Rocky Mountain Bank V Google

Case5:09-cv-04385-PVT Document11

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROCKY MOUNTAIN BANK,

) ) Plaintiff, ) ) v. ) ) GOOGLE, INC., ) ) ) Defendant. ___________________________________ )

Case No.: C 09-4385 PVT ORDER DENYING PLAINTIFF’S MOTION TO FILE PLEADINGS UNDER SEAL

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On September 18, 2009, Plaintiff filed a motion to file all pleadings and other filings in this

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matter under seal.1 Having reviewed the papers submitted by the parties, the court finds it

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appropriate to issue this order without further briefing or oral argument. Based on the moving

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papers submitted,

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IT IS HEREBY ORDERED that Plaintiff’s motion is DENIED because Plaintiff has not

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shown that there are sufficiently compelling reasons for sealing the information to override the

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public’s common law right of access to records in civil proceedings.

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I.

FACTUAL BACKGROUND

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Plaintiff is a full service banking institution which, among other things, offers various loans

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This case is assigned to Magistrate Judge Patricia V. Trumbull. However, because Magistrate Judge Trumbull is unavailable until September 23, 2009, Plaintiff’s motion to seal has been referred to the current duty judge for the San Jose Division of this court. ORDER, page 1

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to individual consumers and corporate entities.2 On August 12, 2009, Plaintiff received a request

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from one of its customers for Plaintiff to send certain loan statements to a third-party representative

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of that customer. That same day, an employee of Plaintiff attempted to send the requested

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information to the customer’s representative via email. The next day, Plaintiff discovered that its

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employee had inadvertently sent the email to the wrong Gmail email address. In addition, Plaintiff

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discovered that attached to the email was a file containing confidential customer information for

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1,325 individual and business customer accounts for customers other than just the customer who

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requested information. The confidential information includes names, addresses, tax identification

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numbers,3 and loan information for each of the 1,325 customer accounts.

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After learning of its inadvertent disclosure of confidential customer information, Plaintiff

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tried to recall the email without success. It then sent another email to the Gmail address, instructing

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the recipient to immediately delete the prior email and the attached file in its entirety without

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opening or reviewing it. Plaintiff also requested that the recipient contact Plaintiff to discuss his or

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her actions. The recipient has not responded to Plaintiff’s email.

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Plaintiff also contacted Google, the company that provides the Gmail service, and asked

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whether the Gmail account at issue is active or dormant and what steps could be taken to ensure that

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the confidential customer information was not used or disclosed. Google advised Plaintiff that it

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would not provide any information regarding the Gmail account at issue, and would not otherwise

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assist in preventing disclosure of the confidential customer information unless it was requested

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through a valid subpoena or other appropriate legal process. LEGAL STANDARDS FOR SEALING COURT DOCUMENTS AND FILES

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II.

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The Supreme Court has acknowledged the existence of a common law right of access to

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records in civil proceedings: “It is clear that the courts of this country recognize a general right to

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inspect and copy public records and documents, including judicial records and documents.” See

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Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). While the

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The statement of facts herein is based on the allegations in the complaint.

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The court assumes that for individual customers this would be their social security

number. ORDER, page 2

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Court recognized that this right to access is not absolute, it did not identify all factors to be weighed

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in determining whether court files or documents may be sealed. Factors that the Ninth Circuit finds

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relevant to this determination include:

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the public interest in understanding the judicial process and whether disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.

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See Hagestad, 49 F.3d at 1434 (internal citation and quotation marks omitted). After considering all relevant factors, a court must “base its decision on a compelling reason

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and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.” See

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Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (quoting Valley Broadcasting Co. v.

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United States Dist. Court, 798 F.2d 1289, 1293 (9th Cir. 1986)); see also, Foltz v. State Farm Mutual

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Automobile Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).

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III.

DISCUSSION

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Plaintiff argues that if its complaint and motion papers are not filed under seal, all of its

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customers may learn of the inadvertent disclosure. Plaintiff further argues that publication of the

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disclosure before it determines whether the Gmail account is active or dormant will unnecessarily

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create panic among all of its customers and result in a surge of inquiry from its customers. In his

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declaration, Mark Hendrickson, states that “until there is a determination that the Confidential

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Customer Information was in fact disclosed and/or misused, the Bank cannot advise its customers on

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whether there was an improper disclosure.” (See Declaration of Mark Hendrickson in Support of

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Motion to File Under Seal, filed herein on September 18, 2009, ¶ 18.)

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An attempt by a bank to shield information about an unauthorized disclosure of confidential

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customer information until it can determine whether or not that information has been further

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disclosed and/or misused does not constitute a compelling reason that overrides the public’s

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common law right of access to court filings. Plaintiff is already able to advise its customers that

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there has been an unauthorized disclosure of confidential customer information, and inform them of

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the steps it is taking to rectify the situation.4 And Plaintiff has not shown that disclosure of the

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The possibility that the email has not been opened, or that the information has not been misused, does not change the fact that there already was an unauthorized disclosure of the information to an unknown third party. ORDER, page 3

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information contained in its complaint and motion papers “could result in improper use of the

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material for scandalous or libelous purposes or infringement upon trade secrets,” or invasion of any

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personal privacy rights that might warrant protection under Federal Rules of Civil Procedure 26(c).

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Plaintiff has not disclosed any actual customer information in its pleadings or motion papers.5

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IT IS FURTHER ORDERED that, notwithstanding the foregoing, Plaintiff may redact the

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specific Gmail account name from copies of its complaint and motion papers that it files in the

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public record, in order to allow the owner of that account time to seek an order sealing that

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information if such sealing is warranted. Until it is determined which documents will be filed in

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redacted form in the public file, the clerk of the court shall maintain all filed documents under seal.

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No later than September 21, 2009, Plaintiff shall email to the docket clerk for Magistrate Judge

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Patricia V. Trumbull electronic copies of each document in which the Gmail account name has been

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redacted, which the clerk of the court shall then file in the court’s electronic filing system. For those

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documents, the clerk of the court shall file under seal the unredacted originals which were

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previously filed. For all documents that do not include the specific Gmail account name, Plaintiff

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shall promptly electronically file them.

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IT IS FURTHER ORDERED that the clerk of the court shall promptly unseal this case, so

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that it is accessible through the court’s electronic filing system and through Pacer.

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Dated: 9/18/09

19 RONALD M. WHYTE United States District Judge

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In the event Plaintiff finds it necessary to disclose any actual customer information in future filings, it may move to seal the confidential portions of those filings pursuant to this court’s Civil Local Rule 79-5. ORDER, page 4

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GRACE Y. HOROUPIAN (SBN 180377) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation,

Case No. C09-04385 PVT CERTIFICATE OF INTERESTED PARTIES (FILED UNDER SEAL) Complaint filed: September 17, 2009

Defendant.

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4842-6376-3460.1

CERTIFICATE OF INTERESTED PARTIES

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The undersigned counsel of record for Plaintiff, Rocky Mountain Bank, a

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Wyoming corporation, pursuant to Civil L.R. 3-16, certifies that as of this date,

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other than the named parties, there is no such interest to report."

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Dated: September 17, 2009

KUTAK ROCK LLP

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By: /s/ Grace Y. Horoupian Grace Y. Horoupian ATTORNEYS FOR PLAINTIFF ROCKY MOUNTAIN BANK

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4842-6376-3460.1 4834-1520-0516.1

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CERTIFICATE OF INTERESTED PARTIES

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GRACE Y. HOROUPIAN (SBN 180337) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant.

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Case No. 5:09-CV-04385 PVT MOTION TO FILE PLEADINGS UNDER SEAL (FILED UNDER SEAL) Hearing Date: Time: Room:

Trial Date: Not Scheduled Date Action Filed: __________ Judge: Hon.

