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PATRICIA L. GLASER - State Bar No. 55668
[email protected] LAWRENCE M. HADLEY - State Bar No. 157728
[email protected] SEAN RILEY - State Bar No. 123533
[email protected] GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP 10250 Constellation Boulevard, 19th Floor Los Angeles, California 90067 Telephone: (310) 553-3000 Facsimile: (310) 556-2920
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Attorneys for Plaintiff Quid, Inc. 8 9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN FRANCISCO
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QUID, INC., a California Corporation Plaintiffs,
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v.
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PRIMER TECHNOLOGY, INC.; SEAN GOURLEY; AMY HEINEIKE; EMMANUEL YERA; DOES 1-10, inclusive,
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CASE NO.: CGC-19-574788 HON. ETHAN P SCHULMAN
Defendants.
PLAINTIFF QUID INC.’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER, EXPEDITED DISCOVERY ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [DECLARATIONS OF ROBERT GOODSON, DERRICK REED, SHAWN KADERABEK, AND LAWRENCE M. HADLEY FILED CONCURRENTLY HEREWITH]
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DATE: March 28, 2019 TIME: 11:00 a.m. COURTROOM: 302
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EX PARTE APPLICATION
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 3
PLEASE TAKE NOTICE that on March 28, 2019, at 11:00 a.m., in Department 302 of the 4
above-captioned Court, or as soon thereafter an Plaintiff may be heard, Plaintiff Quid, Inc. (“Quid”) 5
will and hereby does apply a pply to this Court pursuant to California Code of Civil Procedu re §§ 526 and 6
527, Civil Code §§ 3426.2, Business and Professions Code § 1700, California Rule of Court 359 7
and Local Rule 7.3(k)(1) for a temporary restraining order, order to show cause regarding a 8
preliminary injunction, and order for appointment of a special master and for expedited discovery as 9
follows: 10
1.
A temporary restraining order directing, enjoining and restraining Defendant’s
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Primer Technology, Inc. (“Primer”), Sean Gourley, Amy Heineike and Emmanuel Yera 12
(collectively “Defendants”) and each of them and each of their respective employees, agents and 13
representatives and all of those acting in concert with them from: 14
a.
destroying, disposing of , erasing, deleting, incapacitating, remov ing,
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corrupting, or concealing directly or indirectly of any original, copy or duplicate of any computer 16
data belonging to Plaintiff in Defendants’ possession, including, without limitation, the complete 17
content of any Google data archives of Plaintiff's data accessed by Defendant at any time using 18
"Google Takeout" or any other feature on Plaintiffs computer network, proprietary technology data, 19
emails, chats, texts, electronic logs, metadata, storage, directories, customer lists, customer 20
preferences, investor lists, and any and all other data and information, and any other documents, 21
data, software, code, technical specifications or drawings in which Plaintiff’s data has been used in 22
any way whether located on-premises, in personal devices or in cloud-based repositories 23
(collectively, the "Plaintiff's Computer Data"); 24
b.
using accessing, disclosing, making copying, divulging, d ivulging, disseminating,
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selling, distributing, transmitting or otherwise misappropriating any of the Plaintiff's Computer 26
Data; 27
c.
directly or indirectly contacting any customers or investors of Plaintiff for any
28 2 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
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purpose of soliciting business or providing any funding for any technology of Defendant Primer derived from any use or access a ccess to Plaintiff's Computer Data; and d.
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directing Defendants, and all those acting ac ting in concert or participation with
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them, to deliver immediately and forthwith to Defendant, all copies of all documents, materials, and
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other media, whether in paper form or in an electronic medium, containing and comprising
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Plaintiff's Computer Data. 2.
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An order to show cause regarding issuance of a preliminary injunction directing that
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Defendants appear before this Court at a specified date and time to show cause cau se why a preliminary
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injunction should not be issued directing and enjoining Defendants from engaging in the above-
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referenced conduct through and including the trial of this action. 3.
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An order for the preservation of evidence eviden ce and appointment of a Special Master in this
action on the following terms: a.
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That forensic specialist Shawn Kaderabek at Freeh F reeh Group International
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Solutions (“FGIS”) is appointed and empowered by this Court to oversee the forensic imaging
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forthwith of Defendants’ computer systems and servers, including email systems, mobile devices,
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laptops or other computer drives both local and stored in any off-site server or the “cloud” (the
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“Defendant’s Computer Repositories”) for the purpose of ascertaining the ex tent of Plaintiff’s
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Computer Data in Defendants’ possession, possession, custody, and control. The forensic imaging of the
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Defendants’ Computer Repositories shall be undertaken and completed as soon as access to such
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Repositories can be provided by Defendants, which access is to be provided as soon as practicable,
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but no later than ________, 2019. No analysis or other action shall be taken regarding the image of
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Defendant’s Computer Repositories pending the appointment of the Special Master referred to below. b.
Upon completion of forensic imaging referred to above, abo ve, the parties are
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ordered to select and submit to this Court the name of a retired judge or an individual associated
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with JAMS having experience in evidence preservation and supervising forensic data collections
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and analysis to act as Special Master with power to hear and make reports and recommendations to
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this Court regarding the following pre-trial matters: 3 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
1599373
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preservation of Plaintiff’s Computer Data in possession possession of
ii.
forensic analysis of Defendants’ Computer Repositories for purposes
Defendants;
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i.
of ascertaining the extent of Plaintiff’s Computer Data in Defenda nts’ possession; and iii.
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The nature and extent of Defendants’ communications by email or
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otherwise with any customers or investors of Plaintiff appearing in Defendants’ Computer
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Repositories.
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c.
In the event that the parties cannot agree on a name of a retired judge to act as
Special Master in accordance with the above-referenced direction then the parties are instructed to
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forthwith select one retired judge or an individual associated with JAMS having experience in
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evidence preservation and supervising forensic data collections and analysis, and each of those
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selected shall in turn pick another retired judge judg e or an individual associated with JAMS having ha ving
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experience in evidence preservation and supervising forensic data collections and analysis to act as
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the Special Master in this case. The process of selecting and submitting submitting the name of this Special
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Master to the Court for approval shall take place within twenty (20) days of the date of this Order.
