Bank Julius Baer & Co. Ltd. et al v. Wikileaks et al

Filing 6

Brief re #5 Ex Parte MOTION for Preliminary Injunction and TRO and OSC (Part 1) filed byBank Julius Baer & Co. Ltd., Julius Baer Bank and Trust Co. LTD.. (Attachments: #1 Supplement Part 2 of Memorandum of Points & Authorities, #2 Supplement Part 3 of Memorandum of Points & Authorities, #3 Supplement Part 4 of Memorandum of Points & Authorities, #4 Supplement Part 5 of Memorandum of Points & Authorities)(Related document(s) #5 ) (Briggs, William) (Filed on 2/8/2008)

Bank Julius Baer & Co. Ltd. et al v. Wikileaks et al

Doc. 6 Att. 1

Dockets.Justia.com

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DECLARATION OF CHRISTOPH HIESTAND I, CHRISTOPH HIESTAND, declare as follows: 1. I am admitted as an attorney at law in the nation of Switzerland and I am the Deputy Group General Counsel for Julius Baer Group ("JBG"), to which plaintiffs Bank Julius Baer & Co. Ltd ("BJB") and Julius Baer Bank and Trust Co. Ltd ("JBBT") both belong (collectively, "Plaintiffs"). I have extensive experience in, amongst other areas of law, regulatory matters under the laws of Switzerland; and experience and knowledge with respect to Plaintiffs' Cayman Islands bank branch. I submit this declaration in support of Plaintiffs' Application for a Temporary Restraining Order and OSC re Preliminary Injunction in the abovecaptioned matter. I have personal knowledge of the facts recited herein and, if called upon to do so, could and would testify competently thereto. As to those matters stated on the basis of information and belief, I am so informed and believe those matters to be true. 2. Bank Julius Baer & Co. Ltd ("BJB") is one of the leading private banks in Switzerland. BJB forms part and is one of the core companies of Julius Baer Group, the parent company of which is Julius Baer Holding Ltd. ("JBH"), whose shares are listed at the SWX Swiss Exchange. The Julius Baer Group's global presence comprises more than thirty locations in Europe, North America, Latin America and Asia, including Zurich (head office), Los Angeles, New York and Grand Cayman. BJB and its related entities manage substantial assets, amounting to (as per mid-2007) in excess of CHF 400 billion, for private and institutional clients from all over the world. 3. Julius Baer Bank and Trust Co. Ltd ("JBBT") is, as is BJB, a member of the Julius Baer Group and a direct subsidiary of JBH, and carries out, amongst other things, private banking and trust services. JBBT operates at Windward III, Grand Cayman. (Id.).
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4.

JBBT, as was BJB, is the former direct employer of disgruntled ex-

employee Rudolf Elmer ("Elmer"), who, as explained below, unlawfully took possession of the client bank records and data at issue in violation of Swiss and Cayman Islands banking and privacy protection laws. Elmer than violated his written confidentiality agreement with respect to disclosure of said records. 5. The "JB Property" includes and is defined herein as any and all documents and information originating from BJB's and/or JBBT's banks and affiliated bank branches; which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers; whether or not such documents and information are authentic, semi-altered, semi-fraudulent or forged; and which appears to have originated from or could reasonably be known to be or considered to constitute or have originated from data and documents stolen or misappropriated from one or more of Plaintiff's bank branches and/or computers. 6. Plaintiffs are the sole owners of all right, title, and interest in the JB Property. The JB Property is proprietary confidential property which rightfully belongs to Plaintiffs. 7. Wikileaks' use, display and dissemination of the JB Property on the Website is unauthorized and unlawful. The confidential JB Property is believed to have been provided to Wikileaks by Elmer, a disgruntled ex-bank employee, in violation of a written employee-confidentiality agreement and in violation of Swiss and Cayman Islands privacy laws. 8. Pursuant to an employment agreement dated September 1, 1987, BJB employed Elmer as an internal auditor in its Zurich office. Between February 1994 and August 2002, Elmer went to work in the Cayman Islands at JBBT, as an "expatriate," based on employment contracts with JBH and BJB. designing procedures to safeguard its confidential information.
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Elmer's

responsibilities included, amongst other things, administering JBBT's IT systems and

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9.

