SOLAR CONNECT, LLC, a Nevada limited liability company, Plaintiff, v. JAMES ENDICOTT, an individual residing in the State of Utah; INTERNET PRODUCTS ONLINE, LLC, a Utah limited liability company dba SALAR LAUNCH aka SOLAR LAUNCH, a Utah limited liability company; JORDAN GARN, an individual residing in the State of Utah; and DOES 1-10, Defendants Case No.: 2:17-cv-1235 United States District Court, D. Utah, Central Division Filed April 06, 2018 Waddoups, Clark, United States District Judge SECOND AMENDED EX PARTE SEIZURE ORDER AND EVIDENCE PRESERVATION ORDER *1 Pursuant to the Federal Defend Trade Secrets Act (“DTSA”) 18 U.S.C. § 1836, and in full consideration of the Ex Parte Application for Seizure and Preservation of Evidence Orders filed by Plaintiff Solar Connect, LLC, (“Solar Connect”), and the accompanying Declarations of Richard Kermit Wells, Wyatt Timothy Ernst, Scott Allan Harward, and Richard L. Dorigatti, and the Exhibits thereto, the Court GRANTS Plaintiff’s Application for Ex Parte Seizure and Evidence Preservation Orders (Docket No. 4) and enters this Ex Parte Seizure Order against Defendants James Endicott (“Mr. Endicott”), Internet Products Online, LLC dba Salar Launch aka Solar Launch (“Internet Products” or “Solar Launch”), and Jordan Garn (“Mr. Garn”)(collectively “Defendants”) for the imaging of computers and computer devices, including copying of files from any associated networks, as further detailed below. Additionally, pursuant to this Court’s inherent authority and the All Writs Act, 28 U.S.C. § 1651, third parties Dropbox Inc. and Google, Inc. are hereby ordered to copy and preserve, during the pendency of this action or until further order of this Court, all digital files and data respectively within the Dropbox and Google accounts of any of the Defendants, including James Endicott and Jordan Garn. A. Ex Parte Seizure Order Pursuant to the DTSA, 18 U.S.C. 1836 (b)(2)(B), an ex parte seizure order must include the following elements: (i) set forth findings of fact and conclusions of law required for the order; (ii) provide for the narrowest seizure of property necessary to achieve the purpose of this paragraph and direct that the seizure be conducted in a manner that minimizes any interruption of the business operations of third parties and, to the extent possible, does not interrupt the legitimate business operations of the person accused of misappropriating the trade secret; (iii) (I) be accompanied by an order protecting the seized property from disclosure by prohibiting access by the applicant or the person against whom the order is directed, and prohibiting any copies, in whole or in part, of the seized property, to prevent undue damage to the party against whom the order has issued or others, until such parties have an opportunity to be heard in court; and (II) provide that if access is granted by the court to the applicant or the person against whom the order is directed, the access shall be consistent with subparagraph (D); (iv) provide guidance to the law enforcement officials executing the seizure that clearly delineates the scope of the authority of the officials, including— (I) the hours during which the seizure may be executed; and (II) whether force may be used to access locked areas; (v) set a date for a hearing described in subparagraph (F) at the earliest possible time, and not later than 7 days after the order has issued, unless the party against whom the order is directed and others harmed by the order consent to another date for the hearing, except that a party against whom the order has issued or any person harmed by the order may move the court at any time to dissolve or modify the order after giving notice to the applicant who obtained the order; and *2 (vi) require the person obtaining the order to provide the security determined adequate by the court for the payment of the damages that any person may be entitled to recover as a result of a wrongful or excessive seizure or wrongful or excessive attempted seizure under this paragraph. Accordingly, in compliance with 18 U.S.C. § 1836(b)(2)(B), the Court provides the following: 1. Findings of Fact and Conclusions of Law The Court finds the following facts and conclusions of law to support this Order: (a) This court has jurisdiction over the subject matter of this case pursuant to the DTSA and 28 U.S.C. § 1331, and has personal jurisdiction over all parties hereto. Venue is proper pursuant to 28 U.S.C. § 1391(b). (b) The Complaint states a claim upon which relief may be granted against the Defendants under the DTSA. (c) Equitable and injunctive relief other than ex parte seizure would be inadequate to achieve the purpose of preserving digital files and data containing Solar Connect’s trade secrets and evidence of misappropriation in this case. The Defendants have a high level of computer and technical proficiency and there have been attempts in the past by Defendants to delete data and information from computers. Defendants have also shown a willingness to provide false and misleading information, including false information to conceal their identity. Furthermore, Defendants have shown a willingness to hide information and move computer files rather than comply with requests to cease use of Plaintiff’s proprietary materials. Thus, it appears that Defendants would evade, avoid, or otherwise not comply with an order issued pursuant to Rule 65, Fed. R. Civ. P. or other equitable remedy. (d) If an ex parte seizure were not ordered, Solar Connect would almost certainly suffer immediate and irreparable harm due to Defendants’ actions. Injury to Solar Connect would include destruction of probative evidence and a continued disadvantage in the market place. (e) It clearly appears that Defendants are in actual possession of Solar Connect’s trade secrets and evidence relating to the misappropriation