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d.
The Special Master shall exercise the power po wer necessary or proper to regulate
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all proceedings before him, and shall do all acts and take all measures necessary and proper for the
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efficient performance of his duties under this Order.
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e.
The Special Master shall file reports and recommendations to this Court to
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advise this Court of the status of the case and recommend the disposition of any matter heard by him
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or her. Upon the submittal of any such such interim reports or recommendations by the Special Master,
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the parties shall have ten (10) days d ays from the date of such interim report or recommendation rec ommendation to file
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any objections. Any party opposing the objection shall file an opposition within ten ten (10) days after
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the objection is filed. If no objection is filed, filed, the Special Master’s report or recommendation shall
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become the binding Order of the Court and the parties shall comply with the Order. If an objection
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is filed, the matter should be deemed submitted to the Court without oral argument twenty (20) days
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after the Special Master’s report or recommendation is filed and shall be promptly ruled upon by b y the
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Court, unless application is made and the Court orders the matter to be scheduled for hearing. 4 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
1599373
f.
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Reports or recommendations made by the Special Master and confirmed by
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this Court by Order shall be reconsidered by b y this Court only if the Special Master’s report or
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recommendation is clearly erroneous or contrary to law. g.
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Unless the Court receives a recommendation from the Special Master for
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some other appointment then each party shall bear the costs of the Special Master’s fees and
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expenses on a per party basis. h.
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The fees and costs for the Special master shall be submitted to the parties.
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Plaintiff, on the one hand, and Defendants collectively on the other hand, shall each be responsible
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for paying one-half of the Special S pecial Master’s invoices within 30 days of receipt.
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4.
Plaintiff further seeks an order for expedited discovery as follows: a.
Plaintiff may forthwith propound document discovery demands on
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Defendants and each of them, seeking documents pertaining to whether and to what extent
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Defendants and each of them have accessed, used, u sed, destroyed, or otherwise interfered with Plaintiff's
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Computer Data in their possession and control.
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b.
Plaintiff may forthwith propound special interrogatories to Defendants and
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each of them for discovery pertaining to whether and to what extent Defendants and each of them
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have used, disclosed, accessed, or otherwise derived benefit from Plaintiff's Computer Data.
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c.
Defendants shall serve responses to Plaintiff's discovery request no later than
fifteen (15) days after service. This application is made on the grounds that Defendants – all former employees of Plaintiff – accessed, copied, downloaded and made active use u se of trade secret and highly confidential
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computer data of Plaintiff – both during du ring and subsequent to their employment with plaintiff – all for
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the purpose of benefitting their directly competing co mpeting company Primer Technologies, Inc. (“Primer”) in
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the computer-generated analysis of large data collections. As set forth in the accompanying Ex
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Parte Application, direct evidence confirms that Defendant Gourley – while still an employee of
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Quid – repeatedly downloaded from Quid’s computer network a complete Google data archive of
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his entire “Google Suite” of Quid accessible computer data including both his email and Google
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drive, amounting to over 100,000 separate highly proprietary items at Quid, including source code 5 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
1599373
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files. Thereafter, direct evidence also demonstrates that, during and subsequent to his Quid
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employment, Defendant Gourley with the active assistance of the other Individual Defendants used
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his Quid email address for the purpose of soliciting and diverting business opportunities intended
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for Quid to his new directly competing entity thereby enabling Primer to receive funding and
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customers otherwise intended for Quid’s benefit. All of this conduct occurred in direct violation of
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each of the Individual Defendants’ Defend ants’ contractual commitments - - continuously in place until this very
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day - - to preserve during du ring employment and immediately return upon employment e mployment termination all
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Proprietary Information at Quid.
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This completely unauthorized and illegal conduct conduc t of Defendants – constituting breach of
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contractual commitments, misappropriation of trade secret information and unfair competition - -
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will continue to impose irreparable harm upon the business and operations of Plaintiff on a daily
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basis unless the requested restraining order relief is granted in its its entirety. In this regard, the requested injunctive relief, imaging of defendant’s computer d ata to avoid destruction or deletion of
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proprietary information taken from plaintiff and the expedited discovery requests are essential for
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avoiding this irreparable harm and maintaining the status quo pending a hearing on a preliminary
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injunction motion for the same relief.
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This ex parte application is based upon up on the Complaint filed concurrently herein, the
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accompanying Memorandum of Points and Authorities attached hereto, the supporting Declarations
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of Robert Goodson, Derrick Reed, and Shawn Kaderabek as well as the exhibits thereto and such
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other evidence and argument as the Court may consider at the hearing of this application.
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DATED: March 27, 2019
GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP
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By:
/s/Lawrence M. Hadley
Lawrence M. Hadley PATRICIA L. GLASER LAWRENCE M. HADLEY SEAN RILEY Attorneys Attorneys for Plaintiff Plaintiff Quid, Inc.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
Plaintiff Quid seeks emergency relief after recently discovering that its co-founder and
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former CTO (Sean Gourley)—a man fired four years ago because he failed to competently develop Quid’s next generation software platform—stole more than 100,000 do cuments, including at least 86 source code files, from Quid and an d then used them not only to form a new company (while still employed at Quid) but to create c reate a product strikingly similar to Quid’s and then compete against his former employer. To ensure success in a fraction fraction of the time required to legitimately build a competitor, Gourley (after illegally downloading the 100,000 documents up to three times prior to his departure) maintained illegal access to his Quid email account and “Google Suite” Su ite” of applications so he could both fraudulently divert business opportunities to his new company— communicating with potentials clients and investors in a way that suggested Gourley maintained a relationship with Quid—access Quid’s source code files, and monitor Quid’s continuing software development efforts. Gourley (along with his new company, Primer) engaged in this illegal course of corporate
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INTRODUCTION
espionage in direct violation of his Employee Invention Assignment and Confidentiality Agreement (“Confidentiality Agreement”) that every Quid employee, including each of the Individual Defendants, must sign. The Confidentiality Agreement sets forth rigorous and detailed commitments to preserve the absolute confidentiality of Quid’s Proprietary Information 1 both employment, and expressly provides for injunctive relief for any during and continuously after employment,
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Proprietary Information is broadly defined in the Confidentiality Co nfidentiality Agreement to include “any information or materials of a confidential or secret nature that may be made, created or discovered by me or that may be disclosed to me by the Company (i.e. Quid) or a third-party in relation to the business of the Company or to the business of any parent, subsidiary, affiliate, customer or supplier of the Company, or any other party with whom the Company agrees to hold such information or materials in confidence . . . includ[ing] but . . . not limited to [inventions], [marketing plans], product plans, designs, data, prototypes, specimens, test protocols, laboratory notebooks, business strategies, financial information, forecasts, personnel information, c ontract information, customer and supplier lists and non-public names and addresses of the Company’s, customers and suppliers, their buying and selling habits and special needs.” (See Declaration of Robert Goodson (“Goodson Decl.”) ¶ 15, Exh D. 8 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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breach the employee’s confidentiality obligations. Injunctive relief, as each employee, including the
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Individual Defendants stipulated, is critical in protecting Quid’s highly confidential Proprietary
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Information—much of it available on Quid’s computer networks including by way of its Google
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Suite of applications—that represents the product of years of time, money and expense on o n the part
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of Quid and its most valuable assets. The requested restraining order relief is essential to prevent the ongoing irreparable harm
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caused by Defendants’ conduct and real and imminent threat of continued unauthorized misuse of
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Plaintiff’s Proprietary Information in direct violation of Defendants’ legal obligations.
