In their Motion for Clarification, Defendants request that this Court clarify certain obligations imposed by the Order. In the interests of minimizing any apparent confusion resulting from the Order, the Court will clarify: 1) whether Defendants are required to maintain data related to Plaintiff's code or whether Defendants are required to destroy such data; and 2) whether the Order fully adjudicated Mr. Korman's Motion to Strike, or, in the Alternative, Dismiss Plaintiff's First Amended Complaint (DE 42).[2]

In its Motion for Clarification, Plaintiff requests that the Court clarify the Special Master's role in this discovery, specifically, whether Special Master Zack shall oversee discovery matters generally or if his role is restricted to enforcement of the Court's Order.

In their Motion to Modify the Preliminary Injunction Order, Defendants argue that Plaintiff has waived the right to assert certain trade secret claims by failing to contest Defendants' re-designation of certain confidential materials as non-confidential per the process outlined in this Court's Stipulated Protective Order to Govern Dissemination of Confidential Information (DE 39), and, accordingly, Defendants seek a modification of any aspect of the Order that was premised upon the existence of trade secrets.

The Court will first address the Motions for Clarification and then discuss Defendants' Motion to Modify the Preliminary Injunction Order.

The Order provides that Defendants must cease from “copying, selling, offering for sale, using, maintaining, employing, modifying, accessing, altering, making derivative works from, or otherwise benefiting from any of Plaintiff's source code and/or decrypted code received, obtained, downloaded from Plaintiff, transferred from Plaintiff, or in Defendants' care, custody or control.” (DE 91 at ¶2; emphasis added). The Order goes on to provide a framework by which neutral third-party forensic experts will be selected and engaged to “access all computers, servers, electronic storage devices, or any related systems in response to Paragraph 2... to image and preserve such data.” (DE 91 at ¶5; emphasis added). Finally, the Order provides, “the Court will appoint in a separate order a Special Master who will oversee compliance with the order and who will also report to the Court any discovery disputes during this litigation.” (DE 91 at ¶10; emphasis added).

*2 Defendants' Motion raised six arguments in support of dismissal: 1) Plaintiff lacked statutory authority to conduct business from Florida; 2) Plaintiff lacked statutory authority to file its lawsuit; 3) Plaintiff is not the alleged owner of the business or contracts associated with this litigation; 4) Plaintiff may not enter a case on an amended complaint when this Court has never had subject matter jurisdiction over the original complaint; 5) Plaintiff may not enter this case on an amended complaint in the first instance; and 6) the Amended Complaint states no plausible claim against Korman, individually, upon which relief may be granted. (DE 42 at 2).[3]

The clear, unambiguous purpose of the Order is to prevent Defendants benefitting from their possession of Plaintiff's source code, while simultaneously ordering preservation of the data for imaging by third-party forensic experts. Thus, Defendants must maintain the data until it is imaged and preserved for use as evidence, after which time, an attorneys' eyes only copy of the evidence should be preserved for use by Defendants' counsel and Defendants shall cease all activities enumerated by the Order and destroy all remaining copies of Plaintiff's data.

Special Master Zack's role in this case is “to oversee compliance with the [O]rder.” (DE 91 at ¶10). Accordingly, Special Master Zack will oversee compliance with the requirements of this Court's Order and report any disputes that arise.[4]

In the Order, the Court specifically noted that it considered the grounds for dismissal raised by Defendants' Motion to Strike or Dismiss (DE 42), before granting the preliminary injunction and denying Defendants' Motion to Strike or Dismiss. (DE 91 at 11, n.5). Accordingly, Defendants' Motion to Strike or Dismiss was fully adjudicated on the merits.

Defendants seek a modification of any aspect of the Order that was premised upon the existence of certain trade secrets. Defendants argue that Plaintiffs waived the right to assert that these trade secrets are still trade secrets by virtue of Plaintiff's failure to contest Defendants re-designation of certain confidential deposition excerpts and documents as non-confidential under the rubric established in this Court's previous Stipulated Protective Order to Govern Dissemination of Confidential Information. (DE 117 at 5). The Court finds that Defendants' re-designation of the trade secrets as non-confidential cannot, as a matter of law, destroy Plaintiff's trade secret protections. § 688.002(4)(a), Fla. Stat. (2012) (stating that to qualify as a “trade secret” such information must derive independent economic value (actual or potential) from not being generally known or not being readily ascertainable by proper means).

As the Order's explicit purpose was to protect the trade secrets contained in the deposition excerpts and documents from disclosure, Defendants' mere re-classification of the deposition excerpts and documents as non-confidential under the rubric established by the Stipulated Protective Order is without effect and the bases upon which the Order was granted are still valid.

*3 Accordingly, after careful consideration and the Court being otherwise fully advised, it is therefore ORDERED, ADJUDGED, and DECREED that:

DONE AND ORDERED in Chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 26th day of September, 2013.

A Response and Reply was filed as to Defendants' Motion for Clarification. (DE 108, 112). A Response, but no Reply, was filed as to Plaintiff's Motion for Clarification, and the time to reply has passed. (DE 107). A Response was filed as to Defendants' Motion to Modify Preliminary Injunction Order. (DE 129).

Defendants also seek clarification of what it should do if certain third parties (namely, Brian Crumrine, Peter Eichhorst, Jr., Paul Gregoire, and the account owners at Host Gator and Beanstalk), who are outside of Defendants' control, refuse to turn over certain information, the production of which is required by the Order. (DE 100 at 6). As this question is purely speculative (Defendants have not alleged any such refusal by said third parties), the Court declines to address it.

The first five of the above arguments were previously raised, verbatim, by Kor Media Group LLC (“KMG”), in its Motion to Strike (DE 29). The Court addressed such arguments and denied Defendant KMG's Motion upon finding Plaintiff's Amended Complaint to be proper. (See DE 43).

The Court has considered Plaintiff's requested modification of the Order Appointing Compliance Monitor (DE 99), which would limit Special Master Zack's role to enforcement of the Order, and finds it unwarranted. The Order Appointing Compliance Monitor is sufficiently clear in delineating Mr. Zack's role to “ensure compliance with the Court's Preliminary Injunction.” (DE 99 at 1).