Fifth Third Processing Solutions, LLC v. Elliott

Filing 23

ORDER denying plaintiff's motion for a preliminary injunction. Counsel for defendant is ordered to meet with counsel for plaintiff in order to agree on a procedure acceptable to both parties concerning closing out and deleting or erasing the information contained in defendant's personal email account. Signed by Judge Sandra S Beckwith on 10/18/11. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Fifth Third Processing,
Solutions, LLC,
Plaintiff,
vs.
Michael Elliott,
Defendant.

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) Case No. 1:11-CV-247
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
On April 21, 2011, Plaintiff Fifth Third Processing
Solutions, LLC (“FTPS”) filed a complaint for a preliminary and
permanent injunction against Defendant Michael Elliott.

FTPS

asserts two related causes of action against Elliott: 1) Elliott
breached the non-solicitation clause in his employment contract
when he left FTPS and accepted a similar position with Fiserv,
Inc.; and 2) Elliott violated Ohio’s version of the Uniform Trade
Secrets Act, Ohio Rev. Code § 1333.61, et seq., by emailing to
his personal account certain proprietary and confidential
documents of FTPS, including customer lists and pricing
information, before the termination of his employment with FTPS.
FTPS seeks the following relief:
(a) A preliminary and permanent injunction, enjoining
and restraining Defendant for one year from the
date of Defendant’s resignation, directly or
indirectly, individually or on behalf of or in
concert with any other person or entity, from
soliciting, attempting to solicit, or otherwise
interfering with FTPS’s relationship with any client or
prospective client;

(b) A preliminary and permanent injunction ordering
Defendant to keep in strict confidence and not to
disclose in any manner any confidential, proprietary,
and trade secret information of FTPS to any person,
group, or entity or use such information for any
purpose whatsoever, including (but not limited to)
information regarding the terms of any coaches’ [sic]
contracts.
(c) That Defendant be compelled to identify and
disclose to FTPS any and all communications that either
he or any other employee, officer, or agent of Fiserv
had with any client or prospective client of FTPS
related in any way to (1) Defendant’s resignation from
FTPS; (2) Defendant’s employment with Fiserv; and/or
(3) the potential or possibility of Defendant providing
services for the client or prospective client after
Defendant’s resignation from FTPS on November 30, 2010.
(d) That this Court order that Defendant immediately
return to FTPS all information or any other materials
belonging to FTPS, or relating to the business of FTPS,
and all copies thereof in any form, keeping no copy for
himself.
Complaint (Doc. No. 1), at 11-12.

FTPS also seeks an award of

compensatory and punitive damages, costs, and attorney’s fees.
The case came before the Court on September 26, 2011
for an evidentiary hearing on FTPS’s complaint for a preliminary
injunction.

The parties then submitted post-hearing briefs (Doc.

Nos. 20 & 21).

The Court, having considered the pleadings filed

by the parties, the evidence presented at the hearing, and the
post-hearing briefs of counsel, hereby enters the following
Findings of Fact, Conclusions of Law, and Order.
52(a)(2).

Fed. R. Civ. P.

To the extent that the foregoing findings of fact

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should more properly be considered conclusions of law, and vice
versa, they are hereby adopted as such.
I. Findings of Fact
A. Subject Matter Jurisdiction
1. Plaintiff FTPS is a Delaware company with its principal place
of business located in Cincinnati, Ohio.
¶ 2.

Complaint ¶ 2;

Answer

FTPS, therefore, is a citizen of the States of Ohio and

Delaware.

Franzel v. Kerr Mfg. Co., 959 F.2d 628, 629 (6th Cir.

1992).
2. Defendant Michael Elliott is a citizen of the State of
Indiana.

Complaint ¶ 3; Answer ¶ 3.

3. The amount in controversy in this case is in excess of
$75,000.

Complaint ¶ 5; Sellers v. O’Connell, 701 F.2d 575, 578

(6th Cir. 1983) (“The general rule is that the amount claimed in
good faith by the plaintiff controls unless it appears to a legal
certainty that the claim is for less than the jurisdictional
amount or unless the amount claimed is merely colorable.”).
4. The Court has subject matter jurisdiction over this case
because the parties are citizens of different states and the
amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a).