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II.
A.
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Quid Invests Substantial Resources in Developing its Industry-Leading Data Analysis Product and Services
In September 2007, Goodson founded You Noodle, Inc., later renamed Quid, and gained initial funding to research and develop technology aimed at developing a platform capable of ingesting massive amounts of data and delivering business insights. insights. (Goodson Decl., ¶ 3). From September 2007 through September 2010, 20 10, You Noodle was staffed with a team of scientists engaged in research and development to enhance the data collection and analysis platform and gain additional funding.
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FACTUAL BACKGROUND
On September 10, 2010, You Noodle changed its name publicly to Quid, and led by Founders Fund, had in 2009 gained additional funding in the amount of $2,500,000 (Goodson Decl. ¶ 5). With the aid of this funding, Goodson initiated research and development to take the Quid platform to the next level by enabling it to ingest data from a range of public document sources and to use algorithms to create maps for search queries. ( Id. Id. at ¶5.)2 Quid has continued to invest in bringing innovations to the market. Just this year, Quid released a new line of products, called “Quid Apps”, including “Competitor “Competitor Briefing.” This new product leverages the proprietary
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The development of this next ne xt generation platform involved repeated corrections by a team of 26 engineering and scientific staff to overcome functional deficiencies in the technology, but ultimately in 2012 Quid was able to release a downloadable software application for commercial testing and 27 use. ( Id an d Id . at ¶5.) In late 2013, the new Quid platform derived from this massive research and development effort and expenditure of funds was released for commercial deployment as a browser28 based application. ( Id Id . at ¶5.) 9 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
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machine intelligence of the core Quid platform to break down all news coverage shaping public
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perception of a company and its competition. ( Id. Id. at ¶7.) Quid’s technology platform consists of
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over 100 separate innovations, including inc luding some that are the subject of issued United States patents.
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( Id. first-to-market leadership position, Quid requires the utmost integrity Id. at ¶8.) To maintain its first-to-market
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from its employees to preserve strict confidentiality over the Company’s proprietary information,
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methods and practices. ( Id. Id. at ¶ 8.)
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B.
Quid’s Policies and Regulations Regarding Employee Use of Company Computers and Handling of Electronic Data
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1.
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Upon employment at Quid, all employees (including each of the Individual Defendants in this case) are required to execute a Confidentiality Agreement (Goodson Decl. ¶9, Exhs. A, B, and C). In executing the Confidentiality Agreements, Agreements, each of the Individual Defendants certified, certified, acknowledged and agreed that:
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Confidentiality Agreements
“both during my employment and after its termination, I will keep and hold all at all times[Quid] Proprietary Information in strict confidence and trust [and] I will not use or disclose any Proprietary Information without the prior written consent of the Company in each instance, except as may be necessary to perform my duties as an employee of the Company for the benefit of the Company” “upon termination of my employment with the Company, I will promptly deliver to the Company all documents and materials of any nature pertaining to my work with the Company, and I will not take with me or retain in any form any documents or materials or copies containing any Proprietary Information”
“during the period of my employment, I will at all times devote my best efforts to the interest of the Company and I will not, without prior written consent of the Company, engage in or encourage or assist others to engage in, any other employment or activity that (i) would divert from the Company any business opportunity in which the Company can reasonably be expected to have an interest , (ii) would directly compete with, or involve preparation to compete with, the current or future business of the Company; or (iii) would otherwise conflict with the Company’s interests or could cause a disruption of its operation or prospects”; “during employment and for a period of one year thereafter . . . I will not directly or indirectly solicit away employees or consultants of the Company for my own benefit or for the benefit of any other person or entity nor will I encourage or assist others to do so”; “during and after the termination of employment, I will not directly or indirectly solicit or otherwise take away customers or suppliers of the Company if in doing so I used or disclose any trade secrets or other Proprietary Information of the Company;
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“all documents, supplies, equipment and other physical properties furnished to me by the Company or produced by me or others in connection with my employment will be and remain the sole property of the Company [and] … I will, upon termination of my employment, “return to the Company all Company property and I will not take with me or retain any such items ”.
Goodson Decl. ¶ 9, Exhs. A, B, and C (emphasis added). 4
The Individual Defendants further acknowledged and agreed that “[a] breach or threatened 5
breach of this Agreement by me may cause the Company to suffer irreparable harm and the 6
Company will therefore be entitled to injunctive relief to enforce this agreement . Id . at Exh. A, 7
B, and C (emphasis added). 8
2.