23 24 25 26 27 28 MOTION TO FILE UNDER SEAL CASE NO. __________ 4835-4594-6884.1

__________ a.m.

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Plaintiff Rocky Mountain Bank, by and through its attorneys Kutak Rock

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LLP, hereby submits the following Motion to File Pleadings Under Seal and in

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support thereof, states and alleges as follows: INTRODUCTION

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The Bank is a full service banking institution which, among other things,

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offers various loans to individual consumers and corporate entities. (See Mark

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Hendrickson’s Declaration filed herewith (the “Declaration”), ¶ 4) In connection

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with a request for information from one of the Bank’s customers, the Bank

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inadvertently sent the information to the wrong “gmail” account, which is an email

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account established through www.google.com.

(Declaration, ¶¶ 5 and 6)

In

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sending the email, the Bank also inadvertently attached confidential account

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information of 1,324 other accounts, including names, addresses, tax identification

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numbers, and account numbers of customers. (Declaration, ¶ 8) The Bank is

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taking all appropriate steps to protect the confidential customer information and to

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prevent the misuse of such information.

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In connection with the Bank’s internal investigation and evaluation of the

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likelihood that the confidential customer information has been or will be misused

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and to adequately protect the confidential customer information, the Bank has

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determined that it is necessary to: (a) prevent Google Inc. (“Google”) and the

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Google account holder from using the Confidential Customer Information; (b) have

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the Gmail Account immediately frozen or deactivated to prevent any access to the

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confidential customer information; (c) permanently delete the inadvertent email

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from Google’s system; (d) determine the status of the “gmail” account, specifically,

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whether the “gmail” account is active or dormant and whether the inadvertent email

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was opened or otherwise manipulated by the account holder; and (e) in the event

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that the “gmail” account is not dormant, ascertain the identity of the “gmail”

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account holder, so that the Bank can take appropriate steps with the account holder

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to ensure that the confidential customer information is not distributed or otherwise -1-

MOTION TO FILE UNDER SEAL CASE NO. __________ 4835-4594-6884.1

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misused. (Declaration, ¶15) The Bank has requested information from Google

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regarding the “gmail” account and has requested Google’s assistance in preventing

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further disclosure of the confidential customer information. Google, however, has

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refused to disclose any information to the Bank or to assist the Bank in its efforts to

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prevent disclosure of the confidential customer information, unless and until it is

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subject to legal process. (Declaration, ¶14)

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Accordingly, the Bank has filed a Verified Complaint for Declaratory and

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Injunctive Relief against Defendant Google Inc. (the “Verified Complaint”). In

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connection therewith, the Bank has filed its Memorandum of Points and Authorities

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in Support of Motion for Temporary Restraining Order and Preliminary Injunction

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(the “Motion for Injunctive Relief”). (Declaration, ¶17) However, until the Bank is

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able to determine the status of the “gmail” account there is no need for the Bank to

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contact its account holders or needlessly panic its customers.

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imperative that the pleadings and filings in this action are filed under seal.

Therefore, it is

ARGUMENT

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Although there is a presumption in favor of access to court records, it “is not

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absolute and can be overridden given sufficiently compelling reasons for doing so.”

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Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 1122, 1135 (9th

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Cir. 2003); see also Kamakana v. City and County of Honolulu, 447 F.3d 1172,

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1178-9 (9th Cir. 2003). As the Verified Complaint and the Motion for Injunctive

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Relief contain information that could potentially alarm the Bank’s customers and

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create needless panic, compelling reasons exist to grant the Bank’s Motion to File

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Under Seal.

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The Bank is taking all appropriate steps to ensure that the confidential

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customer information is not misused. However, until the Bank is able to determine

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the status of the “gmail” account there is no need for the Bank to contact its account

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holders. If the Motion and the Verified Complaint are not permitted to be filed

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under seal, all of the Bank’s customers may learn of the inadvertent disclosure and -2-

MOTION TO FILE UNDER SEAL CASE NO. __________ 4835-4594-6884.1

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assume that it was in fact their confidential information that was disclosed.

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Publication of the inadvertent disclosure of confidential information prior to

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making a determination as to whether the “gmail” account is active or dormant will

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unnecessarily create panic among all of the Bank’s customers and result in a surge

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of inquiry from the Bank’s customers.

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WHEREFORE, Plaintiff Rocky Mountain Bank respectfully requests that its

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Verified Complaint, Motion for Injunctive Relief and all other pleadings and filings

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in this matter be filed under seal and for such other relief as the Court deems

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appropriate.

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Respectfully submitted this 18th day of September, 2009.

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KUTAK ROCK LLP

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By: /s/ Grace Y. Horoupian Grace Y. Horoupian ATTORNEYS FOR PLAINTIFF ROCKY MOUNTAIN BANK

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MOTION TO FILE UNDER SEAL CASE NO. __________ 4835-4594-6884.1

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation,

Case No. 5:09-CV-04385 PVT (PROPOSED) ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (FILED UNDER SEAL) Complaint filed: September 17, 2009

Defendant.

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THE COURT, having considered Plaintiff Rocky Mountain Bank’s

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Memorandum of Points and Authorities in Support of its Motion for Temporary

20

Restraining Order and Preliminary Injunction (the “Motion”), and being fully

21

advised in the premises, hereby FINDS as follows:

22

1.

temporary restraining order under F.R.C.P. 65(b).

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2.

The Bank has shown a substantial likelihood of success on the merits of its legal claims against Defendant Google Inc. (“Google”).

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The Bank has satisfied the requirements for the issuance of a

3.

The Bank and its customers will suffer immediate and irreparable

27

injury, loss, and/or damage if the Confidential Customer Information is

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not adequately protected and the Bank is unable to take appropriate -1-

ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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steps to ensure that the Confidential Customer Information is not

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misused.

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4.

The Bank and its customers will suffer greater injury from the denial

4

of temporary injunctive relief than Google will suffer from the

5

granting of such relief.

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5.

The granting of this temporary restraining order will serve the public interest.

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IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:

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1.

Confidential Customer Information;

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2. 3.

Google shall immediately delete the Inadvertent Email from Google’s system;

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The Gmail Account shall immediately be frozen or deactivated to prevent any access to the Confidential Customer Information;

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Google and the Google account holder are enjoined from using the

4.

Google shall immediately determine the status of the Gmail Account,

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specifically, whether the Gmail Account is active or dormant and

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whether the Inadvertent Email was opened or otherwise manipulated

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by the account holder and disclose such information to the Bank; and

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5.

In the event that the Gmail Account is not dormant, Google shall

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ascertain the identity of the Gmail Account holder, so that the Bank

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can take appropriate steps with the account holder to ensure that the

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Confidential Customer Information is not distributed or otherwise

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misused.

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6.

This Temporary Restraining Order entered on this ___ day of

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_____________________, 2009 at ________ a.m./p.m. and shall

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expire within ten days unless within that time it is extended for good

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cause shown.

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ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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7.

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A hearing shall be held in Courtroom ___ of the United States district

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Court Northern District of California commencing at _____ _.m. on

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the ___ day of ______________, 2009 on Plaintiff’s Motion for

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Temporary Restraining Order and Preliminary Injunction.

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8.

This Temporary Restraining Order and all supporting pleadings and

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papers must be served upon Google on or before the ___ day of

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_____________________, 2009.

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IT IS SO ORDERED.

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Dated: September ____, 2009

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District Court Judge

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ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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GRACE Y. HOROUPIAN (SBN 180337) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant.

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Case No. 5:09-CV-04385 PVT PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (FILED UNDER SEAL) Hearing Date: Time: Room:

__________ a.m.

Trial Date: Not Scheduled Date Action Filed: __________ Judge: Hon.

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NOTICE OF MOTION AND MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4847-3306-4452.1

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TO DEFENDANT AND TO THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE that on September _____, 2009, at _______, or

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as soon thereafter as counsel may be heard, before the Honorable _____________

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in

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_______________________________, San Jose, California, Plaintiff Rocky

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Mountain Bank will and hereby does move this Court for a temporary restraining

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order (“TRO”) and preliminary injunction pursuant to Rule 65 of the Federal Rules

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of Civil Procedure.