B. Background
5. The complaint describes FTPS’s business as follows:
Formerly a division of Fifth Third Bank, FTPS provides
complete payment strategies for businesses and
financial institutions around the world. FTPS provides
services and solutions related to credit card and debit
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card processing, electronic benefits transfer (EBT),
online payment acceptance, private label credit and
debit cards, gift card programs, credit card call
center support, electronic funds transfer (EFT)
services, ATM services and network support.
Complaint ¶ 6.
6. Defendant began working for FTPS in 1999.

As is relevant

here, Defendant’s final position with FTPS was vice president of
sales.

Elliott Dep. (Ex. 19), at 121-25.

Defendant was

responsible for selling FTPS’s EFT services to other financial
institutions.

In this position, Defendant had access to a number

of confidential documents of FTPS, including customer lists,
pricing information, and marketing strategies, through a shared
computer drive.
7.

Defendant’s employment with FTPS was governed by a contract

entitled “2010 Incentive Compensation Plan.”

Ex. 1 (“the Plan”).

The Plan contains a non-solicitation and non-disclosure provision
in which the Defendant agreed, for a period of one year following
the termination of his employment with FTPS, not to solicit
customers or prospective customers, or accept the business of
such customers, with whom he “had contact, involvement, or
responsibility during his [] employment with FTPS.”
VII(a), (b) & (c).

Id. §§

This section, however, does not prohibit

Defendant from accepting employment that competes with FTPS so
long as he does not violate the terms of the Plan.

Id. § VII.

In other words, under the terms of the Plan, Defendant is free to

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accept employment with a competitor of FTPS as long as he does
not violate, inter alia, the non-solicitation provisions of § VII
of the Plan.
8. Defendant also agreed under the Plan that he would not
disclose FTPS’s trade secrets and confidential information to
third parties or use such information for the benefit of anyone
other than FTPS.

Id. § VII.

The Plan defines confidential and

proprietary information as “customer names or lists, financing
information, technical information, designs, processes,
procedures, policies, improvements, business plans, pricing
structures, price and fee schedules, supplier lists, referral
sources, records, blueprints, software programs, financial
information and notes, letters, documents and other papers
relating to the business or work of FTPS[.]” Id.
9. Defendant began interviewing for a position as Regional Sales
Executive with Fiserv, Inc. (“Fiserv”) in August 2010.

Fiserv

provides “core processor” services to financial institutions
which are allegedly broader than but nonetheless overlap the
services provided by FTPS.

In his deposition, Defendant

explained that a core processor “offers back-office functionality
for the front line of a bank or credit union, so the teller line
is using the core processing platform, mortgage software, lending
software, everything basically banking- and credit unionrelated.”

Elliott Dep. (Ex. 19), at 15.

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10. Defendant accepted the Regional Sales Executive position with
Fiserv on November 4, 2010 with an effective starting date of
December 1, 2010.

Ex. 6.

Defendant’s duties in this position

are to sell debit card processing services to financial
institutions who are already using Fiserv as a core processor.
Elliott Dep. at 14.
11.

Defendant notified FTPS that he was resigning on November

17, 2010 with an effective resignation date of December 1, 2010.
12. In the six weeks immediately preceding his final day with
FTPS, Defendant downloaded from FTPS’s computer system a number
of proprietary and confidential documents which he then sent to
his personal email account with gmail.

He then downloaded these

documents onto his personal Apple laptop computer.
13.

Among the most significant of these documents are files

related to the “Barbell Plan,” which generally speaking is FTPS’s
internal analysis of its clients, revenues, contract dates, and
other financial metrics.

Ex. 11.

FTPS’s forensic computer

analyst, however, could not determine whether Defendant had
opened and read any of these files.
14. Defendant testified that he has not printed out or used any
of these documents or information to compete against FTPS nor has
he shared this information with any other person.

Defendant

surrendered his laptop computer to his attorney.

Defendant’s

gmail account is still active with FTPS’s documents still

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resident in it, but the account is password protected and
Defendant testified that he has not used this account since the
commencement of litigation.
II. Standard of Review
This is a diversity case and so the Court applies the
same substantive law that the state courts in Ohio would apply.
Corrigan v. U.S. Steel Corp., 478 F.3d 718, 724 (6th Cir. 2007).
The parties both agree that Ohio law applies in this case.
Moreover, the parties’ agreement under the Plan has an Ohio
choice of law clause which should be enforced absent public
policy concerns which are not evident here.