Employee Handbook Acknowledgments
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Each of the Individual Defendants also acknowledged and agreed to the further detailed 10
confidentiality policies set forth in the Quid Employee Handbook as a condition of their 11
employment, including requirements to: 12
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20 21 22 Id .
acknowledge that any improper use or disclosure of the Company’s confidential or proprietary information will be subject to disciplinary action up to and including termination of employment. conduct any “personal business, including outside employment on company time or with company equipment, supplies or other resources, unless allowed to do so by law.” acknowledge that “all information created, sent, received or stored on the Company’s electronic resources is Company property” and “any use of portable drives to download Company information for any purpose for any purpose other than Company business . . . without the advance written approval of the Company’s management” is prohibited.
at Exh. D. In addition to these rigorous protections, access to Quid’s computer network, including the
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keep all “confidential or proprietary information of Quid in confidence” and “not use, reveal, or divulge any such information unless it is necessary for you to do so in the performance of your duties or accept as otherwise allowed, if at all by applicable law.”
Google Suite applications was password protected. Id . at ¶ 11.3.
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Confidential or proprietary Information is defined in the Ha ndbook to include “business plans, strategies, budgets, protections, forecasts, financial and operating information, business contracts, databases, employee information, customer and vendor information, compensation data, advertising and marketing plans, proposals, training materials and methods and other information not available to the public.” (Goodson Decl. Exhs. A, B, and C). 11 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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C.
Quid Hires Gourley To Head Its Platform Development But He Fails And Is Terminated.
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On June 23, 2008, Gourley joined You-Noodle pursuant to a consulting agreement where
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Gourley provided research, development and a nd strategic advice to assist with creation of an earlier
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iteration of the Quid platform known at “Startup Predictor.” ( Id. Id. at ¶16). After completion of this
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consulting assignment, Gourley was offered and accepted a full-time position as Director of Data
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Tools, relocated to San Francisco and started employment in this capacity on November 1, 2009.
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( Id. Confidentiality Agreement. ( Id. Id. at ¶17.) On the same day, he executed his Confidentiality Id. at ¶17.)
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In September 2010, following the name change to Quid, Gourley was promoted to Chief Technology Officer and given the responsibility to direct a team of software engineers in the development of Quid’s next-generation platform. In January 2012, Gourley Gourley announced the new
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product ready for demonstration to Quid’s Board of Directors, but his presentation failed as the
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platform did not work as intended, and Gourley seemed to not comprehend its basic functionality.
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( Id. Id. at ¶19.) In the wake of this failed presentation, the Board demanded that changes in leadership
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and direction be made at the Company. Goodson stepped down as CEO and was tasked tasked with sales
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and helping to reengineer the platform to to get it back on track. ( Id. the benefit of new Id. at ¶20.) With the
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funding and the full-time efforts of a new Vice President of Engineering (who took over Gourley’s
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engineering responsibilities), the product deficiencies were corrected and Quid was able to release
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the product for commercial testing and use by late 2013.
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By early August 2014, Quid’s new CEO, Kevin Freedman, saw no need to keep Gourley as a
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Quid employee but decided to maintain continuity by retaining Gourley until new investor
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funding—expected to be in place by mid-January 2015—could be secured. Accordingly, on or
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about August 8, 2014, Freedman proposed an arrangement to Gourley whereby he would be
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relieved of his position as CTO and would act as “Advisor to the CEO” until his effective
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termination date of January 15, 2015. Gourley accepted. Under the arrangement, formalized and
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executed in a “Transition Agreement,” Gourley received a salary, continued vesting of his stock
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options and extension of his stock option date exercise, along with eligibility e ligibility for commissions and a
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financing bonus for sales if financing closed before his January 15, 2015 termination date. In
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exchange, Gourley agreed to perform any transition work reasonably assigned and upon the
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termination date sign a written written general release of all claims claims against Quid. ( Id. Id. at ¶23.) During the transition period between August 2014 and January 15, 2015, Gourley retained
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access to all Quid computer and network network systems both on its own premises and remotely. Quid
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satisfied all of its obligations under the Transition Agreement and Gourley executed the release in
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favor of Quid on March March 2, 2015. ( Id. Id. at ¶23.)
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D.
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Gourley and Primer Repeatedly Steals Quid’s Proprietary Information and Uses Quid’s Computer Network to Divert Business Opportunities to Primer During His Employment.
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In August 2014, after Freedman notified Gourley that he would be terminated, Gourley used
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the computer feature “Google Takeout” to create eight data archives of his Google Suite4, including
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all his emails and Google drive—over 100,000 separate items, including at least 86 python source
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code files (python is the programming language languag e that Quid used to write the code for its product) and
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over 7,000 emails. emails. (Kaderabek Decl., at ¶ 7.) Gourley may have repeated this same process on
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September 11, 2014. Then, on or about January 15, 2015—Gourley’s last last day at Quid—Gourley
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repeated this download process one more time, again creating eight “Google Takeout” files
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containing both his emails and Google drive comprising over 100,000 separate items. Id. at ¶8.
