Galinov v. Nazarov-Galinov
Galinov v. Nazarov-Galinov
2024 WL 4635172 (S.D. Fla. 2024)
September 12, 2024
Goodman, Jonathan, United States Magistrate Judge
Summary
A husband sought a preliminary injunction against his wife, alleging that she accessed his iCloud account without authorization and obtained sensitive information. The court denied the injunction, finding that the husband had not shown a substantial likelihood of success on the merits or irreparable harm. The court also stated that the husband could obtain the same relief through the discovery process or from the state court handling their divorce proceedings.
DMITRI GALINOV, Plaintiff,
v.
KAREN NAZAROV-GALINOV, Defendant
v.
KAREN NAZAROV-GALINOV, Defendant
CASE NO. 24-22337-CIV-WILLIAMS/GOODMAN
United States District Court, S.D. Florida
Entered on FLSD Docket September 12, 2024
Goodman, Jonathan, United States Magistrate Judge
REPORT AND RECOMMENDATIONS ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
*1 In this Computer Fraud and Abuse Act (“CFAA”)[1] action, Dmitri Galinov (“Plaintiff” or “Husband”) seeks a preliminary injunction against his spouse, Karen Nazarov-Galinov (“Defendant” or “Wife”).[2] [ECF No. 6]. Defendant filed a response in opposition [ECF No. 19] and Plaintiff filed an optional reply [ECF No. 27].
United States District Judge Kathleen M. Williams referred the preliminary injunction motion to the Undersigned for a Report and Recommendations. [ECF No. 7]. The Undersigned held an evidentiary hearing. [ECF Nos. 34; 40]. Each party testified on their own behalf and the Undersigned admitted Plaintiff's Exhibits 2–10 and Defendant's Exhibits 8 and 15 into evidence. [ECF Nos. 35; 36; 38; 40, p. 50].
For the reasons discussed in more detail below, the Undersigned respectfully recommends that Judge Williams deny Plaintiff's motion for a preliminary injunction [ECF No. 6].
I. Background
Plaintiff alleges that “Defendant, [unlawfully and] without authorization, accessed his iMessages and other data [stored on his Apple iCloud account] on numerous occasions over the course of approximately four months,” through the (mis)use of an Apple iPad 6th generation (“iPad6”) and an Apple iPad 9th generation (“iPad9”). [ECF No. 1, ¶ 20].
The Complaint asserts the following CFAA violations: (1) exceeding authorized access to the iPad6 (Count I); (2) unauthorized access to Plaintiff's iCloud account (by use of the iPad6) (Count II); and (3) unauthorized access to Plaintiff's iCloud account (by use of the iPad9) (Count III). [ECF No. 1]. Plaintiff seeks monetary damages (compensatory, consequential, and economic), injunctive relief, and attorney's fees. Id. at 11 (prayer for relief).
Shortly after filing the Complaint, Plaintiff filed the instant motion “seek[ing] an injunction from this Court to stay [Defendant]’s [alleged] illegal use of his data, account for the extent of her breach to remediate the harm done, prevent her destruction of evidence of these offenses, and submit to third party examination, the instrumentalities of her wrongdoing.” [ECF No. 6, p. 2].
Specifically, Plaintiff seeks to:
1. enjoin his Wife from: (a) directly or indirectly accessing Plaintiff's iCloud account or any data taken from his iCloud account; (b) directly or indirectly obtaining or using information or data taken from the iCloud account for any purpose; (c) directly or indirectly destroying, concealing or altering the data obtained from the iCloud account; and
2. compel her to: (a) immediately disgorge and provide to Plaintiff any data retrieved from the iCloud account, that is in her possession or control; (b) produce to Plaintiff the iPad6 and iPad9 to be imaged and preserved by Plaintiff's computer forensic expert; (c) provide to Plaintiff (and Plaintiff's expert) any device used by Defendant to duplicate or transmit data taken from Plaintiff's iCloud account; and (d) agree on electronically stored information (“ESI”) search protocols within a specified time. [ECF No. 6-9, pp. 20–21].
*2 On the same day she filed her response to the instant motion, Defendant also filed a motion to stay proceedings during the pendency of the Divorce Case or to dismiss the Complaint. [ECF No. 18]. Plaintiff filed a response in opposition [ECF No. 26] and Defendant filed an optional reply [ECF No. 30]. The stay/dismissal motion has not been referred to me. Nonetheless, I will briefly discuss that motion (and the corresponding briefs) because it affects Plaintiff's request for a preliminary injunction.
II. Facts[3]
The parties have been married for approximately nine years and have two children: D.G. (age seven) and A.G. (age five). They live in Miami, Florida and (until recently) had a second home in Greenwich, Connecticut.[4]
As noted above, the parties are in the process of obtaining a divorce. As part of that proceeding, the divorce court will be dividing the marital assets pursuant to an antenuptial agreement.
The Husband is the CEO of 24 Exchange, a software company which facilitates currency transactions between banks. He regularly communicates with his business partners, associates, and potential customers through short message service (“SMS”), multimedia messaging service (“MMS”), and iMessages (collectively, “messages”) on his iPhone, including during the relevant time period. The topics discussed in the messages include HR-related issues, proprietary pricing information, software functionality, and the status of regulatory filings.[5] During this timeframe, the Husband also exchanged messages with his former divorce attorney about the Divorce Case.
The messages are stored on the Husband's personal iCloud account, which he accesses on his iPhone. The messages sync to his iCloud account. It would be damaging to 24 Exchange if some of these messages were disclosed to competitors.
The Husband never shared his iCloud account password with anyone (including his Wife) because he wanted to keep his communications private. He did not permit his Wife or children to access his iCloud account. The Wife does not know her Husband's iCloud account password and never logged into the Apple iCloud using the Husband's password or entered it into a device.
The Husband purchased an iPad6 to use with the Connecticut home's security system. At the evidentiary hearing, the Husband stipulated that the parties jointly owned the iPad6. [ECF No. 40, p. 44].[6] The Wife acknowledged that the iCloud account and the communications contained in it are the Husband's personal property and not marital property. Id. at 93.