of those trade secrets, including confidential backend code and data as well as confidential pricing information. (f) There is a high risk that Defendants will destroy, move, hide or otherwise render inaccessible Solar Connect’s trade secrets and evidence relating to Defendants’ misappropriation of those trade secrets in the absence of an ex parte seizure. (g) The balance of hardships in granting an ex parte seizure weighs heavily in Solar Connect’s favor. (h) Defendants will suffer no undue hardship or harm as a result of the ex parte seizure. No physical items such as computers or cell phones will be seized, and Defendants will be able to continue with any legitimate business activities. The seizure is limited to making copies of digital files and data, including imaging Mr. Endicott’s computer devices and does not require seizure of the devices. The requested seizure merely preserves evidence that Defendants misappropriated Solar Connect’s trade secrets, to which they have no legitimate claim. (i) It is unlikely that the seizure of digital files and data or imaging Defendants’ computer devices will harm any third parties. (j) Solar Connect has not publicized the requested seizure. *3 (k) Solar Connect is likely to succeed in showing that the files, data, and information at issue are protectable as trade secrets. (l) Solar Connect is likely to succeed in showing that Defendants misappropriated trade secrets and confidential information by improper means. (m) The specific matter to be seized is described with reasonable particularity both in Solar Connect’s ex parte seizure application and in this Order below. (n) The facts here demonstrate extraordinary circumstance wherein an ex parte seizure is warranted, as contemplated by the DTSA. 2. Scope of Seizure “[T]he narrowest seizure of property necessary to achieve the purpose” of the seizure shall be conducted, in a manner that “minimizes any interruption of the business operations of third parties and, to the extent possible, does not interrupt the legitimate business operations of the person accused of misappropriating the trade secret.” 18 U.S.C. § 1836(B)(ii). In particular, only the property described in section 4 below shall be seized, and only for purposes of preservation and later discovery. The seizure shall take place according to the guidance provided in section 4 below. No physical property, such as computers, tablet computers, smartphones or documents, will be seized, other than for the period required to image the computers and computer devices, including copying of files from any associated networks. The imaged computers and devices, including copied files and data, will be made and stored on one or more external hard drives, and no files will be deleted from the devices. The imaging of devices and any copying of files from any associated networks shall be done so as to preserve metadata and maintain files in their native format. Law enforcement officials will proceed with the seizure at the time and place specified below, and in the most efficient manner possible to minimize disruptions to Defendants’ legitimate business operations and to any third parties. 3. Order Protecting Seized Property After the digital files are copied onto one or more hard drives, the hard drive(s) shall be taken directly into the custody of this Court. Until Plaintiff and Defendants have an opportunity to be heard in court, access to the seized digital files by Plaintiff and Defendants shall be prohibited and no copies, in whole or in part, of the seized digital files shall be made. The Court shall secure the seized material from physical and electronic access during the seizure and while in the custody of the Court. Any hard drive or other storage medium on which the seized digital files reside shall be prohibited from connection to a network or to the Internet without consent of both Plaintiff and Defendants, until after a hearing on the matter takes place. The Court shall protect the confidentiality of seized materials that are unrelated to the trade secret information ordered seized, unless Defendants consent to disclosure of the material. 4. Guidance to Law Enforcement Officials Executing the Seizure, and Appointment of Technical Expert One or more Federal law enforcement officers from the U.S. Marshals Service shall take the following measures to seize the evidence on Defendants James Endicott’s and Internet Products Online LLC’s desktop computer(s), laptop computer(s), tablet computer(s), smartphone(s), external storage devices, and any associated network(s), at Mr. Endicott’s dedicated home office or where otherwise located at the premises where his office is located, as further detailed below. The Federal law enforcement officers shall, with the assistance of the court appointed technical expert, commence or endeavor to commence the seizure as soon as reasonably possible on Tuesday, December 5, 2017, starting between the hours of 8:00 AM and 10:00 AM, at Mr. Endicott’s dedicated office and home at 75 North 850 East, Lindon, UT 84042, and shall continue until completion of the seizure; in the event the Federal law enforcement officers are unable to complete the seizure upon initial search, they may return to complete the seizure, and in any event the seizure must take place within 3 business days of entry of this Order. The Federal law enforcement officer(s) may use reasonable force for the protection of persons and the premises where the seizure is to take place and to generally provide for a safe environment for conducting the seizure. Federal law enforcement officers may also use reasonable force to access the home and to access any locked area or to prevent anyone from accessing the desktop computer(s), laptop computer(s), tablet computer(s), smartphone(s), external storage devices, and any associated network(s) during