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Among other things, Gourley impermissibly accessed Quid’s cloud-based technical file repository
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and downloaded other Quid technical documents so that he would have these files when he
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completed his Google Takeout theft. Forensic analysis, just completed, shows that Gourley
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downloaded the files from Quid’s Git code repository—the repository that held Quid’s source code
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at the time. The source files that Gourley Gourley downloaded, then later copied in the Google Takeout,
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included “data_network,” “data_fetch,” and “useful_python”. Goodson Decl. at ¶ 9. Indeed,
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Gourley may have downloaded and absconded with Quid’s entire source code database. Gourley’s
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outright theft of Proprietary Information thus enabled Gourley’s access to the most sensitive Quid
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The Google Suite applications included a Google Drive for Cloud-based file storage and sharing, Google Cloud Search for locating files across the Google Suite, an electronic calendar, Google Plus social network, a secure team messaging application a pplication and access to Quid’s various Cloud-based applications used for engineering, marketing, sales and other company activities. These network applications also included Atlassian, used by Quid to track its software development and store its source code, as well as Sales Force, containing applications used to track marketing and sales effort for customer service and support. ( Id at ¶13.) Id at 13 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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data. In the fall of 2014, while still a Quid Qu id employee and without any Quid authorization, Gourley
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incorporated Primer and created a business plan for this new company, using his Quid email account
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to conduct the business necessary to do so5. Gourley’s five-page business business plan for Primer,
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essentially duplicated the functionality of Quid 6 and also identified potential clients as a s “analysts
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(and their managers) within the financial, intelligence an d business sectors” – the exact same clients
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targeted by Quid. ( Id Id . at ¶32.) After creating his Primer business plan, Gourley proceeded to use his Quid email account to
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contact and distribute his business plan to investors well known from his time at Quid—all while
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still a Quid employee. For example, on October 29, 2014, Gourley sent venture capital investor
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Robert Arditi at Norwest Venture Partners an email from his Quid e mail account enclosing the 5-
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page Primer business plan and falsely stating that it was a “summary of the new company [Quid] is
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working on” and requested feedback from NVP’s “seed [funding] stage folks,” since Primer is “in
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the middle of the fund raising process right now.” ( Id. (emphasis added)). Subsequently, on Id. at ¶ 33 (emphasis
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January 21, 2015, and again on January 23, 2015, Gourley used his Quid email to memorialize a list
16
of investors to whom documentation has been sent and funding money is expected.7 ( Id Id . at ¶ 35,
17
Exhs. T and U). Gourley made sure that he kept his his efforts hidden from from Quid by operating in a selfself-
18
described “stealth mode” until until his product was ready for launch. ( Id Id . at ¶ 40, Exhs X, Y.) Gourley also solicited the other Individual Defendants - - a ll Quid data scientists—to join his
19 20 21 5
22
In this time frame and by way of example only, Gourley used his Quid email in connection with creating articles of incorporation, setting up bank accounts, creating corporate documents, identifying potential vendors, networking, and soliciting soliciting investments. ( Id Id . at ¶ 31.)
23
6
24 25 26 27 28
Specifically, in the business plan, Gourley touted that the Primer Primer will “focus on the graph theory/time series analysis and multi-document synthesis” with a “technology stack” containing the following components: (1) data collection and storage/search, storage/search, (2) data annotations, (3) graph computation and time series analysis, (4) multi-document synthesis and insight extraction, and (5) generation function and publication via bots. At the time Gourley drafted drafted the Primer business plan, Quid’s platform either had most of the features, they were in development, or they were planned for development. (Goodson Decl. ¶ 32). 7
The investors listed in these January 2015 2 015 emails are Bloomberg, Locks, Amplify, DCVC, Crosslink, Avalon, AME, Stefan, Jeremy Wynn, all names derived from his Quid employment. (Goodson Decl. ¶ 35, Exhs. T and U.) 14 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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Primer team while he was still employed at Quid. First, Gourley solicited Heineike a Quid data
2
scientist to join Primer in November, 2014 following her he r October 31, 2014 termination date from
3
Quid. Similarly, Gourley also recruited Yera, another Quid senior data scientist, who left Quid on
4
January 17, 2015 and joined joined Primer as Director Of Product Engineering. ( Id. Id. at ¶ 34). Finally,
5
Gourley recruited Stephanie Kohl, a Quid data analytics and graphic designer, as Primer’s Director
6
of Design. Id.
7
E.
8
Quid recently discovered that Gourley, over the four years following his Quid termination
9 10 11 12 13 14 15 16 17 18 19
date, repeatedly logged into the Quid computer network to access Quid confidential data and use his Quid email address to falsely leave the impression with potential customers and investors that he was still associated with Quid (when he was not) n ot) to fraudulently divert business opportunities for the benefit of his directly directly competing entity Primer. Gourley repeatedly used this outright outright deception to obtain initial funding for Primer from $2 million and $4 million by early 2015 and eventually secure $40 million in Series B capital from multiple Quid investors, including Lux Capital, Mubadala Ventures, DCVC, Amplify, Avalon, Avalon, AME, Bloomberg, Crosslink and In-Q-Tell. In-Q-Tell. ( Id. Id. at ¶ 41.) In capturing these investors and other customers using using his Quid email account, Gourley touted a product essentially identical to the Quid platform and in the process monitoring and accessing a ccessing the Quid Google Suite to remain updated on new developments at Quid. ( Id. Id. at ¶38)8 More astonishingly, Gourley repeatedly admitted in emails (sent from his Quid ac count) that
20 21 22 23 24 25
Gourley Has Continued to Violate Quid’s Proprietary Information to Steal Business Opportunities for Primer Since His Quid Employment Ended
he was developing the Primer product from confidential information he had learned from his work at Quid—all while giving the impression that Primer was a Quid-approved “spinoff.” For example, on April 9, 2015, Gourley used his Quid email account to seek investment from Adam Levinson at Gratiale Asset Management Asia by falsely stating that Primer was a spinoff ne w company from Quid which employs “the kinds of technology we were developing at Quid specifically to the
26 27 28
8
By way of further example of Gourley’s brazen use of Quid’s confidential information to benefit Primer, on January 26, 2017, Gourley accessed his Quid email and forwarded Quid’s confidential contract with Barclays Bank to his newly-created Primer email account. ( Id Id . at ¶ 36.) 15 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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1
financial industry” ( Id. Id. at ¶ 38) (emphasis added). Similarly, on July 2, 2015, Gourley used his
2
Quid email address to falsely advise Jonathan Davies at Discovery Channel as a potential customer
3
for Primer that: “I decided that it was time to spin out some of the [Quid] technology into a new
4
company namely Primer.” ( Id. Id. at ¶ 39.)9
5
F.
6
Gourley and the other Individual Defendants Defend ants concealed from Quid that Primer maintained
7
access to Quid’s networks, concealed that he was directing Quid business opportunities to Primer,
8
and omitted from email communications the fact that tha t he had been terminated from Quid. Until late
9
last year, Quid’s management had no reason to suspect that Gourley maintained access to his
Quid Discovers Gourley’s Theft and Promptly Acts
10
Google Suite of applications, including his Quid email account, much less accessed acce ssed them to monitor
11
Quid and to conduct business for Primer’s benefit.
