Case 2:20-cv-08837-SVW-MAA Document 22 Filed 10/02/20 Page 1 of 12 Page ID #:238

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

Present: The Honorable

STEPHEN V. WILSON, U.S. DISTRICT JUDGE

Paul M. Cruz

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:

I.

10/2/2020

ORDER DENYING PLAINTTIFFS’ EX PARTE APPLICATION FOR A
TEMPORARY RESTRAINING ORDER [8]

Introduction

On September 28, 2020, Plaintiffs Jerry A. Spolar and Tonny J. Williamson filed an application
for a temporary restraining order (“TRO”) against Discovery Communications, LLC (“Discovery”).
Dkt. 8. Plaintiffs ask the Court to enjoin the broadcast of a documentary set to air on October 4 on
Discovery’s television network and to compel Discovery to allow Plaintiffs to review the documentary
for potential trade secret misappropriation. Dkt. 8-4. For the reasons articulated below, the Court
DENIES Plaintiffs’ TRO application.
II.

Factual and Procedural Background

Plaintiffs have spent around twenty-five years seeking to authenticate a long-lost photograph that
purportedly depicts Abraham Lincoln lying wounded on the night of his assassination. Declaration of
Jerry A. Spolar, Dkt. 8-3 ¶¶ 2, 4. Spolar states that he purchased a half-interest in the photograph in
1996 and Plaintiffs together purchased the remaining interest in 2004. Id. ¶ 3.
In their efforts to authenticate the photograph, Plaintiffs consulted with dozens of “forensic,
authentication, technology, historical, and medical experts” and at least one person with personal
knowledge. Id. ¶¶ 14, 18. Through these consultations, Plaintiffs accumulated “detailed, written
reports, analyses, and conclusions, scientific analytical drawings, annotated images and overlays … and

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

features thereon, experimental procedures and results, and related expert and consultant write-ups.” Id.
¶ 15. Plaintiffs had collaborators sign confidentiality or non-disclosure agreements, ensured the return
of work product and materials, and communicated that their work should remain secret. Id. ¶¶ 8, 11-12.
When Plaintiffs were finally satisfied that the photograph was authentic, they sought to make a
documentary about their work. Id. ¶ 21. Plaintiffs were connected with Whitny Braun (“W. Braun”),
who had relevant experience, and her father James Braun (“J. Braun”), who is a firearms historian. Id.
¶¶ 23-24. W. Braun was affiliated with Unrealistic Ideas, LLC, a documentary production company. Id.
¶ 24.
On February 16, 2018, Plaintiffs gave a detailed presentation about their decades of work to the
Brauns and to Archie Gips, President of Unrealistic. Id. ¶¶ 25-28. Plaintiffs obtained non-disclosure
agreements from the Brauns and Gips. Id. at ¶ 26. Meetings about the project were arranged with
representatives from National Geographic and the History Channel. Id. ¶¶ 29-30, 39. Plaintiffs obtained
non-disclosure agreements from the network representatives. Id. National Geographic and the History
Channel turned down the project, and Unrealistic “pulled the plug” in August of 2018. Id. ¶¶ 38, 41.
Plaintiffs saw signs throughout 2018 and 2019 that W. Braun was doing independent work
relating to the photograph, relying on information Plaintiffs believed to be covered by their nondisclosure agreement. Early in their working relationship, W. Braun sought verification of a list of
Plaintiffs’ experts and posted some of Plaintiffs’ materials to a website. Id. ¶¶ 33-34, 36. Plaintiffs
responded by admonishing W. Braun about her confidentiality obligations. Id. ¶¶ 34, 36. W. Braun
(and unknown others) also began communicating with Plaintiffs’ experts both before and after
Unrealistic represented it was dropping the project. Id. ¶¶ 35, 37, 42, 49.
From conversations with their experts, Plaintiffs began to suspect that W. Braun was working on
a documentary about the photograph with Discovery. Id. ¶ 47. Plaintiffs sent a series of cease-anddesist letters: first to W. Braun and Unrealistic on August 2, 2019, id. ¶ 45; Ex. D, then to W. Braun
with a courtesy copy to Discovery on January 21, 2020, id. ¶ 48; Ex. E, and finally on April 3, 2020, to a
producer at Discovery who had attended a meeting with Plaintiffs during his prior employment with the
History Channel, id. ¶ 51; Ex. F. The only response Spolar describes is to this final letter, which simply
denied that Boyle was involved in any project like the one Plaintiffs described. Id. ¶ 51; Ex. F.
Plaintiffs’ suspicions proved correct. On September 14, 2020, Plaintiffs learned that Discovery
would be airing a documentary about the photograph on October 4. Id. ¶ 52; Ex. G, Dkt. 8-3. In an

