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. 2

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DECLARATION OF EVAN SPIEGEL I, EVAN SPIEGEL, declare as follows: 1. I an attorney at law duly qualified to practice before the Courts of the State of California, and am an associate with the firm of Lavely & Singer Professional Corporation, attorneys for Plaintiffs Bank Julius Baer & Co. Ltd and Julius Baer Bank and Trust Co. Ltd. The facts stated herein are stated of my own personal knowledge and, if called and sworn as a witness, I 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. This Declaration is filed in support of Plaintiffs Bank Julius Baer & Co. Ltd ("BJB") and Julius Baer Bank and Trust Co. Ltd ("JBBT") (collectively, "Julius Baer" and/or "Plaintiffs") Application for Temporary Restraining Order and OSC re Preliminary Injunction (the "Application") in the above captioned matter. 3. Within one business day after the date of the filling of Plainitffs' Application, I shall direct and arrange to have duplicate sets of all of the pleadings served: (i) on Defendant DYNADOT, LLC via either personal service attempts at its place of business or via express overnight delivery; and (ii) on Defendants WIKILEAKS and WIKILEAKS.ORG by service on their agent, DYNADOT, LLC, and/or their legal counsel, Julie Turner, via either personal service attempts at their places of business or via express overnight delivery. I am not, as of yet, aware as to whether Defendants will oppose this Application. 4. WIKILEAKS , WIKILEAKS.ORG, and their owners, operators and agents (collectively, "Wikileaks"), through one or more yet unidentified individuals or agents, are the owners, operators and/or registrants of the world wide web website operating under and at the domain name wikileaks.org (the "Website"). Wikileaks attempts to operate under a veil of anonymity, or as they term it "transparency"; and, at the same time, Wikileaks post and disseminate the personal
64 DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

details, including bank account records, of others. 5. The Wikileaks website has the express purpose of providing a site for the "uncensorable," "simple and straightforward means for anonymous" and "untraceable mass" "leaking of documents," regardless of legality or authenticity. Wikileaks solicits the submission or upload of confidential "leaked" or unlawfully obtained or disclosed documents. Wikileaks publically posts and disseminates the leaked documents, and they thereafter posts summaries of the documents and comments on the information within the documents and re-publish information contained in the documents. Wikileaks uses the posted documents for the benefit of the website, including in an apparent effort to increase notoriety and thereby traffic to the Website. 6. Attached hereto as Exhibit "A" are true and correct copies of printouts and/or screen-shots of the "Home" pages, "About" pages, "Legal" pages, "Contact" and "Submissions" pages, and other pages, of the Website, upon which Wikileaks solicits, encourages and facilitates the unlawful dissemination of protected records in violation of various privacy and other laws. Wikileaks' "Contact" page shows that it has a submission address for submission and receipt of "leaked" documents in California. 7. In this matter, Wikileaks has and is publically disseminating stolen legally protected bank files, records and account information related to Plaintiffs' bank and certain of its bank customers (the "JB Property"). 8. The domain name wikileaks.org (the "Domain Name") was registered through and is currently administered through an account with defendant Dynadot, LLC ("Dynadot"), and has its domain name server ("DNS") services provided by Dynadot. Dynadot has, for a fee and profit, provided a private anonymous domain "who-is" registration service to the registrants of the Domain Name, which allows Wikileaks' owners and operators to anonymously operate. By virtue of the terms of the anonymous who-is registration service, Dynadot acts as the agent and
65 DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

administrative contact for the registrant of the Domain Name. Dynadot's DNS services allow the wikileaks.org domain name to resolve to and display the Website operated at wikileaks.org. Attached hereto as Exhibit "B" are true and correct copies of the official "who-is" domain registration records for the <wikileaks.org> Domain Name, evidencing that it is registered with Dynadot, under an anonymous registration service intended to hide the true identity and location of the domain's owners and operators. 9. Commencing on or about January 13, 2008, hundreds of documents which comprise the JB Property were posted onto the Website. The Wikileaks defendants received a submission of the JB Property and posted or facilitated the post of the JB Property onto the Website, and thereafter summarized, repeated, translated and/or re-posted and continue to display or make available approximately 694 different documents and folders which contain Plainitffs' confidential bank records and client data. Attached hereto as Exhibit "C" is an index listing (as titled by Wikileaks and/or Elmer Rudolph, but semi-redacted) of the JB Property made available by Wikileaks through its Website. Attached hereto as Exhibit "D" are true and correct copies of printouts and/or screen-shots of the main and history pages of the Website related to the submission, post and summary for the "BJB-Steuerbetrug" folder, which contains a link to download a zip file containing JB Property. The pages state that the summaries and evaluation of the documents are provided by Wikileaks. The history pages evidence that the post first appeared on January 13, 2008, by Wikileaks, and that Wikileaks has since that time engaged in numerous edits and revisions to the post, including as recently as January 24, 2008. 10. I have downloaded and saved a copy of each of the "zip" files available from the Website which contain the JB Property. I have extracted and reviewed the contents contained within the zip files, which, to date, total approximately 694 different documents and folders. The files and folders contain my clients'
66

