Klein Cutlery, LLC v. West et al

Filing 13

AGREED ORDER FOR PRELIMINARY INJUNCTION and EXPEDITED DISCOVERY. Signed by William M. Skretny U.S.D.J. on 3/19/2009. (MEAL)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK KLEIN CUTLERY, LLC, a Delaware limited liability company, Plaintiff, v. WAYNE WEST and KRISTINA CARNEY, Defendants. ) ) ) ) ) ) ) ) ) ) )

09-CV-233S

AGREED ORDER FOR PRELIMINARY INJUNCTION AND EXPEDITED DISCOVERY

This matter having come to be heard on Plaintiff Klein Cutlery, LLC's ("Klein Cutlery") Motion for a Temporary Restraining Order, Motion for Expedited Discovery, and Plaintiff and Defendants' Joint Motion for Entry of Agreed Order For Preliminary Injunction and Expedited Discovery, the Court being fully briefed and advised in the premises, due notice having been given, IT IS HEREBY FOUND AND ORDERED THAT:

(1)

Klein Cutlery has made a preliminary showing that (1) it is likely to suffer irreparable harm in the absence of a preliminary injunction; (2) it is likely to succeed on the merits of its claims; and (3) the balance of the hardships favors Klein Cutlery. (a) Klein Cutlery has made a preliminary showing that Defendants Wayne West and Katrina Carney (collectively the "Defendants") are likely in possession of confidential information and trade secrets belonging to Klein Cutlery and are equipped to disseminate that confidential information to third parties and competitors of Klein Cutlery. Klein Cutlery has made a preliminary showing that it will likely be able to establish that Defendants breached their confidentiality agreements with Klein Cutlery, have violated the terms of the Computer Fraud and Abuse Act, and have misappropriated Klein Cutlery's trade secrets. Klein Cutlery has made a preliminary showing that the balance of hardships favors Klein Cutlery. Klein Cutlery has made a preliminary showing that in entering this injunction, the Court is maintaining the status quo.

(b)

(c)

(2)

Defendants and all persons acting in concert with any of them are hereby preliminarily enjoined from: (a) Directly or indirectly, and in any manner, using or disclosing any Confidential Information belonging to or originating from Klein Cutlery, including but not limited to disclosing Klein Cutlery's Confidential Information to Ontario Knife Co. or any third party; Directly, or indirectly through West's employer, soliciting business from, or diverting the business of, any Klein Cutlery customer that was identified using Klein Cutlery Confidential Information; and Destroying, altering, modifying or concealing any data relevant to this action or Klein Cutlery's Confidential Information stored on any computer media or in hard copy form.

(b)

(c)

(3)

The Defendants shall immediately cease use or deletion of any materials from any computer, computer hard drive, website, external drive, flash drive, zip drive, thumb drive, iPod, or any similar device on which data may be stored, to which the Defendants sent or uploaded any Klein Cutlery documents.

(4)

All other documents and copies, whether or not they contain Confidential Information, that in any way originate or arise from Klein Cutlery and/or the Defendants' employment with Klein Cutlery, be returned to Klein Cutlery, as well as all documents that to any extent contain, in whole or in part, information derived from those documents.

(5)

The Court recognizes that Defendants dispute the facts that are subject to the foregoing preliminary findings. In consenting to this Agreed Order, the preliminary findings, and injunctive relief, Defendants do not acknowledge or agree that any of the above preliminary findings are true and reserve all rights to contest the above preliminary findings. Nothing in this Order shall be construed as affecting the rights of the parties to any legal claims or defenses arising from or relating to the Employee Confidentiality, Intellectual Property and Non-Competition Agreement, which is the subject of this action. These preliminary findings are made without prejudice to any factual, legal, or equitable defenses that Defendants may later present.

(6)

Klein Cutlery's Motion for Expedited Discovery ("Discovery Motion") is Granted: (a) The Defendants are ordered to respond to the Document Requests attached to Klein Cutlery's Discovery Motion on or before March 23, 2009, and to appear for their depositions on or before April 3, 2009; and

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(b)

Klein Cutlery is granted leave to serve the Subpoenas attached to the Discovery Motion on Ontario Knife Co. and Aero, Inc., each with a return date of March 23, 2009.

(7)

This Order shall remain in effect until further order of the Court.

Accordingly, IT HEREBY IS ORDERED, that Plaintiff's Motion for Temporary Restraining Order (Docket No. 2) is DENIED AS MOOT in light of the parties' agreement to entry of this Preliminary Injunction. FURTHER, that Plaintiff's Motion for Expedited Discovery (Docket No. 5) is GRANTED. FURTHER, that the parties' Joint Motion for Preliminary Injunction and Discovery (Docket No. 12) is GRANTED. SO ORDERED.

DATED:

March 19, 2009 Buffalo, NY /s/William M. Skretny WILLIAM M. SKRETNY United States District Judge

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