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

article posted to its website, Discovery describes the documentary, entitled The Lost Lincoln, as
“follow[ing] professional authenticator Dr. Whitny Braun as she leads an investigation to determine
whether or not a newly discovered photograph could be the 131st and final image of the president
following his fatal shooting in 1865.” Id. at 2.
Discovery has invested significant resources into broadcasting The Lost Lincoln in its currently
scheduled slot. Discovery set aside the valuable Sunday primetime slot for the broadcast. Declaration
of Laurie Goldberg, Dkt. 14-2 ¶¶ 2-3; Declaration of Donna D’Alessandro, Dkt. 14-3 ¶ 3. Discovery
has promoted the documentary through dozens of networks, print and online publications, radio
programs, and podcasts. Goldberg Decl. ¶ 4. Advertising costs are estimated at $ 4 million.
D’Alessandro Decl. ¶ 4. The Lost Lincoln is the first title in the network’s new investigative anthology
series, Undiscovered. Goldberg Decl. ¶ 2; D’Alessandro Decl. ¶ 2.
Plaintiffs filed their complaint on September 25, 2020. Dkt. 1. The complaint named as
Defendants Discovery, Unrealistic, Piece of Work Productions, LLC, Gips, W. Braun, and J. Braun. Id.
It asserts claims for violation of the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1831 et seq., against
all Defendants; for breach of contract against Unrealistic, Gips, W. Braun, and J. Braun; and violation of
California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., against all
Defendants. Id.
Plaintiffs filed an ex parte application for a temporary restraining order (“TRO”) on September
28, just six days before The Lost Lincoln was set to air. Dkt. 8. The application seeks a TRO enjoining
Discovery from broadcasting The Lost Lincoln, requiring Discovery to provide Plaintiffs with a copy of
The Lost Lincoln, and setting a briefing schedule for Plaintiffs to raise particularized objections
documentary over a three-week period. Dkt. 8-4 (“Proposed Order”). Discovery filed an opposition on
September 29. Dkt. 14.
III.

Discussion
a. Prior Restraint
i. Legal Standard

“The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain
communications when issued in advance of the time that such communications are to occur.” Alexander