confidential bank records and client data. Printouts showing lists of every document
DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and folder of the JB Property, along with a copy of selected representative samples of the many thousands of pages of the JB Property available on the Wikileaks' Website have been concurrently hereto lodged with the Court in conjunction with a Motion to File Under Seal, as Declaration of William Briggs "Filed Under Seal, Exhibits A through O", which are incorporated herein by reference for review by the Court. 11. Commencing on or about January 15, 2008, I sought to contact Wikileaks to provide them with legal notices as to the nature of the JB Property posted on the Website, including that the documents were unlawfully obtained by a former employee of the bank in violation of a written confidentiality agreement, and that the posting and dissemination of the items constitutes violation of applicable privacy and intellectual property rights laws, among other wrongful and tortuous conduct. I reviewed the Wikileaks Website to obtain contact information, clicked on the "Contact Us" link and obtained an e-mail address for legal correspondence, "[e-mail]", which the operators of the Website listed with the following description (as contained in Exhibit "A"): "Send all USA legal correspondence to our lawyers Email: [e-mail] you will then be provided with a postal address and contact details." I e-mailed Wikileaks and requested that they "Please immediately send the undersigned your full contact details for transmission of legal notices with regard to content posted on wikileaks ..." Wikileaks responded with the above e-mail address, as well as from the e-mail address wikileaks@ wikileaks.org, but refused to provide a postal address and/or any contact details. /// /// ///
67 DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12.

After a number of further e-mails, I was provided with a name and e-

mail address for Wikileaks' California counsel, Julie Turner of San Mateo. Ms. Turner confirmed in writing, by e-mail, that she is acting as Wikileaks attorney on this matter. I looked-up Ms. Turner's State bar listing and phone number and contacted her in an effort to resolve the matter. I also searched the Website and discovered Ms. Turner's address on the website on the page listing addresses and contacts for submissions of "leaked" documents. 13. When I spoke with Ms. Turner, I did not request nor demand removal or reference to any articles related to the existence of the dispute with Elmer Rudolph and/or any of his contentions and/or any public discussion on the various civil and criminal proceedings related to Mr. Elmer. I stated that Plaintiffs make no such demands and merely seek removal of the specific stolen confidential bank documents or, at minimum, all of the identifying client data, names and account numbers. I civilly explained to Ms. Turner the nature of the unlawfully obtained and protected consumer banking records. With my knowledge that any document or letter provided to Wikileaks, including to its attorney, would be posted on the Website (based on their past conduct), I offered to go to San Francisco and meet with Ms. Turner in person and show proof and supporting documents to her satisfaction to substantiate the claimed nature of the JB Property. 14. In response, Ms. Turner requested the courtesy of forbearance of at least a few days on Plaintiffs commencement of any legal action to allow her to speak with her clients. I did not receive a further response. Instead, after my civil and good-faith effort to resolve the matter by a call to and discussion with Wikileaks' counsel, by the next morning Wikileaks had posted misstatements of the settlement conversation and all of my contact information on their Website, and at the same time, removed the contact information for its own counsel. Despite notice to Wikileaks' counsel of (i) the nature of the unlawfully leaked documents and (ii) that the source of the documents is bound by a written confidentiality agreement and
68 DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

various banking privacy laws; and reasonable requests that the identifying information be removed; Wikileaks has refused to remove the posted stolen documents, as well as any of the identifying client/customer data. 15. Since Wikileaks' refusal to remove the protected information, in preparation of this Application and the corresponding Complaint, I have reviewed the Website on a regular basis to track the display of the JB Property, as well Wikileaks' use, summaries and comments with regard to the JB Property. Over time, it appeared that Wikileaks had apparently reposted the leaked documents and/or information related to the documents in what appeared to be an apparent effort to keep the posts at the fore-front of its Website and to exploit the JB Property to increase their Website's notoriety and traffic. On February 4, 2008, I discovered a discussion post from, what appeared to be, the person responsible for the leaked JB Property. The post indicated that additional documents are to be released in the coming weeks. Attached hereto as Exhibit "E" are true and correct copies of printouts and/or screen-shots of the main, discussion and history pages of the Website related to the submission, post and summary for the "Rudolph Elmer v. Bank Julius Baer" folder. The pages state that the summaries and evaluation of the documents are provided by Wikileaks. The history pages evidence that the post first appeared on December 18, 2007 and that Wikileaks has since that time engaged in numerous edits and revisions to the post, including as recently as February 4, 2008. The last page of the exhibit, a long comment post apparently from Elmer Rudolph writing in the third-person, states that: "Elmer might be inveigled into supporting or even executing a terrible act of destruction of human lifes [sic] as other did in Zurich (Tschanun case 7 deaths, Kantonalbank Zurich three deaths etc.)" /// ///
69 DECL. OF EVAN SPIEGEL

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The poster further stated that: "It is believed that there are many other cases [documents] to surface in the next few weeks." I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 8th day of February 2008, at Los Angeles, California. /s/ EVAN N. SPIEGEL

I hereby attest that I have on file all holographic signatures for any signatures indicated by a conformed signature (/s/) within this efiled document. /s/ WILLIAM J. BRIGGS, II

4405-2\PLE\DECL-SPIEGEL 013108

CV08-0824 JSW

70

DECL. OF EVAN SPIEGEL