Courtroom

____

of

the

above-referenced

court

located

at

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In its motion for injunctive relief, Plaintiff asks this Court to enter a

10

temporary restraining order, preliminary injunction, and permanent injunction,

11

ordering that: a.

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from accessing, using, or distributing the Confidential Customer Information; b.

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Google and the Gmail Account holder are permanently enjoined Google immediately deactivate the Gmail Account and delete

the Inadvertent Email and attachment from its system; c.

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Google immediately disclose the status of the Gmail Account,

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specifically, whether the Gmail Account is dormant or active, whether the

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Inadvertent Email was opened or otherwise manipulated, and in the event

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that the Gmail Account is not dormant, the identity and contact information

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for the Gmail Account holder; and

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4.

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circumstances.

Any other and further relief the Court deems just and proper under the

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This motion is based on this Notice of Motion and Motion for Temporary

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Restraining Order and Preliminary Injunction, the Memorandum of Points and

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Authorities filed herewith, and the Verified Complaint for Declaratory and

26

Injunctive Relief filed herewith, and such other matters that may properly come

27

before the Court on this Motion.

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NOTICE OF MOTION AND MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4847-3306-4452.1

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Respectfully submitted this 18th day of September, 2009.

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KUTAK ROCK LLP

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By: /s/ Grace Y. Horoupian Grace Y. Horoupian ATTORNEYS FOR PLAINTIFF ROCKY MOUNTAIN BANK

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NOTICE OF MOTION AND MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4847-3306-4452.1

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation,

Case No. 5:09-CV-04385 PVT (PROPOSED) ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (FILED UNDER SEAL) Complaint filed: September 17, 2009

Defendant.

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THE COURT, having considered Plaintiff Rocky Mountain Bank’s

19

Memorandum of Points and Authorities in Support of its Motion for Temporary

20

Restraining Order and Preliminary Injunction (the “Motion”), and being fully

21

advised in the premises, hereby FINDS as follows:

22

1.

temporary restraining order under F.R.C.P. 65(b).

23 24

2.

The Bank has shown a substantial likelihood of success on the merits of its legal claims against Defendant Google Inc. (“Google”).

25 26

The Bank has satisfied the requirements for the issuance of a

3.

The Bank and its customers will suffer immediate and irreparable

27

injury, loss, and/or damage if the Confidential Customer Information is

28

not adequately protected and the Bank is unable to take appropriate -1-

ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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steps to ensure that the Confidential Customer Information is not

2

misused.

3

4.

The Bank and its customers will suffer greater injury from the denial

4

of temporary injunctive relief than Google will suffer from the

5

granting of such relief.

6

5.

The granting of this temporary restraining order will serve the public interest.

7 8

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:

9

1.

Confidential Customer Information;

10 11

2. 3.

Google shall immediately delete the Inadvertent Email from Google’s system;

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The Gmail Account shall immediately be frozen or deactivated to prevent any access to the Confidential Customer Information;

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Google and the Google account holder are enjoined from using the

4.

Google shall immediately determine the status of the Gmail Account,

16

specifically, whether the Gmail Account is active or dormant and

17

whether the Inadvertent Email was opened or otherwise manipulated

18

by the account holder and disclose such information to the Bank; and

19

5.

In the event that the Gmail Account is not dormant, Google shall

20

ascertain the identity of the Gmail Account holder, so that the Bank

21

can take appropriate steps with the account holder to ensure that the

22

Confidential Customer Information is not distributed or otherwise

23

misused.

24

6.

This Temporary Restraining Order entered on this ___ day of

25

_____________________, 2009 at ________ a.m./p.m. and shall

26

expire within ten days unless within that time it is extended for good

27

cause shown.

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ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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7.

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A hearing shall be held in Courtroom ___ of the United States district

2

Court Northern District of California commencing at _____ _.m. on

3

the ___ day of ______________, 2009 on Plaintiff’s Motion for

4

Temporary Restraining Order and Preliminary Injunction.

5

8.

This Temporary Restraining Order and all supporting pleadings and

6

papers must be served upon Google on or before the ___ day of

7

_____________________, 2009.

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IT IS SO ORDERED.

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Dated: September ____, 2009

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District Court Judge

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ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4834-3217-6388.1

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GRACE Y. HOROUPIAN (SBN 180377) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 15 16 17 18 19

ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v.

Case No. VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (FILED UNDER SEAL) [REDACTED]

GOOGLE INC., a Delaware corporation, Defendant.

20 21 22 23 24 25 26 27 28

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. __________ 4834-1520-0516.1

Case5:09-cv-04385-JW Document18

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1

Plaintiff Rocky Mountain Bank, by and through its attorneys Kutak Rock

2

LLP, hereby submits the following Verified Complaint for Declaratory and

3

Injunctive Relief against Defendant Google Inc., in support thereof, states and

4

alleges as follows: PARTIES

5 6 7 8 9 10

1.

corporation with its principal place of business in Wilson, Wyoming. 2.

Defendant Google Inc. (“Google”) is a Delaware corporation with its

principal place of business in Mountain View, California. Plaintiff and Defendant are collectively referred to as the “Parties.” JURISDICTION AND VENUE

11 12

Plaintiff Rocky Mountain Bank (the “Bank”) is a Wyoming

3.

Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 on the

13

grounds that the amount in controversy exceeds $75,000, exclusive of interest and

14

costs, and the controversy is between citizens of different states. For purposes of

15

diversity, the Bank is a citizen of Wyoming, since it is incorporated in Wyoming

16

and has its principal place of business in Wyoming. Upon information and belief,

17

Defendant Google is a citizen of the States of California and Delaware because its

18

principal place of business is in California and it is incorporated in Delaware.

19

4.

This Court may exercise personal jurisdiction over Google because,

20

among other things, Google’s principal place of business is in California and in this

21

District.

22

5.

GENERAL ALLEGATIONS

23 24 25 26

Venue is proper in this District under 28 U.S.C. § 1391(a)(1) and (3).

6.

The Bank is a full service banking institution which, among other

things, offers various loans to individual consumers and corporate entities. 7.

On August 12, 2009, the Bank received a telephone call from a

27 customer (the “Customer”), wherein the Customer requested that the Bank send 28 certain annual loan statements via e-mail (the “Requested Information”) to a third-2-

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1 party representative of the Customer (the “Request”).

8.

2

In connection with the Request, on August 12, 2009, at approximately

3

4:13 p.m., an employee of the Bank attempted to send the Customer’s

4

representative the Requested Information via e-mail. 9.

5

At approximately 7:22 p.m., the Customer’s representative informed

6

the Customer, via email, that he had not received the Requested Information. The

7

Customer forwarded the email to an employee of the Bank at approximately 7:50

8

p.m.

9

10.

On August 13, 2009, an employee of the Bank discovered that the

10

Requested Information was inadvertently sent to the wrong email address (the

11

“Inadvertent Email”).

12

“[Redacted]@gmail.com” (the “Gmail Account”), which is an account that was set

13

up and maintained through www.google.com. Additionally, the Bank discovered

14

that the information that was attached to the Inadvertent Email contained

15

Confidential Customer Information relating to 1,325 individual and business

16

customer accounts (the “Customer Accounts”), i.e., for customers other than just

17

the Customer who requested information.

18

11.

The e-mail was sent to the following address:

The customer information that was attached to the Inadvertent E-Mail

19

included names, addresses, tax identification numbers and loan information for

20

each of the 1,325 customer accounts. The attached information is confidential

21

information of the Bank’s customers and to which the Bank’s customers have a

22

right to privacy (hereinafter the “Confidential Customer Information”).

23

12.

Because of the inadvertent disclosure of the Confidential Customer

24

Information, state and federal regulations require the Bank to make a prompt and

25

good faith investigation to determine the likelihood that the Confidential Customer

26

Information has been or will be misused. The reason for this investigation is to

27

ascertain if the privacy rights of the Customers are protected.

28

13.