With the assistance of an IT professional, the Husband set up the iPad6. He signed into his iCloud account on the device using his iCloud account password because an iCloud account was necessary to display the security cameras on the iPad6. Id. at 58–59. The Husband intentionally set up the iPad6 so that it would not have access to the messages on his iCloud account. Id. at 27.
The parties kept the iPad6 on the kitchen counter in the Connecticut home. The device was always on, unless it needed a reboot or it lost power. The Husband set the six-digit passcode for the iPad6 as “123456.” The couple's nannies, property managers, and some family members all knew the passcode.
Although the iPad6 was primarily purchased for the home's security cameras, the children used it to look at family photos, watch footage from the security cameras, or play with the weather app. The family photos displayed on the iPad6 came from the Husband's iPhone, which was synced to it.
*4 In December 2023 or January 2024,[8] the Wife purchased an iPad9 in Connecticut. She wanted to transfer the security camera application (“app”) from the iPad6 to the iPad9. An Apple store employee in Greenwich explained to her that she could transfer the app by placing the two devices side-by-side. The Wife followed these instructions and was able to sync the iPads.
The Wife did not use (or need) the Husband's iCloud account password to sync the devices. There was a pop-up notification that asked for the iCloud account password, but she cancelled the notification because she did not know the Husband's password.
On January 3, 2024, the Husband received an alert from Apple stating that his Apple ID was used to sign into an iPad (9th Generation). [ECF No. 36-1 (Plaintiff's Exhibit 2)]. The Husband sent the Wife a text message asking, “Did you sign in with an IPod [sic]?” Id. The Wife responded “No.” Id. The Husband believed the Wife's response, otherwise he would have changed his iCloud account password to maintain his privacy.[9] He did not change his password at that time, despite having received an Apple alert that someone had signed into his iCloud account with an iPad.
The Wife left the iPad9 in the Connecticut home. The six-digit passcode for the iPad9 was the same as the iPad6 (123456). When the Husband used the Connecticut home, the iPad9 was still there.
The Wife took the iPad6 with her when she returned to Miami in order to maintain access to the Husband's messages. She did not tell the Husband she had the iPad6. She continued to look at the Husband's messages on the iPad6 in Miami. She kept the iPad6 in her bedroom, which can be (but is not always) under video surveillance. This is an area of the house where the Husband is not supposed to enter without her permission, although he sometimes does it anyway.
She viewed the Husband's messages on the iPad6 most days. The Wife clicked on some of the messages and would read through them. She did not tell her Husband she was reading his messages. She took photos of the Husband's messages with her iPhone; she did not take screenshots or forward the messages using the iPad6. The Wife knew that if she took screenshots with the iPad6 or if she forwarded the messages there would be a record of it on the device and the Husband would become aware of it. The Wife gave these photos to her divorce attorney.
Both parties were scheduled for depositions on April 9, 2024 in the Divorce Case. Before the start of the depositions, the Husband learned that the Wife had been viewing the messages stored on his iCloud account. The Wife's divorce attorney provided the Husband's counsel with a link to a dropbox containing photos [ECF Nos. 6-4; 36-3 (Plaintiff's Exhibit 4); 36-7 (Plaintiff's Exhibit 8)] of the Husband's messages taken by the Wife.
During the Wife's deposition, the Husband's then-divorce attorney asked the Wife about the photographs she had taken:
Q[.] Are these the only photographs you have taken of the iPad?A[.] No.Q[.] There are others?A[.] Yes.
[ECF No. 36-2, p. 19:19–23 (Plaintiff's Exhibit 3)]. When asked “[w]here are the other photographs that you have taken of the iPad?,” she responded, “They are in [the] [d]ropbox.” Id. at 20:12–14. At the evidentiary hearing, the Wife explained that all of the photographs “were not presented to [her] at the deposition” and “only a few [had been] printed out.” [ECF No. 40, pp. 91–92]. “The rest of the photos [were] in the [d]ropbox that [the Husband's divorce attorney] received.” Id. at 92.
*5 On April 17, 2024, the Husband filed in the Divorce Case a verified ex parte motion for a temporary injunction against the Wife and her divorce attorney. [ECF No. 38-2 (Defendant's Exhibit 15)].[10] The motion asked the divorce court judge to “requir[e] the Wife and her counsel to immediately produce the Husband's iPad and the Wife's two cell phones for a forensic examination to determine the scope of the Wife's access to and dissemination of the illegally obtained, confidential attorney-client, business, and other privileged data from the Husband.” Id. at ¶ 28.
Both iPads are in a safe in the Wife's divorce attorney's office. [ECF No. 40, p. 87]. The Wife has not had access to either device since they became an issue in the Divorce Case. On February 26, 2025, the judge in the Divorce Case will address several pending matters and hold an evidentiary hearing on the Husband's verified motion for temporary injunctive relief against the Wife and her counsel [ECF No. 38-2 (Defendant's Exhibit 15)].[11] One of the issues to be determined at this hearing is whether the attorney-client privilege protects (some, all, or any of) the Husband's messages.
There are no other hearings scheduled in the Divorce Case between now and February 26, 2025. The Wife is willing to keep the iPads in her attorney's safe until the Divorce Case hearing, absent an agreement with the Husband's counsel. [ECF No. 40, p. 87].
As of June 14, 2024, the Husband has paid approximately $13,578.75 [ECF No. 36-9 (Plaintiff's Exhibit 10)] to a forensic consulting firm. The work performed by this firm includes both litigation support work (in this case and in the Divorce Case) and remediation efforts stemming from the Wife's access to messages stored on the Husband's iCloud account. The Husband asked the Wife to produce both iPads for forensic examination (to determine what data was accessed) as part of this remediation effort. To date, the Wife has refused to turn over the devices (or her cell phones).
III. Applicable Legal Standard
To obtain a preliminary injunction, a party must demonstrate:
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the nonmovant; and (4) that the entry of the relief would serve the public interest.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005); see also Levi Strauss & Co. v. Sunrise Int'l. Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995). “Failure to show any of the four factors is fatal.” Am. C.L. Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009).
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 1834, 68 L. Ed. 2d 175 (1981). The issuance of a preliminary injunction is “an extraordinary and drastic remedy not to be granted unless the movant clearly establishe[s] the ‘burden of persuasion’ as to the four requisites.” McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (citing All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)).
