (2) establishing a competitive insurance business within twenty-five miles of Marietta. GuideOne cites ample evidence to support its arguments. A summary of the evidence cited by GuideOne is above in Section I, pages 5-8. Plaintiff's response [Doc. 56] in opposition to Defendant's Amended Motion for Summary Judgment focuses almost exclusively on Plaintiff's belief that ¶ 6(E) is an unenforceable noncompete. However, looking at the record as a whole, Plaintiff has at times denied that he engaged in the insurance business. For instance, Plaintiff stated in an affidavit that since July 1, 2015 he has not “written, attempted to write nor been compensated for any insurance business whatsoever other than several vesting payments that [he] received from GuideOne prior to GuideOne ceasing making said payments” [Doc. 52-5 at 3]. In that same affidavit, Plaintiff paints his relationship with Melson as one of lessor-lessee. He claims Melson “ultimately insisted, as a condition of leasing [Plaintiff's] Property, that the name of the new agency he would operate would be ‘Barfield-Melson Insurance Agency’ ” [Doc. 52-5 at 2]. Plaintiff claims to have “simply agreed to allow Mr. Melson to use [his] last name in the new Agency to secure and ensure a lease of the Property” [Doc. 52-5 at 3]. Plaintiff also argues he had no knowledge of the September 25, 2015 letter [Doc. 52-5 at 3]. Despite Plaintiff's bald assertion that he did not violate ¶ 6(E) of the SAC, Plaintiff has failed to provide any evidence to support his claim. In his response [Doc. 26] to GuideOne's first Motion for Summary Judgment, Plaintiff attached only three exhibits: (1) an Attorney Declaration pursuant to Federal Rule of Civil Procedure 56(c)(4); and (2) two copies of the SAC. In his response [Doc. 56] to GuideOne's Amended Motion for Summary Judgment, Plaintiff did not attach any new exhibits. In his Motion for Summary Judgment, Plaintiff attached: (1) four copies of the SAC; (2) a copy of an addendum to the SAC; (3) the Statement of Jeanette Bonney, GuideOne's Agency Manager; (4) an e-mail from GuideOne to Plaintiff announcing that Plaintiff's Bonus Program had been upgraded; (5) two copies of the parties' Career General Agency Contract (the “GAC”);[10] (6) several e-mails between Plaintiff and Wofford,[11] (7) an e-mail from Wofford to someone named Paul Czerniak (“Czerniak”) in which Wofford tells Czerniak about Plaintiff's intentions to “vest out and continue in the insurance business with his CGA book” [Doc. 28-5 at 39]; (8) an e-mail from Plaintiff to Wofford in which Plaintiff announces his plans to retire from GuideOne effective July 1, 2015; (9) a letter from Valerie Pinkett (“Pinkett”), GuideOne's in-house counsel, in which Pinkett notifies Plaintiff that GuideOne would be terminating his payments pursuant to ¶ 6(E) of the SAC; (10) a letter from Plaintiff to Pinkett in which Plaintiff claims he “ha[s] not as much as quoted a single piece of property/casualty business since June 2015” nor “sold [ ]or attempted to sell property and casualty insurance since June” [Doc. 28-5 at 48]; (11) several more letters between Plaintiff and Pinkett; (12) a copy of Plaintiff's Georgia Insurance License; and (13) a letter from Plaintiff and Melson to an undisclosed list of recipients in which Plaintiff announced his retirement from GuideOne, but provided quotes to the recipients as well as contact information and a claim that “Guideone will begin next year to non-renew all homeowner business in Georgia” [Doc. 28-5 at 79]. *12 However, none of these exhibits contain any evidence to rebut the evidence produced by GuideOne. GuideOne produced ample evidence, see Section I, pages 5-8, to show Plaintiff violated the Vesting Payments Provision, and Plaintiff has failed to produce evidence to create a genuine issue of material fact. The only scintilla of evidence in the record suggesting Plaintiff did not violate ¶ 6(E) of the SAC is Plaintiff's assertion that he didn't [Doc. 28-5 at 48; Doc. 52-5 at 3]. This is insufficient. See, e.g., Johnson v. Niehus, 491 F. App'x 945, 949 (11th Cir. 2012) (declining to credit plaintiff's self-serving evidence “which [was] blatantly contradicted by the evidence in the record,” because “no fair-minded jury could return a verdict” for