Certified

Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d
535, 541 (6th Cir. 2007); Jarvis v. Ashland Oil, Inc., 478 N.E.2d
786, 789 (Ohio 1985).

Accordingly, Ohio substantive law applies

in this case to determine whether FTPS is likely to succeed on
the merits.

Certified, 511 F.3d at 541.

Whether FTPS is entitled to a preliminary injunction is
a procedural question controlled by federal law.

Southern Milk

Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991).

In a

diversity case, the quantum of proof necessary to establish a
claim is determined by state law.

See Disner v. Westinghouse

Elec. Corp., 726 F.2d 1106, 1111 (6th Cir. 1984) (district court
erred when it instructed jury that plaintiff need only prove
fraud claim by preponderance of the evidence when Michigan law

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required fraud to be established by clear and convincing
evidence).

Ohio requires the plaintiff to prove a claim for

injunctive relief by clear and convincing evidence.
v. Lane, 560 N.E.2d 1319, 1324 (Ohio Ct. App. 1988).

Mead Corp.
“Clear and

convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the
extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of
the trier of facts a firm belief or conviction as to the facts
sought to be established.”

Cross v. Ledford, 120 N.E.2d 118,

119-20, syl. 3 (Ohio 1954).
Therefore, in this case, the Court applies the federal
standards for obtaining a preliminary injunction, i.e., an
assessment of the plaintiff’s likelihood of success on the
merits, the threat of irreparable harm to the plaintiff, the risk
of injury to others, and the public’s interest in granting
injunctive relief.

Hamad v. Woodcrest Condominium Ass’n, 328

F.3d 224, 230 (6th Cir. 2003).

State law applies to the

determination whether FTPS is likely to succeed on the merits of
its claims.

Certified, 511 F.3d at 541.

Additionally, state law

supplies the quantum of proof needed for FTPS to obtain
injunctive relief.

In this case, the clear and convincing

evidence standard applies.

Disner, 726 F.2d at 111.

the Court recognizes that the preliminary injunction

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Finally,

considerations are factors to be balanced, and not prerequisites
to be met, with no one factor controlling.
230.

Hamad, 328 F.3d at

Generally, however, a finding that the plaintiff is not

likely to succeed on the merits should result in the denial of
injunctive relief.

Id.

Similarly, a claim for injunctive relief

will fail without a showing of irreparable harm.

Aluminum

Workers Int’l. Union, AFL-CIO, Local Union No. 215 v.
Consolidated Alum. Corp., 696 F.2d 437, 444 (6th Cir. 1982).
III. Conclusions of Law
A. Breach of Contract
1. FTPS is not likely to succeed on
the merits of its breach of contract claim
To prove a claim for breach of contract, the plaintiff
must establish “the existence of a contract, performance by the
plaintiff, breach by the defendant, and damage or loss to the
plaintiff.”

Nilavar v. Osborn, 738 N.E.2d 1271, 1282 (Ohio Ct.

App. 2000).

Two provisions of the Plan are at issue here.

One,

the non-solicitation provision, and, two, the provision that
requires Defendant to maintain the confidentiality of FTPS’s
confidential information and trade secrets.
As the Findings of Fact indicate, the non-solicitation
provision prohibits Defendant from soliciting customers with whom
he had “had contact, involvement, or responsibility during his []
employment with FTPS” for a period of one year.

It does not

prohibit Defendant from all competition with FTPS and indeed does
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not prohibit Defendant from soliciting FTPS clients with whom he
did not have “contact, involvement, or responsibility during his
[] employment with FTPS.”

FTPS did not put on any evidence -

much less clear and convincing evidence - that during his
employment with Fiserv, Defendant has actually solicited or
attempted to solicit any former client with whom he had “had
contact, involvement, or responsibility during his [] employment
with FTPS.”

Therefore, FTPS is not likely to succeed on a claim

against Defendant for a past breach of the non-solicitation
provision.
FTPS’s claim or concern regarding breach of the nonsolicitation provision is more in the nature of an anticipatory
breach - i.e., that Defendant is likely to breach the Plan due to
his alleged improper possession of FTPS’s confidential materials.
An anticipatory breach, however, requires an unequivocal
repudiation of the contract by the other party.