After learning of the inadvertent disclosure of Confidential Customer -3-

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1

Information, the Bank immediately attempted to recall the Inadvertent Email, which

2

was sent using Microsoft Outlook.

3

Inadvertent Email were not successful. The Bank is advised that the recipient of the

4

email must also be using Microsoft Outlook to recall an email. Further, the Bank is

5

advised that, if the Inadvertent Email had already been opened, a recall attempt

6

would be futile.

7

14.

However, the Bank’s efforts to recall the

On August 13, 2009, at approximately 1:57 p.m., Mark Hendrickson,

8

the President of the Bank, sent an email to the Gmail Account, whereby Mr.

9

Hendrickson instructed the recipient to immediately delete the Inadvertent Email

10

and the file attached thereto in its entirety without opening or reviewing it. Mr.

11

Hendrickson also requested that the recipient immediately contact the Bank to

12

discuss his/her actions. As of the date of this Complaint, the Bank has not received

13

a response from the Gmail Account holder.

14

15.

In an effort to determine whether the Gmail Account is a valid, active

15

email address, on or about August 13, 2009, an employee of the Bank attempted to

16

register the email address through Google.com. The Bank employee was unable to

17

register the address. Therefore, the Bank concluded that Gmail Account was a

18

valid Google email address.

19

16.

The Bank believes and understands that Google has information

20

regarding the Gmail Account holder, and regarding the status and activity level of

21

the Gmail Account. The Bank also believes that Google has the ability to freeze the

22

Gmail Account and to take other steps to prevent access to and dissemination of the

23

inadvertently disclosed Confidential Customer Information. Accordingly, in further

24

efforts to protect the Confidential Customer Information, both the Bank and the

25

Bank’s undersigned counsel contacted Google’s legal support via email and

26

informed Google that Confidential Customer Information was sent to one of its

27

“gmail” accounts and inquired as to whether the account was active or dormant and

28

what steps could be taken to ensure that the Confidential Customer Information was -4-

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1

not used or disclosed. However, Google advised the Bank and undersigned counsel

2

that it would not provide any information regarding the Gmail Account and would

3

not otherwise assist in preventing disclosure of the Confidential Customer

4

Information except and unless it was requested through “a valid third-party

5

subpoena or other appropriate legal process.” 17.

6

In connection with the Bank’s internal investigation and evaluation of

7

the likelihood that the Confidential Customer Information has been or will be

8

misused, the Bank has determined that it is necessary to: (a) prevent Google or the

9

Google account holder from using the Confidential Customer Information; (b) have

10

the Gmail Account immediately frozen or deactivated to prevent any access to the

11

Confidential Customer Information; (c) delete the Inadvertent Email from Google’s

12

system; (d) determine the status of the Gmail Account, specifically, whether the

13

Gmail Account is active or dormant and whether the Inadvertent Email was opened

14

or otherwise manipulated by the account holder; and (e) in the event that the Gmail

15

Account is not dormant, ascertain the identity of the Gmail Account holder, so that

16

the Bank can take appropriate steps with the account holder to ensure that the

17

Confidential Customer Information is not distributed or otherwise misused. 18.

18

In connection with the Bank’s internal investigation, on September 1,

19

2009 the Bank notified the Wyoming Division of Banking and the Tenth Federal

20

Reserve District (collectively, the “Regulators”) of the Inadvertent Email and the

21

steps the Bank had taken and planned to take to protect its customer information.

22

The Regulators confirmed that the Bank was taking proper steps in connection with

23

the Inadvertent Email and agreed that the Bank must take action to have the Gmail

24

Account frozen and/or determine the status of the Gmail Account.

25

///

26

///

27

///

28

/// -5-

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. __________ 4834-1520-0516.1

Case5:09-cv-04385-JW Document18

FIRST CAUSE OF ACTION (Declaratory Relief)

1 2 3 4 5

Filed09/22/09 Page6 of 9

19.

The Bank incorporates the allegations of paragraphs 1 through 18

inclusive, as if fully set forth herein. 20.

The Bank and its Regulators believe it is imperative for the Bank to

6

obtain information regarding the Gmail Account and stop access to the Confidential

7

Customer Information in order to protect the privacy rights of the Bank’s

8

Customers whose information was inadvertently disclosed.

9

21.

The Bank has requested information from Google regarding the Gmail

10

Account and has requested Google’s assistance in preventing further disclosure of

11

the Confidential Customer Information. Google, however, has refused to disclose

12

any information to the Bank or to assist the Bank in its efforts to prevent disclosure

13

of the Confidential Customer Information, unless and until it is subject to legal

14

process.

15

22.

Because of Google’s refusal to provide information or other assistance

16

to the Bank that is necessary to protect confidential information of the Bank’s

17

customers, there is a dispute between the parties.

18

23.

The Bank, therefore, requests a declaration that, in connection with its

19

efforts to protect the Confidential Customer Information, it is entitled to the

20

information requested concerning the Gmail Account, specifically, whether the

21

Gmail Account is active or dormant, whether the Inadvertent Email was opened or

22

otherwise manipulated; and in the event that the Gmail Account is not dormant, the

23

identity of the Gmail Account holder. In addition, the Bank requests a declaration

24

that Google is required to take all reasonable steps to ensure that the Confidential

25

Customer Information is not accessed, used or distributed, including, but not

26

limited to, deactivating the Gmail Account and deleting the Inadvertent Email from

27

its system.

28 -6-

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Case5:09-cv-04385-JW Document18

SECOND CAUSE OF ACTION (Injunctive Relief)

1 2 3 4 5

Filed09/22/09 Page7 of 9

24.

The Bank incorporates the allegations of paragraphs 1 through 23

inclusive, as if fully set forth herein. 25.

Injunctive relief is warranted because the Bank has no plain, speedy

6

and adequate remedy at law to prevent disclosure or misuse of the Confidential

7

Customer Information.

8

26.

The Bank is likely to prevail on the merits of its claims, or at a

9

minimum, there is a serious question going to the merits of the Bank’s claim, and

10

the balance of the equities tip decidedly in favor of issuing injunctive relief in favor

11

of the Bank.

12 13 14

27.

The granting of injunctive relief preventing the unlawful use of

Confidential Customer Information will serve the public interest. 28.

Based on the foregoing, the Bank is entitled to a temporary restraining

15

order, a preliminary injunction, and a permanent injunction: (a) restraining and

16

permanently enjoining Google and its account holder from accessing, distributing,

17

or using the Confidential Customer Information; (b) requiring Google to

18

immediately deactivate the Gmail Account or any other steps within its power to

19

prevent access to the Gmail Account; (c) requiring Google to delete the Inadvertent

20

Email and the Confidential Customer Information from its system; (d) requiring

21

Google to immediately disclose the status of the Gmail Account; specifically,

22

whether the Gmail Account is active or dormant and whether the Inadvertent Email

23

was opened or otherwise manipulated by the account holder; and (e) in the event

24

that the Gmail Account is not dormant, requiring Google to disclose all information

25

that it has regarding the Gmail Account holder to allow the Bank to prevent the

26

account holder from using or distributing the Confidential Customer Information

27 28 -7-

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. __________ 4834-1520-0516.1

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PRAYER FOR RELIEF

1 2

WHEREFORE, Plaintiff Rocky Mountain Bank prays that judgment be

3

entered in its favor and against Defendant Google Inc. on the claims asserted herein

4

and that it be awarded the following relief:

5

1.

A declaration that it is entitled to the information concerning the Gmail

6

Account; specifically, whether the Gmail Account is active or dormant, whether the

7

Inadvertent Email was opened or otherwise manipulated; and in the event that the

8

Gmail Account is not dormant, the identity of the Gmail Account holder.

9

2.

A declaration that Google is required to take all reasonable steps to

10

ensure that the Confidential Customer Information is not accessed, used or

11

distributed, including, but not limited to, deactivating the Gmail Account and

12

deleting the Inadvertent Email and the Confidential Customer Information from its

13

system.

14 15

3.

injunction, ordering that: a.

