THE HONORABLE LAURA INVEEN HEARING DATE: JUNE 3, 2016, 11:15 A.M. ORAL ARGUMENT REQUESTED 1 2 3 4 5 6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 7 8 9 10 11 LANDIS + GYR TECHNOLOGY, INC., a Delaware corporation, SENSUS USA INC., a Delaware corporation, and SENSUS NETWORKS, INC., a Delaware corporation, 12 Plaintiffs, 13 14 15 16 17 18 NO. 16-2-12149-7 SEA PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE v. CITY OF SEATTLE, a Washington municipal corporation, SEATTLE CITY LIGHT, a department of the City of Seattle, PHIL MOCEK, an individual, and MUCKROCK.COM, a website registered to MICHAEL MORISY, an individual, 19 Defendants. 20 I. 21 22 INTRODUCTION Plaintiffs have made a compelling showing that their trade secrets, computer network 23 security information, and detailed pricing information and plans are protected from release under 24 the Uniform Trade Secrets Act (“UTSA”), RCW Chap. 19.108, and the Washington Public 25 Records Act (“PRA), RCW Chap. 42.56. As Plaintiffs have demonstrated, information of this 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 1 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 type is discussed extensively in Plaintiffs’ RFP Responses and other Documents, which total 2 roughly 3,000 pages. No party challenges the showing made by Plaintiffs with respect to this 3 information and a Preliminary Injunction should therefore issue to protect that information for 4 the duration of these proceedings. 5 Defendant MuckRock.com focuses on two documents (only one is now at issue) that 6 were prematurely released by the City of Seattle, arguing that the TRO issued in this case, which 7 was narrowly tailored to protect Plaintiffs’ trade secrets, amounts to a prior restraint. This is 8 incorrect. It is well recognized that the courts are fully empowered to issue injunctions to protect 9 private information like the trade secrets at issue here, and as long as the injunction is content- 10 neutral and narrowly tailored, it does not run afoul of the First Amendment. MuckRock.com is 11 also incorrect in its claim that it is free to publish trade secrets without consequence under 12 Section 230 of the Communications Decency Act (“CDA”). On the contrary, Section 230’s 13 immunity does not extend to publishing information that violates intellectual property rights and 14 trade secrets are now recognized as federal intellectual property rights with Congress’s recent 15 adoption of the Defense of Trade Secrets Act (“DTSA”). Furthermore, the fair reporting 16 privilege is inapplicable in this matter and does not shield MuckRock.com from suit. In any 17 event, MuckRock.com offers no reason why the remainder of the information identified by 18 Plaintiffs should not be protected by a Preliminary Injunction. 19 Only the City challenges Plaintiffs’ claim that the names and individually-identifiable 20 information should not be released publicly. But no party challenges Plaintiffs’ claims that this 21 information is protected as a trade secret and it should be protected under this independent 22 ground. In any event, the City’s crabbed interpretation of the PRA is incorrect because the PRA 23 plainly authorizes the Court to grant injunctive relief to “any person” to prevent the kind of 24 harassment that is likely to occur if this information is released now. 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 2 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 II. A. ARGUMENT Requiring MuckRock.com To Remove Plaintiff’s Trade Secrets From Its Website Is Not a Prior Restraint. 1. Factual Background. As soon as Plaintiff Landis+Gyr discovered that two documents apparently revealing trade secret and critical computer security information had been posted on MuckRock.com’s website without its knowledge or consent, and determined that the documents might compromise both its trade secrets and the security of its proprietary systems, it immediately notified MuckRock.com and Defendant Michael Morisy (the website’s registered agent), on May 16, 2106, that the documents contained sensitive proprietary and trade secret information, requesting that they remove the documents so that Landis+Gyr could review and redact protected materials from the documents. Declaration of Eric Lee Christensen In Support of Motion for Temporary Restraining Order at ¶ 17, Exh. L (“Christensen TRO Decl.”). Defendants refused. Id. at ¶ 18, Exh. M. Hence, Defendants