ALL LEISURE HOLIDAYS LIMITED v. NOVELLO et al
Filing
15
ORDER granting 14 Motion for Preliminary Injunction. Signed by Judge Robin S. Rosenbaum on 12/4/2012. (RSR)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 12-62328-CIV-ROSENBAUM/SELTZER
ALL LEISURE HOLIDAYS LIMITED,
Plaintiff,
v.
STEVEN NOVELLO and DATABASE
MARKETING SOLUTIONS, INC.,
Defendants.
________________________________________/
AGREED PRELIMINARY INJUNCTION
AS TO DEFENDANT STEVEN NOVELLO
THIS CAUSE came before the Court on November 30, 2012, on a hearing for a preliminary
injunction [D.E. 8], and the Court having reset the hearing for December 6, 2012 [D.E. 13], based
upon the parties’ representations that they are working toward an agreed preliminary injunction, and
Plaintiff All Leisure Holidays Limited (“All Leisure”) and Defendant Steven Novello (“Novello”),
having stipulated and agreed to entry of this Agreed Preliminary Injunction, and good cause
appearing for the entry thereof, the Court enters the following Agreed Preliminary Injunction as to
Defendant Steven Novello.
Background
All Leisure filed a Verified Complaint for Injunctive Relief and for Damages (“Verified
Complaint”) [D.E. 1], a Memorandum of Law in support of the Motion [D.E. 5], and a Certificate
Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure [D.E. 6].
In the Verified Complaint, All Leisure requests, among other things, entry of a temporary
restraining order and a permanent injunction enjoining Novello and DMS from any alleged
misappropriation or alleged further misappropriation of All Leisure’s Trade Secrets, as defined in
the Verified Complaint, requiring Novello and DMS to return all of All Leisure’s Trade Secrets, and
other injunctive relief.
On November 27, 2012, the Court entered an Order Granting Plaintiff’s Emergency Ex Parte
Motion for Temporary Injunction in part [D.E. 7].
Novello remains in possession of Plaintiff’s corporate information, and, as alleged by
Plaintiff, proprietary and trade secrets information, as a result of Novello’s prior employment.
Stipulated Facts
Plaintiff, All Leisure, is also known as “All Leisure Holidays Limited Inc.,” “All Discovery
Cruising,” and “All Discovery Cruising North America. All Leisure is in the business of selling,
marketing and operating cruise ships throughout the world. It operates the cruise brands Hebridean
Island Cruises, Swan Hellenic, and Voyages of Discovery. All Leisure is part of All Leisure Group
PLC, its parent company, which is the largest British-owned cruise-ship company in the world. “All
Leisure” as referred to in this Agreed Preliminary Injunction includes its parent company,
subsidiaries, affiliates, divisions, departments, successors, assigns, employees, agents, officers,
directors, members and representatives.
All Leisure has expended considerable money and time developing and maintaining
proprietary and valuable information, including, but not limited to, customer lists and information,
business and corporate strategies, business plans, product strategies, product cost and pricing
information, vendor lists, lead lists, lead conversion, lead formation sales reports, operating plans,
marketing strategies and plans, methods, financial information, contracts, agreements, computer
programs, technical processes, manuals, and other information pertaining to the financial condition,
business affairs or business prospects of All Leisure. All Leisure describes this information (“All
Leisure’s Trade Secrets1”) as the life blood of All Leisure’s business. Dissemination and use of All
Leisure’s Trade Secrets to and by competitors would allow them to compete better with All Leisure
and would significantly impact All Leisure’s business operations.
Novello joined All Leisure on May 11, 2010, as President. As President, Novello was
responsible for the operation of the company throughout North America. During his more-than-twoyear tenure with All Leisure, Novello came to know and was entrusted with All Leisure’s Trade
Secrets.
During his employment, Novello became aware of All Leisure’s data-protection policy. As
President of All Leisure, Novello was involved in ensuring compliance with All Leisure’s data
protection policies. He knew that All Leisure’s Trade Secrets were to be kept confidential to ensure
that such information and data would be used and retained within the company and that All Leisure’s
Trade Secrets were sole and exclusive property of All Leisure.
On April 1, 2011, DMS, a database marketing and consulting firm that develops marketing
campaigns to increase revenue, entered into a Non-Disclosure Agreement with All Leisure by and
through DMS’s Vice President, Susan Lee. The Non-Disclosure Agreement prohibits DMS from
disclosing or communicating All Leisure’s confidential information to any third party.
Pursuant to the Non-Disclosure Agreement, All Leisure furnished DMS with All Leisure’s
Trade Secrets. DMS acknowledged and agreed that all such information and data is and shall remain
the property of All Leisure.
