Opinion
Case No.: C 11-04762 WHA
10-14-2011
REEVES & ASSOCIATES, PLC, Plaintiff(s), v. MATTHEW D. MULLER, AND DOES 1-25, INCLUSIVE, Defendant(s).
Kerry Mclnerney Freeman (SBN 184764) Claudia J. Castillo (SBN 215603) MILLER LAW GROUP A Professional Corporation Attorneys for Plaintiff REEVES & ASSOCIATES, PLC Matthew D. Muller (SBN 275832) Defendant, Pro Se
Kerry Mclnerney Freeman (SBN 184764)
Claudia J. Castillo (SBN 215603)
MILLER LAW GROUP
A Professional Corporation
Attorneys for Plaintiff
REEVES & ASSOCIATES, PLC
Matthew D. Muller (SBN 275832)
Defendant, Pro Se
SEALED
6Y COURT ORDER
[PROPOSED] STIPULATED ORDER
GRANTING INJUNCTIVE RELIEF AND
PROTECTIVE ORDER
Plaintiff Reeves & Associates, PLC's ("R&A's") Motion for Temporary Restraining Order came before the Court on September 28, 2011, in Courtroom 8, the Honorable William H. Alsup presiding. Kerry Mclnerney Freeman and Claudia J. Castillo of Miller Law Group, Professional Corporation, appeared on behalf of Plaintiff Reeves & Associates, PLC. Defendant Matthew D. Muller ("Defendant") appeared pro se.
After full consideration of all pleadings and evidence filed by Plaintiff (with Defendant not having filed any pleadings or evidence opposing Plaintiffs Request for Temporary Restraining Order at or before the September 28, 2011 hearing), the arguments of Defendant opposing Plaintiffs Request for Temporary Restraining Order and the arguments of counsel for Plaintiff, and all other matters presented to this Court, and good cause appearing therefore, and satisfactory proof having been made, the Court issued a verbal Temporary Restraining Order to remain in effect until the October 27, 2011 hearing regarding Plaintiffs motion for continued injunctive relief, which Order was subsequently memorialized in a written Temporary Restraining Order issued by the court on October 7, 2011.
Following the September 28, 2011 hearing, the parties reached the following agreement regarding injunctive relief and a protective order, which agreement obviates the need for (1) the Court to rule on Plaintiffs pending motion, (2) the October 27, 2011 hearing to occur, and (3) the parties to file their opposition and reply pleadings and evidence regarding Plaintiffs pending motion.
STIPULATED INJUNCTIVE RELIEF
1. Defendant (which, for purposes of this Stipulated Order, includes Matthew Muller and anyone acting on his behalf or pursuant to his instructions) must not do anything to destroy or otherwise harm the integrity of any computer hard drives, both internal and external, or any other devices or media in his possession, custody or control that contain any "R&A data or files" of any sort, including but not limited to Defendant's (a) 2 terabyte Western Digital "My Book Essential" USB external magnetic hard drive; (2) 16 gigabyte Data Traveler encrypted USB solid state drive; and (3) 160 gigabyte Intel internal solid state drive. Further, Defendant will not destroy, delete, remove, alter, modify, write over, conceal, or dispose of any of the data contained on those drives, devices, or media. For the purposes of this Stipulated Order, "R&A Data or files" includes data or files that Defendant accessed, acquired, modified, copied or transferred from R&A's network or R&A's computers (including from the local drive on desktop computers provided by R&A to Defendant and other R&A employees).
2. By 1:00 p.m. on October 14, 2011, Defendant will deliver the drives identified in Paragraph 1 to Dataway (or, if Dataway is unable, another mutually agreed upon firm specializing in computer security and forensics) ("Computer Security Firm"), which firm will image, preserve, or delete the data in a manner consistent with the Protective Order detailed below. If Computer Security Firm is not able to take custody of the drives by the aforementioned date, Defendant will deliver the drives as soon thereafter as Computer Security Firm is able to take custody.
3. Defendant will not use any R&A data or files he accessed, acquired, modified, copied, transferred or took from R&A for any reason whatsoever, including for starting his own law practice, soliciting or representing clients, or for bringing a lawsuit against R&A, unless expressly permitted to do so by a written Order of the Court.
4. Defendant has identified several other drives (i.e., other than those drives identified in Paragraph 1) that contain R&A data or files but that are not presently in his possession ("Other Drives"). With regard to those Other Drives, Defendant not only agrees not to use any R&A data or files on those drives for any reason whatsoever, but also agrees not to attempt to recover data from those drives.
5. Nothing in this Stipulated Order prevents Defendant from continuing his pro-bono representation of prior R&A client Girlie Galang. Moreover, nothing in this Stipulated Order precludes Defendant from representing clients who were at one time represented by R&A provided that (a) Defendant does not use R&A data or files to solicit those clients, and (b) Defendant does not use R&A Data or files (except for the client files, which will be transferred to Defendant if such transfer is requested in writing by the client) to represent those clients.
STIPULATED PROTECTIVE ORDER
Upon Defendant's delivery of the aforementioned computer drives containing R&A data to Computer Security Firm, Computer Security Firm is instructed to do the following:
1. Maintain the integrity of each drive delivered by Defendant, including by not destroying, deleting, removing, altering, modifying, writing over, concealing, or disposing of any of the data or files contained on those drives.