the plaintiff); Vicks, 380 F. App'x at 852 (affirming summary judgment where plaintiff's only evidence was his own affidavit and plaintiff's “version of events ... was contradicted by all of the relevant evidence, with the exception of his own affidavit”). Despite Plaintiff's insistence that he did not solicit GuideOne policyholders or compete with GuideOne within twenty-five miles, Plaintiff advertised his and Melson's agency on Facebook. He wrote to his former policyholders via e-mail and advised them GuideOne would “begin next year to non-renew all homeowner business in Georgia” [Doc. 28-5 at 79]. He provided GuideOne policyholders with quotes. He admitted to being compensated for insurance business between July 1, 2015 and February 2, 2016. Contrary to Plaintiff's affidavit testimony, this was not simply a lessor/lessee relationship. The evidence is clear that Plaintiff violated ¶ 6(E) of the SAC by soliciting GuideOne policyholders to instead work with him and Melson and engaging in the property or casualty insurance business within twenty-five miles of GuideOne. The Court therefore GRANTS GuideOne's Amended Motion for Summary Judgment as to Plaintiff's claims and DENIES Plaintiff's Motion for Summary Judgment. B. GuideOne's Counterclaims In response to Plaintiff's amended complaint, GuideOne filed four counterclaims: (I) “Misappropriation of Trade Secrets”; (II) “Breach of Contract (Trade Secrets)”; (III) “Breach of Contract (Non-Solicitation)”; and (IV) “Breach of Contract (Contingency Payments)” [Doc. 43]. The Court addresses each in turn. i. Misappropriation of Trade Secrets GuideOne contends Plaintiff misappropriated GuideOne's trade secrets under the GTSA by wrongfully disclosing GuideOne's customer list with his partner, Melson. A claim for misappropriation of trade secrets under the GTSA requires a party 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); see also Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1410 (11th Cir. 1998). The GTSA defines a “trade secret” as information, 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, proving the existence of a trade secret requires showing “(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 (iii) that was subject to reasonable efforts to maintain its secrecy.” EarthCam, Inc. v. OxBlue Corp., 49 F. Supp. 3d 1210, 1224-25 (N.D. Ga. 2014). Whether information constitutes a trade secret is a question of fact. Camp Creek, 139 F.3d at 1410. *13 GuideOne argues each element of a trade secret is met. First, it argues its policyholder information--including contact information, dates of birth, social security numbers, and information related to policies—is not generally available to the public. To support this claim, GuideOne relies on the Declaration of Terre Wofford (“Wofford”), the Sales Director for GuideOne [Doc. 52-9]. Wofford stated in her declaration that GuideOne requires all agents and producers to sign agreements that contain non-disclosure provisions to protect this information [Doc. 52-9 at 3 ¶ 5]. GuideOne next argues that the information is valuable because Plaintiff would know when policyholders' policies were up for renewal and how to beat what was being offered by GuideOne. Lastly, GuideOne argues that it took reasonable steps to maintain the secrecy of its policyholders' information. Not only did GuideOne require employees to sign non-disclosure information, but GuideOne also maintains its policyholders' information on a password-protected system [Doc. 52-9 at 3 ¶ 6]. Only certain individuals—including agents and producers—have access [Doc. 52-9 at 3 ¶ 6]. To show that it used reasonable efforts to keep the information private, GuideOne relies exclusively on its alleged use of non-disclosure agreements and the fact that the information was password protected and made only available to “certain individuals.” However, a careful reading of Wofford's declaration makes it appear as though all agents have access to the policyholders' information. If the information was not restricted to certain employees, but rather to all agents and possibly additional roles, then all GuideOne has to rely on are its non-disclosure agreements. However, “requiring all employees to sign generalized confidentiality agreements is generally