knew from at least May 16 that they had published materials protected under the UTSA. Yet the materials were not removed from their website until May 27, two days after this Court issued the TRO requiring the documents to be taken down. MuckRock.com Motion at 4. For at least this period, Defendants knowingly posted Landis+Gyr’s protected information on its publicly-accessible website, where Landis+Gyr’s competitors, as well as hackers and saboteurs, had access to the information. In fact, internet traffic surrounding the disclosure reveals the danger caused by Defendants’ refusal to remove the information. See Second Supplemental Declaration of Eric Lee Christensen in Support of Motion for Preliminary Injunction, ¶¶ 2, Exhs. A. (“I read all your secret information, you [expletives deleted]”), ¶ 4, Exh. C, p. 8 (“visit the link below to download disputed documents”). 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 3 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 Thereafter, Landis+Gyr carefully reviewed the documents and determined that one did 2 not contain any protected information but that the second, entitled “Report on Landis+Gyr’s 3 Technology, Inc.’s Description of Its Managed Services Operations and on the Suitability of the 4 Design and Operating Effectiveness of Its Controls for the Period May 1, 2015 to October 31, 5 2015” (“Managed Services Report”), contained trade secret and protected network security 6 information. Accordingly, on May 27, 2016, Landis+Gyr delivered a redacted version of the 7 Managed Services Report, deleting only specific materials that provide detailed descriptions of 8 Landis+Gyr’s computer security and data center security operations. Declaration of Eric Lee 9 Christensen in Support of Motion for Preliminary Injunction ¶ 17, Ex. L. It is undisputed that 10 this material includes Landis+Gyr trade secrets. Although Defendant Morisy suggested that 11 MuckRock.com might be willing to republish the redacted version of the Managed Services 12 Report, we are not aware that either the redacted version of that document (or the unredacted 13 version of the second document, which Landis+Gyr has now concluded can be released to the 14 public in its entirety) have been published on MuckRock.com. 15 Defendants are therefore unquestionably guilty of misappropriating Landis+Gyr’s trade 16 secrets. The UTSA defines “misappropriation” to include “[d]isclosure . . . of a trade secret of 17 another without express implied consent” by a person who “knew or had reason to know” that 18 the information was a trade secret. RCW 19.108.010(2). It is undisputed that Defendants knew 19 at least as early as May 16 that Landis+Gyr’s documents contained trade secrets and that they 20 lacked consent to publish those documents, yet refused to take the documents down. The UTSA 21 therefore requires the Court to issue a preliminary injunction to protect Plaintiffs’ trade secrets. 22 RCW 19.108.050 provides that “a court shall preserve the secrecy of an alleged trade secret,” 23 including “ordering any person involved in the litigation not to disclose an alleged trade secret 24 without prior court approval.” 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 4 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 2 3 For the reasons we now demonstrate, Defendant MuckRock.com’s arguments that the Court should ignore the UTSA’s requirements are without merit. 2. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Injunctive Relief To Protect Trade Secrets Is Not A Prior Restraint; A Content-Neutral Injunction Is Appropriate If It Is No More Burdensome Than Necessary To Provide Complete Relief To Plaintiffs. The prior restraint doctrine bars only content-based injunctions. DVD Copy Control Ass’n v. Bunner, 31 Cal.4th 864, 4 Cal.Rptr.3d 69, 75 P.3d 1 (Cal. Sup. Ct. 2003). Accordingly, the U.S. Supreme Court has concluded that only content-based injunctions are subject to prior restraint analysis. Thomas v. Chicago Park District, 534 U.S. 316, 321-22 (2002) (licensing scheme did not constitute prior restraint because “the scheme is not subject-matter censorship but content-neutral time, place and manner regulation” of public forum); see Planned Parenthood Shasta-Diablo, Inc. v. Williams, 7 Cal. 4th 860, 871, 30 Cal.Rptr.2d 629, 873 P.3d 1224 (1994) (“A prior restraint is a content-based restriction on speech prior to its occurrence”). If injunctive