*6 “If a party establishes the right to a preliminary injunction, its scope ‘must be narrowly tailored to fit specific legal violations, because the district court should not impose unnecessary burdens on lawful activity.’ ” United States v. Bacaner, No. 8:21-CV-0391-T-VMC-SPF, 2021 WL 3508135, at *5 (M.D. Fla. Aug. 3, 2021), report and recommendation adopted, No. 8:21-CV-391-VMC-SPF, 2021 WL 4948149 (M.D. Fla. Sept. 1, 2021) (quoting Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc., 304 F.3d 1167, 1178 (11th Cir. 2002)).
IV. Analysis
Plaintiff seeks the entry of a preliminary injunction which: (1) enjoins the Wife from accessing, obtaining, using, or destroying data from the Husband's iCloud account and (2) compels her to turn over all data from the Husband's iCloud account; submit the iPad6, the iPad9, and any device(s) used to view data from the iCloud account to forensic examination by the Husband's expert; and agree to ESI search terms. [ECF No. 6-9, pp. 20–21].
As noted above, to obtain injunctive relief, Plaintiff must show: (1) a substantial likelihood of success on the merits; (2) irreparable injury; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016). For the reasons discussed below, Plaintiff has not met his burden as to the first and second prong and it is not necessary for the Court to address the remaining two prongs.
A. Substantial Likelihood of Success on the Merits
The first factor requires an analysis of a plaintiff's ability to make a showing of each of the required elements of the claims asserted. See Seiko Kabushiki Kaisha v. Swiss Watch Int'l, Inc., 188 F. Supp. 2d 1350, 1353–55 (S.D. Fla. 2002). Pending before Judge Williams is the Wife's motion to stay (based on abstention) or to dismiss under Rule 12(b)(6). [ECF No. 18]. Although Defendant's motion has not been referred to the Undersigned, I will briefly discuss the parties’ arguments because they inform my analysis of the first prong for obtaining injunctive relief, a substantial likelihood of success on the merits.
1. Abstention
Defendant maintains that “[f]undamental principles of abstention and comity require that this Court refrain from entertaining the Husband's effort to use this federal forum as an obstacle to the work of the state court overseeing the [D]ivorce [Case].” [ECF No. 19, p. 3].[12] She argues that “[f]ederal courts routinely abstain from hearing CFAA claims arising out of discovery in state court divorce litigation.” [ECF No. 18, p. 8 (citing, e.g., Decourcy v. Maruk, No. 19-20511-CIV, 2019 WL 3767502, *1 (S.D. Fla. Aug. 9, 2019) (Scola, J.), Mehta v. Maddox, 296 F. Supp. 3d 60, 66 (D.D.C. 2017); Gravagna v. Eisenpress, No. 19-CV-0700 (CM), 2019 WL 1469289, at *1 (S.D.N.Y. Apr. 2, 2019))].
Defendant contends that all three factors of the Younger[13] abstention doctrine are met here because: (1) there is an ongoing state Divorce Case; (2) the Divorce Case implicates the state's interest in family law; and (3) the Husband acknowledged that the state court can provide relief when he filed his ex parte motion for temporary injunction in the Divorce Case. Id. at 9–14. She also argues that abstention is appropriate under the Colorado River[14] factors. Id. at 14–18.
*7 Plaintiff insists that the relief he seeks in federal court (monetary relief for costs stemming from the Wife's access to his iCloud account) will not interfere with the Divorce Case. [ECF No. 26, p. 13]. He further argues that his requested injunction is a narrowly-tailored one and that the Court can “shape such relief to avoid any risk of interfering with the Divorce [Case].” Id. Adopting a wait-and-see approach, Plaintiff states that “[s]hould this Court not abstain and stay this matter, Mr. Galinov agrees (indeed, commits) to dismiss the CFAA allegations made in the Divorce [Case].” Id. at 13–14. [The fact that Plaintiff is willing to cull the CFAA allegations made in state court and that he underscores the Court's discretion to reshape the injunctive relief sought so as to avoid even the risk of interfering with the state court proceeding suggests to the Undersigned that there would be some entanglement between the issues raised in the instant action and the Divorce Case.]
Plaintiff also argues that a monetary award in the instant case would be “independent[ ] of any distribution of assets or award of attorney's fees made in the Divorce Proceeding.” Id. at 16. But the Divorce Case has not been finalized, and the parties’ assets have not yet been divided.
Notably, the Wife's access to the Husband's iCloud account arose as part of the Divorce Case. The Wife gathered evidence (for use in the Divorce Case) by taking photographs of messages on the iPad6 and producing them to her divorce attorney the morning of the parties’ depositions in the Divorce Case. The photographs were produced to the Husband (via a dropbox link) in response to the Husband's subpoena requesting all documents supporting the Wife's motion for exclusive use of the marital home (a motion which will be ruled on by the Divorce Case judge). [ECF No. 19, p. 5].
Moreover, the Husband has accused the Wife of intruding into his attorney-client relationship with his now-dismissed divorce counsel by reading allegedly privileged communications between him and his former divorce attorney. The Husband has replaced that attorney with a new divorce attorney. The Divorce Case judge may have a lot to say about how that alleged intrusion into the attorney-client relationship (and the subsequent replacement of the Husband's attorney) affects the Divorce Case and may need to exclude evidence or adopt curative measures. See Decourcy, 2019 WL 3767502, at *2 (“The [p]laintiff's claims for damages are based on alleged hacking of the [p]laintiff's email to gain an advantage in the divorce proceedings by reviewing confidential documents. The [divorce] court can exclude any evidence improperly obtained or impose sanctions against [the defendant] and her counsel for the misconduct alleged here.”).
Lastly, the Husband's temporary injunction motion (seeking to remediate the Wife's access to the iCloud account) was filed in state court and is set for hearing on February 26, 2025 before the divorce court judge. Thus, the state court would be able to provide the Husband with relief for the damages stemming from the Wife's access to his iCloud account.
