Case Document 12 Filed 06/27/18 Page 1 of 5 Case Document 11 Filed 06126118 Page 1 of 5 JACKSON LEWIS P.C. Joshua A. Sliker, Nevada Bar No. 12493 Joshua.Sliker@jacksonlewis.com 3800 Howard Hughes Parkway, Suite 600 ll FILED RECEIVED Las Vegas, NV 89169 ENTERED SERVED 0N Telenhonet (702) 921-2460 COUNSEUPARTIES or RECORD Facsimile: (702) 921-2461 Attorneys for Plaintiff JUN 2 7 2013 Tesla, Inc. CLERK US DISTRICT COURT DISTRICT OF NEVADA BY: DEPUTY UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 19451372? TESLA, INC., a Delaware corporation, Case No. 3: 18-cv-296 Plaintiff, PLAINTIFF TESLA, SECOND EMERGENCY MOTION FOR vs. AUTHORIZATION TO ISSUE DOCUMENT PRESERVATION SUBPOENAS MARTIN TRIPP, an individual, Defendant. SECOND EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE PRESERVATION SUBPOENAS Case Document 12 Filed 06/27/18 Pa 9 2 of 5 Case Document 11 Filed 06126118 age 2 of 5 INTRODUCTION Plaintiff Tesla, Inc. ?led this action against Defendant Martin Tripp, a former employee in Tesla?s Gigafactory who exported con?dential and trade secret information from Tesla?s manufacturing operating system, uploaded it to his personal email and cloud storage accounts, and ultimately transferred certain of that information to one or more outside entities. Tripp has confessed not only to his theft of trade secrets, but also to deleting materials from his personal email and cloud storage accounts in an effort to cover his tracks and spoliate evidence of his wrongdoing. On June 25, 2018, the Court granted Tesla?s emergency motion to serve document preservation subpoenas on non-parties Apple, Inc., Microso? Corporation, and Google LLC, requiring that they preserve documents, data, and records from and pertaining to Tripp?s email and cloud storage accounts, including copies of ?les previously deleted by Tripp that may still be accessible by such non-parties. (See Dkt. 10.) Since ?ling that initial motion, Tesla learned that Mr. Tripp may be using additional services to divulge Tesla?s con?dential and proprietary information, including Wireless Facebook, Inc. (?Facebook?), WhatsApp, Inc. (?WhatsApp?), Open Whisper Systems (?Open Whisper?), and Dropbox, Inc. ("Dropbox"). Accordingly, Tesla now moves for leave to serve additional document preservation subpoenas on non-parties Facebook, WhatsApp, Open Whisper, and Dropbox. As with the subpoenas the Court has already authorized, these subpoenas require only the preservation of documents and not their actual production at this time, placing little or no burden on Facebook, WhatsApp, Open Whisper, and Dropbox. Absent leave to serve these subpoenas, critical evidence of Tripp?s unlawful activities will forever be lost, causing obvious and severe prejudice to Tesla and potentially preventing justice from being served. BACKGROUND Tripp began working for Tesla in October 2017 as a process technician in Tesla?s Gigafactory, located in Sparks, Nevada. (Dkt. [?Compl.?] 1 10.) As part of his job, Tripp had access to highly sensitive information relating to the company?s manufacturing processes and system. (Id) After becoming disgruntled as a result of certain employment actions, Tripp wrote - 1 - SECOND EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE PRESERVATION SUBPOENAS Case Document 12 Filed 06/27/18 Page 3 of 5 Case Document 11 Filed 06126118 Page 3 of 5 specialized software designed to export con?dential and trade secret information from Tesla?s manufacturing operating system, which he uploaded to his personal email and cloud storage accounts and ultimately transferred to one or more outside entities. (Id 1] l4.) Tripp admitted his misdeeds to Tesla?s internal investigators, including that be uploaded, stored, and made Tesla?s con?dential information available to third parties through email and other online messaging and ?le-sharing accounts. (Lindemulder Decl.1 3.) Tripp also admitted that he had been deleting evidence in an effort to ?cover [his] tracks.? (Id) Tesla has subsequently learned that in addition to the entities identi?ed in Tesla?s June 22 Motion, (Dkt. 8), Tripp may have been sharing Tesla?s con?dential and proprietary information via the messaging services Facebook Messenger (associated with Facebook), WhatsApp (associated with WhatsApp), and Signal (associated with Open Whisper); and via text messages sent through his personal cellular device on the Wireless network. (Lindemulder Decl. 1] 4.) Tripp also accessed Dropbox from his work computer and may have uploaded con?dential Tesla materials to his Dropbox account. (Id) Tesla therefore brings this emergency motion pursuant to Rule 26(d) of the Federal Rules of Civil Procedure for authorization to serve document preservation subpoenas. ARGUMENT Generally, discovery is not permitted before the parties have held a Rule 26(t) conference. Fed. R. Civ. P. 26(d). However, Rule 26(d) allows parties to seek a court order permitting early discovery before the Rule 26(t) conference. Id. ?To determine whether to grant a request for early discovery, the