relief is content-neutral, the high standard applicable to prior restraints does not apply. On the contrary, a content-neutral injunction such as that proposed here is permissible if injunctive relief is “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” and “the injunction burden[s] no more speech than necessary to serve a significant government interest.” Madsen v. Women’s Health Center, 512 U.S. 753, 765 (1994); Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 374 n.6 (1997) (applying same standard to preliminary injunction); San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 536-37 (1987) (“The appropriate inquiry is thus whether the incidental restrictions on First Amendment freedoms are greater than necessary to further a substantial government interest”). As we now demonstrate, the relief requested by Plaintiffs is content-neutral, is carefully tailored to provide complete relief to Plaintiffs, and burdens no more speech than is necessary to serve the government’s interest in protecting property rights and promoting innovation through 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 5 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 protection of trade secrets. In short, “[t]he First Amendment does not prohibit courts from 2 incidentally enjoining speech in order to protect a legitimate property right.” DVD Copy Control 3 Ass’n, 75 P.3d at 14. 4 The Washington authorities cited by MuckRock.com are not to the contrary. Rather, 5 Washington takes the same approach, recognizing that restrictions on speech “are content neutral 6 if they do not regulate on the basis of viewpoint or classify speech in terms of subject matter” 7 and content-neutral restrictions are not unconstitutional as long as there is a “reasonable fit” 8 between the restriction and the government interest to be served. Catsiff v. McCarty, 167 Wn. 9 App. 698, 706, 274 P.3d 1063, 1067 (2012). The court will therefore uphold restrictions that are 10 “content neutral, reasonable, and supported by a legitimate regulatory interest” because these are 11 not prior restraints. Id., 167 Wn.App. at 708, 711. See Soundgarden v. Eikenberry, 123 Wn.2d 12 750, 768, 871 P.2d 1050, 1060 (1994) (concluding that “State of Washington still has a strong 13 and legitimate interest in protecting minors,” and obscenity statute was overbroad in that it 14 regulated sales of music to adults); State v. Coe, 101 Wn.2d 364, 373, 679 P.2d 353, 359 (1984) 15 (“a regulation may not rise to the level of a prior restraint if it is merely a valid time, place or 16 manner restriction on the exercise of protected speech”). 17 3. 18 In determining whether an injunction is content-based, “[t]he government’s purpose is the 19 controlling consideration,” and an injunction is content-based only if the injunction is issued 20 because of a “disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 21 U.S. 781, 791 (1989). An injunction that “serves purposes unrelated to the content of expression 22 is deemed neutral, even if it has an incidental effect on some speakers or messages but not 23 others.” Id. Injunctive Relief to Protect Trade Secrets Is Content-Neutral. 24 The injunction proposed here, which is aimed at protecting trade secrets, and not at 25 censoring the content of any speech, easily meets this standard. The injunction Plaintiffs seek 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 6 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 here is content-neutral because it is aimed at maintaining “the secrecy of [Plaintiffs’] technology 2 and the competitive advantage it enjoyed from those efforts—and not because of the 3 communications’ subject matter or any disagreement with [Defendants’] message or viewpoint.” 4 DVD Control Ass’n, 75 P.3d at 11. That is, Plaintiffs seek a preliminary injunction to protect 5 their “statutorily created property interest in information—and not to suppress the content of 6 [Defendants’] communications. Because the injunction is justified without reference to the 7 content of [Defendant’s] communications, it is content neutral.” Id. 8 This is true notwithstanding the fact that Plaintiffs seek a preliminary injunction to 9 prevent release of specifically-identified information. Because the injunction seeks to remedy 10 the “specific deprivation” of “the misappropriation of a property interest in information,” id., we 11 propose an injunction that prevents release of the specific trade secret information identified by 12 Plaintiffs in the Managed Service Report. Notwithstanding that the injunction applies to this 13 specific information, it “remains content neutral so long as it services significant governmental 14 purposes unrelated to the content of the proprietary information.” Id. 15 4. 