16 17

Google and the Gmail Account holder are enjoined from

accessing, using, or distributing the Confidential Customer Information; b.

18 19

A temporary restraining order, preliminary injunction, and permanent

Google immediately deactivate the Gmail Account and delete

the Inadvertent Email and attachment from its system; c.

20

Google immediately disclose the status of the Gmail Account,

21

specifically, whether the Gmail Account is dormant or active, whether the

22

Inadvertent Email was opened or otherwise manipulated, and in the event

23

that the Gmail Account is not dormant, the identity and contact information

24

for the Gmail Account holder.

25

4.

26

circumstances.

Any other and further relief the Court deems just and proper under the

27 28 -8-

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF CASE NO. __________ 4834-1520-0516.1

Case5:09-cv-04385-JW Document18

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Filed09/22/09 Page9 of 9

Respectfully submitted this 17th day of September, 2009.

2

KUTAK ROCK LLP

3 4

By: /s/ Grace Y. Horoupian Grace Y. Horoupian ATTORNEYS FOR PLAINTIFF ROCKY MOUNTAIN BANK

5 6 7 8

Plaintiff’s Address:

9

Rocky Mountain Bank Pinedale 145 E. Pine Street Pinedale, WY 82941

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-9-

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Case5:09-cv-04385-JW Document19

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GRACE Y. HOROUPIAN (SBN 180337) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 15 16 17 18 19

ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v. GOOGLE INC., a Delaware corporation, Defendant.

20 21

Case No. 5:09-CV-04385 PVT MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (FILED UNDER SEAL) [REDACTED] Hearing Date: Time: Room:

__________ a.m.

Trial Date: Not Scheduled Date Action Filed: __________ Judge: Hon.

22 23 24 25 26 27 28

MEMORANDUM IN SUPPORT OF MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4826-6632-1156.2

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TABLE OF CONTENTS

1 2 3 4 5

Page

INTRODUCTION AND SUMMARY OF ARGUMENT .......................................1 STATEMENT OF FACTS ......................................................................................2 ARGUMENT ..........................................................................................................5 I.

TRO AND PRELIMINARY INJUNCTION STANDARD. ..........................5

II.

THE BANK IS LIKELY TO PREVAIL ON THE MERITS, OR AT A MINIMUM, THERE IS A SERIOUS QUESTION GOING TO THE MERITS OF THE CLAIM. ...........................................................................6

III.

THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN FAVOR OF ISSUING TRO AND PRELIMINARY INJUNCTION. ..........................7

IV.

11

THE PUBLIC INTEREST DICTATES THAT PLAINTIFF’S REQUEST FOR EXTRAORDINARY RELIEF BE GRANTED. .................9

12

CONCLUSION .......................................................................................................9

6 7 8 9 10

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i-

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TABLE OF AUTHORITIES

1 2

CASES

3 4 5 6 7 8

Page

Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990).................................................................... 5 First Brands Corp. v. Fred Myers, Inc., 809 F.2d 1378, 1381 (9th Cir. 1987)................................................................ 5 Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566, 1568 (9th Cir. 1993)................................................................ 6 Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987)................................................................ 5

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii

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1

Plaintiff Rocky Mountain Bank, by and through its attorneys Kutak Rock

2

LLP, hereby submits the following Memorandum of Points and Authorities in

3

Support of its Motion for Temporary Restraining Order and Preliminary Injunction

4

against Defendant Google Inc. (“Google”): INTRODUCTION AND SUMMARY OF ARGUMENT

5 6 7

The Bank is a full service banking institution which, among other things, offers various loans to individual consumers and corporate entities.

8

The Bank is instituting this action against Google and is seeking the

9

injunctive relief requested herein to protect confidential and private information of

10

approximately 1,325 customer accounts, which was inadvertently sent to a Google

11

email account, namely [Redacted]@gmail.com. The information disclosed

12

includes customer names, addresses, tax identification numbers, and account

13

numbers.

14

After learning of the inadvertent disclosure the Bank took various steps to

15

ensure that the confidential customer information was not disclosed further or used

16

for any improper purpose, including contacting Google to request information and

17

assistance in preventing use and disclosure of the customer information. Google,

18

however, took the position that it was not able to assist the Bank unless and until it

19

was served with legal process. Therefore, the Bank has been forced to initiate this

20

action in order to protect the confidential and private information of its customers.

21

The Bank is entitled to the relief requested herein under the standards of this

22

Court for issuing temporary restraining orders and preliminary injunctions.

23

particular, the balance of harm weighs heavily in favor of the Bank and its

24

customers and there is, at least, a serious question going to the merits of the Bank’s

25

claims. In regard to the merits, Google and its email account holder have no rights

26

in or to the inadvertently disclosed information, while the Bank and its customers

27

have every right to prevent further disclosure and use of such information. The

28

Bank, therefore, is likely to prevail on its requests to prevent disclosure and use of -1-

MEMORANDUM IN SUPPORT OF MOTION FOR TRO AND PRELIMINARY INJUNCTION CASE NO. __________ 4826-6632-1156.2

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the customer information.

2

In regard to the balance of harms, the Bank and its customers will suffer

3

extreme harm, including possible theft of customer identities and loss of customers

4

and reputation by the Bank. Google, on the other hand, will suffer little or no harm

5

if it is ordered to disclose information about the email account and taking steps to

6

deactivate the account and deleting the inadvertently disclosed information.

7 8 9 10

Finally, there is a substantial public interest in preventing further disclosure and use of customer information. The Bank, therefore, is entitled to a temporary restraining order and preliminary injunction as requested herein. STATEMENT OF FACTS

11 12

The Bank is a full service banking institution which, among other things,

13

offers various loans to individual consumers and corporate entities.

(Verified

14

Complaint (“Complaint”), ¶ 6.)

15

telephone call from a customer (the “Customer”), wherein the Customer requested

16

that the Bank send certain annual loan statements (the “Requested Information”) to

17

a third-party representative of the Customer (the “Request”). (Complaint, ¶ 7.)

On August 12, 2009, the Bank received a

18

In connection with the Request, on August 12, 2009, at approximately 4:13

19

p.m., an employee of the Bank attempted to send the Customer’s representative the

20

Requested Information via e-mail. (Complaint, ¶ 8.) At approximately 7:22 p.m.,

21

the Customer’s representative informed the Customer, via email, that he had not

22

received the Requested Information. The Customer forwarded the email to an

23

employee of the Bank at approximately 7:50 p.m. (Complaint, ¶ 9.)

24

On August 13, 2009, an employee of the Bank discovered that the Requested

25

Information was inadvertently sent to the wrong email address (the “Inadvertent

26

Email”). The e-mail was sent to the following address: “[Redacted]@gmail.com”

27

(the “Gmail Account”), which is an account that was set up and maintained through

28

www.google.com. Additionally, the Bank discovered that the information that was 2

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1

attached to the Inadvertent Email contained confidential customer information

2

relating to 1,325 individual and business customer accounts (the “Customer

3

Accounts”), i.e., for customers other than just the Customer who requested

4

information. (Complaint, ¶ 10.)

5

The customer information that was attached to the Inadvertent E-Mail

6

included names, addresses, tax identification numbers and loan information for

7

each of the 1,325 customer accounts. The attached information is confidential

8

information of the Bank’s customers and to which the Bank’s customers have a

9

right

10

to privacy

(hereinafter

the

“Confidential

Customer

Information”).

(Complaint, ¶ 11.)

11

Because of the inadvertent disclosure of the Confidential Customer

12

Information, state and federal regulations require the Bank to make a prompt and

13

good faith investigation to determine the likelihood that the Confidential Customer

14

Information has been or will be misused. The reason for this investigation is to

15

ascertain if the privacy rights of the Customers are protected. (Complaint, ¶ 12.)

16

After learning of the inadvertent disclosure of Confidential Customer

17

Information, the Bank immediately attempted to recall the Inadvertent Email, which

18

was sent using Microsoft Outlook. However, the Bank’s efforts to recall the email

19

were not successful. The Bank is advised that the recipient of the email must also

20

be using Microsoft Outlook to recall an email. Further, the Bank is advised that, if

21

the Inadvertent Email had already been opened, a recall attempt would be futile.