the seizure, including while the imaging of the devices and copying of files from associated networks is taking place. Defendants and all persons at premises at 75 North 850 East, Lindon, UT 84042 shall cooperate with the Federal law enforcement officers and are hereby ordered to disclose and provide to the Federal law enforcement officers all computers, computer devices, and login credentials (including passwords) needed or reasonably requested for consummation of the seizure. If any Defendant or other person at the seizure location refuses to provide or disclose computers, computer devices, or login credentials (including passwords) needed for consummation of the seizure, the Federal law enforcement officers may conduct a reasonable search of the premises at 75 North 850 East, Lindon, UT 84042 to locate such computers, computer devices, or login credentials. Refusal by any Defendant or persons to cooperate with the Federal law enforcement officers by refusing to provide or disclose computers, computer devices, or login credentials (including passwords) needed for consummation of the seizure shall be held in contempt of this order and subject to appropriate sanctions. *4 Defendants and any of their employees, affiliates, contractors, other persons working for or with Defendants, and any persons at the premises where the seizure is to take place when commenced, shall be prohibited from leaving the premises or accessing any telephone, mobile phone, computer, or other computing device during the seizure, including while imaging of computers and computer devices, including copying of files from any associated networks, is taking place; provided, however that a Defendant shall be permitted to make a call to his or its legal counsel using a phone provided by the Federal law officer onsite. In the event that any person at the premises is required to leave for medical attention, safety, or other good cause, the Federal law enforcement officers may permit such person to leave; provided that the person shall not be permitted to leave with any computers or computer devices (including any smart phones or tablet devices) and shall not be able to return to the premises until after completion of the seizure. State or local law enforcement officials may participate and assist in the seizure if the Federal law enforcement official(s) determine it is needed, however the Plaintiff or any of its representatives or associates shall not be present during the seizure nor be allowed to participate in the seizure in any way. The Court determines that participation of a technical expert in the seizure will aid the efficient execution of and minimize the burden of the seizure. Accordingly, should the Federal law enforcement officer(s) request participation of a technical expert, the Court hereby appoints Michael Gutierrez of Xact Data Discovery, telephone 801949-4264, as a technical expert under 18 U.S.C. § 1836(b)(2)(E), who has no affiliation with Plaintiff, to accompany the Federal law enforcement officer(s) during the seizure. The technical expert shall be bound by the courtapproved non-disclosure agreement, attached hereto as Exhibit A. The technical expert shall bring at least four external hard drives or other storage devices having at least 2-4 TB of storage space each to the seizure, on which “images” of the devices and copies of files from any associated networks may be stored. The images of devices and copies to be made may include, but are not limited to, full images of any and all computers or computer devices on the premises, including any desktop computer(s), laptop computer(s), tablet computer(s), smartphone(s), and external storage devices, and copies of from any associated networks, including, without limitation, any data files, code, software, hidden files, image files, emails, chats (including Skype chats), other electronic communications and documents, on any and all networks associated with the desktop computer(s), laptop computer(s), tablet computer(s), smartphone(s), or external devices on the premises, whether such computers are in plain sight, stored in bags, drawers or closets, including but not limited to laptop computers, tablet computers, servers, desktop computers; (ii) “cloud” or other online storage folders (including Dropbox files and folders, Google Drive, OneDrive, iCloud, or similar online storage) and their contents; (iii) server accounts and (iii) any associated network(s). The Defendants and other persons at the premises are hereby ordered by the Court to provide any usernames, passwords, login credentials, biometrics (fingerprints, retina scans, or the like) or other information necessary for the technical expert to access Defendants’ digital files, computers, folders, and networks, including such login information for Defendants’ Dropbox, Google, Skype, or other online account(s). The technical expert shall preserve such login information and provide it to the Court but shall otherwise keep it confidential and not disclose it to Plaintiff. Plaintiff shall reimburse the technical expert for the cost of the hard drive(s) or other storage device(s) used and for the reasonable fees and costs to accomplish the seizure. After the seizure, Defendants shall be allowed to resume their normal course of business, subject to any other orders of this Court. The hard drive(s) or other storage device(s) shall immediately be delivered by hand to this Court’s custody and protection. 