Webgistix Corporation v. DiSorbo et al

Filing 38

ORDER Granting 26 Joint Stipulation for Plaintiff Webgistix Corporation and Kelly Matzenbacher. Signed by Judge Richard F. Boulware, II on 2/23/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WEBGISTIX CORPORATION,

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Plaintiff,

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vs.
JOSEPH DISORBO, KELLY
MATZENBACHER, and TREND NATION,
LLC,

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Case No. 2:17-cv-00218
CONSENT ORDER ON PLAINTIFF
WEBGISTIX CORPORATION AND
KELLY MATZENBACHER’ JOINT
S
STIPULATION

Defendants.

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TO ALL PARTIES AND THEIR ATTORNEYS:

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Plaintiff, Webgistix Corporation, d/b/a Rakuten Super Logistics, Incorporated (“RSL”),

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and Defendant Kelly Matzenbacher, together acting through their below counsel, have conferred

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as to the matters set forth in RSL’s Complaint and Motion for an Emergency Temporary

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Restraining Order filed with this Court on January 26, 2017. Pursuant to these conversations, and

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subject to further Order of the Court, Matzenbacher agrees to be bound by the following terms

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and conditions, without the need for a motion for preliminary injunction by RSL:

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1.

Matzenbacher is enjoined from accessing RSL’s computer systems and networks;

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2.

Pending final resolution of this matter, Matzenbacher is enjoined from using

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RSL’s confidential and proprietary data and information which is in Matzenbacher’s possession,

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custody, or control for any purpose, including soliciting RSL’s customers;

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3.

Pending final resolution of this matter, Matzenbacher is enjoined from using,

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disclosing, or infringing upon in any way RSL’s confidential and proprietary data and

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information or trade secrets which are in Matzenbacher’s possession, custody, or control;

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4.

Matzenbacher is enjoined from altering, deleting, and/or copying any information

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or data maintained in hard copy or electronically which is currently in Matzenbacher’s

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possession, custody, or control and in any way relates to RSL’s Company Confidential

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Information (as defined in the Confidentiality Agreement attached to RSL’s Complaint) and/or

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trade secrets, as well as Defendants and their agents’ access or attempts to access RSL’s computer

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systems following RSL’s termination of Joseph DiSorbo and Matzenbacher, including, but not

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limited to, information or data contained in any of Defendants’ email accounts or on their

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computers or devices where data may be stored (including, in the case of DiSorbo and

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Matzenbacher, any computer provided to them by Trend Nation) (collectively, “Defendants’

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electronic devices”); and

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5.

Matzenbacher will preserve any and all information or data maintained in hard

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copy or electronically which is currently in Matzenbacher’s possession, custody, or control and in

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any way relates to RSL’s Company Confidential Information (as defined in the Confidentiality

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Agreement attached to RSL’s Complaint) and/or trade secrets, as well as Defendants’ access or

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attempts to access RSL’s computer systems following RSL’s termination of DiSorbo and

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Matzenbacher, including, but not limited to, information or data contained in any of Defendants’

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email accounts or on their computers or devices where data may be stored, including the

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computer provided to Matzenbacher by Trend Nation.

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6.

Within ten (10) Court days following the issuance of this Order, Matzenbacher

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shall identify all digital devices in his possession, custody, or control that were used by him or

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DiSorbo and that may contain data relevant to the allegations set forth in the Complaint;

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7.

Within five (5) Court days following the identification of such devices and email

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accounts, the parties shall confer to agree upon the naming of a neutral, third-party computer

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forensic examiner (“the Computer Examiner”) who will serve as an Officer of the Court and will

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agree in writing to be bound by the Protective Order that will be sought in this case. To the extent

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the Computer Examiner has direct or indirect access to information protected by the attorney-

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client privilege, such “disclosure” will not result in a waiver of the attorney-client privilege;

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8.

As soon thereafter as is reasonably practicable, the parties shall agree on a day and

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time for the Computer Examiner to inspect Matzenbacher’s electronic devices and to make a

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forensic copy of Matzenbacher’s electronic devices (a “mirror image”) for inspection only in the

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presence of Matzenbacher and his attorneys. The Computer Examiner will then perform his/her

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forensic analysis of the “mirror image” utilizing search terms and other information provided

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jointly by the parties, but otherwise without interference from either party. The Computer
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Examiner may use any and all reasonable search techniques to recover documents and document

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fragments (including e-mail) that are relevant to the claims or defenses of any party in this case or

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to the subject matter of this lawsuit, or appear reasonably calculated to lead to the discovery of

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relevant evidence. The Computer Examiner will be required to disclose the search protocol and

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search terms that he/she uses to analyze the hard drive. In this manner, the Computer Examiner’s

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work easily can be replicated, if necessary, and evaluated;

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9.

After the Computer Examiner completes his or her analysis of the “mirror image”,

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it will be returned to Matzenbacher’s counsel along with a Report consisting of (a) a printed copy

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of all documents, e-mail and document or e-mail fragments that the Expert recovers; (b) a printed

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list of available date and time information, including when documents were last accessed, last

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written, created, or modified; and (c) an electronic copy of the same information;

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10.

Matzenbacher’s counsel will then review the recovered documents and produce to

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RSL all non-privileged documents that are responsive to RSL’s forthcoming written discovery

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requests, and which are relevant to the subject matter of this litigation within twenty (20) Court

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days following receipt of the Expert’s report or within thirty (30) days following service of RSL’s

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Request for the Production of Documents and Electronically Stored Information, whichever is

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later. All documents that are withheld on a claim of privilege will be recorded in a privilege log

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that will be produced to RSL as soon as practicable;

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11.

Matzenbacher’s counsel will be the sole custodian of and shall retain the “mirror

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image” and copies of all documents retrieved from Matzenbacher’s electronic devices throughout

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the course of this litigation. To the extent that documents cannot be retrieved from

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Matzenbacher’s electronic devices or the documents retrieved are less than the whole of data

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contained therein, the Computer Examiner shall submit a Declaration to the Court together with

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his/her written report explaining the limits of retrieval achieved;

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12.

The parties agree and acknowledge that this Joint Stipulation is not to be construed

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as an admission by Matzenbacher of any violation of any federal, state or local statute, ordinance

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or regulation, constitutional right, public policy, common law duty or contractual obligation.

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Matzenbacher specifically denies that he engaged in any wrongdoing concerning RSL.
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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.

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IT IS SO ORDERED.

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Date: February 23, 2017.
___2/6/2017___________

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/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
[e-mail]
[e-mail]
Tel: [phone]
Fax: [phone]

/s/ Jeffrey F. Barr
Jeffrey F. Barr (Nevada Bar: 7269)
ASHCRAFT & BARR LLP
2300 West Sahara Avenue, Suite 1130
Las Vegas, Nevada 89102
[e-mail]
Tel: [phone]
Fax: [phone]
Attorney for Defendant Kelly Matzenbacher

Christopher J. Banks (pro hac vice pending)
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
[e-mail]
Tel: [phone]
Fax: [phone]
Samuel S. Lionel
FENNEMORE CRAIG, P.C.
300 S. Fourth Street, Suite 1400
Las Vegas, Nevada 89101
[e-mail]
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff, Webgistix Corporation

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