16 Trade secrecy protection promotes multiple governmental purposes. “Trade secret law 17 promotes the sharing of knowledge, and the efficient operation of industry; it permits the 18 individual inventor to reap the rewards of his labor by contracting with a company large enough 19 to develop and exploit it.” Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 493 (1974). Trade 20 secret law promotes innovation and discovery. Id. at 493. Without trade secret protection, 21 “organized scientific and technological research could become fragmented, and society, as a 22 whole, would suffer.” Id. at 486. Further, by preventing the misappropriation of another’s 23 valuable proprietary information by improper means, trade secret law minimizes the “inevitable 24 cost to the basic decency of society when one . . . steals from another,” id. at 487, and promotes A Preliminary Injunction Would Promote Important Government Interests. 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 7 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 “good faith and fair dealing,” which are “the very life and spirit of the commercial world.” Id. at 2 481-82. 3 5. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The Preliminary Injunction Requested Here Is Carefully Tailored To Protect Plaintiffs’ Trade Secrets While Minimizing The Burden On Defendants’ Expressive Rights. In this case, Plaintiff Landis+Gyr seeks to enjoin the release only of specifically identified trade secret information, consisting of detailed information about its proprietary computer and network security systems. In fact, Landis+Gyr has authorized the release of the vast majority of the Managed Service Report, carefully redacting information that specifically addresses its trade secrets. See Supplemental Declaration of Eric Lee Christensen in Support of Motion for Preliminary Injunction, ¶ 7, Exh. D. Enjoining the re-release of this information is “the only way to preserve the property interest created by trade secret law.” DVD Copy Control Ass’n, 75 P.3d at 14. In these circumstances, any restrictions on Defendants’ speech are “’properly characterized as incidental’” to the primary purposes of Washington’s UTSA, which is to “promote and reward innovation and technological development and maintain commercial ethics.” Id. (quoting San Francisco Arts & Athletics, Inc., 483 U.S. at 536). Indeed, the protection of trade secrets and its concomitant benefits “depend[s] on the judiciary’s power to enjoin disclosures by those who know or have reason to know of their misappropriation.” Id. at 14. Because the injunction proposed by Plaintiffs is narrowly tailored to exclude only specific trade secret information from public view, there is “no less restrictive way of protecting an owner’s constitutionally recognized property interest in its trade secrets,” and “the preliminary injunction burdens no more speech than necessary to serve the government’s interest in encouraging innovation and development.” Id. 23 24 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 8 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 6. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Trade Secrets Plaintiffs Seek To Protect Are Not Matters Of Public Concern. The trade secrets Landis+Gyr seeks to protect contain purely private information. In fact, the Managed Service Report discusses only Landis+Gyr’s internal processes and procedures for protecting the security of its computer networks, and the private auditor’s approval of those processes. The Managed Service Report contains not a single mention of the City of Seattle, any official of the City of Seattle, or any other governmental entity or official. Moreover, the trade secret information Landis+Gyr has redacted from the Managed Service Report focuses even more narrowly on the specific details of its internal proprietary security systems. Thus, “these trade secrets. . . address matters of purely private concern and not matters of public importance.” DVD Copy Control, 75 P.3d 16; Accord Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985) (“speech