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Governo Law Firm, LLC v. CMBG3 Law, LLC

Superior Court of Massachusetts, Suffolk, Business Litigation Session

January 11, 2017

Governo Law Firm, LLC
v.
CMBG3 Law, LLC et al. [1] No. 136526

          Filed January 13, 2017

          MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

          Kenneth W. Salinger, Justice of the Superior Court.

         The Governo Law Firm, LLC is suing six of its former partners and their new firm, which they call CMBG3 Law, LLC. The Governo Firm is controlled by attorney David Governo. It specializes in defending clients against asbestos and toxic tort claims. During the summer and fall of 2016 David Governo and the seven other partners of the Governo Firm discussed and negotiated the possible sale by Governo of his interest in the firm to the other partners. When those negotiations were unsuccessful, six of the eight partners announced that they planned to leave to start their own firm. Governo then locked them out of the firm on November 20, 2016.

         The Governo Firm claims that the six individual defendants stole proprietary databases, electronic files or data, and computers that belong to the Governo Firm. Plaintiff seeks a preliminary injunction that would require Defendants to: return all electronic databases and files they allegedly took from the Governo Firm, except for any files that pertain to client matters for which CMBG3 has been retained to represent the client; return all laptop computers and iPads that belong to the Governo Firm; allow Plaintiff to permanently delete all of its data from Defendants' cell phones; and require Defendants to certify compliance and also to disclose any Governo Firm property in their possession.

         The Court concludes that it must DENY the preliminary injunction request because the Governo Firm has not met its burden of proving that it will suffer irreparable harm without the requested injunction.

         1. Legal Standards

          " A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To the contrary, " the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto." Student No. 9 v. Board of Educ., 440 Mass. 752, 762, 802 N.E.2d 105 (2004). " Trial judges have broad discretion to grant or deny injunctive relief." Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194, 13 N.E.3d 604 (2014).

         A plaintiff is not entitled to preliminary injunctive relief if it cannot prove that it is likely to succeed on the merits of its claim. See, e.g., Fordyce v. Town of Hanover, 457 Mass. 248, 265, 929 N.E.2d 929 (2010) (vacating preliminary injunction on this ground); Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 858-59, 809 N.E.2d 524 (2004) (same). " [T]he burden of showing a likelihood of success on the merits is on the party seeking the preliminary injunction." Berrios v. Dept of Pub. Welfare, 411 Mass. 587, 598, 583 N.E.2d 856 (1992), quoting Robinson v. Secretary of Admin., 12 Mass.App.Ct. 441, 451, 425 N.E.2d 772 (1981).

         Nor may a plaintiff obtain a preliminary injunction without proving that it will suffer irreparable harm in the absence of such an order, and that such harm to the plaintiff from not granting the preliminary injunction would outweigh any irreparable harm that defendants are likely to suffer if the injunction issues. See, e.g., American Grain Products Processing Institute v. Department of Pub. Health, 392 Mass. 309, 326-29, 467 N.E.2d 455 (1984) (vacating preliminary injunction on this ground); Nolan v. Police Comm'r of Boston, 383 Mass. 625, 630, 420 N.E.2d 335 (1981) (same). Once again, the moving party has the " burden of showing it would suffer an irreparable harm absent an injunction." GTE Products Corp. v. Stewart, 414 Mass. 721, 726, 610 N.E.2d 892 (1993).