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

v. United States, 509 U.S. 544, 550 (1993) (quoting Nimmer on Freedom of Speech § 4.03 (1984)).
“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech
activities—are classic examples of prior restraints.” Id.
“Prior restraints on speech present some of the ‘most serious and the least tolerable infringement’
on free speech rights.” Cuviello v. City of Vallejo, 944 F.3d 816, 831 (9th Cir. 2019) (quoting Nebraska
Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976)). “Subsequent civil or criminal proceedings, rather than
prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the
First Amendment context.” CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., granting stay
of injunctive relief). “Any prior restraint on expression [is reviewed] with a ‘heavy presumption against
its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)
(citations omitted). A party seeking a prior restraint “carries a heavy burden of showing justification for
the imposition of such a restraint.” Id. “The gagging of publication has been considered acceptable
only in ‘exceptional cases.’” Davis, 510 U.S. at 1317 (citation and quotation marks omitted).
One “recurring theme” in prior restraint cases is a failure to accord “requisite procedural
safeguards.” Alexander, 509 U.S. at 552. “The special vice of a prior restraint is that communication
will be suppressed … before an adequate determination that it is unprotected by the First Amendment.”
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973). “[T]he
danger of a prior restraint, as opposed to [an] ex post … action, is precisely that making predictions ex
ante as to what restrictions on speech will ultimately be found permissible is hazardous and may chill
protected speech.” Latino Officers Ass’n, New York, Inc. v. City of New York, 196 F.3d 458, 465 (2d
Cir. 1999). Some speech restrictions may constitute impermissible prior restraints when imposed as
interim relief but remain constitutional when imposed following a final adjudication. See Alexander,
509 U.S. at 552 (distinguishing seizure of obscene materials on a finding of probable cause from
forfeiture after criminal conviction); Pittsburgh Press Co., 413 U.S. at 390 (distinguishing final order
prohibiting publication of gender-specific employment columns from interim relief); New.Net, Inc. v.
Lavasoft, 356 F. Supp. 2d 1071, 1084 (C.D. Cal. 2003) (quoting Kramer v. Thompson, 947 F.2d 666,
676 (3d Cir. 1991)) (while “allegations of falsity are insufficient to warrant prior restraint … ‘once a
jury has determined that a certain statement is libelous, it is not a prior restraint for the court to enjoin
the defendant from repeating that statement.’”).
ii. Application
The Lost Lincoln is speech protected by the First Amendment and by the prior restraint doctrine.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

See Goldblum v. NBC, 584 F.2d 904 (9th Cir. 1978) (Kennedy, J.) (applying prior restraint doctrine to a
television “docu-drama” about a fraud scheme); Hunt v. NBC, Inc., 872 F.2d 289, 294-95 (1989)
(citation omitted) (“[M]otion pictures enjoy first amendment protection even though they are designed
to entertain, and are produced and exhibited for private profit.”). While Plaintiffs assert that
“misleading” speech is exempt from the prior restraint doctrine, Dkt. 8, at 22 (citing San Antonio Cmty.
Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997)), they do not identify
what statements in the broadcast will be misleading.
The Lost Lincoln also constitutes speech on a matter of public concern. United States v. Nat’l
Treasury Emps. Union, 513 U.S. 454, 466 (1995) (lectures on history could count as speech on matters
of public concern). “[P]rior restraints of … speech regarding matters of public concern are often
impermissible.” Microsoft Corp. v. U.S. Dep’t of Justice, 223 F. Supp. 3d 887, 905 (W.D. Wash. 2017);
see also New.Net, Inc., 356 F. Supp. 2d at 1087-88 (“[T]he Court recognizes that case law [on prior
restraint] draws some distinction between public and private speech….”).
“[A] takedown order of a film of substantial interest to the public is a classic prior restraint of
speech.” Garcia v. Google, 786 F.3d 733, 747 (9th Cir. 2015) (en banc). The prior restraint doctrine
even protects filmmakers from being compelled by a court to produce their work prior to broadcast.
Goldblum, 584 F.2d at 907 (a district court’s “interven[tion] in the editorial process by ordering an
official of the broadcasting company to produce a film just before its scheduled broadcast … [was] an
inherent threat to expression, one that chills speech”).
Plaintiffs argue that the prior restraint doctrine does not protect a party who has bargained away
First Amendment rights by contract. Dkt. 8, at 21-22. However, it is undisputed that Discovery, the
only party against whom injunctive relief is presently sought, is not a party to a non-disclosure or
confidentiality agreement with Plaintiffs. Dkt. 8-4; Dkt. 1 ¶¶ 71-78 (complaint does not assert breach of
contract against Discovery); Declaration of Howard Swartz, Dkt. 14-1 ¶ 6.
Whether and how the prior restraint doctrine applies to protectible trade secrets – especially
those covering matters of public concern – remains murky. In CBS, Inc. v. Davis, Justice Blackmun
granted a television network’s application to stay an injunction prohibiting a broadcast that would
allegedly disclose a meat packing company’s trade secrets. 510 U.S. at 1318; see also Ford Motor Co.
v. Lane, 67 F. Supp. 2d 745, 753 (E.D. Mich. 1999). However, it is well recognized that the prior
restraint doctrine is routinely relaxed in the field of intellectual property. See Smolla & Nimmer on

