Martone et al v. Burgess et al

Filing 27

ORDER by Judge Claudia Wilken granting 20 Ex Parte Application for Order Permitting The Lodging Under Seal of the Declaration of Massimiliano Martone re: Analysis of Software Code; denying 21 Ex Parte Application for Temporary Restraining Order and Denying in Part Without Prejudice Motion for Preliminary Injunction; Order to Show Cause (scc, COURT STAFF) (Filed on 11/20/2008)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Massimiliano Martone and Martone Radio Technology, Inc. have moved ex parte for a temporary restraining order that would: 1) enjoin Defendants David Burgess, Kestrel Signal Processing, Inc. and Range Networks, Inc. from disseminating certain information that allegedly constitutes Plaintiffs' intellectual property; 2) compel Defendants to remove certain information that allegedly constitutes Plaintiffs' intellectual property from a publicly accessible internet site; and 3) require Defendants to preserve information that can be used to identify individuals who have accessed Plaintiffs' alleged intellectual v. DAVID BURGESS, an individual; KESTREL SIGNAL PROCESSING, INC., a California Corporation; and RANGE NETWORKS, INC., Defendant. / MASSIMILIANO MARTONE, an individual; and MARTONE RADIO TECHNOLOGY, INC., a Nevada Corporation, Plaintiffs, No. C 08-2379 CW ORDER DENYING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER, DENYING IN PART WITHOUT PREJUDICE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION, AND GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE UNDER SEAL; ORDER TO SHOW CAUSE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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property. A temporary restraining order may be issued without providing the opposing party an opportunity to be heard only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). If the moving party has made the

threshold showing that the circumstances would justify ex parte relief, "[t]he standard for issuing a temporary restraining order is identical to the standard for issuing a preliminary injunction." Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Thus, the moving party must

demonstrate either: 1) a combination of probable success on the merits and the possibility of irreparable harm; or 2) that serious questions regarding the merits exist and the balance of hardships tips sharply in the moving party's favor. F.3d 1068, 1077 (9th Cir. 2002). Plaintiffs have not made a sufficient showing of immediate and irreparable harm to justify granting ex parte relief. Nor does the Wenger v. Monroe, 282

current record raise serious questions regarding Plaintiffs' claims to warrant a preliminary injunction. It is possible that

Defendants have taken, and will continue to continue to take, steps to disseminate information that is Plaintiffs' intellectual property. To the extent Plaintiffs can demonstrate that this is

likely, a preliminary injunction is available to stop further irreparable harm. However, the Court cannot evaluate on the

present record the strength of Plaintiffs' claim that the information at issue is actually their intellectual property. 2

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Plaintiffs have submitted a declaration from Mr. Martone, supported by numerous exhibits, explaining his theory that Defendants made source code developed by Plaintiffs publicly available on the internet. However, the declaration consists largely of Mr. Although Mr. Martone is well

Martone's opinions on the matter.

versed in the field of software engineering, as a Plaintiff, it is in his interest to provide an opinion that is favorable to his claim. Because the testimony in the declaration is highly

technical, the Court is not in a position to evaluate its persuasiveness. Plaintiffs must make a greater showing to obtain a They may accomplish this by submitting

preliminary injunction.

opinion testimony from a disinterested expert concerning the significance of any similarities between the material Defendants have posted on their internet site and Plaintiffs' intellectual property. In addition, Plaintiffs have not proposed a preliminary injunction that is narrowly drawn to prevent Defendants from disseminating only the specific alleged intellectual property that is the subject of this lawsuit. Their proposal would prohibit

Defendants from disseminating "any algorithm, computer code, source code, software, technical information or any other intellectual property or technical data relating to any actual, planned or potential development by Defendants of any base station transceiver." broad reach. With respect to Plaintiffs' request that the Court require Defendants to preserve information that can be used to identify individuals who have accessed their internet site, Plaintiffs have 3 The Court cannot issue an injunction with such a

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not demonstrated that immediate and irreparable harm will result if the Court affords Defendants an opportunity to oppose the request. For these reasons, Plaintiffs' ex parte motion for a temporary restraining order is DENIED. Their motion for a preliminary

injunction is DENIED WITHOUT PREJUDICE to the extent it seeks the first and second forms of relief described in the first paragraph of this order. Plaintiffs may re-file their motion to demonstrate

through the use of disinterested expert opinion that the information they seek to enjoin Defendants from disseminating constitutes their intellectual property. Plaintiffs must also

submit with their renewed motion a revised proposed preliminary injunction that is narrowly drawn to cover only the specific alleged intellectual property that is the subject of this litigation. The proposed injunction may refer to appended

material, if reference to such material is necessary in order to define with precision the scope of the injunction. If Plaintiffs

wish to have their renewed motion considered on an expedited basis, they should file a motion to shorten time, in accordance with the Local Civil Rules, at the time they file their renewed motion. To the extent the present motion for a preliminary injunction seeks the third form of relief described in the first paragraph of this order, the Court will take the motion under submission on the papers. Defendants are hereby ordered to show cause, within two

days of the date of this order, why they and their agents, officers, directors, employees and anyone acting on their behalf should not be required to preserve and protect the names, internet addresses and other identifiers of all persons or entities who have uploaded, downloaded or otherwise accessed any internet website 4

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established by Defendants and containing any algorithms, computer code, software, technical information or any other intellectual property or technical data relating to any base station transceiver. Defendants shall further show cause why Plaintiffs

should not be excused from posting a bond if a preliminary injunction to this effect is issued. Plaintiffs shall file a reply

to Defendants' submission one day thereafter. Plaintiffs have also filed a motion to lodge the Declaration of Massimiliano Martone and attached exhibits under seal. It is

not clear whether, by filing this motion, Plaintiffs seek merely to file the declaration outside of the public record, or instead seek to submit the documents for in camera review without making them available to Defendants. The Court deems the motion as seeking the Because the relevant documents contain

former category of relief.

confidential information that could be used to harm Plaintiffs if it were filed in the public record, the motion is GRANTED. documents, however, must be served on Defendants. The

If the parties

are unable to stipulate to a protective order, Plaintiffs may move for one. IT IS SO ORDERED.

Dated: 11/20/08

CLAUDIA WILKEN United States District Judge

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