In October 2012, Novello’s employment with All Leisure ended. Novello retains on his
1
The use of the term “All Leisure’s Trade Secrets” to define the data and materials listed does not constitute
an admission by Novello that all such items qualify as Trade Secrets under Florida’s Uniform Trade Secret Act or other
applicable law.
personal computer much of the information that All Leisure claims is a Trade Secret since he used
his personal computer to conduct All Leisure’s business during the course of his employment with
the company.
Based upon the foregoing stipulated facts and for good cause shown and as a result of the
agreement reached between the parties, it is hereby ORDERED AND ADJUDGED as follows:
1. This Court has jurisdiction over the subject matter of this case and the parties hereto.
2. Venue is proper as to all parties in the Southern District of Florida.
3. Defendant Steven Novello is hereby preliminarily enjoined from using, copying,
reproducing, disseminating, distributing, and disclosing all proprietary information and trade secrets
of All Leisure, including, but not limited to, customer lists and information, documents and data
regarding cruise revenue, names, addresses and contact information of passengers, names, addresses
and of agents, including addresses and contact information, booking dates, cruise names, locations,
birth dates, emails, business and corporate strategies, business plans, product strategies, product cost
and pricing information, vendor lists, lead lists, lead conversion, lead formation sales reports,
operating plans, marketing strategies and plans, methods, financial information, contracts,
agreements, computer programs, technical processes, manuals, information pertaining to the
financial condition, business affairs or business prospects of All Leisure, and all other documents,
data and information that they created using the proprietary information and trade secrets of All
Leisure.
4. Defendant Steve Novello shall immediately take all reasonable measures to protect and
preserve any and all data, information and media and database infrastructures, in his possession,
custody or control, on computers, laptops, iPads, PDAs, cell phones, including iPhones and
Blackberrys, including drive discs or removable media, including external USB hard drives or flash
(thumb) drives, or any other source of electronically stored information, which may contain any
information belonging to or relating to All Leisure, including, but not limited to, the data and
information described in paragraph 3 above. Defendant, Steve Novello, shall not delete or destroy
any electronic documents or data relating in any way to All Leisure, and shall suspend all routine
electronic document deletion and media recycling as well as stop any data compressions, disk defragmentation or optimization routines that relate to any information belonging to or relating to All
Leisure.
5. Within two (2) business days of entry of this Agreed Preliminary Injunction, Defendant
Steven Novello is hereby required to return all proprietary information of and trade secrets (as
defined herein) of All Leisure, including, but not limited to, customer lists and information,
documents and data regarding cruise revenue, names, addresses and contact information of
passengers, names, addresses and of agents, including addresses and contact information, booking
dates, cruise names, locations, birth dates, emails, business and corporate strategies, business plans,
product strategies, product cost and pricing information, vendor lists, lead lists, lead conversion, lead
formation sales reports, operating plans, marketing strategies and plans, methods, financial
information, contracts, agreements, computer programs, technical processes, manuals, information
pertaining to the financial condition, business affairs or business prospects of All Leisure (and all
copies thereof), and all other documents, data and information that he created or caused to create
using the proprietary information and trade secrets of All Leisure (and all copies thereof), in his
possession, custody or control, in all forms, including, but not limited to, tangible and electronic
form.
6. Additionally and simultaneously with the return of any of All Leisure’s data and
information, within two (2) business days after entry of this Agreed Preliminary Injunction, Novello
shall permit All Leisure’s forensic expert (“All Leisure’s Forensic Expert”) to inspect, subject to the
parameters agreed to herein by the parties, and make mirror images of hard drives of all of his
personal computers, including laptops, iPads, PDAs, cell phones, including (iPhones and
Blackberrys), including drive discs or removable media, including external USB hard drives or flash
(thumb) drives, or any other source of electronically stored information or hard copy documents
which Novello used in connection to All Leisure’s business (collectively, “Novello’s Computers”).
Novello represents that he used Novello’s Computers for business purposes in connection with his
employment with the Plaintiff, therefore, these devices will be imaged, reviewed and searched
initially. If an examination of these devices shows that Novello used other devices or media, such
as other computers, iPads, PDAs, cell phones, iPhones, Blackberrys, drive discs or removable media,
including external USB hard drives or flash (thumb) drives, or any other source of electronically
stored information, All Leisure’s Forensic Expert shall have the right to image, inspect and search
these other devices and media. Further, based upon Novello’s representation that he sometimes used
a Yahoo email account for business purposes in connection with his employment with the Plaintiff,
All Leisure’s Forensic Expert shall have the right to access, inspect, search and copy this Yahoo
email account. If an examination of the Yahoo email account shows that Novello used other email
accounts, All Leisure’s Forensic expert shall have the right to access, inspect, search and copy such
other accounts. All Leisure’s Expert shall be entitled to inspect Novello’s Computers and Yahoo
email account for the express purpose of determining if any of the alleged Trade Secrets, as defined
by Plaintiff, were disseminated, reproduced, downloaded, transferred, deleted, or otherwise used in
any way. Appropriate parameters will, however, be put in place so that this inspection does not
allow for All Leisure’s Expert to inspect any of Novello’s personal data or information which is
contained on Novello’s Computers and Yahoo email account. To the extent it is necessary, Novello
shall provide all log in information and passwords to allow for All Leisure’s Expert to conduct this
inspection of Novello’s Computers and email account(s).