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

Freedom of Speech § 15:60 (“[C]ourts have often exhibited a blind spot for normal prior restraint and
preliminary injunction standards when it comes to enforcement of copyright interests.”); see, e.g., A&M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1028 (9th Cir. 2001); Dr. Seuss Enters., L.P. v. Penguin
Books USA, Inc., 109 F.3d 1394, 1403 n.11 (9th Cir. 1997). Further complicating the analysis, unlike
the injunctive relief contemplated in many prior restraint cases (including the influential Pentagon
Papers case), injunctive relief here would be authorized by the Defend Trade Secrets Act. 18 U.S.C. §
1836(b)(3)(A); cf. New York Times Co. v. United States, 403 U.S. 713, 720 (1971) (Douglas, J.,
concurring) (“There is … no statute barring the publication by the press of the material which the Times
and the Post seek to use.”).
Given this ambiguity, the Court will not withhold relief solely because the proposed injunction
would constitute a prior restraint. Moreover, the Supreme Court has made clear that prior restraints are
permissible in some circumstances. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990)
(citation and quotation marks omitted) (“[P[rior restraints are not unconstitutional per se.”); Nebraska
Press Ass’n, 427 U.S. at 570 (“This Court has … consistently rejected the proposition that a prior
restraint can never be employed.”). Plaintiffs’ arguments in favor of an injunction should therefore be
analyzed to determine whether this is an exceptional case warranting a prior restraint.
The Court recognizes its obligation not to “g[i]ve short shrift to the First Amendment values at
stake” in Plaintiffs’ request for injunctive relief, especially where the legal basis for the injunction is
“thin.” Garcia, 786 F.3d at 747. Therefore, the Court’s analysis of the Winter factors is informed by an
extra layer of First Amendment scrutiny. Alongside the familiar Winter factor analysis, the Court will
consider whether Plaintiff brings an “exceptional case[] … where the evil that would result from
[broadcast] is both great and certain and cannot be mitigated by less intrusive measures.” CBS, Inc., 510
U.S. at 1317 (citations omitted).
b. Winter Factors
i. Legal Standard
The purpose of a temporary restraining order is to preserve the status quo and prevent irreparable
harm until a hearing may be held on the propriety of a preliminary injunction. See Reno Air Racing
Ass'n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). “The standard for issuing a temporary
restraining order is identical to the standard for issuing a preliminary injunction.” Lockheed Missile &

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

Space Co. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see Stuhlbarg Intern.
Sales Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2011).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). The Ninth Circuit employs the “serious questions” test, which
states that “‘serious questions going to the merits’ and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that
there is a likelihood of irreparable injury and that the injunction is in the public interest.” Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (citation omitted).
ii. Application
A. Likelihood of Success on the Merits
The likelihood of success on the merits is “the most important Winter factor; if a movant fails to
meet this threshold inquiry, the court need not consider the other factors.” Disney Enters., Inc. v.
VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (citations and quotation marks omitted).
a. Trade Secrets
Under the Defend Trade Secrets Act, “a plaintiff must allege (1) that it is the owner of a trade
secret; (2) that the defendant misappropriated the trade secret; and (3) that it was damaged by the
defendant’s actions.” Alta Devices, Inc. v. LG Elecs., Inc., 343 F. Supp. 3d 868, 880 (N.D. Cal. 2018).
“A plaintiff seeking relief for misappropriation of trade secrets ‘must identify the trade secrets
and carry the burden of showing that they exist.’” Imax Corp. v. Cinema Techs., Inc., 152 F.3d 1161,
1164-65 (9th Cir. 1998) (quoting MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511, 522 (9th Cir.
1993)). “The plaintiff ‘should describe the subject matter of the trade secret with sufficient particularity
to separate it from matters of general knowledge in the trade or of special knowledge of those persons …
skilled in the trade.” Id. (quoting Universal Analytics v. MacNeal-Schwendler Corp., 707 F. Supp.
1170, 1177 (C.D. Cal. 1989)). “The Ninth Circuit has rejected the use of ‘catchall’ language, holding
that such language is insufficiently specific ‘because it does not clearly refer to tangible trade secret
material.” Loop AI Labs Inc. v. Gatti, 195 F. Supp. 3d 1107, 1115 (N.D. Cal. 2016) (emphasis in