12
In or about October 2018 Quid’s information technology manager Derick Reed performed a
13
license seat audit of Quid’s cloud-based computer applications ap plications to determine whether additional seat
14
licenses needed to be purchased to accommodate an expanded Quid workforce. Reed found that
15
Gourley’s license for email access was still active and on October 2018 Reid sought and obtained
16
authorization to deactivate it. ( Id. Id. at ¶ 51.) Within 35 minutes of this deactivation, Gourley emailed
17
CEO Goodson falsely telling him that he needed a brief continuance of email to purportedly
18
download some personal photographs he had stored on his computer network. network. Id. (Id. at ¶ 51.)
19
Gourley gave no indication that he had routinely accessed the computer network to benefit his new
20
company Primer.
21
Ultimately, Gourley’s continued access to the Quid computer co mputer network and email address to
22
benefit Primer was exposed in January 2019. ( Id raised suspicions Id . at ¶ 51.) At this time, Gourley raised
23
by asking Quid for extensive financial data supposedly to assist him in deciding to exercise his
24
extended Quid stock options, which were set to expire in February 2019. Given this unusual request
25 26 9
27 28
By maintaining access to his Google Suite and the Quid computer network after his departure, Gourley was able to monitor Quid’s progress in building its product based upon the same features stolen for Primer and thereby introduce Primer’s competing product in a fraction of the time it would have otherwise taken. Id. 16 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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and the earlier deactivation of his email e mail account, Reed was requested to investigate Gourley’s prior
2
use of his now deactivated Google Suite. Based upon this analysis, the email, email, data and information
3
forming the basis for this ex parte application was then discovered by forensic analysis. analysis. (See
4
Declaration of Mike Kaderabek at ¶¶ 6-10.) 6-10.) Since this discovery, Quid and its computer forensic
5
team have acted diligently d iligently to gather all the pertinent emails and proof of access to the Quid
6
computer system by the Individual Defendants forming the basis of this ex parte application.
7
During this recent forensic examination, the forensic team d iscovered Gourley’s downloads of the
8
86 python source code files and Quid continues to investigate the full scope of Gourley’s source
9
code theft. (Kaderabek Declaration at ¶¶ 7, 9; Deryck Deryck Reed Declaration at ¶¶ 6-8.)
10
12
GOURLEY AND PRIMER’S THEFT OF QUID’S PROPRIETARY AND TRADE SECRET INFORMATION COMBINED WITH THEIR ACTUAL AND CONTINUING USE THEREOF WARRANTS ISSUANCE OF IMMEDIATE INJUNCTIVE RELIEF
13
In determining whether a temporary restraining order or injunction should issue, the court
14
considers two related, equitable factors: (1) the reasonable likelihood that the plaintiff will prevail
15
on the merits of its case at trial, and (2) the interim harm the plaintiff is likely to sustain if the
16
injunction is denied as compared to the harm the defendant is likely to suffer if the court grants
17
injunctive relief. See Cal. Code Civ. Proc., § 526; 14859 Moorpark Homeowner's Ass 'n v. VRT
18
Corp., 63 Cal. App. 4th 1396, 1402, 74 Cal. Rptr. 2d 712 (1998).
11
19
III.
A.
Quid Is Entitled to a Preliminary Injunction as to Primer and the Individual Defendants
20
Quid is entitled to a Preliminary Injunction under the California’s Uniform Trade Secrets 21
Act (“UTSA”) and the Individual Defendants Defendan ts respective Confidentiality Agreements. See Cal. Civ. 22
Code § 3426.1(a). Each Individual Defendant agreed in the Confidentiality Confidentiality Agreement that any 23
breach of this Agreement would cause the Company to suffer irreparable harm and that “the 24
Company will therefore be entitled entitled to injunctive relief to enforce enforce this Agreement”. (Goodson Decl. 25
at Exh. A, B, and C, ¶ 17) (emphasis (emphasis added). Where the parties have stipulated to the nature of a 26
remedy as they have here, the Court will honor the parties’ agreement unless un less it finds that to do so 27
would violate a specific specific rule of law or public policy. See DVD Copy Control Association v. 28 17 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
1
Kaleidescape, Inc., 176 Cal. App. 4th 697, 725, (2009).
Here, the requested emergency injunction would violate neither California law nor public
2 3
policy. Indeed, California law specifically allows courts to issue preliminary preliminary injunctions to prevent
4
both trade secret misappropriation and the breach of a contract when the contract could be
5
specifically enforced. See Cal. Civ. Code § 3426.1(a); Cal. Civ. Proc. Code ¶ 526(b)(5).
6
B.
7
1.
8 9
Quid is Likely to Prevail on Its Claim for Breach of Contract The Confidentiality Agreement Is A Valid And Binding Contract
California courts have long recognized the validity of confidentiality agreements that are required as a condition of and in consideration of their employment. See Haggard v. Kimberly
10
Quality Care, Inc., 39 Cal. App. 4th 508, 519 (1995) (“holding that employment and payment of
11
wages constituted sufficient consideration in exchange for confidentiality agreement”) 10 The
12
Individual Defendants signed the Confidentiality Agreements with Quid at the outset of their
13
employment, having had the opportunity to review the contract thoroughly and to ask questions they
14
may have had about any provisions therein. In consideration of their obligations obligations under the
15
Agreements, Quid employed the Individual Defendants and provided them with consideration. Id .
16
The Confidentiality Agreements are contracts that can be specifically enforced. Cal. Civ. Code ¶
17
3390 (listing which obligation may not be specifically enforced). Because the parties stipulated to
18
the availability of injunctive relief in the event of breach and because such a remedy is consistent
19
with public policy, Quid is entitled to an injunction to compel the Individual Defendants’
20
compliance with its terms.
21
2.
22 23
Quid Has Duly Performed Under the Confidentiality Agreement
The Confidentiality Agreements express that they were exe cuted in “consideration of and as a condition” of employment of the Individual Individual Defendants with You Noodle, Inc., now known as
24 25 26 10
27 28
Under California law, a cause of action for breach of contract requires proof of: (1) the existence of a contract; (2) plaintiffs performance or excuse of non-performance; an d (3) defendants’ breach; and (4) damages to plaintiff as a result of the breach. CDF Firefighters v. Maldonado, 158 Cal. App. 4th 1226, 1239 (2008) 18 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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Quid.11 Each of the Individual Individual Defendants were compensated and provided with employment
2
benefits by Quid.