In September 2002, Elmer entered into a subsequent employment and

confidentiality agreement ("the Agreement"), whereby he was employed directly by JBBT as Senior Vice President and Chief Operating Officer. Paragraph 11 of the Agreement states: [Mr Elmer] shall not at any time during his employment (except so far as is necessary and proper in the course of his employment) or at any time after his employment has terminated disclose to any person any information as to the practice, business, dealings or affairs of the Employer or any of the Employer's customers or clients or as to any other matters which may came to his knowledge by reason of his employment. Attached hereto as Exhibit "A" is a true and correct copy of Elmer's employment and confidentiality Agreement. 10. All data and records of the Julius Baer banks were and are protected not only under employee confidentiality agreements, but also under a number of different banking privacy and consumer data privacy laws of various nations, including Swiss law and the laws of the Cayman Islands ­ the location from which the JB Property was unlawfully obtained and/or under which Elmer was/is bound. 11. Attached hereto as Exhibit "B" is a true and correct copy of The Cayman Islands' Confidential Relationships (Preservation), Law 16 of 1976, 1995 Revision ("CI-CRP Law"), which, pursuant to ¶3(1), provides that the law: has application to all confidential information with respect to business of a professional nature which arises in or is brought to the Islands and to all persons coming into possession of such information at any time thereafter whether they be within the jurisdiction or thereout.
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12.

Given the "expatriate" status of Elmer while working on the Cayman

Islands under Swiss-law based employment contracts, respective banking privacy laws of Switzerland are relevant and applicable in this case as well. Attached hereto as Exhibit "C" is a true and correct copy of a certified English translation of Article 47 of the Swiss Federal Law on Banks and Savings Banks, of November 8, 1934, language of December 27, 2006, adopted by The Federal Assembly of the Swiss Confederation ("Swiss FLBSB Law"), which protects confidentiality of all Swiss banking records and data, and provides, inter alia, that: whoever divulges a secret entrusted to him in his capacity as officer, employee, ... or has become aware thereof in this capacity, whoever tries to induce others to violate professional secrecy, shall be punished by imprisonment [and that the] violation of professional secrecy remains punishable even after termination of the official or employment relationship. 13. Elmer was dismissed by JBBT in December 2002 on grounds of misconduct. The dismissal was in accordance with the termination provisions contained at paragraph 10 of the Agreement. After his employment with JBBT had been terminated, it was discovered that Elmer had, without authorization, copied to and stored confidential information and documents about some of JBBT's clients on his home and office computers. There was no legitimate reason for such confidential banking and client information to have been stored on Elmer's computers. Elmer subsequently demanded and tried to extort a substantial severance package which, of course, JBBT refused to pay. In his correspondence, Elmer threatened to mount a public campaign against JBBT and JBJ unless his extortion demands were met. /// ///
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14.

Plaintiff BJB was contacted in June 2005 by a Swiss newspaper, CASH,

which had been provided with a CD-Rom containing a large number of JBBT's confidential documents that had evidently been stolen and unlawfully provided to the newspaper. CASH then published an article about BJB, which stated, amongst other things, that: "An anonymous person sends complete data files about well-to-do customers from around the world. Customer information from the Baer Group was transmitted anonymously to the CASH editors. Customers seeking greater discretion protection, of all people, were affected. Their total holdings are in the billions. The CD-Rom in the mail for the editor's desk did not have any indication of the sender, no writing, no logo ­ mass market goods from a computer shop. The contents, however, are absolutely not for general consumption: 169 megabytes of files with customer and business information from a money institution, whose world fame is built on secrecy. The data files come from the office of the Julius Baer Group on the Cayman Islands. They were recorded between 1997 and 200[2] and concern the entire business process of the Baer companies on the Caribbean island and a clientele that prefers to have their arrangements handled with particular discretion: very well-to-do customers from around the world." Attached hereto as Exhibit "D" hereto is a true and correct copy of the CASH article and an English translation of the article. 15. The story in CASH was then picked up by various other newspapers in a variety of locations. Neither CASH, however, nor any of the other publications, legitimate or otherwise, actually published any of Plaintiffs' clients' confidential information, identifications, banking records or data ­ the Wikileaks defendants are the only ones to do so. Swiss newspaper called Die Weltwoche published an article on June 23, 2005, in which the initials of the person who had leaked the confidential information were described as being "RE". The source of the information was also described as having formerly worked for JBBT. /// ///
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16.