22

(Complaint, ¶ 13.)

23

On August 13, 2009, at approximately 1:57 p.m., Mark Hendrickson, the

24

President of the Bank, sent an email to the Gmail Account, whereby Mr.

25

Hendrickson instructed the recipient to immediately delete the Inadvertent Email

26

and the file attached thereto in its entirety without opening or reviewing it. Mr.

27

Hendrickson also requested that the recipient immediately contact the Bank to

28

discuss his/her actions. As of the date of this Memorandum, the Bank has not 3

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received a response from the Gmail Account holder. (Complaint, ¶ 14.)

2

In an effort to determine whether the Gmail Account is a valid, active email

3

address, on or about August 13, 2009, an employee of the Bank attempted to

4

register the email address through Google.com. The Bank employee was unable to

5

register the address. Therefore, the Bank concluded that Gmail Account was a

6

valid Google email address. (Complaint, ¶ 15.)

7

The Bank believes and understands that Google has information regarding

8

the Gmail Account Holder, and regarding the status and activity level of the Gmail

9

Account. The Bank also believes that Google has the ability to freeze the Gmail

10

Account and to take other steps to prevent access to and dissemination of the

11

inadvertently disclosed Confidential Customer Information. Accordingly, in further

12

efforts to protect the Confidential Customer Information, both the Bank and the

13

Bank’s undersigned counsel contacted Google’s legal support via email and

14

informed Google that Confidential Customer Information was sent to one of its

15

“gmail” accounts and inquired as to whether the account was active or dormant and

16

what steps could be taken to ensure that the Confidential Customer Information was

17

not used or disclosed. However, Google advised the Bank and undersigned counsel

18

that it would not provide any information regarding the Gmail Account and would

19

not otherwise assist in preventing disclosure of the Confidential Customer

20

Information except and unless it was requested through “a valid third-party

21

subpoena or other appropriate legal process.” (Complaint, ¶ 16.)

22

In connection with the Bank’s internal investigation and evaluation of the

23

likelihood that the Confidential Customer Information has been or will be misused,

24

the Bank has determined that it is necessary to: (a) prevent Google or the Google

25

account holder from using the Confidential Customer Information; (b) have the

26

Gmail Account immediately frozen or deactivated to prevent any access to the

27

Confidential Customer Information; (c) delete the Inadvertent Email from Google’s

28

system; (d) determine the status of the Gmail Account, specifically, whether the 4

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1

Gmail Account is active or dormant and whether the Inadvertent Email was opened

2

or otherwise manipulated by the account holder; and (e) in the event that the Gmail

3

Account is not dormant, ascertain the identity of the Gmail Account holder, so that

4

the Bank can take appropriate steps with the account holder to ensure that the

5

Confidential Customer Information is not distributed or otherwise misused.

6

(Complaint, ¶ 17.)

7

In connection with the Bank’s internal investigation, on September 1, 2009

8

the Bank notified the Wyoming Division of Banking and the Tenth Federal Reserve

9

District (collectively, the “Regulators”) of the Inadvertent Email and the steps the

10

Bank had taken and planned to take to protect its customer information. The

11

Regulators confirmed that the Bank was taking proper steps in connection with the

12

Inadvertent Email and agreed that the Bank must take action to have the Gmail

13

Account frozen and/or determine the status of the Gmail Account. (Complaint, ¶

14

18.) ARGUMENT

15 16

I.

TRO AND PRELIMINARY INJUNCTION STANDARD.

17

Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a

18

temporary restraining order (“TRO”) and preliminary injunction. The Ninth Circuit

19

has held that, a plaintiff is entitled to a TRO and preliminary injunction if there

20

exists a combination of probable success on the merits and the probability of

21

irreparable injury if an injunction is not granted, or, even if there are serious

22

questions going to the merits of the claim, where the balance of hardships tips

23

heavy in favor of the moving party. See First Brands Corp. v. Fred Myers, Inc.,

24

809 F.2d 1378, 1381 (9th Cir. 1987); see also Diamontiney v. Borg, 918 F.2d 793,

25

795 (9th Cir. 1990). These are not two distinct and independent tests: they are “the

26

opposite ends of a single continuum in which the required showing of harm varies

27

inversely with the required showing of meritoriousness.” See Rodeo Collection,

28

Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987); see also Diamontiney, 5

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1

918 F.2d at 795. The court should also consider the impact of the injunction on the

2

public interest. Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566, 1568

3

(9th Cir. 1993).

4

II.

THE BANK IS LIKELY TO PREVAIL ON THE MERITS, OR AT A

5

MINIMUM, THERE IS A SERIOUS QUESTION GOING TO THE

6

MERITS OF THE CLAIM.

7

The Bank has asserted two causes of action in its Verified Complaint, namely

8

declaratory relief and injunctive relief against Google.

9

In the Bank’s first cause of action for declaratory judgment, the Bank seeks a

10

declaration that it is entitled to the information regarding the status of the Gmail

11

Account, including whether the Inadvertent Email was delivered, opened, or

12

otherwise manipulated so that it can determine what further steps are necessary to

13

protect the Confidential Customer Information.

14

Account is not dormant, then Google requests a declaration that it is entitled to

15

information sufficient to identify of the Gmail Account holder. In addition, the

16

Bank requests a declaration that Google is required to take all reasonable steps to

17

ensure that the Confidential Customer Information is not accessed, used or

18

distributed, including, but not limited to, deactivating the Gmail Account and

19

deleting the Inadvertent Email from its system.

In the event that the Gmail

20

The Bank’s second cause of action for injunctive relief seeks an order to: (a)

21

restrain and permanently enjoin Google and its account holder from accessing,

22

distributing, or using the Confidential Customer Information; (b) require Google to

23

immediately deactivate the Gmail Account or any other steps within its power to

24

prevent access to the Gmail Account; (c) require Google to delete the Inadvertent

25

Email and the Confidential Customer Information form its system; (d) require

26

Google to immediately disclose the status of the Gmail Account; specifically,

27

whether the Gmail Account is active or dormant and whether the Inadvertent Email

28

was opened or otherwise manipulated by the account holder; and (e) in the event 6

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1

that the Gmail Account is not dormant, require Google to disclose all information

2

that it has regarding the Gmail Account holder to allow the Bank to prevent the

3

account holder from using or distributing the Confidential Customer Information.

4

The Bank is entitled to the relief requested because it has an obligation, legal

5

and otherwise, to protect the privacy of its customers. In addition, in light of

6

Google’s refusal to provide information on the Gmail Account or otherwise assist

7

the Bank in preventing further disclosure or use of the Confidential Customer

8

Information, the Bank has no other avenue or remedy at law to ensure that its

9

customer’s privacy rights are protected.

Furthermore, neither Google nor the

10

recipient of the Inadvertent Email has any legal right to the Confidential Customer

11

Information or any right to retain or use such information for any purpose.

12

Therefore, the Bank is likely to prevail on the merits of its request for

13

declaratory and injunctive relief, or the facts presented herein create a serious

14

question as to the merits of the Bank’s claim that support entry of a TRO and

15

preliminary injunction.

16

III.

THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN FAVOR OF

17

ISSUING A TRO AND PRELIMINARY INJUNCTION.

18

If the TRO and preliminary injunction are not issued as requested herein, the

19

Bank and its customers will suffer substantial and irreparable harm.