solely in the individual interest of the speaker and its specific business audience” raises “no public issue”). Speech on “matters of purely private concern” is of “significantly less constitutional interest” than speech on matters of public concern, and, “[i]n light of the reduced constitutional value of speech involving no matters of public concern,” speech on matters of private concern “warrants no special protection” and the constitution tolerates greater limitations on that speech where, as here, those limitations serve a legitimate state interest. Id. 472 U.S. 749, 759-62 (1985). Indeed, “[t]he suppression of the publication of stolen information does nothing to hamper the critic from denouncing any firm that chooses to preserve its trade secrets, or to chide any government agency for its lackluster enforcement of the general law. It is something of a mystery as to how free and open debate is frustrated by offering property protections to trade secrets.” Richard L. Epstein, Privacy, Publication, and the First Amendment: The Dangers of First Amendment Exceptionalism, 52 Stanford L. Rev. 1003, 1043 (2000). In fact, in this case, Mr. Mocek has heavily criticized Landis+Gyr’s efforts to protect its trade secrets in multiple 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 9 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 internet postings and has continued even after the Managed Service Report was removed from 2 MuckRock.com. See Christensen 2nd Supp. Decl., ¶¶ 4-7, Exhs. B-E. There is no reason to think 3 this debate will be hampered by removing limited and highly targeted trade secret information 4 from the public forum. 5 MuckRock.com’s arguments assume that the information Landis+Gyr seeks to protect 6 involves matters of public interest, and most of its arguments fail because this assumption is 7 incorrect. For example, MuckRock.com (Motion 9) asserts that it is protected under the “Daily 8 Mail” rule. But, in Bartnicki v. Vopper, which MuckRock.com concedes is controlling, the 9 United States Supreme Court explicitly refused to extend the Daily Mail rule to “disclosures of 10 trade secrets or domestic gossip or other information of purely private concern.” 532 U.S. 514, 11 533 (2001). Further, the Court recognized that the statute barring interception of private phone 12 conversations “may be enforced with respect to most violations of the statute without offending 13 the First Amendment” and that enforcement of the statute is curtailed only where the information 14 involved implicates “matters of public concern.” Id. at 533-34. 15 recognized that the First Amendment interests served by the disclosure of purely private 16 information like trade secrets are not as significant as the interests served by the disclosure of 17 information concerning a matter of public importance,” thus acknowledging that “a balancing of 18 First Amendment interests against government interests in the trade secret context may yield a 19 different result.” DVD Copy Control Ass’n, 75 P.3d at 15. Further, the Daily Mail rule only 20 protects “information republished on the Internet after having been made public on the Internet.” 21 Id. at 27. That is not the case here, where MuckRock.com published the Managed Service 22 Report for the first time on the internet. Indeed, until it appeared on the MuckRock.com website, 23 the Managed Service Report, like other Landis+Gyr proprietary information, had been carefully 24 protected to ensure that it was not publicly released. See Declaration of Jay Evensen in Support 25 of Motion for Temporary Restraining Order ¶ 10. In so ruling, “the court 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 10 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 The cases cited by MuckRock.com where courts refused to enjoin the public release of 2 trade secrets are distinguishable on the same grounds. Most involved information of public 3 concern, such as “unsanitary practices in the meat industry,” CBS, Inc. v. Davis, 510 U.S. 1315 4 (1994) (Blackmun, Circuit Justice), or “discussion of ethical matters concerning [public] 5 officials.” VI 4D, LLLP v. Crucians in Focus, Inc., 2012 WL 6757243 at *8 (V.I. Super. 2012). 6 See Rain CII Carbon, LLC v. Kurczy, 2012 WL 3577534 at *5 (E.D. La. 2012). 