Webgistix Corporation v. DiSorbo et al

Filing 37

ORDER Granting 25 Joint Stipulation for Plaintiff Webgistix Corporation and Trend Nation, LLC. Signed by Judge Richard F. Boulware, II on 2/23/17. (Copies have been distributed pursuant to the NEF - ADR)

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1 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 2 3 WEBGISTIX CORPORATION, 4 Plaintiff, 5 6 7 vs. JOSEPH DISORBO, KELLY MATZENBACHER, and TREND NATION, LLC, 8 Case No. 2:17-cv-00218 CONSENT ORDER ON PLAINTIFF WEBGISTIX CORPORATION AND TREND NATION, LLC’ JOINT S STIPULATION Defendants. 9 10 TO ALL PARTIES AND THEIR ATTORNEYS: 11 Plaintiff, Webgistix Corporation, d/b/a Rakuten Super Logistics, Incorporated (“RSL”), 12 and Defendant Trend Nation, LLC, together acting through their below counsel, have conferred 13 as to the matters set forth in RSL’s Complaint and Motion for an Emergency Temporary 14 Restraining Order filed with this Court on January 26, 2017. Pursuant to these conversations, and 15 subject to further Order of the Court, Trend Nation agrees to be bound by the following terms and 16 conditions, without the need for a motion for preliminary injunction by RSL: 17 18 19 1. Trend Nation, its employees, and its agents are enjoined from accessing RSL’s computer systems and networks; 2. Pending final resolution of this matter, Trend Nation is enjoined from using RSL’s 20 confidential and proprietary data and information which is in Trend Nation’s possession, custody, 21 or control for any purpose, including soliciting RSL’s customers; 22 3. Pending final resolution of this matter, Trend Nation is enjoined from using, 23 disclosing, or infringing upon in any way RSL’s confidential and proprietary data and 24 information or trade secrets which are in Trend Nation’s possession, custody, or control; 25 4. Trend Nation is enjoined from altering, deleting, and/or copying any information 26 or data maintained in hard copy or electronically which is currently in Trend Nation’s possession, 27 custody, or control and in any way relates to RSL’s Company Confidential Information (as 28 defined in the Confidentiality Agreement attached to RSL’s Complaint) and/or trade secrets, as 1 well as Defendants and their agents’ access or attempts to access RSL’s computer systems 2 following RSL’s termination of Joseph DiSorbo and Kelly Matzenbacher, including, but not 3 limited to, information or data contained in any of Defendants’ email accounts or on their 4 computers or devices where data may be stored (including, in the case of DiSorbo and 5 Matzenbacher, any computer provided to them by Trend Nation) (collectively, “Defendants’ 6 electronic devices”); and 7 5. Trend Nation will preserve any and all information or data maintained in hard 8 copy or electronically which is currently in Trend Nation’s possession, custody, or control and in 9 any way relates to RSL’s Company Confidential Information (as defined in the Confidentiality 10 Agreement attached to RSL’s Complaint) and/or trade secrets, as well as Defendants’ access or 11 attempts to access RSL’s computer systems following RSL’s termination of DiSorbo and 12 Matzenbacher, including, but not limited to, information or data contained in any of Defendants’ 13 email accounts or on their computers or devices where data may be stored, including the 14 computer provided to Matzenbacher by Trend Nation. 15 6. Within ten (10) Court days following the issuance of this Order, Trend Nation 16 shall identify all digital devices in its possession, custody or control that were used by Defendants 17 DiSorbo or Matzenbacher and that may contain data relevant to the allegations set forth in the 18 Complaint; 19 7. Within five (5) Court days following the identification of such devices and email 20 accounts, the parties shall confer to agree upon the naming of a neutral, third-party computer 21 forensic examiner (“the Computer Examiner”) who will serve as an Officer of the Court and will 22 agree in writing to be bound by the Protective Order that will be sought in this case. To the extent 23 the Computer Examiner has direct or indirect access to information protected by the attorney- 24 client privilege, such “disclosure” will not result in a waiver of the attorney-client privilege; 25 8. As soon thereafter as is reasonably practicable, the parties shall agree on a day and 26 time for the Computer Examiner to inspect Trend Nation’s electronic devices and to make a 27 