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

original). While the Defend Trade Secrets Act is of recent vintage, this older principle remains good
law. See Vendavo, Inc. v. Price f(x) AG, 2018 WL 1456697, at *3 (N.D. Cal. 2018) (“The elements of a
trade secret misappropriation claim under the DTSA are substantially similar to those under older state
statutes.”); see, e.g., Calendar Research LLC v. StubHub, Inc., 2020 WL 4390391, at *5 (C.D. Cal.
2020); Navigation Holdings, LLC v. Molavi, 445 F. Supp. 3d 69, 75 (N.D. Cal. 2020) (citation omitted).
Plaintiffs allege that The Lost Lincoln misappropriates the following trade secrets:
“the compilation of a confidential list of dozens of medical, forensic, and authentication
experts; detailed reports, analyses, and conclusions; scientific analytical drawings;
annotated images and overlays of the Lincoln Ambrotype and features thereon;
experimental procedures and results; related expert and consultant write-ups; handwritten
notes, annotated figures and images, and detailed notes of Plaintiffs’ interactions with
their team of collaborators; and various duplication methods used to create images of the
Lincoln Ambroype to enable more detailed photogrammetric analyses.”
Dkt. 8, at 9-10. This list of broad, general terms does not describe any piece of information with
sufficient particularity for the Court to determine that it is a protected trade secret as distinct from
“matters of general knowledge in the trade or of special persons who are skilled in the trade.” Imax
Corp., 152 F.3d at 1164-65. This generality frustrates the Court’s ability to determine the likelihood that
The Lost Lincoln will use or disclose Plaintiffs’ confidential information. It could be that The Lost
Lincoln displays, for example, some of the very duplicate photographs that Plaintiffs’ experts made
under confidentiality agreements with Plaintiffs. It could also be that The Lost Lincoln uses or discloses
only independently reproduced methods or analyses that would be familiar to any person in the field of
photographic authentication. See Loop AI Labs, 195 F. Supp. 3d at 1111 (“[T]rade secret law protects
the right to maintain the confidentiality of facts, not ideas.”). Without specificity as to what information
Plaintiffs seek to protect, the Court cannot even begin to analyze whether the information is likely to
play a role in The Lost Lincoln – sight unseen. See Calendar Research, 2020 WL 4390391, at *4
(quoting X6D Ltd. v. Li-Tek Corps. Co., 2012 WL 12952726, at *1 (C.D. Cal. 2012)) (“[U]nless the
plaintiff engages in a serious effort to pin down the secrets a court cannot do its job.”).
These deficiencies raise deeper concerns in the context of the “First Amendment values” at issue
in Plaintiffs’ request for injunctive relief. Garcia, 786 F.3d at 747. On this limited record, the Court
would be required to speculate as to the contents of The Lost Lincoln and the circumstances of its
production. Before a final adjudication, a plaintiff’s evidentiary record is less developed and a

