CORRECTED MEMORANDUM AND ORDER ON PLAINTIFFâS MOTION
FOR A POST-TRIAL PRELIMINARY INJUNCTION
Kenneth W. Salinger, Justice
The
Court will issue a post-trial, temporary injunction that is
more specific and narrower in scope than the order sought by
Plaintiff.
The
Governo Law Firm, LLC brought suit claiming that six of its
former partners and their new law firm took copies of
electronic files and databases that belong to the Governo
Firm. Defendants contended that these materials belonged to
the clients who transferred their legal representation to the
new firm. At trial the jury heard evidence, and indeed it was
undisputed, that over time the Governo Firm conceded that
substantial parts of the files and databases copied and taken
by Defendants were indeed client file materials that belong
to clients that transferred from the Governo Firm to the new
CMBG3 law firm. But the Governo Firm contended that
Defendants are not entitled to keep other, albeit
unspecified, parts of those files and databases.
Yesterday
the jury in this case returned in verdict in the Governo
Firmâs favor on some but not all of its claims. The jury
found that Defendants converted some documents, files, or
information in databases that belongs to the Governo Firm,
and that the six individual Defendants breached their duty of
loyalty by misusing some confidential information that
belonged to the Governo Firm. On the other hand, the jury
also found that Defendants did not misappropriate any trade
secrets and did not commit any unfair or deceptive act or
practice. The Governo Firm asked the jury to award unjust
enrichment damages. It argued that the entire $2.8 million
earned by Defendants since they left the Governo Firm was
attributable to Defendantsâ use of materials that they copied
and took from the Governo Firm. The jury disagreed, awarding
$900, 000 in damages.
To
reach this verdict the jury necessarily found that at least
part of the electronic files and databases that Defendants
copied and took with them when they left the Governo Firm did
not constitute materials that clients were entitled
to take with them when they transferred their legal
representation from the Governo Law Firm to CMBG3 Law.
The
Governo Firm has filed a post-trial motion for a preliminary
injunction, asking the Court to bar Defendants from accessing
or using any "property of the Governo Law Firm,"
from accessing any of the thumb drives onto which some of the
Defendants had copied electronic files and databases from the
Governo Firmâs servers, or from accessing what Defendantsâ
referred to as the "Alternative Laptop" onto to
which Defendants copied some but not all of these files and
databases.
According
to the motion, the Governo Firm has styled its request as
seeking a preliminary rather than a permanent injunction
because it is still working on its broader request for
permanent injunctive relief.
When
final judgment enters in this case, the Governo Firm will be
entitled to appropriate permanent injunctive relief without
having to demonstrate that they would suffer irreparable harm
without such relief or that such harm outweighs any harm to
Defendants from granting the injunction. See generally
Borne v. Haverhill Golf & Country Club, Inc., 58
Mass.App.Ct. 306, 323 (2003) ("In protesting that there
has been no inquiry into who would suffer irreparable
harm," defendant "mistakenly seeks to graft onto a
permanent injunction criteria that apply to preliminary
injunctive relief").[2] This principle has special force
with respect to the Governo Firmâs right to control the use
of electronic files and databases. The entry of a permanent
injunction barring any further improper use of those
materials will cut off any claim for future damages. See
Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co.,
381 Mass. 1, 9-10 & 12 (1980).
Since
the Governo Firm is now seeking a preliminary injunction,
however, it "must show a likelihood of success on the
merits of the underlying claim; actual or threatened
irreparable harm in the absence of injunction; and a lesser
degree of irreparable harm to the opposing party from the
imposition of an injunction." Wilson v. Commissioner
of Transitional Assistance, 441 Mass. 846, 860 (2004).
Nonetheless,
the Governo Firm has already prevailed at trial. As a result
there is no longer any question about their likelihood of
success on the merits.
And the
fact that Plaintiffs have prevailed on the merits materially
alters the calculus in balancing the harm that will persist
if no injunction is issued, on the one hand, and the harm
that may result if the injunction were to be granted, on the
other. "What matters as to each party is not the raw
amount of irreparable harm the party might conceivably
suffer, but rather the risk of such harm in light of the
partyâs chance of success on the merits." Siemens
Bldg. Techs., Inc. v. Division of Capital Asset Mgmt.,
439 Mass. 759, 762 (2003), quoting Packaging Industries
Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). Thus,
"an attempt to show irreparable harm cannot be evaluated
in a vacuum"; instead, it must be evaluated as part of a
"sliding scale analysis" in which "the
predicted harm and the likelihood of success on the merits
[are] juxtaposed and weighed in tandem." Ross-Simons
of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st
Cir. 1996).
Given
that the Governo Firm prevailed in part at trial, the Court
is satisfied that there is a sufficient risk of irreparable
harm from continued misuse of Governo Firm materials to
justify the issuance of a properly tailored preliminary
injunction.
The
injunctive relief sought by the Governo Firm is both too
vague and overbroad, however. The request to enjoin any use
of "property of the Governo Law Firm" is
unenforceably vague, especially now that Plaintiff has
conceded Defendantsâ clients are entitled to keep, and allow
Defendants to use, substantial parts of the materials that
Defendants had copied and taken. The request to enjoin any
access of the thumb drives and the Alternative Laptop is
overbroad. The Court credits evidence at trial that those
devices contain not only copies of files and databases that
the Governo Firm claims as its own, but also personal files
that the Governo Firm allowed Defendants to copy and take (in
the case of the thumb drives) and all sorts of computer
software, files, and data that did not come from the Governo
Firm or that the Governo Firm subsequently transferred to
CMBG3 because it belongs to transferred clients (in the case
of the alternative laptop).
The
Court will therefore enter a narrower preliminary injunction
that bars Defendants from accessing or using any part of the
8500 New Asbestos Litigation files or of any database copied
and taken from the Governo Law Firm, except for any
files, documents, information, or databases that the Governo
Firm transferred to any of the Defendants or any of their
clients after November 20, 2016 (their last day working for
the Governo Firm). The Court will also clarify that
Defendants are free to use files, documents, or information
that they obtain from some ...