Netquote Inc. v. Byrd

Filing 90

Netquote Inc. v. Byrd

Doc. 90

Case 1:07-cv-00630-DME-MEH

Document 90

Filed 10/09/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 07-cv-00630-DME-MEH NETQUOTE, INC., a Colorado corporation, Plaint iff, v. BRANDON BYRD, an internet user making use of the IP Addresses 64.136.27.226 and 64.136.26.227, and MOSTCHOICE.COM, INC., a Georgia corporation, Defendants. PLAINTIFF' MOTION TO MAINTAIN HIGHLY CONFIDENTIAL-- ATTORNEYS' S EYES ONLY DESIGNATION FOR DOCUMENTS NQ000160-NQ000204 Plaint iff NetQuote, Inc. (" etQuote", through counsel, moves to maintain the Highly N ) Confident ial-- Attorney' Eyes Only designation for documents NQ000160-NQ000204 and in s support of this motion states as follows: INTRODUCTION Under the Protective Order issued by this Court on August 23, 2007, customer lists may be designated as Highly Confidential ­Attorneys'Eyes Only. Dkt. # 75, ¶¶ 2.5, 4.2. MostChoice challenges the Highly Confidential-- Attorney' Eyes Only designation of materials s list ing the customers who terminated as a result of the thousands of false applications Defendants submitted to NetQuote' website. Counsel have conferred in good faith regarding the disputed s designation as required by D.C.COLO.LCivR. 7.1(A) and Paragraph 16 of the Protective Order

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Case 1:07-cv-00630-DME-MEH

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Filed 10/09/2007

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and were unable to reach agreement regarding the appropriate designation for documents NQ000160-NQ000204.1 ARGUMENT NetQuote seeks to maintain the Highly Confidential-- Attorney' Eyes Only designation s for documents listing the names, location, contact information and agency information of its for mer customers. This Court has already ruled that NetQuote' " usto mer list, or list of sc insurance agents"constitute confidential commercial information warranting a higher level of protection. See Order on Plaintiff' Motion for Protective Order 3; accord A/R Roofing, L.L.C. v. s Certainteed Corp., No. 05-1158, 2005 U.S. Dist. LEXIS 31145 (D. Kan. Dec. 5, 2005) (finding that disclosure of information that could place one party at a disadvantage in the marketplace supported an attorney-eyes-only provision); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (E.D. Pa. 1981) (" ompetit ive disadvantage is a type of harm C cognizable under rule 26.". In particular, the designation of customer information as Highly ) Confident ial-- Attorney' Eyes Only is appropriate between competitors. See Nutratech, Inc. v. s Sytnech Int', Inc., 242 F.R.D. 552 (C.D. Cal. 2007) (noting that customer and supplier lists are l often produced subject to an attorney-eyes-only provision). Documents NQ000160-NQ000206 should be afforded the Highly Confidential-- Attorney' Eyes Only designation because they constitute portions of NetQuote' customer lists. s s The documents at issue consist of internal logs detailing customer concerns that identify the name and contact information of the customers, NetQuote' efforts to resolve the issue and retain s
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In addition to the documents at issue in this Motion, counsel for Defendants has just notified counsel for NetQuote that Defendants challenge an additional set of NetQuote' s confident ialit y designations. Counsel are currently conferring in an attempt to resolve this dispute without Court intervention. -2-

Case 1:07-cv-00630-DME-MEH

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the customers, and the outcome. The agents listed in the documents terminated their contracts with NetQuote during the height of the false lead submissions by Defendants. NetQuote intends to make efforts to regain these agents. As a result, NetQuote still considers these agents customers and includes them in NetQuote' customer list. s Moreover, MostChoice should not be permitted to further profit from its wrongdoing. Access to the information in these documents would provide MostChoice with insights as to which of NetQuote' customer relationships Defendants were most successful in tarnishing and s therefore on which relationships MostChoice should focus its renewed sales efforts. Indeed, after learning in depositions that MostChoice is continuing to market to the NetQuote insurance agents whose identities it discovered through Defendants'false submissions, NetQuote sent a letter demanding that MostChoice cease and desist from such conduct. See Ex. A. MostChoice has failed to respond to that letter and is instead seeking access to the list of these NetQuote customers most directly affected by Defendants'wrongful conduct. Access to the names of the NetQuote former customers that MostChoice seeks could be used by MostChoice to target and to increase marketing efforts to these agents-- the very agents whose identity MostChoice discovered through the fraudulent submissions. If it would assist the Court in resolving this motion, NetQuote will make the documents available to this Court for an in camera review. CONCLUSION For the foregoing reasons, NetQuote should be permitted to maintain the Highly Confident ial-- Attorney' Eyes Only designation for the documents bates-stamped NQ000160s NQ000204.

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Dated: October 9, 2007

Respectfully submitted, s/Heather Carson Perkins _____ David W. Stark Heather Carson Perkins FAEGRE & BENSON LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, Colorado 80203 Tel: [phone] / Fax: [phone] E-mail: [e-mail] [e-mail] m Daniel D. Williams Teresa Taylor Tate FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, Colorado 80302 Tel: [phone] / Fax: [phone] E-mail: [e-mail] [e-mail] m Attorneys for Plaintiff NetQuote, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 9th of October, 2007, I served the foregoing PLAINTIFF' S MOTION TO MAINTAIN HIGHLY CONFIDENTIAL-- ATTORNEYS'EYES ONLY DESIGNATION DOCUMENTS NQ000160-NQ000204 with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel of record: Ryan L. Isenberg, Esq. ISENBERG & HEWITT, P.C. 7000 Peachtree Dunwoody Road, Bldg 15, Suite 100 At lanta, GA 30328 [e-mail]

s/Cecil A. Kennedy

_______

fb.us.2331565.01

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