forensic copy of Trend Nation’s electronic devices (a “mirror image”) for inspection only in the 28 presence of Trend Nation and its attorneys. The Computer Examiner will then perform his/her 2 1 forensic analysis of the “mirror image” utilizing search terms and other information provided 2 jointly by the parties, but otherwise without interference from either party. The Computer 3 Examiner may use any and all reasonable search techniques to recover documents and document 4 fragments (including e-mail) that are relevant to the claims or defenses of any party in this case or 5 to the subject matter of this lawsuit, or appear reasonably calculated to lead to the discovery of 6 relevant evidence. The Computer Examiner will be required to disclose the search protocol and 7 search terms that he/she uses to analyze the hard drive. In this manner, the Computer Examiner’s 8 work easily can be replicated, if necessary, and evaluated; 9 9. After the Computer Examiner completes his or her analysis of the “mirror image”, 10 it will be returned to Trend Nation’s counsel along with a Report consisting of (a) a printed copy 11 of all documents, e-mail and document or e-mail fragments that the Expert recovers; (b) a printed 12 list of available date and time information, including when documents were last accessed, last 13 written, created, or modified; and (c) an electronic copy of the same information; 14 10. Trend Nation’s counsel will then review the recovered documents and produce to 15 RSL all non-privileged documents that are responsive to RSL’s forthcoming written discovery 16 requests, and which are relevant to the subject matter of this litigation within twenty (20) Court 17 days following receipt of the Expert’s report or within thirty (30) days following service of RSL’s 18 Request for the Production of Documents and Electronically Stored Information, whichever is 19 later. All documents that are withheld on a claim of privilege will be recorded in a privilege log 20 that will be produced to RSL as soon as practicable; 21 11. Trend Nation’s counsel will be the sole custodian of and shall retain the “mirror 22 image” and copies of all documents retrieved from Trend Nation’s electronic devices throughout 23 the course of this litigation. To the extent that documents cannot be retrieved from Trend 24 Nation’s electronic devices or the documents retrieved are less than the whole of data contained 25 therein, the Computer Examiner shall submit a Declaration to the Court together with his/her 26 written report explaining the limits of retrieval achieved; 27 28 12. The parties agree and acknowledge that this Joint Stipulation is not to be construed as an admission by Trend Nation of any violation of any federal, state or local statute, ordinance 3 1 or regulation, constitutional right, public policy, common law duty or contractual obligation. 2 Trend Nation specifically denies that it engaged in any wrongdoing concerning RSL. 3 4 13. The parties each have the right to move for dissolution or modification of restraints imposed by this Joint Stipulation upon ten (10) days’ written notice to the other party. 5 6 IT IS SO ORDERED. 7 8 Date: February 23, 2017. __2/6/2017____________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 /s/ Kenneth M. Kliebard Kenneth M. Kliebard (Admitted pro hac vice) Ashley A. Powers (Admitted pro hac vice) MORGAN, LEWIS & BOCKIUS LLP 77 West Wacker Drive Chicago, IL 60601-5094 kenneth.kliebard@morganlewis.com ashley.powers@morganlewis.com Tel: (312) 324-1000 Fax: (312) 324-1001 /s/ Russell J. Burke Russell J. Burke BALLARD SPAHR LLP 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106-4617 burker@ballardspahr.com Tel: (702) 868-7516 Fax: (702) 471-7070 Steven W. Suflas (pro hac vice pending) BALLARD SPAHR LLP 1225 17th Street, Suite 2300 Denver, CO 80202-5596 suflas@ballardspahr.com Tel: (303) 299-7326 Fax: (303) 296-3956 Christopher J. Banks (pro hac vice pending) MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1596 christopher.banks@morganlewis.com Tel: (415) 442-1001 Fax: (415) 442-1001 210 Lake Drive East, Suite 200 Cherry Hill, New Jersey 08002-1163 Tel: (856) 761-3466 Samuel S. Lionel FENNEMORE CRAIG, P.C. 300 S. Fourth Street, Suite 1400 Las Vegas, Nevada 89101 slionel@fclaw.com Tel: (702) 791-8251 Fax: (702) 471-7070 Attorneys for Defendant Trend Nation, LLC Attorneys for Plaintiff, Webgistix Corporation 25 26 27 28 4

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