not, standing alone, sufficient to demonstrate reasonable efforts.” Diamond Power Int'l, Inc. v. Davidson, 540 F. Supp. 2d 1322, 1334 (N.D. Ga. 2007); see also Equifax Servs., Inc. v. Examination Mgmt. Servs., Inc., 216 Ga. App. 35, 40 (1994) (finding a company-wide confidentiality agreement alone was not reasonable as a matter of law to maintain secrecy of customer list). This is not to say that a finder of fact could not find the policyholders' information a trade secret. A reasonable jury could still find the efforts of a password-protected document coupled with a confidentiality agreement sufficiently reasonable to maintain the policyholders' information secret. GuideOne has simply not provided enough evidence for the Court to determine that this information is a trade secret as a matter of law. Because the Court finds the evidence insufficient to find GuideOne's policyholders' information trade secret as a matter of law, the Court does not address whether Plaintiff's alleged dissemination of the information constitutes misappropriation. The Court therefore DENIES GuideOne's Motion for Summary Judgment as to its GTSA claim. ii. Plaintiff Breached the Non-Disclosure Provision GuideOne argues that for the same reasons Plaintiff violated the GTSA, Plaintiff breached the SAC's Non-Disclosure Provision through his misappropriation of GuideOne's policyholder information. The Non-Disclosure Provision states, in pertinent part: It is agreed between the parties that ... all information regarding names, addresses and ages of policyholders of the Company, the description and location of insured property, and expiration or renewal dates of Company policies acquired by the Agent during the effective period of the contract, or any prior contract between the parties, shall constitute trade secrets wholly owned by the Company. It is further agreed that the Agent will not use any of the information described in this paragraph for any other purpose, either directly or indirectly, and will not provide such information to any other person or organization. *14 [Doc. 52-6 at 2 ¶ 11]. Under Georgia law, the plain and unambiguous terms of a contract must be enforced as written. Chaudhuri v. Fannin Reg'l Hosp., 317 Ga. App. 184, 184 (2012) (noting the trial court must first “decide whether the language is clear and unambiguous” and if it is, “the court simply enforces the contract according to its clear terms”) ; see also Schwartz v. Harris Waste Mgmt. Grp., Inc., 237 Ga. App. 656, 660 (1999) (“First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms[.]”). Only where a contract is ambiguous in some respect does the Court apply rules of contract construction to resolve the ambiguity. Chaudhuri, 317 Ga. App. at 184. “The existence or non-existence of an ambiguity is itself a question of law for the court.” Se. Atl. Cargo Operators, Inc. v. First State Ins. Co., 197 Ga. App. 371, 372 (1990). Here, the Non-Disclosure Provision is clear and unambiguous: Plaintiff is not permitted to provide: (1) policyholders' names, addresses, or ages; (2) the description and location of insured property; or (3) the expiration or renewal dates of [GuideOne] policies “to any other person or organization” [Doc. 52-6 at 2 ¶ 11] (emphasis added). It is clear from the evidence cited by GuideOne, see Section I, pages 5-8, that Plaintiff--at the very least--provided policyholder information to Melson. Specifically, Plaintiff forwarded GuideOne policyholders' names to Melson in a number of e-mails [Doc. 52-13 at 2; Doc. 52-15 at 4 ¶ 9; Doc. 52-21 at 2; Doc. 52-22 at 2; Doc. 52-35 at 2]. Plaintiff does not dispute these allegations. The Court therefore agrees with GuideOne that there is no dispute of material fact as to whether Plaintiff breached the Non-Disclosure Provision. Accordingly, summary judgment is appropriate on this counterclaim. iii. Plaintiff Breached the Non-Solicitation Provision GuideOne next argues that for the same reasons it was entitled to summary judgment on Plaintiff's claims, it is entitled to summary judgment on its counterclaim that Plaintiff breached the SAC's Non-Solicitation Provision. The Non-Solicitation Provision--¶ 2 (C) of the SAC—states, in pertinent part: Upon termination of the contract, it is agreed that: ... The Agent