         2. Databases and Electronic Files

         Plaintiff accuses the individual Defendants of stealing six different databases (which it calls the " FileMaker Databases" after the name of the software on which they run), an additional electronic compilation of source materials (which it calls the " GLF Collections, " with the acronym GLF referring to the Governo Law Firm), and electronic versions of portions of its client matter files (which it calls the " Electronic Litigation Files"). The Governo Firm says that it created and uses the following FileMaker databases in its business: (1) a Client Management Database that contains client contact and billing information, historical information about the client, and lists the matters in which each client has been sued; (2) an Asbestos File Management Database that contains information taken from the client's matter files about each asbestos lawsuit in which the client has been sued, such as the caption of the suit, where the suit is pending, personal information about the plaintiff and contact information for the plaintiff's counsel; (3) a State of the Art Database that contains scientific and medical articles about diseases alleged to have been caused by exposure to asbestos; (4) a Talc Database containing similar publications about diseases linked to talc exposure; (5) a Bankruptcy Trust Database containing information gleaned from bankruptcy files that can be used to identify potential third-party defendants; and (6) a Mail Log Database that is used to record when the Governo Firm sends or receives correspondence about a client matter, but does not contain copies of the actual correspondence. In addition, the Governo Firm says that it has compiled and maintained electronic copies of materials (the so-called " GLF Collections") that are useful in defending against asbestos lawsuits, including scientific and medical articles, CVs and deposition transcripts of expert witnesses, deposition transcripts of fact witnesses, legal research, Daubert -type motions, and court rulings. Finally, Plaintiff says that it also keeps electronic client matter files that are separate from the FileMaker Databases and the GLF Collections. These " Electronic Litigation Files" contain confidential attorney-client communications and attorney work product. The other databases and electronic files at issue do not.

         The Governo Firm did not submit any admissible evidence to support its accusation that the individual Defendants stole copies of these electronic materials. In the Verified Complaint, David Governo asserts " on information and belief" that defendant Bryna Rosen Misiura copied the FileMaker Databases, the GLF Collections, and electronic client files from a Governo Firm computer a few weeks before she left the firm. Assertions " 'made on information and belief as opposed to personal knowledge, ' . . . constitute inadmissible hearsay." Billings v. GTFM, LLC, 449 Mass. 281, 295, 867 N.E.2d 714 (2007), (quoting Shapiro Equip. Corp. v. Morris & Son Constr. Corp., 369 Mass. 968, 968, 341 N.E.2d 668 (1976). As a general matter, when deciding a motion for a preliminary injunction a judge is free to consider evidence that would be inadmissible at trial, though " [t]he possible inadmissibility of evidence can be taken into account by the judge in according proper weight to the evidence." Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 406 Mass. 701, 711 n.9, 550 N.E.2d 1361 (1990). But assertions in an affidavit or verified complaint made on " information and belief" that are not supported by any other evidence do " not supply an adequate factual basis for the granting of a preliminary injunction." Eaton v. Federal Nat'l Mortgage Ass'n, 462 Mass. 569, 590, 969 N.E.2d 1118 (2012); accord Alexander & Alexander, Inc. v. Danahy, 21 Mass.App.Ct. 488, 494, 488 N.E.2d 22 (1986). Although Plaintiff has shown that Attorney Misiura directed an IT support consultant to place a backup copy of the various FileMaker databases on her office computer in late October 2016, when the consultant was installing an updated version of the FileMaker software on the firm's servers, it has not shown that these files were then copied from Misiura's office computer to a thumb drive or other electronic storage medium. Plaintiff had ample time to develop forensic evidence that electronic files were copied to one or more devices, since Plaintiff did not file its verified complaint and preliminary injunction papers until five weeks after the individual defendants had left and began practicing on their own. But it did not do so.

         Nonetheless, Defendants admit at least part of these allegations. A letter from their lawyer to counsel for the Governo Firm dated December 2, 2016, states " that electronic files were downloaded in anticipation of a possible departure." And defendant Jeniffer A.P. Carson states in an affidavit that before the individual defendants left the Governo Firm they downloaded and copied " client database materials, " but that after they left they " were not able to access any database other than the case management database." The Court understands this to be an admission that Defendants have a copy of and are using what the Governo Firm refers to as its " Asbestos File Management Database, " because Carson distinguishes that database from the " Client Management Database." It cannot tell from this evidence whether the individual Defendants also copied other electronic files and, if so, whether they took those files with them when the left to start their own competing firm. Given the lack of evidentiary support for Plaintiffs' assertion that Defendants took additional electronic materials, Defendants have no obligation at this stage to prove that they did not do so. Instead, as noted above, the burden is on the Governo Firm to prove that it is likely to succeed on the merits of its claims.

         In sum, for purposes of evaluating Plaintiff's request for a preliminary injunction the Court finds that Defendants took a copy of the Asbestos File Management Database with them, but that the Governo Firm has not yet proved that Defendants took without permission copies of any of the ...


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