2. Make an image of each such drive so that a copy of each is preserved reflecting the state each drive was in when it was received by Computer Security Firm.
3. If the parties request to have a copy of their respective files after the drives are imaged and before they are wiped clean, the sorting and copying of files will be limited to the file types identified in Paragraph 4 below, the Copy File Types. Computer Security Firm will perform the separation and copying of files, in the mariner it determines to be most efficient, within these general guidelines:
a. Computer Security Firm will print out a "map" of the drive contents, listing all of the filenames (with extensions), reflecting the folders within which the files reside, and provide a copy of that map/list to both parties.
b. R&A's IT Specialist Shadouh Lopez will review the list for the Firm and identify for Computer Security Firm what she believes are Firm files.
c. Defendant will review the list and identify for Computer Security Firm what he believes are his files.
d. For files claimed by both parties (if any), Computer Security Firm will review them and determine who the files belong to after conferring with the parties.
e. Each party's files will be copied onto a separate drive provided by that party, with Defendant's files going to Defendant, and the Firm's files going to the Firm, with neither party able to view the other's drives/files without a Court Order/agreement of the parties.
f. Those files for which Computer Security Firm is unable to determine the source party will not be provided to either party; instead, they will be copied onto a drive and maintained separately by Computer Security Firm.
g. Each party who asks the Computer Security Firm to provide a copy of that party's files from Defendant's drives will bear the costs associated with obtaining a copy of that party's files from Defendant's drives.
4. If the parties request to have a copy of their respective files as set forth in Paragraph 3 above either (a) after the drives are imaged and before they are wiped clean or (b) after the drives are imaged and from the images maintained by Computer Security Firm, the parties agree that the sorting and copying process will be limited to the below file types ("Copy File Types"):
• .doc (Word document)The parties further agree that after the Copy File Types are sorted and copied from the drive(s) by their respective owners, and if the sorting and copying takes place prior to wiping the drives clean, all remaining files will be wiped from the drive(s) (but will still exist in the imaged copies maintained by the Computer Security Firm).
• .wpd (Word Perfect document)
• .rtf (rich text format document)
• .xml (extensible markup language document)
• .xls (Excel document)
• .ppt (PowerPoint document)
• .jpg (image)
• .jpeg (image)
• .gif (image)
• .giff (image)
• .raw (image)
• .tiff (image)
• .png (image)
• .psd (Photoshop document)
• .mp3 (audio)
• .mp4 (audio/video)
• .mpg (audio/video)
• .mpeg (audio/video)
• .avi (audio/video)
• .mov (audio/video)
• .ost (Outlook document)
• .pst (Outlook document)
• .pdf (portable document format, e.g. Acrobat document)
• .mdb (microsoft access database)
• .exe (executable file)
• .txt (notepad)
5. Fully delete all of the data on Defendant's drives and return the drives to Defendant.
6. Not allow Defendant or R&A to access or obtain any data or files contained by or derived from the image it has created of each drive, except by written agreement of the parties or by written Court Order allowing either or both parties to access such data.
7. Store and maintain the drive images (as well as those files for which Computer Security Firm was unable to determine the source party) for five years from the date of this Order. Upon expiration of this period, Computer Security Firm shall fully delete the drive images and any data derived from those images.
8. Aside from the costs for copying files as referenced in Paragraph 3(g), the parties will equally share the cost of the other services provided by Computer Security Firm (e.g., the costs of imaging Defendant's drives, maintaining those images, and eventually deleting those images).
IT IS SO STIPULATED.
MILLER LAW GROUP
A Professional Corporation
By: _______________
Kerry Mclnerney Freeman
Claudia J. Castillo
Attorneys for Plaintiff
REEVES & ASSOCIATES, PLC
By: _______________
Matthew D. Muller
Defendant, Pro Se
ORDER
Having reviewed the Stipulated Injunctive Relief and Protective Order executed by Plaintiff REEVES & ASSOCIATES, PLC and Defendant MATTHEW D. MULLER, and good cause appearing, the Court hereby orders that the terms of the Stipulated Injunctive Relief and Protective Order shall become the Order of this Court.
IT IS SO ORDERED.
Honorable William H. Alsup
United States District Judge
CERTIFICATE OF SERVICE
I, Natalie Young, declare that I am employed at Miller Law Group, A Professional Corporation, whose address is 111 Sutter Street, Suite 700, San Francisco, CA 94104; I am over the age of eighteen (18) years and am not a party to this action. On the below date, by the method noted below, I served the following document(s):
[PROPOSED] STIPULATED ORDER GRANTING INJUNCTIVE RELIEF AND
PROTECTIVE ORDER
on the interested parties in this action by placing a true and correct copy thereof, enclosed in a sealed envelope addressed as follows:
Matthew D. Muller
Attorney for Defendant: Pro Se
[x] BY MAIL: By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the ordinary course of business for collection and mailing on this date at Miller Law Group, 111 Sutter Street, San Francisco, California. I declare that I am readily familiar with the business practice of Miller Law Group for collection and processing of correspondence for mailing with the United States Postal Service and that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. [x] BY ELECTRONIC MAIL: By sending a portable document format (pdf) copy of the documents to email address: matthewdmuller@gmail.com [x] [Federal] I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on October 12, 2011 at San Francisco, California.
_______________
Natalie Young