7 Further, the cases uncritically applied prior restraint doctrine which is not, for the reasons 8 described above, applicable here. See Rain CII Carbon, 2012 WL 3577534 at *3; State ex rel. 9 Sports Management News v. Nachtigal, 324 Or. 80, 921 P.2d 1304, 1308 (Or. Sup. Ct. 1996); 10 Ford Motor Co. v. Lane, 67 F.Supp.2d 745, 751 (1999). See DVD Copy Center, 75 P.3d at 18- 11 19 (distinguishing cases relied on by MuckRock.com). In fact, Nichtigal recognizes that a 12 content-neutral restraint, such as Landis+Gyr advocates here, would not constitute a prior 13 restraint, 921 P.2d at 1308, a view confirmed in the Oregon Supreme Court’s subsequent 14 decision in Outdoor Media Dimensions, Inc. v. Dept. of Transp., 340 Or. 275, 132 P.3d 5 (2006), 15 where it approved content-neutral restrictions on speech. 16 S.W.2d 545, 549-50 (Tex. App. 1994), found that “injunctive relief granted” to protect a trade 17 secret “is not an unconstitutional prior restraint” where the injunction is no less restrictive than 18 necessary to protect the trade secrets. Likewise, Garth v. Shaktek, 876 19 Further, Proctor & Gamble Co. v. Bankers Trust Co. is distinguishable because the lower 20 court failed to conduct review the relevant documents to determine if they were protected trade 21 secrets, 78 F.3d 219, 222 (6th Cir. 1996) (“[t]he parties and not the court ... determine[d] whether 22 the particular documents” were proprietary].) The same is true of Nichtigal. 921 P.2d at 1308. 23 In contrast, here we have provided a redacted copy of the Managed Services Report for the 24 record and are prepared to offer an unredacted version for in camera inspection, which will 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 11 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 confirm the affidavits submitted in support of Plaintiffs’ motion that the redacted material 2 constitutes protected trade secrets. 3 Apparently attributing clairvoyance to Landis+Gyr, MuckRock.com argues, without 4 benefit of authority, that Landis+Gyr was required to act the moment its trade secrets were 5 posted on MuckRock.com and to have them removed or else lose its trade secret protection. This 6 is incorrect. The UTSA requires only that Landis+Gyr make “efforts that are reasonable under 7 the circumstances to maintain its secrecy.” RCW 19.108.010(4)(b). As the California Supreme 8 Court has observed, “information posted on an obscure Internet site and detected quickly” should 9 not cause the loss of trade secret status because the law recognizes that “minor disclosures of a 10 trade secret followed by a brief delay in withdrawing it from the public domain do not cause 11 trade secret status to be lost.” DVD Copy Control Ass’n, 75 P.3d at 28 (citing Hoechst Diafoil 12 Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 418 (4th Cir.1999); Gates Rubber Co. v. Bando 13 Chemical Indus., Ltd., 9 F.3d 823, 849 (10th Cir.1993)). 14 In this case, Landis+Gyr met that requirement. As soon as it discovered that the 15 document had been published without its knowledge or consent on MuckRock.com, Landis+Gyr 16 took action, requesting through its May 16 letter than MuckRock.com and/or Mr. Mocek 17 immediately remove the documents from public view, filing this lawsuit, and successfully 18 seeking a TRO. Although the letter clearly put Defendants on notice that the document contains 19 trade secrets protected by the UTSA, Defendants refused to remove the documents. This clearly 20 subjects them to liability under the UTSA for misappropriation of trade secrets. RCW 21 19.108.020-.040. Further, the evidence currently available suggests that, to the extent 22 Landis+Gyr’s trade secrets were actually compromised (a question that cannot be resolved 23 without further investigation), they were compromised after Defendants were fully aware that 24 they were protected, see Christensen 2nd Supp. Decl., ¶¶ 4-6, Exhs. B-E, meaning that 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 12 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 Defendants’ refusal to remove the trade secret information from public view may have 2 accommodated further misappropriations in violation of the UTSA. 7. 3 4 a) 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 MuckRock.com Is Not Immune Under the Communications Decency Act. MuckRock argues it is immune from suit pursuant to 47 U.S.C. § 230 (“§ 230”) of the Communications Decency Act of 1996 (the “CDA”). But § 230 by its plain terms does not protect MuckRock.com from liability for violation of rules involving intellectual property and this defense therefore fails. 