In Zhang v. Xiaofeng Lin, the court denied the wife's request for a temporary restraining order (“TRO”) because she failed to show irreparable harm. No. 2:20-CV-02468-KJM-AC, 2021 WL 38168, at *1 (E.D. Cal. Jan. 5, 2021). “The court [was] also hesita[nt] to wade into what appear[ed] fundamentally to be a domestic dispute that [was] the subject of ongoing [divorce] litigation in [state] court.” Id. at 2. Discussing the Younger factors, the court noted that:
[t]he injunctive relief [the wife] request[d] [ ] seem[ed] likely to satisfy these requirements: (1) state court family law proceedings between [the wife] and [the husband] [were] ongoing; (2) California ha[d] an interest in the peaceful and fair resolution of domestic disputes between its residents; (3) nothing suggest[ed] [the wife] [could not] litigate her federal statutory claims in state court if she were to raise them there; and (4) by entering an injunction against [the husband], this court would step directly into the shoes of the state court overseeing the family law case, if not contradict that state court directly [because the state court had denied the wife's request for [a TRO] against her in-laws.
*8 Id. Nonetheless, “the court [did] not determine[ ] at this early stage [in the litigation] that it must abstain under Younger, but rather only that the ‘principles of equity, comity, and federalism’ underlying the Younger doctrine weigh[ed] against [the wife]’s request for a TRO.” Id. at *3 (quoting San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091–93 (9th Cir. 2008)).
The Undersigned notes that the same “equity, comity, and federalism” concerns are present here. The Husband and Wife are parties to what is, by all accounts, a contentious divorce litigation in state court. Florida has an interest in the resolution of the family disputes of its residents. The Husband can litigate his claims in state court, and in fact initially sought relief from the divorce court judge before filing this federal court action. Entering an injunction may “step directly into the shoes of the state court,” which scheduled the Husband's motion for an evidentiary hearing on February 26, 2025.
Although the Wife's motion to stay or dismiss has not been referred to me, I note that she makes a compelling argument for staying the instant federal court action while the parties litigate the parallel allegations in the Divorce Case. While not outcome determinative, the well-reasoned abstention argument weighs against the issuance of an injunction. Id.
2. Elements of a CFAA Claim
Having briefly touched on the issue of abstention, the Undersigned turns to the merits of the Husband's CFAA claims. To prevail on his CFAA claims, the Husband must show that the Wife: “(1) intentionally accessed a computer, (2) without authorization or in excess of her authorization, (3) obtained information thereon, and (4) caused him to suffer a loss of at least $5,000.00.” Sartori v. Schrodt, 424 F. Supp. 3d 1121, 1129 (N.D. Fla. 2019), aff'd, No. 19-15114, 2021 WL 6060975 (11th Cir. Dec. 20, 2021). The Undersigned will address each element in turn.
a) Intentionally Accessing a Computer
Plaintiff argues that the iPad6 and iPad9 are “computer[s],” as that term is defined by 18 U.S.C. § 1030(e)(1), because “they are an electronic, magnetic, optical, electrochemical, or other high speed data processing devices performing logical, arithmetic, or storage functions.” He further argues that they are also “protected computer[s],” as defined by 18 U.S.C. §§ 1030(e)(2)(B) and (C), because: (1) “they are used in interstate and foreign communications” and (2) were physically moved from Connecticut to Florida in interstate commerce. [ECF No. 6, p. 10].
Plaintiff also argues that the “Apple computer network hosting Plaintiff's iCloud account and [m]essages, including iMessages, is a ‘computer’ within the meaning of 18 U.S.C. § 1030(e)(1) because it is a data storage facility or communications facility directly related to or operating in conjunction with the iPad6 and/or iPad9 signed into [ ] Plaintiff's iCloud account” and a “protected computer” under “18 U.S.C. § 1030(e)(2)(b) because it is used in interstate and foreign communications.” Id.
The Wife does not address these contentions. “Failure to respond to an argument may result in waiver.” W. 32nd/33rd Place Warehouse Condo. Ass'n, Inc. v. W. World Ins. Co., No. 22-CV-21408, 2023 WL 6317993, at *4 (S.D. Fla. Aug. 21, 2023) (citing Five for Ent. S.A. v. Rodriguez, No. 11-24142-CIV, 2013 WL 4433420, at *14 (S.D. Fla. Aug. 15, 2013) (“A failure to address issues in response to a motion is grounds for finding that the claims have been abandoned.”); Altare v. Vertical Reality MFG, Inc., No. 19-CV-21496, 2020 WL 209272, at *2 (S.D. Fla. Jan. 14, 2020) (“Plaintiff did not respond to this argument and, consequently, the Court deems any response waived.”)). Therefore, the Undersigned finds that the Wife concedes that the first element of a CFAA claim is met.
b) Without Authorization or Exceeding Authorization
*9 “The [CFAA] subjects to [ ] liability anyone who ‘intentionally accesses a computer without authorization or exceeds authorized access,’ and thereby obtains computer information.” Van Buren v. United States, 593 U.S. 374, 379, 141 S. Ct. 1648, 1652, 210 L. Ed. 2d 26 (2021) (quoting 18 U.S.C. § 1030(a)(2)). “[A]n individual violates [subsection (a)(2)] when he ‘accesses a computer without authorization[,]’ ” or “when he ‘exceeds authorized access’ by accessing a computer ‘with authorization’ and then obtaining information he is ‘not entitled so to obtain.’ ” Id. at 389 (citing 18 U.S.C. §§ 1030(a)(2), (e)(6)).
The parties dispute whether Plaintiff can meet the without-authorization-or-exceeds-authorization element of a CFAA claim. Plaintiff argues that Defendant exceeded authorized access/gained unauthorized access to his iCloud account in two ways: (1) when she used the iPad6 to access the messages (and any other data) stored in his iCloud account and on Apple's computer network and (2) when she used the iPad9 to access his iCloud account messages stored on Apple's computer network. [ECF No. 6, p. 11].[16]
Defendant points out that she (and others in the Connecticut household) knew the iPad6's six-digit passcode, and that the iPad6 was already logged into the Husband's iCloud account. [ECF No. 19, p. 10]. She contends that Plaintiff's “CFAA claims will likely fail because the messages were automatically synced to a device to which the Wife had authorized access.” Id. at 11. Additionally, she argues that “[e]ven crediting the Husband's allegation that the Wife changed the settings on the iPad6, there is nothing in the factual record that supports the contention that the Apple server pushing data to the iPad6 is equivalent to the Wife accessing a computer owned by Apple.” Id. at 12.