will not, for a period of one year following the termination of this contract, either personally or through any other person, agency or organization, ... (2) solicit any [policyholder of the Company] to purchase or accept any offer of such policyholder to purchase any insurance coverages of the types sold by the Company. [Doc. 52-6 at 4]. This language is identical to the non-solicitation language in ¶ 6(E). For the reasons provided in Section III (A) (iv) above, the evidence in the record establishes that Plaintiff violated ¶ 6(E), and therefore ¶ 2(C), by soliciting GuideOne policyholders. Therefore, for the same reasons the Court grants summary judgment for GuideOne on Plaintiff's claims, it finds summary judgment appropriate on GuideOne's breach of the Non-Solicitation Provision counterclaim. iv. Plaintiff Breached the Vesting or Contingency Payment Provision *15 GuideOne last argues that Plaintiff breached the Vesting Payment Provision, or ¶ 6(E), of the SAC. The Court agrees. For the reasons provided in Section III(A)(iv) above, Plaintiff violated ¶ 6(E) by: (1) soliciting GuideOne policyholders to instead work with him and Melson; and (2) engaging in the property or casualty insurance business within twenty-five miles of GuideOne. Accordingly, the Court finds summary judgment appropriate on GuideOne's breach of the Vesting Payment Provision counterclaim. In sum, the Court GRANTS GuideOne's Motion for Summary Judgment on its Counterclaims with respect to counterclaims II through IV but DENIES GuideOne's Motion for Summary Judgment on its Counterclaims with respect to GuideOne's GTSA counerclaim. IV. GuideOne's Motion for Sanctions GuideOne last seeks dismissal of Plaintiff's Amended Complaint and entry of default judgment in its favor with respect to its counterclaims pursuant to Federal Rule of Civil Procedure 37(e). Rule 37(e) provides, in pertinent part: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: ... (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). First, the Court must evaluate the reasonableness of preservation efforts. Creative Movement & Dance, Inc. v. Pure Performance. LLC, CIVIL ACTION FILE NO. 1:16-CV-3285, 2017 WL 4998649, at *14 (N.D. Ga. July 24, 2017). To do so, the Court considers: (1) the routine, good-faith operation of an electronic information system; (2) the need to intervene in the routine operation; (3) the party's sophistication with regard to litigation in evaluating preservation efforts; (4) factors beyond the party's control (malign software attack, failure of a “cloud” service, whether information destroyed was not in the party's control, etc.); and (5) proportionality of costs. Id. (internal quotation marks and citation omitted). If the Court determines that a party failed to take reasonable steps to preserve the information in the anticipation of litigation, a Court may resort to Rule 37(e) measures only “upon finding prejudice to another party from loss of the information.” Id.; see also Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 697 (N.D. Ga. 2016); In re Delta/AirTran Baggage Fee Antitrust Litigation, 770 F. Supp. 2d 1299, 1310 (N.D. Ga. 2011) (“Where, as here, the moving party is not able to establish that the allegedly destroyed evidence is critical to the case, courts have consistently refused to impose spoliation sanctions.”). “An evaluation of prejudice from the loss of information necessarily includes an evaluation of the information's importance in the litigation.” Creative Movement & Dance, 2017 WL 4998649, at *14 (citation omitted). GuideOne contends Plaintiff failed to preserve electronic and other evidence critical to the claims in this case. However, GuideOne has not established that Plaintiff's alleged destruction of the evidence has prejudiced it. In fact, the Court grants summary judgment for GuideOne on all claims except GuideOne's GTCA claim, and Plaintiff's alleged spoliation of evidence is immaterial to whether GuideOne took reasonable measures to protect its policyholders' information. Without a showing of prejudice, GuideOne cannot succeed on its Motion for Sanctions under Rule 37 (e). The Court therefore DENIES GuideOne's Motion for Sanctions [Doc. 55]. V. CONCLUSION For the reasons provided above, the Court GRANTS