20

The Bank has an affirmative obligation to take reasonable steps to protect the

21

Confidential Customer Information and to make a prompt and good faith

22

investigation to determine the likelihood that the Confidential Customer

23

Information has been or will be misused. The only way for the Bank to determine

24

if the Confidential Customer Information has been or could be misused is for this

25

Court to enter the TRO and preliminary injunction requested herein. If the Bank’s

26

requested relief is not granted, the Bank will be forced to notify every account

27

holder of the inadvertent disclosure. Such notice will result in the Bank losing

28

customers and will significantly and negatively impact the Bank’s reputation. This 7

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1

harm would be irreparable and unnecessary if the Bank is able to determine that the

2

Confidential Customer Information was not accessed, disclosed further, or used by

3

Google or the Google Gmail Account holder, and if the Bank can ensure that such

4

information cannot be used in the future. In addition, the Bank customers may be

5

needlessly alarmed if in fact the Gmail Account is dormant, the Inadvertent Email

6

was deleted or destroyed without disclosure of the Confidential Customer

7

Information.

8

customers of the inadvertent disclosure, which could be avoided if the requested

9

relief is granted.

Further, there is a significant cost involved in notifying Bank

10

In addition to the harm to the Bank, the Bank’s customers also would be

11

irreparably harmed if this Motion is not granted and the Confidential Customer

12

Information is allowed to be used and/or disclosed. In particular, the use and

13

disclosure of the Confidential Customer Information could result in the identify

14

theft of more than 1,300 customers.

15

Google is in the unique position of having information that is essential to

16

determining whether and how the Confidential Customer Information was used and

17

in the position of being able to prevent access to and use of such information.

18

Accordingly, the Bank cannot take necessary steps to protect its customers and the

19

Confidential Customer Information until it is able to determine the status of the

20

Gmail Account and what if any action was taken by the recipient in connection with

21

the Inadvertent Email.

22

Google stands to suffer little more than a minor inconvenience if it is

23

required to disclose the information requested with respect to the Gmail Account

24

and to deactivate the account to ensure the Confidential Customer Information is

25

not disclosed, accessed or used. Moreover, it is the Bank’s understanding that to

26

determine whether an account is fact active and whether the Inadvertent Email was

27

opened is a very simple task which may be performed with little effort. To the

28

extent that the Gmail Account is active and Google discloses information regarding 8

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1

the account holder, the Bank will agree that such disclosure will be subject to a

2

reasonable protective order.

3

IV.

THE

PUBLIC

INTEREST

DICTATES

THAT

PLAINTIFF’S

4

REQUEST FOR EXTRAORDINARY RELIEF BE GRANTED.

5

The public interest in the issuance of a TRO and preliminary injunction is a

6

factor that can be considered in appropriate cases. In this case the public interest in

7

ensuring that the Confidential Customer Information relating to both individual

8

consumers and business entities is not misused weighs strongly in favor of issuing

9

the preliminary injunction and requiring Google to disclose the information

10

regarding the status of the Gmail Account.

11

The public clearly has an interest in protecting confidential information and

12

maintaining confidence in banking institutions. The Bank is acting on behalf of the

13

holders of the Customer Accounts which clearly need some avenue of redress to

14

ensure that their information has not been and cannot be misused and to potentially

15

mitigate any damages which may have already occurred. CONCLUSION

16 17

For the foregoing reasons, Plaintiff Rocky Mountain Bank respectfully

18

requests that the Court issue a TRO and preliminary injunction (a) restraining and

19

permanently enjoining Google and its account holder from accessing, distributing,

20

or using the Confidential Customer Information; (b) requiring Google to

21

immediately deactivate the Gmail Account or any other steps within its power to

22

prevent access to the Gmail Account; (c) requiring Google to delete the Inadvertent

23

Email and the Confidential Customer Information from its system; (d) requiring

24

Google to immediately disclose the status of the Gmail Account; specifically,

25

whether the Gmail Account is active or dormant and whether the Inadvertent Email

26

was opened or otherwise manipulated by the account holder; and (e) in the event

27

that the Gmail Account is not dormant, requiring Google to disclose all information

28

that it has regarding the Gmail Account holder to allow the Bank to prevent the 9

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account holder from using or distributing the Confidential Customer Information. Respectfully submitted this 17th day of September, 2009.

3

KUTAK ROCK LLP

4 5

By: /s/ Grace Y. Horoupian Grace Y. Horoupian ATTORNEYS FOR PLAINTIFF ROCKY MOUNTAIN BANK

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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GRACE Y. HOROUPIAN (SBN 180337) KUTAK ROCK LLP Suite 1100 18201 Von Karman Avenue Irvine, CA 92612-1077 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 Email: [email protected] NEIL L. ARNEY (SBN 125682) KUTAK ROCK LLP Suite 3100 1801 California Avenue Denver, CO 80202 Telephone: (303) 297-2400 Facsimile: (303) 292-7799 Email: [email protected] Attorneys for Plaintiff ROCKY MOUNTAIN BANK, a Wyoming corporation

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 15 16 17 18

ROCKY MOUNTAIN BANK, a Wyoming corporation, Plaintiff, v.

Case No. 5:09-CV-04385 PVT DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE UNDER SEAL (FILED UNDER SEAL) [REDACTED]

GOOGLE INC., a Delaware corporation, Defendant.

19 20 21 22 23 24 25 26 27 28

DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE UNDER SEAL CASE NO. __________ 4823-4178-8420.1

Case5:09-cv-04385-JW Document20

I, Mark Hendrickson, being over the age of 18, and having been duly sworn

1 2

and under oath, state as follows: 1.

3 4

I am the President of Rocky Mountain Bank (the “Bank”). As such, I

have personal knowledge of the facts stated herein.

5 6

Filed09/22/09 Page2 of 7

2.

I submit this affidavit in support of the Bank’s Motion to File Under

3.

As Defendant Google Inc. has not yet been served with the Verified

Seal.

7 8

Complaint for Declaratory and Injunctive Relief (the “Verified Complaint”) and the

9

Memorandum of Point and Authorities in Support of Motion for Temporary

10

Restraining Order and Preliminary Injunction (the “Motion for Injunctive Relief”)

11

the Bank is unable to obtain a stipulation regarding the Bank’s Motion to File

12

Under Seal (the “Motion”). Once Google’s counsel has entered an appearance in

13

this action the Bank intends to discuss the Motion with them. 4.

14 15

The Bank is a full service banking institution which, among other

things, offers various loans to individual consumers and corporate entities. 5.

16

On August 12, 2009, the Bank received a telephone call from a

17

customer (the “Customer”), wherein the Customer requested that the Bank send

18

certain annual loan statements via e-mail (the “Requested Information”) to a third-

19

party representative of the Customer (the “Request”). 6.

20

In connection with the Request, on August 12, 2009, at approximately

21

4:13 p.m., an employee of the Bank attempted to send the Customer’s

22

representative the Requested Information via e-mail. 7.

23

At approximately 7:22 p.m., the Customer’s representative informed

24

the Customer, via email, that he had not received the Requested Information. The

25

Customer forwarded the email to an employee of the Bank at approximately 7:50

26

p.m.

27 28

8.

On August 13, 2009, an employee of the Bank discovered that the

Requested Information was inadvertently sent to the wrong email address (the -1-

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1

“Inadvertent Email”).

2

“[REDACTED]@gmail.com” (the “Gmail Account”), which is an account that was

3

set up and maintained through www.google.com.

4

discovered that the information that was attached to the Inadvertent Email

5

contained Confidential Customer Information relating to 1,325 individual and

6

business customer accounts (the “Customer Accounts”), i.e., for customers other

7

than just the Customer who requested information.

8

9.

The e-mail was sent to the following address: Additionally, the Bank

The customer information that was attached to the Inadvertent E-Mail

9

included names, addresses, tax identification numbers and loan information for

10

each of the 1,325 customer accounts. The attached information is confidential

11

information of the Bank’s customers and to which the Bank’s customers have a

12

right to privacy (hereinafter the “Confidential Customer Information”).

13

10.

The Bank has taken and continues to take all reasonable and

14

appropriate steps to ensure that the Confidential Customer Information is not

15

disclosed or used for an improper purpose. Because of the inadvertent disclosure of

16

the Confidential Customer Information, state and federal regulations require the

17

Bank to make a prompt and good faith investigation to determine the likelihood that

18

the Confidential Customer Information has been or will be misused. The reason for

19

this investigation is to ascertain if the privacy rights of the Customers are protected.