Plaintiff states that “[t]o access [his] iCloud account, a separate passcode was required.” [ECF No. 27, p. 8]. But Plaintiff has presented no evidence that the Wife knew the password to the Husband's iCloud account and, at the evidentiary hearing, the Husband testified that he himself signed into his iCloud account when he set up the iPad6 because an iCloud account was necessary to display the security cameras on the iPad6. [ECF No. 40, pp. 58–59].
To be sure, the Husband intentionally set up the iPad6 so that it would not have access to the messages on his iCloud account. Id. at 27. But the Wife testified that at times the Husband's calls would ring on the iPad6 and (on cross-examination) agreed with Plaintiff's counsel's line of questioning that this included text messages. Id. at 83, 93–94.
*10 The Husband's expert attests that “[t]o enable the device to gain access to and display [m]essages, a user with access to the iPad would enter the Settings menu on the device and enable them by toggling the iMessage switch on.” [ECF No. 36-4, ¶ 14 (Plaintiff's Exhibit 5)]. The Husband asserts that “[n]obody was authorized to do this.” [ECF No. 27, p. 8].
But the Wife testified that the couple had no conversations about and there was no agreement (written or otherwise) regarding the acceptable use of the iPad6, a jointly owned device. [ECF No. 40, pp. 44, 86]. Moreover, she denied changing the settings on the iPad6. Id. at 103. She also testified that she synched the iPad6 and iPad9, not by entering the Husband's password, but by placing the two devices next to each other. Id. at 85.
The Husband and Wife have presented competing stories of how the Husband's messages ended up on the iPad6 (and possibly the iPad9). “Courts sitting as finders of fact are free to accept or reject witness testimony based upon their determination as to the witnesses’ credibility.” Singhal v. City of Wilton Manors, No. 06-61653-CIV, 2006 WL 8433166, at *3 (S.D. Fla. Dec. 14, 2006). Here, the Undersigned is faced with competing factual scenarios. I cannot with any certainty say that the Husband's version of events is more credible than the Wife's. At best, there is a 50–50 split on how this intrusion occurred and if I had to pick one party's version over the other, then I would find in favor of the Wife.
I find the Husband to be, at times (i.e., during cross-examination) an evasive, vague, and somewhat difficult witness. During cross-examination, he gave terse answers and claimed to know very little of what was going on in the Divorce Case and other topics. For example, he claimed to not know whether he filed a counterpetition; wasn't sure if he had asked the state court for a divorce and would have to consult with his divorce attorney; was not sure if the Wife was asking for alimony in the Divorce Case; and was not sure whether the prenuptial agreement provided the Wife with an interest in businesses operating during the marriage. [ECF No. 40, pp. 40, 48–49].
He claims to not recall when he hired his forensic computer expert or when the expert started billing him. Id. at 51–52. Despite owning the iPad6 for several years, he did not know whether the children or nannies had the passcode to the device, did not know whether there were other things on the iPad6 besides the security camera, did not know whether there was a weather app on the iPad6, did not remember whether the iPad6 displayed photographs, and had never seen the children reach for the iPad6. Id. at 55–58.
Credibility contests can undermine a finding of substantial likelihood of success on the merits. See, e.g., Sase Co., Inc. v. Reardon, No. 615CV1802ORL22KRS, 2015 WL 12915704, at *3 (M.D. Fla. Dec. 16, 2015) (“Reardon testified that three to four weeks after he started working for SASE, company Vice President Greg Ferchaud promised him that if Reardon increased company sales by double digits, he would be paid a bonus of at least $40,000.00. Reardon testified that he met that goal, but was never paid the promised bonus. For his part, Ferchaud denies this promise was ever made. This presents a classic credibility contest, one that a trier of fact might well resolve in the defendants’ favor. Thus, unless the bonus issue is resolved prior to trial for other reasons, it will probably take a jury to sort out whose version is true. Given that fact, the Court cannot find that SASE is likely to succeed on its breach of contract claims.” (emphasis added)).[17]
*11 Given this credibility clash, the Undersigned concludes that Plaintiff has not shown that it is substantially likely he will establish the without-authorization-or-exceeds-authorization element of his CFAA claims.
c) Obtaining Information Thereon
There is no dispute that the Wife took photographs of some of the Husband's messages and provided them to her divorce attorney. The Wife argues that the Complaint does not allege what information she “obtained” by using the iPad9. [ECF No. 19, p. 12]. However, the Undersigned finds that for purposes of the instant motion, this third element of a CFAA action is met.
Plaintiff seeks injunctive relief on each of his CFAA claims. [ECF No. 6, p. 15]. Therefore, if he can meet the four-prong test for any one of his claims, then he would be entitled to injunctive relief. See Boggs Cont., Inc. v. Freismuth, No. 6:21-CV-2088-CEM-EJK, 2021 WL 6755466, at *2 (M.D. Fla. Dec. 27, 2021) (“When plaintiffs assert multiple claims as a basis for a preliminary injunction, they ‘need only establish a substantial likelihood of success on one claim.’ ” (quoting Freedom Med., Inc. v. Sewpersaud, 469 F. Supp. 3d 1269, 1275 n.5 (M.D. Fla. 2020))). Moreover, the scope of any injunction would necessarily include the iPad9 because the hearing testimony established that the Wife synched the two devices.
d) Causing a Loss of at Least $5,000.00
A “loss” under the CFAA includes “reasonable costs incurred in connection with such activities as responding to a violation, assessing the damage done, and restoring the affected data, program system, or information to its condition prior to the violation.” Brown Jordan Int'l, Inc. v. Carmicle, 846 F.3d 1167, 1174 (11th Cir. 2017).
At the evidentiary hearing, Plaintiff introduced into evidence an unredacted version of an invoice from his computer forensic expert totaling $13,578.75. [ECF No. 36-9 (Plaintiff's Exhibit 10)]. Plaintiff testified that he paid this amount.