5. Date for Seizure Hearing A hearing according to 18 U.S.C. § 1846(B)(v) and (F) is set for Monday, December 11, 2017 at 2:00 PM at the United States District Court, 351 S. West Temple, Room 8.100, Salt Lake City, UT 84101, which is after the time period for accomplishing the seizure, and not later than 7 days after this order issues. Pursuant to the DTSA, Defendants and any others harmed by the order may consent to a later date for the hearing, and “a party against whom the order has issued or any person harmed by the order may move the court at any time to dissolve or modify the order after giving notice to the applicant who obtained the order.” *5 Defendants may review their own computers, computer devices, and associated networks to determine whether any imaged or copied files that are in the custody of the Court are of a personal or privileged nature, are irrelevant to the subject matter of this case, or are otherwise not entitled to protection as a trade secret and therefore are not subject to seizure under the DTSA. Defendants may identify such files to the Court prior to the hearing on December 11, 2017, and will be provided an opportunity to raise any objections regarding discovery of such files during the hearing. Materials as to which objections are sustained shall not be made available to the plaintiff. 6. Security Plaintiff Solar Connect is directed to provide to the Court a security in the amount of Five Thousand Dollars ($5,000), for the potential payment of damages that any person may be entitled to recover as a result of a wrongful or excessive seizure or attempted seizure. Additional security will not be required as Defendants will keep possession of all of their computers and files, and this Order is only requiring that copies be made. The Court will hold this security until after the Seizure Hearing described in section 5 above is completed and the Court makes any related decision. B. Evidence Preservation Order The Court orders third party Dropbox Inc. to make digital copies of all files, including previously deleted files, residing in the Dropbox accounts of Defendants James Endicott and Jordan Garn, including, but not limited to any accounts associated with the email addresses jamesendicott@gmail.com, james@serentoventures.com, jordan@rusticahardware.com, and admin@solarlaunch.org. Dropbox Inc. is also ordered to preserve reports of all historical activities (e.g., deletion of files and folders, creation of files and folders, etc.) on the accounts of Defendants James Endicott and Jordan Garn, including, but not limited to any accounts related with the above-referenced email addresses. While this order mentions specific email addressed for Defendants James Endicott and Jordan Garn, this Order shall apply to any accounts held by said Defendants during the past eighteen (18) months. Dropbox Inc., shall provide NO notice of the copying and reporting to any of the Defendants. Upon entry of this Order, Plaintiff shall promptly serve this Order on the registered agent of Dropbox Inc. and shall email a copy to legal@dropbox.com. The Court also orders third party Google LLC (or such Google entity as controls the accounts referenced in this Order) to make digital copies of all files, including previously deleted files, residing in any Google accounts of Defendants James Endicott and Jordan Garn, including, but not limited to any web hosting, email, and cloud storage accounts associated with any of the Defendants’ email addresses, including jamesendicott@gmail.com, james@serentoventures.com, jordan@rusticahardware.com, and admin@solarlaunch.org. Google is also ordered to preserve reports of all historical activities (e.g., deletion of files and folders, creation of files and folders, etc.) on the accounts of Defendants James Endicott and Jordan Garn, including, but not limited to any accounts related with the above-referenced email addresses. While this order mentions specific email addresses for Defendants James Endicott and Jordan Garn, this Order shall apply to any Google accounts held by said Defendants during the past eighteen (18) months. Google shall provide NO notice of the copying and reporting to any of the Defendants. Upon entry of this Order, Plaintiff shall promptly serve this Order on the registered agent of Google LLC. The Court also specifically orders Defendants to preserve all of their files (including any files in their possession, custody, or control) relating to solar energy, solar energy sales leads, and online marketing, specifically including any emails, software and code used for related websites and platforms, online and/or social media advertising accounts, and any files relating to Solar Connect since the time of Mr. Endicott’s departure from employment at Solar Connect, and specifically to not copy, modify, delete, or disseminate any such files or to close any online or social media advertising accounts, during the entire pendency of this matter C. Conclusion *6 In keeping with the foregoing, ex parte seizure of the digital files and data on Defendants James Endicott’s and Internet Products Online LLC’s computers and computer devices, as well as on any associated networks, including by the imaging of Defendants’ desktop computer(s), laptop computer(s), tablet computer(s), smartphone(s), and external storage devices, and copying of files and data on any associated networks, is HEREBY ORDERED. It is FURTHER ORDERED that Dropbox Inc. and Google LLC shall make digital copies of all files, data, emails and other electronic communications in the Google accounts of Defendants James Endicott and Jordan Garn. All seized files shall be immediately delivered to the custody of this Court. Google and Dropbox shall preserve all copied files. It is FURTHER ORDERED that Defendants shall preserve evidence relating to any solar energy and lead generation related businesses of Defendants or relating to Solar Connect as described above. It is FURTHER ORDERED that Federal law enforcement officer(s) shall serve a copy of this Order and the submissions of the Applicant to obtain this Order be made upon Defendants. Upon making service, the officers shall carry out the seizure in accordance with this Order. IT IS SO ORDERED, this 5th day of April, 2018.