court shall apply the conventional ?good cause? standard that weighs the need for discovery to further justice against the prejudice to the opposing party.? QOT Film Investment Ltd. v. Does 1-30, 2016 WL 8735619, at *2 (D. Nev. May 6, 2016). The risk that evidence may be lost before discovery commences constitutes good cause for an order permitting expedited discovery. See, e. Qwest Comms. Int Inc. v. WorldQuest Networks, Inc, 213 F.R.D. 418, 419 (D. Colo. 2003). Here, good cause plainly exists for issuance of document preservation subpoenas to the non-parties that host Tripp?s personal cloud storage and messaging accounts, to which Tripp uploaded Tesla?s con?dential and trade secret information and through which he disclosed certain - 2 - SECOND EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE PRESERVATION SUBPOENAS Case Document 12 Filed 06/27/18 Page 4 of 5 Case Document 11 Filed 06126118 Page 4 of 5 of that information to at least one non-party. Tripp has already admitted to deleting evidence in an effort to ?cover [his] tracks.? (Declaration of Andrew Lindemulder [?Lindemulder Decl.?] 1] 3.) Absent a Rule 26(d) order, Facebook, WhatsApp, Open Whisper, and Dropbox will be ?free to destroy,? and likely will destroy, potentially relevant information. Koncelik v. Savient Pharm, Inc, 2009 WL 2448029, at *2 (S.D.N.Y. Aug. 10, 2009); see Bright Solutions for Dyslexia, Inc. v. Doe I 2015 WL 5159125, at *3 (ND. Cal. Sept. 2, 2015) (noting that under Google?s ?regular business practices, user data is routinely destroyed within months after a user deletes that information?); Caston v. Hoaglin, 2009 WL 1687927, at *4 (SD. Ohio June 12, 2009) plaintiff points out, an informal conversation asking non-parties to preserve certain documents lacks the force of a subpoena?). For this reason, courts regularly authorize document preservation subpoenas and other expedited discovery vis-a-vis non-party providers of cloud storage and email. See Axis Steel Detailing, Inc. v. Prilex Detailing, LLC, 2017 WL 8947964, at *4 (D. Utah June 29, 2017) (ordering Dropbox Inc. to preserve data, including previously deleted ?les, during pendency of action); 000 Brunswick Rail v. Sultanov, 2017 WL 67119, at *1 (N .D. Cal. Jan. 6, 2017) (?[Plaintifi?s] need for preservation is all the more acute because Rackspace and Google, as nonparties, have no obligation to preserve the information absent a court order?); Records, Inc. v. Anderson, 2008 WL 4852915, at *2 (ED. Mich. Nov. 7, 2008) (?nding good cause under Rule 26(d) for subpoenas to Yahoo! and Hotmail). The failure of such providers to preserve data ?would work to plaintiff?s prejudice? by depriving a plaintiff of evidence it may need to prove its claims. Caston, 2009 WL 1687927, at The failure to preserve evidence here would not only prejudice Tesla in the prosecution of its claims against Tripp, but might also prevent Tesla from identifying third parties to which Tripp transferred Tesla?s con?dential and trade secret information and taking steps to protect against any further disclosure or use of that information. There will be no undue burden to Facebook, WhatsApp, Open Whisper, or Dropbox from compliance with the document preservation subpoenas. The subpoenas are narrowly tailored to require only the preservation of documents, data, and records from and pertaining to Tripp?s cloud storage and messaging accounts. The non-parties will not be required at this time to collect, - 3 - SECOND EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE PRESERVATION SUBPOENAS 000-40thth Case Document 12 Filed 06/27/18 Page 5 of 5 Case Document 11 Filed 06/26l18 Page 5 of 5 review, and produce anything. Rather, their only obligation will be to preserve evidence, so that it is not forever lost before discovery even commences. See In re Grand Casinos, Inc. Sec. Litig, 988 F. Supp. 1270, 1273 (D. Minn. 1997) (authorizing preservation subpoena in part because it did ?no more than ?preserve evidence? in the care, custody, or control of third-parties, who w[ould] not be subjected to any intrusive investigation? pending motion practice); Koncelik, 2009 WL 2448029, at *1 the preservation subpoenas plaintiff expects to serve on those companies are broad, they require only the preservation of documents, not the documents? actual production?). In short, the subpoenas will ensure that critical documents, data, and records are preserved, with minimal inconvenience to the non-parties in possession of such evidence. For the foregoing reasons, good cause exists for the Court to authorize Tesla to issue document preservation subpoenas to Facebook, WhatsApp, Open Whisper, and Dropbox, requiring them to preserve documents, data, and records ?'om and pertaining to Tripp?s cloud storage and messaging accounts. Dated: June 26, 2018 JACKSON LEWIS P.C. By: Joshua A. Sliker Joshua A. Sliker Attorneys for Plaintiff Tesla, Inc. UNI STATES AGIST TE IU GE DATED: git/{vat 75/ 20/ 3/ - 4 . SECOND EMERGENCY MOTION FOR AUTHORIZATION TO ISSUE PRESERVATION SUBPOENAS