3
3.
Gourley Breached the Confidentiality Agreement
4
The evidence clearly demonstrates that Gourley (i) downloaded and forwarded to his own
5
personal computers and Primer computers extensive Proprietary Information contained on Quid’s
6
computer network regarding Quid’s business and product; (ii) repeated ly accessed Quid’s Google
7
Suite network of applications and Gourley’s Quid email address to divert investor and customer
8
business for the benefit of competing entity Primer; (iii) sent and diverted emails received on the
9
Gourley Quid email account to his personal and Primer email accounts; and (iv) failed to return
10
Proprietary Information previously downloaded to their own pe rsonal computers back to Quid on
11
termination of employment. (See Factual Background, Section II D, E). Based upon these these overt
12
breaches of the Confidentiality Agreement, Quid is fully entitled to injunctive relief, including the
13
requested imaging of Primer’s Computer Repositories in order to identify plaintiff’s Proprietary
14
Information and secure its prompt return.
15
C.
16
1.
17 18
Quid is Also Likely To Succeed On Its Claim for Trade Secret Misappropriation Quid’s Proprietary Data Constitute Protectable Trade Secrets
The UTSA allows injunctive relief to prevent “actual or threatened misappropriation” or “trade secrets” which are in turn defined to mean:
19
“Information including a formula, a patent, a compilation, program, device, method, technique, while process that (1) derives independent economic value, actual potential for not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its its secrecy.” Cal. Civ. Code. § 12 3426.1, subdiv. (d) .
20 21 22 23 11
24 25 26 27 28
Paragraph 22 of the Confidentiality Agreement provides that its terms both will bind and be nefit the parties “and their respective successors, assigns, heirs, executors, administrators and legal representatives.” This provision directly extends the obligations owed by the Individual Defendants to the You Noodle successor entity, Quid. 12
In this regard, California law has also recognized that specialized customer or investor list of a company generated through the expenditure of time and money constitute protectable trade secrets. See example Morlife, Inc. v. Perry, 56 Cal. App. 4th 1520, 1521 (1995); MAI Systems Corp. v. PAK Computer, Inc., 991 F.2d 511, 521 (9th Cir 1993); Barney v. Burrow, 558 F.2d 1066, 1079 (E.D. Cal. 2008); American Credit Indemnity Company v. Sacks, 213 Cal. App. 3d 622, 631 (1989). 19 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
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Here, the evidence demonstrates that the Proprietary Information contained on the Quid
2
computer network accessed and downloaded by Gourley is precisely the type of information
3
encompassed within the trade secret secret protection. This protection is only confirmed confirmed by the fact that
4
this information was generated based upon years of time, money and effort e ffort by Quid but it also has
5
inherent value because access acc ess to this information allows a competitor to duplicate and steal Quid’s
6
technology, customers and investors – as demonstrated in this case. The secret nature of this
7
proprietary information is also reinforced by the terms of the Confidentiality Confidentiality Agreement which are
8
executed by all Quid employees.
9
2.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
Quid Made All Necessary Efforts to Maintain Secrecy of the Proprietary Information
The California Legislature has recognized that the requirement for protection of trade secret information is met by advising employees of the existence of a trade secret, limiting access to a trade secret on a “need to know basis” basis” and controlling plant plant access. See Legislative Committee comment to Civil Code Section 34261, 1990 pocket supplement page 108; Morlife, 56 Cal. App. 4th at 1521. Quid has far exceeded these requirements with respect to the protection of its Proprietary Information. Quid maintained a strict policy policy requiring all employees to execute the the Confidentiality Agreement as well as a required written acknowledgement ac knowledgement of the terms of its Employee Handbook, Handbo ok, both of which rigorously require strict protection of all Proprietary Proprietary Information and return of such Information upon termination. Other security measures included password password protections for computer data. (Kaderabek Decl., ¶11). 3.
Gourley and Primer Present an Actual and Threatened Misappropriation of Quid’s Trade Secrets
Pursuant to the California’s UTSA, an actual or threatened misappropriation may be enjoined (Cal. Civ. Code § 3426.2(a)), with “misappropriation” being defined, in pertinent part, a s: “(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means ; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A)
28 20 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
Used improper means to acquire knowledge of the trade secret …” (Cal. Civ. Code § 3426.1(b)) (emphasis added)13.
1
In this case, there can be no n o dispute that Gourley’s actions constitute actual misappropriation
2 3
of Quid’s trade secrets, as he has taken take n Proprietary Information as well as utilizing investor and
4
customer information without Quid’s Quid’s consent to direct business business opportunities to Primer. Primer. In fact, the
5
evidence demonstrates Gourley’s own admission that he improperly based the Primer technology on
6
Quid’s trade secret technology. Using this ill-gotten ill-gotten information, Gourley was able to launch and
7
fund Primer, a direct competitor which Quid would never have faced if Gourley had not improperly
8
stolen its trade secrets.
9
D.
Quid Is Also Likely To Succeed In Its Claim of Unfair Competition
10
A plaintiff has standing to assert a cause of action for violation of Business & Professions
11
Code section 17200 (the “UCL”) if the plaintiff “has suffered injury in fact and has lost money or
12
property as a result of the unfair competition.” Bus. & Prof. Code § 17204; see also R&B Auto Ctr.,
13 Inc. v. Farmers Grp., Inc.,
140 Cal.App.4th 327, 360 (2006); Kwikset Corp. v. Super. Ct ., ., 51 Cal.4th
14
310, 322 (2011). Additionally, the UCL is expressly not superseded by the the UTSA. Cal. Civ. Code
15
§ 3426.7, and a former employee’s use of a former employer’s confidential information to compete
16
is grounds for injunctive relief as unfair competition. Solarbridge Techs., Inc. v. Ozkaynak , No. C
17
10-CV-03769-EJD, 2012 WL 2150308, at *6 (N.D. Cal. June 12, 2012); Courtesy Temp., Inc. v.
18
Camacho, 222 Cal. App. 3d 1278, 1291-9214.