Southeast Land

Dev., LTD v. Primrose Mmgt, LLC, 952 N.E.2d 563, 568 (Ohio Ct.
App. 2011).

In this case, though, Defendant has not

unequivocally repudiated the non-solicitation clause.

Indeed, he

has affirmatively stated under oath that he intends to abide by
the terms of that clause.

See id. at 569 (party repudiates

contract by failing to give adequate assurance of performance).
Therefore, the Court concludes that FTPS has not adduced clear
and convincing evidence that Defendant has repudiated the non-

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solicitation clause.

Consequently, FTPS is not likely to succeed

on the merits to the extent it claims that Defendant has
anticipatorily breached the Plan.
The Court concludes further that FTPS is unlikely to
succeed on the merits of its breach of contract claim based on
Defendant’s emailing and downloading FTPS’s confidential and
proprietary information to his personal computer.

The terms of

the Plan do not prohibit the employee from retaining FTPS’s
confidential and proprietary information or compel him to return
such information to FTPS upon the termination of his employment.
Rather, this provision imposes only two duties: 1) the employee
shall only use such information for FTPS’s benefit; and 2) the
employee shall not disclose such information to third parties.
Defendant, therefore, did not breach the Plan merely by emailing
these documents to his personal computer and retaining them after
the termination of his employment with FTPS.
Moreover, FTPS generally failed to present evidence
that Defendant has used its confidential information for the
benefit of others or that he has disclosed it to third parties.
Defendant denied under oath that he has used or shared this
information with others.

His testimony is generally corroborated

by FTPS’s own forensic analyst, who indicated there was no
evidence that Defendant had opened or read these documents.

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Defendant did admit that he sent Laura Johnson copies of a sales
report to help her resolve a dispute she was having with FTPS
over sales commissions she felt she was owed after the
termination of her employment with FTPS.

Even assuming that this

constitutes a past breach of the Plan, the Court concludes that
it does not justify granting prospective injunctive relief.

The

Defendant is no longer in possession of any of FTPS’s
confidential information.

Defendant’s attorney has his personal

laptop computer which can be turned over to FTPS to be scrubbed
of its documents.

Defendant’s email account remains live, but

Defendant’s attorney can work with FTPS to take steps
satisfactory to both parties to delete those documents and close
out the account.

The Defendant simply is not in a position to

share or use these documents to FTPS’s disadvantage at this
point.
Accordingly, the Court concludes that FTPS is not
likely to succeed on the merits of its breach of contract claim.
B. Misappropriation of Trade Secrets
FTPS has also sued Defendant for misappropriation of
trade secrets under Ohio’s version of the Uniform Trade Secrets
Act, Ohio Rev. Code § 1333.61, et seq.

This act authorizes

courts to enter injunctions to prevent actual or threatened acts
of misappropriation of trade secrets.
A “trade secret” is:

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Ohio Rev. Code § 1331.62.

information, including the whole or any portion or
phase of any scientific or technical information,
design, process, procedure, formula, pattern,
compilation, program, device, method, technique, or
improvement, or any business information or plans,
financial information, or listing of names, addresses,
or telephone numbers, that satisfies both of the
following:
(1) It derives independent economic value, actual or
potential, from not being generally known to, and not
being readily ascertainable by proper means by, other
persons who can obtain economic value from its
disclosure or use.
(2) It is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
Ohio Rev. Code § 1331.61(D).

“Misappropriation” means:

(1) Acquisition of a trade secret of another by a
person who knows or has reason to know that the trade
secret was acquired by improper means;
(2) Disclosure or use of a trade secret of another
without the express or implied consent of the other
person by a person who did any of the following:
(a) Used improper means to acquire knowledge of the
trade secret;
(b) At the time of disclosure or use, knew or had
reason to know that the knowledge of the trade secret
that the person acquired was derived from or through a
person who had utilized improper means to acquire it,
was acquired under circumstances giving rise to a duty
to maintain its secrecy or limit its use, or was
derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit
its use;
(c) Before a material change of their position, knew or
had reason to know that it was a trade secret and that
knowledge of it had been acquired by accident or
mistake.