Defendant contends that litigation expenses (including those incurred in the Divorce Case) are not “losses” under the CFAA. [ECF No. 19, p. 15 (citing Nat'l Staffing Sols., Inc. v. Armstrong, 6:23-CV-1693-WWB-EJK, 2024 WL 1657193 at *3 (M.D. Fla. Jan. 25, 2024)]. At the evidentiary hearing, defense counsel pointed to certain time entries on the invoice which relate to litigation work (either in the Divorce Case or the instant case). But even if some of the work listed in the invoice is not considered a “loss” under the CFAA, the remainder of the work consists of investigating the breach and remediating it. See Surfaces, Inc. v. Point Blank Enters, Inc., No. 20-62648-CIV, 2022 WL 18956038, at *6 (S.D. Fla. Dec. 27, 2022) (loss element was met where “[the] [p]laintiff ... allege[d] that it spent $6,600 of its resources to limit the extent of the disclosure of [the] intellectual property which include[d] costs to procure the services of a piracy mitigation expert”). The Undersigned finds that the $5,000.00 loss element is met here.
To the extent that the Wife challenges the reasonableness of the fees charged by Plaintiff's expert, the Undersigned notes that the Wife refused to produce the devices. Thus, Plaintiff's expert had to conduct his investigation without the aid of the devices.
*12 In sum, for the reasons discussed above, Plaintiff has not met his high burden of showing a substantial likelihood of success on the merits of his CFAA claims. Whether Plaintiff can satisfy the CFAA's without-authorization-or-exceeds-authorization element is uncertain, at best.
Regardless, even if Plaintiff could demonstrate that he is substantially likely to succeed on the merits of any one of his CFAA claims (and he cannot), he would still not be entitled to an injunction because he has not shown an irreparable harm. “[E]ven if [a] [p]laintiff[ ] establish[es] a likelihood of success on the merits, the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).
B. Irreparable Injury
The second prong requires a showing that Plaintiff “will suffer an injury for which [he] cannot be adequately compensated if, at some later point in time, [he] prevails on the merits.” Mendez Fuel Holdings, LLC v. Kendall Healthcare Grp., Ltd., No. 20-22984-CV, 2020 WL 4505643, at *2 (S.D. Fla. Aug. 5, 2020). The Eleventh Circuit has stated that irreparable injury is “the sine qua non of injunctive relief.” Siegel, 234 F.3d at 1176 (citation and internal quotation marks omitted). In the context of a preliminary injunction, “[a]n injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Ferrero v. Associated Materials, Inc., 923 F.2d 1441, 1449 (11th Cir. 1991) (citation omitted).
Plaintiff argues that he will be irreparably harmed absent an injunction because:
[his] private data and communications were stolen and duplicated by [Defendant]. She remains in possession of this data, including his privileged attorney-client communications and [m]essages. The stolen data is being used by [Defendant] to gain an unfair advantage in pending litigation. Furthermore, [Plaintiff]’s data continues to be compromised because what was stolen and/or duplicated by [Defendant] remains in her possession.
[ECF No. 6, p. 16].
Defendant maintains that Plaintiff cannot show irreparable injury because there is no ongoing access to either the Husband's messages or his iCloud account and the Husband delayed seeking an injunction from this Court. [ECF No. 19, pp. 16–17]. She notes that the Husband received the Apple alert on January 3, 2024 and learned on April 9, 2024, that Defendant had access to the messages stored in his iCloud account. Id. at 18.
On April 17, 2024, the Husband filed the ex parte temporary injunction motion in the Divorce Case. He filed the instant action on June 17, 2024 and then moved for a preliminary injunction on June 20, 2024. Id. Defendant argues that Plaintiff's delay in bringing the instant CFAA action and seeking injunctive relief “undermines [his] asserted need for ‘speedy and urgent relief to protect [his] rights.’ ” Id. at 19 (quoting Nat'l Staffing Sols., 2024 WL 1657193, at *5).
The Eleventh Circuit has stated that “[a] delay in seeking a preliminary injunction of even only a few months -- though not necessarily fatal -- militates against a finding of irreparable harm.” Wreal, 840 F.3d at 1248 (emphasis added). This is because “the very idea of a preliminary injunction is premised on the need for speedy and urgent action to protect a plaintiff's rights before a case can be resolved on its merits.” Id.
*13 The Wreal Court addressed a five-month delay in seeking preliminary injunctive relief. But “it is not uncommon for courts to deny a preliminary injunction in the face of unexplained delays of more than two months.” InVue Sec. Prod. Inc. v. Vanguard Prod. Grp., Inc., No. 8:18-CV-2548-T-33SPF, 2019 WL 4671143, at *6 (M.D. Fla. July 1, 2019), report and recommendation adopted, No. 8:18-CV-2548-T-33SPF, 2019 WL 4673755 (M.D. Fla. Aug. 15, 2019).
Here, approximately 10-weeks transpired between the date the Husband learned of the Wife's access to his iCloud account (April 9, 2024) and the filing of the instant motion (June 20, 2024). In Boggs Contracting, Inc., the court did not find an approximately “two-month delay [ ] attributable to a reasonable attempt to mediate the issues,” to be “sufficient to negate a finding of irreparable harm.” 2021 WL 6755466, at *4. Part of the delay in this case can be attributed to the Husband's efforts to obtain relief from the Divorce Case judge. In his reply, the Husband cites the need to investigate and the Wife's refusal to cooperate with Plaintiff's expert so that the iPad6 could be imaged and examined. [ECF No. 27, p. 5].
Under the circumstances of this case, the ten-week delay, on its own, is not enough to foreclose a finding of irreparable harm. Nonetheless, and for the reasons discussed below, Plaintiff failed to satisfy this prong.
At the evidentiary hearing, defense counsel argued that Plaintiff is using the federal court like a special master for what is tantamount to a state court discovery dispute. [ECF No. 40, p. 137]. The Undersigned finds this to be an apt analogy.
At bottom, the relief sought by the Husband is more akin to a discovery order and not the basis for the extraordinary remedy of injunctive relief. The Husband is asking the Court to compel the Wife to produce certain devices for forensic examination by his expert and to agree to ESI search terms. [ECF No. 6-9, p. 21]. Thus far, the Wife has refused.