All Leisure’s Forensic Expert shall use
agreed upon search criteria, such as key words, dates, and times, concepts and filters, for purposes
of the appropriate search and analysis process. If the parties are unable to agree on such terms, they
will seek the Court’s involvement in determining the same as to search terms that have not been
agreed upon.
7. All Leisure’s Forensic Expert will thereafter begin the processing, indexing and
cataloguing as required to perform the search, analysis and review.
8. All Leisure’s Forensic Expert will process and review the computers’ contents to identify
potentially responsive files in accordance with the search parameters.
9. All Leisure’s Forensic Expert may search for deleted files, e-mails and file remnants,
copied, transferred or moved files, and all allocated and unallocated space on the computers for any
sign of All Leisure’s data and information.
10. Upon All Leisure’s Forensic Expert inspection of Novello’s Computers, it shall provide
Novello with a catalogue of all of All Leisure’s data and information that is located on Novello’s
Computers. Thereafter, within three (3) business days of Novello receiving said catalogue, Novello
may produce a privilege log to All Leisure’s counsel specifically detailing why certain files should
not be reviewed by All Leisure or deleted by All Leisure’s Forensic Expert. Any files identified in
the exclusion or privilege log that is a point of contention between the parties will be reviewed in
camera and ruled on by the Court, with the assistance of the forensic experts, if necessary. If no such
privilege log is provided, then All Leisure’s Forensic Expert shall provide all of the located All
Leisure data and information to All Leisure and its attorneys.
11. All Leisure has the right to view all non-privileged data and information (including
deleted files, e-mails and file remnants) relating to its business, as described in paragraph 3 above.
12. All Leisure’s Forensic Expert shall monitor and ensure the deletion, purging and forensic
scrubbing of all data and information on Novello’s Computers relating to All Leisure’s business,
including the documents, data and information described in paragraph 3 above. All Leisure’s
Forensic Expert and attorneys shall retain an image of Novello Computers as of the time the
Computers are made accessible to All Leisure Forensic Expert for an agreed-upon time frame. This
shall be done to ensure that Novello can access any of the information from his Computers that
related to All Leisure’s business that may be necessary in defense of any litigation between the
parties. This is a material condition of Novello’s agreement to allow his Computers to be inspected.
At the conclusion of this litigation, whether by dismissal with prejudice by All Leisure or otherwise,
All Leisure’s Forensic Expert and its attorneys agree that they shall destroy all images of Novello’s
Computers within ten (10) days of the conclusion of the litigation and shall not retain the same for
any purpose.
13. All Leisure shall be responsible for any damage intentionally or negligently caused by
All Leisure’s Forensic Expert to any of the computers that are the subject of the above-described
forensic examination.
14. This Agreed Preliminary Injunction is without prejudice to All Leisure seeking to
inspect, make mirror images of and search hard drives of DMS’ computers, drives and media.
15. All Leisure’s Forensic Expert will be bound by a confidentiality order insuring that any
and all information found to be contained on the subject computers be kept confidential.
16. Each party shall bear its/his own costs of its/his own forensic expert(s).
17. Nothing in this Agreed Preliminary Injunction is or shall be construed as an admission
of any wrongdoing on the part of any of the parties.
18. Based upon the stipulation of the parties, no bond shall be required as a prerequisite or
otherwise to effectiveness or enforcement of this Agreed Preliminary Injunction.
19. Pursuant to Fed. R. Civ. P. 65(d), this injunction is binding on the following who receive
actual notice of the Order by personal service or otherwise: Defendants, Steven Novello and
Database Marketing Solutions, Inc.; their officers, agents, servants, employees, and attorneys; and
other persons who are in active concert or participation with Defendants, Steven Novello and
Database Marketing Solutions, Inc., or their officers, agents, servants, employees, and attorneys.
20. The Court reserves jurisdiction to enforce and modify the terms of this Agreed
Preliminary Injunction, and all of All Leisure’s claims for relief shall remain pending.
DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, this 4th day of December
2012.
______________________________________
ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
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