Defendant's Amended Motion for Summary Judgment on Plaintiff's Claims [Doc. 52], GRANTS Defendant's Motion for Summary Judgment on Defendant's Counterclaims II through IV [Doc. 52], DENIES Plaintiff's Motion for Summary Judgment [Doc. 28], DENIES Defendant's Motion for Summary Judgment on Defendant's Counterclaim under the Georgia Trade Secret Act [Doc. 52], and DENIES Defendant's Motion for Sanctions [Doc. 55]. Defendant's first Motion for Summary Judgment is DENIED AS MOOT [Doc. 16]. To summarize, the issues remaining for trial are: (1) GuideOne's GTSA counterclaim; and (2) GuideOne's damages from Plaintiff's breach of the SAC. The parties are DIRECTED to file a consolidated, joint proposed Pretrial Order within thirty (30) days of entry of this Order. *16 SO ORDERED, this 24 day of March, 2020. Footnotes [1] Defendant filed its first Motion for Summary Judgment on April 5, 2019 [Doc. 16]. However, Defendant's Amended Motion for Summary Judgment supersedes the April 5, 2019 summary judgment motion [Doc. 52 at 1 n.1]. Therefore, Defendant's April 5, 2019 Motion for Summary Judgment [Doc. 16] is DENIED AS MOOT. [2] GuideOne alleges the letter was sent to GuideOne policyholders, however the photocopy of the letter GuideOne attached to its motion does not include the letter's recipients [Doc. 52-1 at 8]. Melson states in his Declaration that “[u]pon information and belief, [Plaintiff] sent [the letter] to his former GuideOne policyholders to promote [their] new business venture” [Doc. 52-15 at 4 ¶ 8]. [3] Based on the averments of the removal petition, this Court has jurisdiction over this case because the parties are diverse and the amount in controversy exceeds $75,000. [4] As previously stated, Defendant's Amended Motion for Summary Judgment supersedes Defendant's April 5, 2019 summary judgment motion [Doc. 52 at 1 n.l]. Therefore, Defendant's April 5, 2019 Motion for Summary Judgment [Doc. 16] is DENIED AS MOOT. [5] GuideOne also cites a Georgia Court of Appeals case decided after A.L. Williams which found that the contract at issue “could have expressly provided for loss of rights and privileges by forfeiture for engaging in competitive employment but it did not do so.” Hopkins v. Garner & Glover Co., 233 Ga. App. 264, 270 (1998). The court continued that “[i]n fact, a written insurance agent employment contract could provide for the forfeiture of future commissions on renewal premiums for working for a competitor[.]” Id. However, the court relied on the holdings of pre-A.L.Williams cases. Id. (relying on National Consultants, Sheppard, and Brown Stove Works). Accordingly, the Court considers Hopkins an outlier and in direct conflict with A.L. Williams, [6] GuideOne's own Response to Plaintiff's Motion for Summary Judgment notes that “[t]he logical reading of the contract is that Plaintiff may be entitled to payments ¶ 6) unless he engages in certain specified misconduct ¶ 6(E)) [Doc. 35 at 7] (emphasis added). [7] It is a well-established rule of contract interpretation that “the contract must be construed as a whole.” Fix v. McAllister, 273 Ga. App. 463, 467 (2005); see also O.C.G.A. § 13-2-2(4). [8] This provision, located at ¶ 2(C), prohibits Plaintiff for a period of one year following termination of the contract from: “(1) indue[ing] or advis[ing] any policyholder of the Company to lapse, surrender or cancel any coverages of the Company or (2) solicit[ing] any such policyholder to purchase or accept any offer of such policyholder to purchase any insurance coverages of the types sold by the Company” [Doc. 15-5 at 4]. [9] The relevant portion of ¶ 6(E) restricts Plaintiff from “personally or through any other person, agent or organization solicit[ing] or sell[ing] to the Company's policyholders or accept[ing] business from the Company's policyholders, any insurance of the type sold by the Company” [Doc. 15-5 at 5]. [10] The GAC is a separate agreement between Plaintiff and another party—Career General Agency, Inc. (“CGA”) [Doc. 16-1 at 11]—and has no relevance to the dispute at issue. [11] The Court notes that in one e-mail to Wofford, Plaintiff discusses bringing Melson on as a partner and further states “Noncompete does not hold water in GA, so I would not have a producer sign one” [Doc. 28-5 at 37].