Only a very limited number of people, of which Elmer was one, would

have had access to the data and documents. Once this and other information came to light, BJB filed a criminal complaint against Elmer with the public prosecutor in Zurich, Switzerland. A subsequent police search of Elmer's properties Investigations have implicated Elmer as unequivocally uncovered further confidential client data and documents belonging to Plaintiffs in Elmer's possession. responsible for the leaked confidential bank-client data. Elmer was arrested and detained for approximately one month by the Swiss authorities before he was released pending an ongoing criminal investigation and proceedings, which are still proceeding to this date. 17. Elmer is the subject of multi-national criminal investigations related to not only the above referenced theft of confidential records, but also related to his attempted extortion and a campaign of threats and terrorist threats (such as death and bomb threats, including reference to "9/11", and threatening letters containing "white powder" sent to the premises of the Plaintiffs in New York and Zurich) against Plaintiffs and certain of its employees. 18. As one of many such possible examples, BJB's Deputy Group General Counsel, Mr. Hiestand, received an e-mail, on August 7, 2007 (sent using a pseudonym ­ [e-mail] ­ but subsequently traced to Mauritius, the location Elmer has been living since the beginning of 2007), stating: "Hi dirty pig, it is about time to let you know my hunter is after you. You are number one on my list because guys like to [sic] need to be treated accordingly. My hunter will be behind your back maybe tomorrow, maybe in a week's time or even in a months time but he will be there. Don't worry it will happen quickly and you will hardly realise [sic] what's happening. It is not the first job the hunter did and execution is his strength. Watch out and be careful what you do but my hunter will do the job! Thank you for being so kind to me but now we need to get rid of you. Regards the Hunter"
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Attached hereto as Exhibit "E" hereto is a true and correct copy of the e-mail dated August 7, 2007, from [e-mail]. 19. A further example of the multiple terrorist threats, an e-mail sent "There will be an explosion the Bank today, Friday, at 11.00PM which will remind everyone on [sic] the September 11th!" Attached hereto as Exhibit "F" hereto is a true and correct copy of the e-mail dated September 7, 2007. 20. In or about November 2006, Elmer filed a criminal complaint against BJB and several employees on the basis that it/they had allegedly been stalking him (by use of a security expert who had in fact traced the various tortious and illegal conduct to Elmer). Elmer's claim was entirely unfounded and without merit, and subsequently dismissed as such by the relevant authorities on December 11, 2007. The respective decision, which according to the distribution list therein was sent by the authorities only to Elmer, was subsequently published on Wikileaks.org (in a folder "Bank Julius Baer v. Rudolf Elmer") as well. 21. Between November and December 2007, Elmer provided several documents relating to BJB and JBBT to the Wikileaks Website. These contained various untrue allegations about the Plaintiffs but did not contain or include any of Plaintiffs' confidential information or documents. /// /// /// /// /// /// ///
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September 7, 2007 to BJB's Zurich bank branch, contained the following threat:

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22.

In or about mid-December 2007, Elmer provided a letter to Wikileaks,

which they posted onto the Wikileaks.org Website and commented on and summarized, containing the judicial denial notice issued to Elmer from Swiss authorities. The posted letter made it apparent that Elmer was a former employee of Plaintiffs, was bound by a confidentiality agreement and various non-disclosure and banking privacy laws of Switzerland and the Cayman Islands, and was the person responsible for providing information about the Julius Baer bank to the owners/operators of the Wikileaks Website. Plaintiffs do not contend that the posting of the document was wrongful or that said document should be removed. 23. Likewise, by e-mail dated January 1, 2008, received by, among others, employees of BJB, BJB was referred to and for the first time became aware of Wikileaks. The e-mail, which was traced back to Mauritius, was again sent by "Robin Hood", this time from the account "[e-mail]," and referred to a folder placed on Wikileaks named "Bank Julius Baer vs. Rudolf Elmer." Attached hereto as Exhibit "G" hereto is a true and correct copy of the email dated January 1, 2008, from [e-mail]. 24. Commencing on or about January 13, 2008, Elmer began posting hundreds of documents containing stolen or otherwise wrongfully obtained and disclosed confidential banking records belonging to Plaintiffs, including altered and/or forged or semi-forged "leaked" documents. 25. A number of the JB Property documents have been altered to falsely appear to have been created after 2002 and/or have been re-named with names which are intended to make the documents and folders appear to contain records of nefarious or unethical transactions, which is believed to have been edited by Elmer. /// /// /// ///
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26.

Elmer and the Wikileaks defendants have posted onto the Website,

summarized, repeated, translated and/or re-posted and continue to display or make available approximately 694 different documents and folders which contain confidential banking records and client data. The JB Property, as disclosed on the Website, references protected customer and consumer bank files, records, data and account information related to or purported to relate to certain of JBBT's bank customers, all of which are protected by law and/or owned by JBBT and/or BJB; and the documents and information have never been authorized to be disclosed to the public. Plaintiffs would not have disclosed, nor knowingly made the private and confidential portions of the JB Property available, to the public. 27. Plaintiffs have not sought to, nor do they have any desire to, censor any alleged public discussion on the various civil and criminal legal proceedings related to Elmer. In that regard, Plaintiffs have not requested nor demanded removal or reference to any articles related to the existence of the dispute with Elmer and/or any of his basic contentions. Plaintiffs merely seek removal and protection of the specific stolen confidential bank documents or, at minimum, all of the identifying client/customer data, names and bank account numbers. 28. The publication, dissemination, and exploitation of stolen legally protected customer and consumer bank files related to Plaintiffs' bank customers has resulted in harm to Plaintiffs' reputations, its customers' confidence in the bank, and its client/customer banking relationships, among other damages. /// /// /// /// /// /// ///
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