20

11.

After learning of the inadvertent disclosure of Confidential Customer

21

Information, the Bank immediately attempted to recall the Inadvertent Email, which

22

was sent using Microsoft Outlook. However, the Bank’s efforts to recall the email

23

were not successful. The Bank is advised that the recipient of the email must also

24

be using Microsoft Outlook to recall an email. Further, the Bank is advised that, if

25

the Inadvertent Email had already been opened, a recall attempt would be futile.

26

12.

On August 13, 2009, at approximately 1:57 p.m., I sent an email to the

27

Gmail Account, whereby I instructed the recipient to immediately delete the

28

Inadvertent Email and the file attached thereto in its entirety without opening or -2-

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1

reviewing it. I also requested that the recipient immediately contact the Bank to

2

discuss his/her actions. As of the date of this Complaint, the Bank has not received

3

a response from the Gmail Account holder.

4

13.

In an effort to determine whether the Gmail Account is a valid, active

5

email address, on or about August 13, 2009, an employee of the Bank attempted to

6

register the email address through Google.com. The Bank employee was unable to

7

register the address. Therefore, the Bank concluded that Gmail Account was a

8

valid Google email address.

9

14.

The Bank believes and understands that Google has information

10

regarding the Gmail Account Holder, and regarding the status and activity level of

11

the Gmail Account. The Bank also believes that Google has the ability to freeze the

12

Gmail Account and to take other steps to prevent access to and dissemination of the

13

inadvertently disclosed Confidential Customer Information. Accordingly, in further

14

efforts to protect the Confidential Customer Information, both the Bank and the

15

Bank’s undersigned counsel contacted Google’s legal support via email and

16

informed Google that Confidential Customer Information was sent to one of its

17

“gmail” accounts and inquired as to whether the account was active or dormant and

18

what steps could be taken to ensure that the Confidential Customer Information was

19

not used or disclosed. However, Google has been unwilling to provide information

20

to the Bank or to assist the Bank in its efforts to prevent disclosure of the

21

Confidential Customer Information. In particular, Google advised the Bank and

22

undersigned counsel that it would not provide any information regarding the Gmail

23

Account and would not otherwise assist in preventing disclosure of the Confidential

24

Customer Information except and unless it was requested through “a valid third-

25

party subpoena or other appropriate legal process.”

26

15.

In connection with the Bank’s internal investigation and evaluation of

27

the likelihood that the Confidential Customer Information has been or will be

28

misused, the Bank has determined that it is necessary to: (a) prevent Google or the -3-

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1

Google account holder from using the Confidential Customer Information; (b) have

2

the Gmail Account immediately frozen or deactivated to prevent any access to the

3

Confidential Customer Information; (c) permanently delete the Inadvertent Email

4

from Google’s system; (d) determine the status of the Gmail Account, specifically,

5

whether the Gmail Account is active or dormant and whether the Inadvertent Email

6

was opened or otherwise manipulated by the account holder; and (e) in the event

7

that the Gmail Account is not dormant, ascertain the identity of the Gmail Account

8

holder, so that the Bank can take appropriate steps with the account holder to ensure

9

that the Confidential Customer Information is not distributed or otherwise misused.

10

16.

In connection with the Bank’s internal investigation, on September 1,

11

2009 the Bank notified the Wyoming Division of Banking and the Tenth Federal

12

Reserve District (collectively, the “Regulators”) of the Inadvertent Email and the

13

steps the Bank had taken and planned to take to protect its customer information.

14

The Regulators confirmed that the Bank was taking proper steps in connection with

15

the Inadvertent Email and agreed that the Bank must take action to have the Gmail

16

Account frozen and/or determine the status of the Gmail Account.

17

17.

In an effort to compel Google to provide information regarding the

18

Gmail Account and to prevent disclosure, distribution, or use of the Confidential

19

Customer Information, the Bank has instituted an action against Google and has

20

filed a Motion for TRO and preliminary injunction.

21

18.

As stated above, the Bank is taking all appropriate and reasonable

22

steps to determine whether there was an improper disclosure and misuse of

23

Confidential Customer Information. The Bank’s Regulators have determined that

24

the Bank is taking appropriate steps. However, until there is a determination that

25

the Confidential Customer Information was in fact disclosed and/or misused, the

26

Bank cannot advise its customers on whether there was an improper disclosure.

27 28

19.

Publication of a possible inadvertent disclosure of Confidential

Customer Information prior to making a determination whether there was in fact a -4-

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1

disclosure of such information will unnecessarily create panic among all of the

2

Bank’s customers and result in a surge of inquiry and concern from the Bank’s

3

customers.

4 5

I declare under penalty of perjury under the laws of the United States that the foregoing statements are true and accurate to the best of my knowledge.

6

[SIGNATURE PAGE TO FOLLOW]

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-5-

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1

Filed09/22/09 Page7 of 7

DATED this ___ day of September, 2009.

2

Mark Hendrickson, President Rocky Mountain Bank

3 4 5 6 7 8 9 10 11 12

[SIGNATURE PAGE TO DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE PLEADINGS UNDER SEAL]

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE UNDER SEAL CASE NO. __________ 4823-4178-8420.1

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Case5:09-cv-04385-JW Document21

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UNITED STATES DISTRICT COURT

1 2

NORTHERN DISTRICT OF CALIFORNIA

3

SAN JOSE DIVISION

4 ROCKY MOUNTAIN BANK,

C 09-04385 PVT

5 6 Plaintiff(s), 7 8

VS.

9

GOOGLE, INC.,

10

CLERK’S NOTICE OF IMPENDING REASSIGNMENT TO A UNITED STATES DISTRICT JUDGE

Defendant(s). ________________________________

11 The Clerk of this Court will now randomly reassign this case to a United 12 States District Judge because one or more of the parties has requested reassignment to 13 a United States District Judge or has not consented to jurisdiction by a Magistrate Judge. 14 PLEASE TAKE NOTICE that a Case Management Conference in the above15 entitled matter which was previously set for January 12, 2010 before Magistrate 16 Judge Patricia V. Trumbull has been continued to January 11, 2010 @ 10:00 a.m., before 17

the Honorable Judge James Ware. Parties are to appear in courtroom #8, 4th floor of the

18 U.S. Courthouse, 280 South First Street, San Jose, California. Parties are to submit a 19 Joint Case Management Statement on or before December 28, 2009. 20 If the above-entitled matter settles counsel are required to notify the Court 21 by contacting the Courtroom Deputy at (408) 535-5356, so as to take this matter off 22 calendar. 23 24 25 26 27 28

Dated: September 22, 2009

RICHARD W. WIEKING, Clerk of Court /s/ Corinne Lew __________________ Corinne Lew Deputy Clerk

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Filed09/22/09 Page1 of 1

UNITED STATES DISTRICT COURT Northern District of California 280 South First Street

San Jose, California 95113

_____________

www.cand.uscourts.gov Richard W. Wieking Clerk

General Court Number 408.535.5364

September 22, 2009 CASE NUMBER: CV 09-04385 PVT CASE TITLE: Rocky Mountain Bank -v- Google, Inc. REASSIGNMENT ORDER GOOD CAUSE APPEARING THEREFOR, IT IS ORDERED that this case is reassigned to the San Jose division. The Honorable James Ware for all further proceedings. Counsel are instructed that all future filings shall bear the initials JW immediately after the case number.

ALL MATTERS PRESENTLY SCHEDULED FOR HEARING ARE VACATED AND SHOULD BE RENOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THE CASE HAS BEEN REASSIGNED. Date: 9/22/09 FOR THE EXECUTIVE COMMITTEE:

________________________________ Clerk

NEW CASE FILE CLERK: Copies to: Courtroom Deputies Log Book Noted

Special Projects Entered in Computer 9/22/09-srm

CASE SYSTEMS ADMINISTRATOR: Copies to: All Counsel

Transferor CSA