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

defendant’s opportunities to contest the plaintiff’s claims are far more limited. The prior restraint
doctrine counsels against preliminary guesswork at the peril of a defendant’s First Amendment rights.
See Latino Officers Ass’n, 196 F.3d at 465 (“[T]he danger of a prior restraint, as opposed to [an] ex post
… action, is precisely that making predictions ex ante as to what restrictions on speech will ultimately
be found permissible is hazardous and may chill protected speech.”). Therefore, the Court does not find
that Plaintiffs have demonstrated a likelihood of success on their trade secrets claim.
b. Breach of Contract
Plaintiffs have not brought a breach of contract claim against Discovery. Dkt. 1 ¶¶ 71-78.
Although Plaintiffs discuss the merits of this claim in their application, Dkt. 8, at 7-8, the Court does not
view it as relevant to the Winter analysis.
c. UCL
The California Uniform Trade Secrets Act (“CUTSA”), “provides the exclusive civil remedy for
conduct calling within its terms and supersedes other civil remedies based upon misappropriation of a
trade secret.” Alta Devices, Inc., 343 F. Supp. 3d at 888 (quoting Waymo LLC v. Uber Tech., Inc., 256
F. Supp. 3d 1059, 1062 (N.D. Cal. 2017); see Cal. Civ. Code § 3426.7. “It therefore supersedes
claims—including [UCL] claims—based on the same nucleus of facts as trade secret misappropriation.”
Id. “At the pleadings stage, the supersession analysis asks whether, stripped of facts supporting trade
secret misappropriation, the remaining factual allegations can be reassembled to independently support
other causes of action.” Id.
Plaintiffs’ trade secrets and UCL claim are based on the very same factual allegations – that
Defendants misappropriated the information related to authenticating the photograph that they had
sought to keep confidential. Dkt. 1 ¶¶ 79-85; Dkt. 8, at 13-14. Because Plaintiffs point to no facts
supporting a theory of recovery likely to fall outside the scope of CUTSA preemption, the Court
concludes at this stage that Plaintiffs’ UCL claims are unlikely to succeed on the merits. Id.; see also
Top Agent Network, Inc. v. Zillow, Inc., 2015 WL 7709655, at *6 (N.D. Cal. 2015) (citation and
quotation marks omitted) (“If there is no material distinction between the wrongdoing alleged in a
CUTSA claim and that alleged in a different claim, the CUTSA preempts the other claim.”).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

B. Likelihood of Irreparable Harm
“A preliminary injunction may issue only upon a showing that irreparable injury is likely in the
absence of an injunction.” VidAngel, Inc., 869 F.3d at 865 (citation and quotation marks omitted).
Because the Court concluded above that Plaintiffs have not demonstrated a likelihood of success
on the merits of their trade secrets claim, the Court need not reach Plaintiffs’ assertion that
misappropriation “almost always” constitutes irreparable harm, Dkt. 8, at 15, or that loss of control of a
trade secret constitutes irreparable harm, id. at 16. Without a likelihood of misappropriation, Plaintiffs
cannot demonstrate likelihood of irreparable harm based on misappropriation.
While Discovery argues that Plaintiffs’ decision to abstain from filing suit until a week before
broadcast precludes a finding of irreparable harm, Dkt. 14, at 10-11, that inference is not established by
the record. Plaintiffs sent three cease-and-desist letters to individuals whom they suspected of
misappropriating their confidential information between August 2, 2019 and April 3, 2020. Spolar Decl.
¶¶ 45-51. They filed suit just two weeks after learning of the upcoming broadcast. Id. ¶ 52. While
earlier litigation may seem advisable in hindsight, it is far from clear that Plaintiffs knew enough before
the broadcast was announced to commence suit.
However, Plaintiffs have failed to show that their claims cannot be remedied through monetary
relief. Without a showing of nonmonetary injuries or that money damages cannot be obtained, purely
economic harms are not irreparable. See Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir.
2015) (citation omitted) (“Purely economic harms are generally not irreparable, as money lost may be
recovered later, in the ordinary course of litigation.”); see also California v. Azar, 911 F.3d 558, 581
(9th Cir. 2018) (economic harm may be irreparable where plaintiffs “will not be able to recover
monetary damages”). Plaintiffs’ primary asserted injuries are monetary. Plaintiffs claim loss of
competitive advantage for their own documentary, and loss in value of their ownership interest in the
photograph. Dkt. 8, at 14-15. Although these damages are economic, Plaintiffs have not explained or
provided evidence that damages cannot be calculated or recovered.
While Plaintiffs also point to loss of goodwill or reputational harm, they provide no specific
evidence that otherwise available future business opportunities will likely be lost. See Herb Reed
Enters., LLC v. Florida Entm’t Mgmt., Inc., 736 F.3d 1239, 1250 (9th Cir. 2013) (holding that a single
complaint was insufficient evidence of irreparable harm based on damage to goodwill and reputation).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