This is the stuff that ordinary, run-of-the-mill discovery disputes are made of. The Husband can certainly avail himself of Federal Rule of Civil Procedure 34 by propounding requests for production on his Wife. If the Wife still refuses to turn over the devices for inspection or raises objections, then either party may set this matter for hearing before the Undersigned in accordance with the Court's Discovery Procedures Order. [ECF No. 5]. If the Court determines that the Husband is entitled to this discovery, then the Wife will have to submit these devices for examination by the Husband's expert and agree to ESI search terms. The Husband can then proceed to the next phase of his remediation plan by determining the extent of his Wife's intrusion into his communications and (if appropriate) notify customers, partners, associates, or SEC regulatory authorities of the breach.[18]
*14 Alternatively, if Judge Williams stays this case, then the Husband can seek the same relief from the divorce court (relief which he already requested in his ex parte motion for a temporary injunction). In fact, there is nothing stopping the Husband from now propounding discovery requests in the Divorce Case.
In his reply, Plaintiff argues that he has an ongoing injury because “[the Wife] admitted that she continues to possess [his] stolen data, maintains it in the [iC]loud, and has not provided it to her attorneys for production.” [ECF No. 27, p. 7 (citing Defendant's deposition testimony)]. But at the evidentiary hearing, the Wife explained that all of the photographs “were not presented to [her] at the deposition” and “only a few [had been] printed out.” [ECF No. 40, pp. 91–92]. “The rest of the photos [were] in the [d]ropbox that [the Husband's divorce attorney] received.” Id. at 92. Crediting the Wife's testimony (which the Undersigned does), all of the photographs she took are in the dropbox link.
To the extent there are photographs of the iPad6 displaying the Husband's messages on the Wife's iPhone(s), this is not an ongoing injury. This has been the status quo since before the Husband filed the instant CFAA action in federal court. Moreover, to modify a well-known folksy expression, the information-laden horse has already left the iPad barn.[19]
Plaintiff also argues that he is suffering an ongoing harm because the Wife is obstructing his “immediate access to the contested devices, maintaining possession of his stolen data, [ ] being dishonest about the extent of her illegal activities, [and] continues to prevent [his] complete assessment of harm and ability to remediate, recover, restore, and keep secure his own data.” [ECF No. 27, p. 7]. But, at the evidentiary hearing, the Husband stipulated that the parties jointly own the iPad6. [ECF No. 40, p. 44]. Until the Divorce Case judge rules otherwise, the Wife has as much ownership interest in the devices as the Husband does.
The Husband wants to prohibit the Wife from accessing, obtaining, using, or destroying data from his iCloud account. [ECF No. 6-9, pp. 20–21]. The unrefuted testimony is that the Wife no longer has access to the Husband's iCloud account. The Husband changed his iCloud account password in March 2024 (when his iPhone was stolen) and the Wife no longer has physical possession of the iPads. She gave both devices to her divorce attorney, who is holding them in a safe in his office. The Wife is amenable to keeping the iPads in her attorney's safe from now until the Divorce Case hearing. [ECF No. 40, p. 87].
In Zhan, the court denied the wife's request for a TRO because she failed to show irreparable harm. 2021 WL 38168, at *1. In that case, the husband had logged into the wife's bank account using her password without her permission. Id. The court determined that the wife's irreparable harm claim was speculative because “[s]he promptly changed her passwords, and no evidence suggest[ed] [that the husband] ha[d] logged into her bank account again or could do so if he wanted.” Id. at 2. “Although [she] fear[ed] [her husband] ha[d] secretly installed spyware on her computer or ha[d] planted recording devices, she ha[d] not substantiated that fear with evidence to demonstrate immediate threatened injury” and “found no spyware, even after having her devices scanned.” Id. (citation and internal quotation marks omitted).
*15 Similarly here, the Wife no longer has access to the Husband's iCloud account. The Husband changed his iCloud password as of March 2024. The Wife no longer has physical possession of the iPads (and is willing to keep them in her divorce attorney's safe until this issue is resolved). The complained-of conduct is not ongoing or likely to resume. She has no ability to gain access to the Husband's iCloud account. In short, there is no urgency here and the need for this requested injunction is illusory.
At the evidentiary hearing, Plaintiff's counsel summarized the relief sought by the Husband as follows:
[T]o the extent that there is anything that we have asked for that you are concerned could potentially implicate the state proceedings, we don't want it. That is not what we are looking for. We are looking for an order in this case that would permit Mr. Galinov to continue to conduct the forensic investigation that has occurred, to control the data that has been taken, so that the loss ends, and so that all of these business interests and personal interests that are being damaged by it being out there ongoing can be remediated.
[ECF No. 40, p. 162 (emphasis added)]. The Husband can obtain the same relief he seeks in his motion through the discovery process in federal court (if Judge Williams does not stay this action) or from the state judge in the Divorce Case.
In sum, Plaintiff has failed to show that he will suffer an irreparable injury if an injunction is not issued.
Plaintiff's failure to show a substantial likelihood of success on the merits or irreparable harm ends the inquiry. It is not necessary for the Court to address the remaining two factors. See Am. C.L. Union of Fla., Inc., 557 F.3d at 1198 (“Failure to show any of the four factors is fatal, and the most common failure is not showing a substantial likelihood of success on the merits.”); Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (If a movant “is unable to show a substantial likelihood of success on the merits, we need not consider the other requirements.”); Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) (“Because we conclude that the plaintiffs failed to establish a substantial likelihood of success on the merits, we will not address the three other prerequisites of preliminary injunctive relief.”).
V. Conclusion
This is an ongoing domestic dispute between a married couple in the midst of a contentious divorce which spilled over into federal court. Injunctive relief is not warranted here because of the concerns involving the ongoing and overlapping Divorce Case and the Husband's failure to show a substantial likelihood of success on the merits and irreparable harm. For these reasons, the Undersigned respectfully recommends that the District Court deny Plaintiff's preliminary injunction motion.
VI. Objections
The parties will have fourteen (14) days from the date of being served with a copy of this Report and Recommendations within which to file written objections, if any, with United States District Judge Kathleen M. Williams. Each party may file a response to the other party's objection within fourteen (14) days of the objection. Failure to file objections timely shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1 (2016).