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Ohio Rev. Code § 1333.61(B).

“Improper means” “includes theft,

bribery, misrepresentation, breach or inducement of a breach of a
duty to maintain secrecy, or espionage through electronic or
other means.”

Ohio Rev. Code § 1333.61(A).

1. Even if FTPS is likely to succeed on the merits of its
misappropriation claim, it has not shown that it will be
irreparably harmed in the absence of injunctive relief
The Court will assume for purposes of the pending
motion that the documents Defendant emailed himself were trade
secrets of FTPS and that he obtained them by improper means.

As

discussed above, however, FTPS has not shown that Defendant has
actually disclosed its confidential information or used it in
anyway to compete against it.

Defendant has returned all of the

documents to FTPS, his personal computer is in the custody of his
attorney, and his email account can be readily closed out.

Thus,

Defendant’s alleged past acts of misappropriation have been
largely if not completely remedied.

The salient question,

therefore, is whether FTPS has shown threatened misappropriation
of trade secrets.

The Court concludes that it has not.

The seminal Ohio case on threatened misappropriation is
Proctor & Gamble Co. v. Stoneham, 747 N.E.2d 268 (Ohio Ct. App.
2000).

In Stoneham, the defendant was a senior-level manager in

Proctor & Gamble’s hair care division.

The court described the

defendant’s involvement with this division as follows:
Stoneham’s expertise was the foreign markets, that is,
the markets other than the United States, and the needs
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of the foreign consumers, the products that sold best
in the foreign markets, the areas in which P&G should
concentrate its resources to increase sales in haircare
products, and the types of claims and advertising that
would be most successful in foreign markets.
As part of his job, Stoneham was also privy to the
development of new haircare products by P&G. He knew,
among other things, which products were closest to
market, when and where they would be launched, the
target consumers, the type of advertising to be used,
the strengths and weaknesses of the products, the
strengths and weaknesses of the company's scientific
backup for its claims about the products, the price for
the new products, and the targeted profits. He was also
involved in the “relaunch” or revitalization of
existing products, and knew, among other things, which
products were going to be relaunched, the perceived
weaknesses of the products, the changes made or to be
made in the products, the changes in the advertising
and marketing focus, and the anticipated costs of the
relaunch.
As a member of worldwide multi-functional teams at P&G,
Stoneham developed a confidential ten-year marketing
plan for one of P&G’s hair-conditioning products,
participated in the development of new products, and
helped develop a ten-year plan for P&G’s best-selling
brand, Pantene. No one was more knowledgeable about
the foreign marketing of P&G’ s haircare products, and
no one was more knowledgeable about P&G’s hairconditioning products, both existing and potential,
than Stoneham.
Id. at 272 (emphasis added).

The defendant then left P&G to take

a position with Alberto-Culver as president of its international
hair-care products division.

P&G sued the defendant for breach

of the non-competition clause in his employment contract.

P&G

also claimed that the defendant’s knowledge of its hair care
products would inevitably lead to the disclosure of its trade

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secrets to Alberto-Culver and sought an injunction to prevent
that from occurring.
The Stoneham Court concluded that P&G was entitled to
injunctive relief because there was a substantial threat the
defendant would disclose P&G’s trade secrets to Alberto-Culver.
In reaching this conclusion, the Court adopted the “inevitable
disclosure” rule which states that “a threat of harm warranting
injunctive relief can be shown by facts establishing that an
employee with detailed and comprehensive knowledge of an
employer’s trade secrets and confidential information has begun
employment with a competitor of the former employer in a position
that is substantially similar to the position held during the
former employment.”

Id. at 279 (emphasis added).

The Stoneham

Court determined that the inevitable disclosure rule applied in
its case because the defendant had “an intimate knowledge of
P&G’s confidential information and trade secrets” and that his
“position with Alberto-Culver resulted in direct competition
between the products that Stoneham formerly supported and the new
products for which he held responsibility.”

Id.

The Court also

noted that:
Stoneham developed an initiative called Benchmark 2000,
the purpose of which was to identify the best haircare
products from around the world and to use information
about those products to improve Alberto–Culver’s
products and expand their sales. Many of the topselling brands around the world are P&G products.