19
Here, Gourley and Primer engaged in unfair competition because they misappropriated
20 21 22 23 24 25 26 27 28
13
Further, the UTSA defines “improper means” as: a s: theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Cal. Civ. Code § 3426.1(a). Moreover, when necessary to protect against misappropriation misappropriation of trade secrets, courts in California and across the country have enjoined employees from engaging in a competing business for the period of time it would take to independently develop the protected information and processes of their former employers. See, e.g., e .g., Plant Industries v. Coleman, 287 F. Supp. 636, 645 (C.D. Cal. 1968) (where injunction of 18 months was imposed); Winston Research, supra at p. 142 (where injunction restraining use of machinery for two years was affirmed); Novell Inc. v. Timpanogos Research Group Gr oup Inc., 46 U.S.P.Q.2d 1197 (Utah Dist. Ct. 1998) (enjoining former employee and his new company from engaging in competing business for a period of eighteen months for the same reason). 14
Pursuant to Civ. Code § 17203, courts have "extremely broad" power to fashion appropriate injunctions to prevent future acts of unfair competition. Hewlett v. Squaw Valley Ski Corp., 63 Cal.Rptr.2d 118, 142, 54 Cal. App. 4th 499, 540 (1997). 21 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
1599373
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Quid’s Proprietary Information including proprietary customer and investor data, all d eveloped by
2
Quid with the expenditure of millions millions of dollars. The unfair competition statute statute compels injunctive
3
relief to insure that Gourley and Primer do not obtain a completely unfair competitive co mpetitive advantage
4
from the use of Quid’s Proprietary Information to benefit Primer.
5
E.
6
The balance of hardships tips in favor of an injunction when it would “do no more than
The Balance Of Hardships Tips In Favor Of Quid
7
require Defendant to comply with federal and state…laws.” Dish Network L.L.C. v. Ramirez, No.
8
15-CV0-04712-BLF, 2016 WL 3092184, at *7 (N.D. Cal. June 2, 2016); See also, Henry Schein,
9 Inc. v. Cook ,
191 F. Supp.3d 1072, 1077 (N.D. Cal. 2016) (court found the balance in hardships in
10
plaintiff’s favor when defendant misappropriated trade secrets for use in competitor’s competitor’s business)15.
11
Here, obvious and continuing irreparable harm will incur to Quid in the absence of
12
injunctive relief. With the theft of Quid's Proprietary Information Information and trade secret information, information,
13
including highly-sensitive code files (the “crown jewels” of any software company), Defendants
14
have the present capacity to duplicate Quid's entire business and product and even "undercut"
15
plaintiff's business/customer terms terms based upon its unauthorized knowledge of such terms.
16
On the other hand, the effect upon Gourley and Primer from the imposition of the requested
17
injunction is minimal. In essence, the injunction will simply require compliance with their
18
Confidentiality Agreements and California law. They are free to develop their own product and
19
investors and customers using their own ingenuity, time and expense just as Quid did.
20
F.
21
In Dodge, Warren & Peters Ins. Servs., Inc. v. Riley, 105 Cal. App. 4th 1414, 1418 (2003),
22 23 24
This Court Should Issue The Requested Order To Ensure All Electronic Documentation Is Preserved And Allow Expedited Discovery.
the plaintiff pursued, as here, an ex parte application seeking to “freeze” defendant’s electronically stored data that could contain plaintiff’s confidential and trade secret files and documents. Id . The
25 26 27 28
15
Evidence of threatened loss of prospective p rospective customers or goodwill supports a finding of irreparable harm. Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001). See also, UBS Fin. Servs. v. Hergert, No. C13-1825RAJ, 2013 WL 5588315, at *2 (W.D. Wash. Oct. 10, 2013) (stating that the loss of even one customer due to the misappropriation of trade secrets would lead to irreparable harm in the form of unquantifiable future damages). 22 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION
1599373
1
plaintiff argued that the mere use of the information by defendant could result in the destruction of
2
potential evidence and, thus, violate plaintiff’s right to discovery. Id . The appellate court upheld
3
the trial court’s injunction, stating that injunctive relief is available in these circumstances. Id . at
4
1418-19. See also, Northpoint Homeowners Assn. v. Superior Court Cour t , 95 Cal. App. 3d 241, 244
5
(1979). Since Quid has presented ample evidence of Gourley’s blatant theft of Quid’s Proprietary
6 7
Information stored in its “Google Suite”, this Court should d o the same, and grant Plaintiff’s
8
requested order that (1) an independent indep endent third party make a forensic copy or image of all of Primer’s
9
electronically stored data and (2) that a Special Master be appointed to oversee the analysis of this
10
imaged data. This will avoid any alteration of the Defendants’ computer data, properly preserve the
11
status quo, and ensure that accurate information and evidence is available for discovery and trial.
12
Absent such an order, Defendants have h ave the unfettered ability to alter or otherwise destroy critical
13
electronic evidence. In addition, California courts have recognized that an order expediting document discovery
14 15
is proper where good cause ca use exists to determine the extent of improper use of confidential
16
information in trade secret litigation. See American Credit Indemnity Co. v. Sacks, 213 Cal. App.
17
3d 622, 627 (1989); Whyte v. Schlage Lock Co., 101 Cal App. 4th 1443, 1449 (2002). Here, the exact same expedited discovery relief is requested and entirely proper. The
18 19
expedited discovery will be limited in determining the existence and extent of any use or
20
dissemination of Plaintiff’s Proprietary Informant for the benefit of Primer and is essential to ensure
21
that any third parties involved in this dissemination are identified promptly.
22
IV.
23 24
CONCLUSION
For all of the above stated reasons, Plaintiffs respectfully submits that its Proposed Order for Ex Parte relief should be granted in its entirety.
25 26 27 28 23 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
1
DATED: March 27, 2019
GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP
2 3 4 5 6 7
By:
/s/Lawrence M. Hadley
Lawrence M. Hadley PATRICIA L. GLASER LAWRENCE M. HADLEY SEAN RILEY Attorneys Attorneys for Plaintiff Plaintiff Quid, Inc.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 PLAINTIFF’S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO PARTE SHOW CAUSE RE PRELIMINARY INJUNCTION 1599373