*16 RESPECTFULLY RECOMMENDED in Chambers, in Miami, Florida, on September 12, 2024.
Footnotes
18 U.S.C. § 1030, et seq.
Defendant filed for divorce on October 10, 2023 in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, In re: The Marriage of: Karen Nazaro-Galinov and Dmitri Galinov, Case No. 2023-020694-FC-04. [ECF No. 19-1 (“Divorce Case”)]. Plaintiff filed a counterpetition for dissolution of marriage on November 13, 2023. [ECF No. 38-1 (Defendant's Exhibit 8)].
The facts summarized here are mostly only those relevant to the preliminary injunction ruling. There were other facts elicited at the evidentiary hearing which are omitted because they are not relevant to the distinct issues referred to the Undersigned.
The parties sold their Connecticut home approximately a month ago.
24 Exchange is currently seeking regulatory approval from the U.S. Securities and Exchange Commission (“SEC”). The Husband estimates that if this regulatory approval is given, then it would increase the value of 24 Exchange by tens of millions of dollars.
Of course, unless there is a settlement, the divorce court (and not the parties) will ultimately determine how the parties’ assets will be divided.
At the evidentiary hearing, the Husband's counsel argued that the Wife was not credible, in part, because she testified that the “[Husband]’s messages would be popping up throughout the day” on the iPad6 and “he took no steps to protect that.” [ECF No. 40, pp. 105–06].
On direct examination, the Wife testified that “[t]here ha[d] been several times when [the Husband]’s phone calls were coming in through the iPad[6]” and that the last time she recalled this happening was “in the summer of 2023.” Id. at 83 (emphasis added). She stated that “it was [ ] quite annoying to hear the ringing sound all the time.” Id. (emphasis added). She also testified that her Husband saw the calls come in. Id. at 84 (“Q. Okay. Did Mr. Galinov ever see calls to him come in through the iPad[6]? A. Yes.”).
On cross-examination, Plaintiff's counsel added “messages” in recounting the Wife's testimony:
Q. You testified that messages were popping up constantly [on the iPad6], and that it was annoying, that it was audible, correct?A. Yes.Q. And, that is every time a text message came in or a phone call, correct?
A. Yes.
Id. at 93–94.
Plaintiff's counsel relied on this exchange to argue that the Court should disregard the Wife's testimony as not credible because it meant that she would have allowed her children to regularly play with the iPad6 while “these messages were popping up,” some of which purportedly discussed unsavory topics. Id. at 106. But the Undersigned does not find this to be grounds for questioning the Wife's credibility. The children are very young (the oldest is seven) and would likely not understand the content of these messages. Thus, this is not a reason for discrediting the Wife.
At the evidentiary hearing, the Undersigned had the opportunity to observe the witnesses on the stand and to compare their testimony. The Undersigned finds the Wife to be a credible witness. See United States v. Boulette, 265 F. App'x 895, 898 (11th Cir. 2008) (citing United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)) (noting that “[c]redibility determinations are within the province of the fact finder ‘because the fact finder personally observes the testimony and is thus in a better position than a reviewing court to assess the credibility of witnesses.’ ”).
The parties dispute when the iPad9 was purchased. The Husband testified that the Wife purchased it in December 2023; the Wife testified that she made this purchase in January 2024.
The Husband changed his iCloud account password in March 2024 because his iPhone was stolen in South America.
The Undersigned admitted the Husband's ex parte motion into evidence at the evidentiary hearing. [ECF No. 40, p. 50].
The Husband filed his state court ex parte motion for a temporary injunction [ECF No. 38-2 (Defendant's Exhibit 15)] on April 17, 2024. The judge had initially set it for hearing in April 2024 but later continued it. [ECF No. 40, p. 124]. It is now set for an evidentiary hearing on February 26, 2025. The Husband's counsel represents that his client is willing to “drop any claims related to the [CFAA] in the [Divorce Case].” Id. at 117; see also [ECF No. 26, pp. 13–14 (“Should this Court not abstain and stay this matter, Mr. Galinov agrees (indeed, commits) to dismiss the CFAA allegations made in the Divorce Proceeding.”)].
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings (in lieu of the page numbers assigned by the parties).
Younger v. Harris, 401 U.S. 37 (1971).
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
Plaintiff's motion also asserts that the Wife violated the CFAA by working together with her divorce attorney. [ECF No. 6, p. 12 (“By working in conjunction with [her divorce attorney], [the Wife] provided [her divorce attorney] with access to [the Husband]’s iCloud account and [m]essages, and in doing so, [the Wife] violated the CFAA.”)]. But Plaintiff has not produced any evidence to support this very serious allegation of a conspiracy between the Wife and a member of the Florida Bar.
See also Labrador Regulated Info. Transparency, Inc. v. Poole, No. 1:14-CV-2631(TWT), 2014 WL 12570914, at *1 (N.D. Ga. Sept. 16, 2014) (“The evidence provided creates an issue of fact that needs to be submitted to arbitration pursuant to the valid arbitration clause of the [e]mployment [a]greement. Accordingly, I find that the [p]laintiff has not met its burden of showing sufficient likelihood of success on the merits for me to issue a preliminary injunction.”); R. Miller Architecture, Inc. v. Edgington Enters., Inc., No. 6:06CV 871 ORL 19DAB, 2006 WL 2226297, at *7 (M.D. Fla. Aug. 3, 2006) (“many issues of fact ... ma[d]e the [c]ourt hesitant to grant preliminary injunctive relief”).
Plaintiff's expert attests that “[f]orensic examination of the iPad6 and iPad9 (and related backups in previously connected iCloud accounts, if available) will permit [him] to discover additional data and information concerning activity that occurred on [the iPad6 and iPad9] so that [he] can determine as closely as possible the full extent of the data breach that has been reported, and aid [him] in remediating that data breach.” [ECF No. 36-4, ¶ 15 (Plaintiff's Exhibit 5)]. He also attests that he would be aided by examining any device used to take photographs or otherwise duplicate the data from the iPad6 and iPad9. Id. at ¶ 16.
There's no point in locking the barn door after the horse has already run off.