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Stoneham’s testimony shows that the threat of harm
identified by P&G’s other managers was not only
possible or speculative, but was substantially likely
to result. In his new employment, Stoneham directly
targeted the very products he worked on when employed
at P&G for increased competition from Alberto–Culver
products. He set up global teams like the ones that he
had been on at P&G to identify Alberto–Culver’s
strategies for competing with P&G specifically and
increasing sales in haircare generally. P&G’s
advertising campaigns were specifically discussed.
Id. at 279-80.

Thus, the Court, held that “P&G presented clear

and convincing evidence that Stoneham either had already used
some of P&G’s trade secrets or was substantially likely to use
its trade secrets to benefit Alberto–Culver.”

Id. at 280.

In this case, it is true that the Defendant accepted a
position with Fiserv that is substantially similar to the one he
held at FTPS in that he is responsible for selling debt card
processing services to financial institutions.

Nevertheless,

there is an important distinction between this case and Stoneham
which makes the inevitable disclosure rule inapplicable here, and
that is in this case the evidence does not show that the
Defendant has the detailed and comprehensive knowledge of FTPS’s
trade secrets, e.g., the Barbell documents and the other
information, that the defendant possessed in Stoneham.
In Stoneham, the defendant was essentially responsible
for developing and marketing an entire product line and thus had
thorough top-down knowledge of every aspect of the product.

In

this case, while Defendant was responsible for selling debit card

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processing services for FTPS and has knowledge of that service,
he was not responsible for compiling the information and data
contained in the confidential documents.

While Defendant had

access to these documents, it cannot be inferred simply from that
access that he possesses detailed and comprehensive knowledge of
the information contained in documents as would the employees who
actually created them.

Thus, Defendant in this case is different

from the defendant in Stoneham, who knew everything there was to
know about P&G’s confidential information and trade secrets just
by virtue of his position.

Moreover, as Defendant alludes to in

his brief, the Barbell documents and the other alleged trade
secrets are lengthy, detailed, and complex documents not
susceptible, in the Court’s opinion, to ready memorization.

The

Barbell documents, for instance, list over 100 clients or
potential clients with approximately 75 individual data points
for each client.

While Defendant admits taking the documents, he

has returned them, surrendered his laptop, and abandoned his
email account and the evidence thus far supports his testimony
that he has not reviewed or read the documents even though he
took them.

Essentially, then, FTPS is in the same position it

would have been had Defendant simply opened up the documents and
read them on his last day of employment with FTPS.

Defendant

would have been exposed to the information to be sure, but given
the complexity of the documents, it is not reasonable to conclude

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that he would have retained in detail the information he read.
Now, almost one year after the termination of his employment with
FTPS, it is even less likely that Defendant has retained any
detailed knowledge of these documents or can use his exposure to
them to FTPS’s disadvantage.

Stated another way, it is not

inevitable that Defendant will disclose FTPS’s confidential
information and trade secrets.

Therefore, FTPS has not

established a threat of injury and as a consequence is not
entitled to injunctive relief under Ohio’s trade secrets act.
C. Irreparable Harm
The Court’s discussion in Parts III.A and III.B.
illustrates that FTPS is not likely to suffer irreparable harm
without injunctive relief.

The evidence does not show that

Defendant has used, intends to use, or will inevitably disclose
FTPS’s confidential information or trade secrets.

Therefore,

FTPS will not be irreparably harmed.
D. The Public’s Interest and Harm to Others
Having concluded that FTPS is not likely to succeed on
its breach of contract claim and will not otherwise suffer
irreparable harm in the absence of injunctive relief, the Court
does not need to address these two factors.

Aluminum Workers

Int’l. Union, AFL-CIO, Local Union No. 215 v. Consolidated Alum.
Corp., 696 F.2d 437, 444 (6th Cir. 1982).
Conclusion

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For the reasons stated in this order, FTPS’s motion for
a preliminary injunction is not well-taken and is DENIED.
Counsel for Defendant, however, are ORDERED to meet and confer
with counsel for FTPS as soon as possible in order to agree on a
procedure acceptable to both parties concerning closing out and
deleting or erasing the information contained in Defendant’s
personal email account.

IT IS SO ORDERED

Date October 18, 2011

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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