10 11 Defendants Are Not Immune From The Consequences of Publishing Plaintiffs’ Trade Secrets. The CDA provides immunity to the provider of an interactive computer service that publishes information originating with a third-party user of the service. § 230; Perfect 10, Inc. v. CCBILL LLC, 488 F.3d 1102 (2007). The immunity created, however, is limited by § 230(e)(2), which makes clear that § 230 does not “limit or expand any law pertaining to intellectual property.” Relying on the Ninth Circuit’s interpretation of “intellectual property” in Section 230(c)(1) as “federal intellectual property,” MuckRock.com asserts that the intellectual property carve-out does not apply here. While it once was true that trade secrets were the domain of state, not federal, intellectual property law, this is no longer true. Trade secrets are now accorded federal intellectual property protection under the Defend Trade Secrets Act of 2016 (the “DTSA”), Pub. L. No. 114-153, which was signed by President Obama on May 11, 2016. 1 Trade secret protection is now “federal intellectual property.” Accordingly, MuckRock is not excused from liability for its misappropriation of trade secrets under § 230. 22 23 24 25 1 The complete text of the DTSA is available at: https://www.congress.gov/bill/114th-congress/senate-bill/1890/text. 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 13 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 Further, § 230(e)(3) preserves state authority, providing that “[n]othing in this section 2 shall be construed to prevent any State from enforcing any State law that is consistent with this 3 section.” Because Washington UTSA is consistent with the DTSA and affords complimentary 4 protections to trade secrets, the Court is fully empowered to enforce the UTSA to vindicate 5 Plaintiffs’ trade secrets without running afoul of § 230. 6 Finally, even if MuckRock.com were immune from an injunction under § 230, that is not 7 true of either of the City or Mocek, neither of which are websites qualifying for § 230 immunity. 8 Accordingly, a preliminary injunction can properly issue requiring the City and Mocek (who 9 “controls” the content posted on MuckRock.com) to refrain from publicly releasing Plaintiffs’ 10 trade secrets for the duration of this proceeding. b) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Fair Reporting Privilege Does Not Protect MuckRock.com From Liability Under the UTSA MuckRock.com (Motion 12) claims that the fair reporting privilege excuses it from liability for its violations of the UTSA. This is incorrect. The fair reporting privilege is a common law, judicially-created limitation on the liability for libel and slander when public media republish potentially defamatory material from court transcripts, recall petitions, or other official sources. Hauter v. Cowles Pub. Co., 61 Wn.App. 572, 578, 811 P.2d 231 (1991). The fair reporting privilege is recognized in Washington as a conditional privilege for publication of defamatory matter. Momah v. Bharti, 144 Wn.App. 731, 746, 182 P.3d 455 (2008). The doctrine does not apply here because this case involves neither libel/slander claims nor material copied from an official source like a court transcript or public hearing. Further, because it is judicially-created, the doctrine does not and cannot limit Plaintiffs’ statutory rights under the UTSA. Nor have Defendants simply re-published material. On the contrary, they have published for the first time an internal, private Landis+Gyr document that pertains solely to the operations of Landis+Gyr’s proprietary computer and network security systems. Any contrary 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 14 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 holding would gut the UTSA by allowing those who would profit from misappropriation of trade 2 secrets to escape liability by the simple expedient of posting the trade secrets to a publicly- 3 accessible website. 4 B. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiffs Are Entitled To An Injunction to Prevent Release of The Names and Individually-Identifiable Information of Employees and Trade References. Plaintiffs properly seek to prevent release of the names and individually-identifiable information of their employees and trade references. As Plaintiffs have demonstrated, this information is protected as trade secrets, Plaintiff’s Motion for Preliminary Injunction at 25-27, a contention not challenged by any Defendant, and an injunction to bar its release is therefore fully justified. Plaintiffs are also entitled to a preliminary injunction to protect the privacy interests of their employees and trade references because “[t]he PRA is a tool to enable citizens to monitor their government. It is not a mechanism for them to examine, exploit, or endanger each other.” Roe v. Anderson, 2015 WL 4724739 at *2 (W.D. Wa. 2015). “The PRA was never intended to facilitate spying or stalking, or to enable a hose of other nefarious goals.” Id. But the evidence proffered by Plaintiffs demonstrates that, in the circumstances of this case, public release of this person information is likely to result in bullying, harassment, and intimidation of Plaintiffs’ employees and trade references from the opponents of smart metering, who have employed tactics like burying opponents in huge but incomprehensible legal documents, Christensen TRO Declaration at ¶ 14, and harassment and intimidation on the internet. Second Supp. Christensen Decl. at ¶ 3, Ex. A. The City (Response at 8-9) does not deny that Plaintiffs have demonstrated that the meet the high standard for protection of privacy under the RCW 42.56.050, but argues that Plaintiffs must base their privacy claims on some independent basis in the PRA. But the Court’s injunctive powers under the PRA are not so limited. On the contrary, the PRA by its plain terms 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 15 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 allows the Court to enjoin the “examination of any specific public record” if the Court finds that 2 “such examination would clearly not be in the public interest and would substantially and 3 irreparably damage any person, or would substantially and irreparably damage vital 4 governmental functions.” RCW 42.56.540. It is unchallenged here that the names and addresses 5 of Plaintiffs’ employees and trade references are of no public interest since, in most cases, they 6 have no connection at all to the City of Seattle. It is likewise unchallenged that, in the 7 circumstances of this case, those individuals could be irreparably damaged because they would 8 be subject to harassment and intimidation by unscrupulous opponents of “smart meters.” 9 10 11 This Court should therefore issue a preliminary injunction barring the release of these names and individually-identifying information. DATED this 2nd day of June, 2016. CAIRNCROSS & HEMPELMANN, P.S. 12 13 14 15 16 Eric L. Christensen, WSBA No. 27934 524 Second Avenue, Suite 500 Seattle, WA 98104-2323 Telephone: (206) 587-0700 Facsimile: (206) 587-2308 E-mail: echristensen@cairncross.com 17 18 19 20 ATTORNEY FOR PLAINTIFF 21 22 23 24 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 16 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230 1 Certificate of Service 2 I, Gail Glosser, certify under penalty of perjury of the laws of the State of Washington 3 that on June 2, 2016, I caused a copy of the document to which this is attached to be served on 4 the following individual(s): 5 6 7 8 9 10 11 12 13 Jessica Nadelman Seattle City Attorney's Office 701 5th Ave Ste 2050 Seattle, WA 98104-7095 jessica.nadelman@seattle.gov Counsel for Defendant [X] via U.S. Mail City of Seattle / Seattle [X] via email City Light [ ] via CM ECF [ ] via Legal Messenger Aaron Mackey Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 amackey@eff.org Counsel for Defendant [X] via U.S. Mail MuckRock.com and [X] via email Michael Morrisy [ ] via CM ECF [ ] via Legal Messenger Venkat Balasubramani Focal PLLC 900 1st Avenue S Suite 203 Seattle, WA 98134-1236 venkat@focallaw.com 14 15 16 17 18 Ambika Kumar Doran Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 Defendant Phillip Mocek [X] via U.S. Mail [X] via email [ ] via CM ECF [ ] via Legal Messenger AmbikaDoran@dwt.com DATED this 2nd day of June, 2016, at Seattle, Washington. 19 20 ___/s/ Gail Glosser_______________________ Gail Glosser, Legal Assistant CAIRNCROSS & HEMPELMANN, P.S. 524 Second Avenue, Suite 500 Seattle, WA 98104-2323 Telephone: 206-254-4416 E-mail: gglosser@cairncross.com 21 22 23 24 25 26 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE - 17 {03116180.DOC;1 } CAIRNCROSS & HEMPELMANN, P.S. ATTORNEYS AT LAW 524 Second Avenue, Suite 500 Seattle, Washington 98104-2323 office 206 587 0700 fax 206 587 230