The prior restraint doctrine gives the irreparable harm factor special salience. Because the First
Amendment disfavors prospective relief prohibiting speech in all but exceptional cases, a court should
be mindful of the heavy burden on a party seeking a prior restraint before concluding that asserted
injuries cannot be remedied by less intrusive, retrospective remedies. CBS, Inc., 510 U.S. at 1317-18.
Given the apparent viability of monetary remedies and considerable uncertainties about what, if any,
confidential information The Lost Lincoln will disclose, Plaintiffs fail to meet their heavy burden to
show irreparable harm at this stage.
C. Balance of the Equities
“Before issuing a preliminary injunction, courts must balance the competing claims of injury and
must consider the effect on each party of the granting or withholding of the requested relief.” VidAngel,
Inc., 869 F.3d at 866 (citation and quotation marks omitted).
Plaintiffs devoted thousands of hours and hundreds of thousands of dollars to their authentication
efforts over 25 years. Spolar Decl. ¶¶ 5-6. Without an injunction, they may lose immediate recognition
for their work on a national broadcast – and the immediate payout such a broadcast could bring.
However, if the broadcast proceeds, Plaintiffs are not precluded from seeking to set the record straight
about their authentication efforts in any medium. Moreover, should they prevail on the merits, a
damages award could remedy their lost economic opportunity.
For its part, Discovery has set aside a valuable Sunday primetime slot, spent $4 million on
marketing the program, and seeks to use this first installment in their new investigative anthology series
to generate excitement for future titles. D’Alessandro Decl. ¶¶ 2-4. An injunction would frustrate these
efforts. See Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 898 (9th Cir. 2004) (similar evidence
supported finding that balance of equities favored television network).
More importantly, even a temporary delay to Discovery’s broadcast would constitute irreparable
harm because it would operate as a prior restraint on Discovery’s speech. Cuviello, 944 F.3d at 832
(citation omitted) (“Even if that freeze is only temporary, the loss or threatened infringement upon free
speech rights ‘for even minimal periods of time[] unquestionably constitutes irreparable injury.’”). With
First Amendment values at stake, the balance of the equities factor weighs against injunctive relief.

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 Case 2:20-cv-08837-SVW-MAA Document 22 Filed 10/02/20 Page 12 of 12 Page ID #:249

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No.
Title

CIVIL MINUTES - GENERAL
2:20-cv-08837-SVW-MAA

Date
Jerry A. Spolar et al. v. Discovery Communications, LLC et al.

10/2/2020

D. Public Interest
“[T]he court must pay particular regard for the public consequences in employing the
extraordinary remedy of injunction.” VidAngel, 869 F.3d at 867 (citation and quotation marks omitted).
The Ninth Circuit has “consistently recognized the significant public interest in upholding First
Amendment principles.” Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (citation and quotation marks
omitted). “[O]rdering an official of [a] broadcasting company to produce a film just before its scheduled
broadcast so that it could be examined” is a form of “prepublication censorship [that] is an inherent
threat to expression, one that chills speech.” Goldblum, 584 F.2d at 907. “It is a fundamental principle
of the first amendment that the press may not be required to justify or defend what it prints or says until
after the expression has taken place.” Id. Because an injunction under these circumstances would run
afoul of that principle, the public interest favors Discovery.
iii. Conclusion - Winter Factors
Plaintiffs have not met their burden to show that any of the Winter factors favor injunctive relief,
much less the heavier burden to show entitlement to a prior restraint. Therefore, weighing the factors
together, the Court will deny Plaintiffs’ TRO application.
IV.

Conclusion
For the foregoing reasons, the Court DENIES Plaintiff’s application for a TRO.
IT IS SO ORDERED.

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