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The Revolution FMO, LLC v. Mitchell

United States District Court, E.D. Missouri, Eastern Division

January 26, 2018

THE REVOLUTION FMO, LLC, Plaintiff,
v.
MARVIN MITCHEL, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENR Y EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff's Motion to Disqualify, [Doc. No. 54]. Defendant opposes the Motion. The parties have submitted numerous memoranda on the motion. For the reasons set forth below, the Motion is denied.

         Facts and Background

         Plaintiff's Complaint alleges that Defendant misappropriated Plaintiff's trade secrets to disclose Plaintiff's trade secrets to its competitor, Advisors Excel. Defendant's counsel represents Advisors Excel in addition to Defendant and another former employee of Plaintiff.

         On September 15, 2017, the Court entered the Protective Order to which the parties agreed. This Order provides, inter alia,

In order to preserve Plaintiff's alleged trade secrets and proprietary information, Defendant shall not use, disseminate, or otherwise discuss the Retained Material (as that term is defined below) in any forum or by any medium, including, but not limited to use through his business Mitchell Retirement Group, LLC d/b/a Compass Retirement Solutions (“Compass Retirement”), on his website, at seminars, in social media, publications, broadcasting, email communications to third parties, or advertising efforts. Defendant shall not alter, move, modify, delete, copy, transfer, or disclose any Retained Material in his possession, custody or control. Defendant shall further, to the extent he has not already done so, instruct employees and staff at Compass Retirement that they shall not alter, move, modify, delete, copy, transfer, or disclose Retained Material or files containing portions of Retained Material and shall not use, disseminate, or otherwise discuss Retained Material. Nothing contained herein shall limit or abridge either party's ability to designate materials produced during discovery as Confidential, Highly Confidential, or Attorneys' Eyes Only as further described in the Expedited Discovery Order or any subsequent Order entered by this Court. The restrictions on the Defendant's use or dissemination of Retained Material contained in this Order shall be deemed to restrict Defendant's use of materials in his possession or control, or which may come into his possession and control during the course of this lawsuit. The restrictions apply not only to the Defendant's use or dissemination of Retained Material, but also that of those acting at the Defendant's instruction with respect to such use or dissemination.
Until such time as the Court enters judgment, or the Parties enter into a settlement agreement, resolving Plaintiff's pending copyright infringement claim, Defendant shall not sell, distribute, gift, advertise, or display his book titled: “Protecting your Retirement Nest Egg: What The Wall Street Brokers & Bankers Don't Want You to Know.” Within fourteen (14) days of the entry of this Order, Defendant shall send written communication, copying Plaintiff's counsel, to Advisors Excel, Amazon, Baker & Taylor, Barnes and Noble, Brodart Normal Trade, the Public Library of Annapolis, the Wellesley Free Library, and any other commercial third party known by Defendant to be in possession of his book, requesting that the recipient remove his book from distribution.
The term “Retained Material” shall mean any electronic or hard copy versions of (i) any document Defendant and/or his staff received either in hard copy, electronically, or via Plaintiff's website or electronic database, including, but not limited to, the materials listed in Exhibit E to Mark Lindsey's declaration (Doc. No. 5-6), as well as earlier or later versions of those materials which Defendant and/or his staff received or may come to possess, (ii) any documents or electronic files created by the Plaintiff which were, at the time provided to or obtained by Defendant (or any individual acting on behalf of or at the Defendant's instruction, control, or for the benefit of Defendant), marked with any indication that the materials belonged to the Revolution including marking indicating that the document is “confidential, ” “proprietary, ” “trade secret, ” “copyrighted, ” for “Agent Use Only”, marked with a document or otherwise marked or identified in such a manner to put Defendant on notice that such documents or electronic files were not intended for the Defendant's use or dissemination absent the Plaintiff's consent, which consent (if any) has been revoked; and (iii) such other documents or electronic files as the parties may agree in writing from time to time.
Notwithstanding anything in this Order to the contrary, this Order does not prohibit the Defendant from returning Retained Material to the Plaintiff, and by so doing neither party will be deemed to have violated this Order, the Expedited Discovery Order, the general prohibition against spoliation, or any other applicable or potentially applicable rules and doctrines, provided Defendant coordinates the return of such materials with Plaintiff before accessing, modifying, or deleting any materials being returned to avoid the risk of spoliation and ensure the return does not impact work being performed by the Computer Forensic expert appointed by this Court. Further, nothing in this Order is intended to conflict with the provisions of the Expedited Discovery Order (Doc. No. 28).
Notwithstanding anything in this Order to the contrary, this Order does not prohibit the Defendant from using or disclosing Retained Material as necessary to defend this action or prosecute counterclaims in this action provided steps are taken to maintain the confidentiality of such materials consistent with this Order and the Court's Order Granting Expedited Discovery. Such use includes (i) disclosing Retained Material to his counsel in this action or such counsel's administrative staff, (ii) disclosing Retained Material to the Court or its staff, or (iii) disclosing Retained Material to the jury in this case. The parties are hereby granted leave to file Retained Material under seal. This Order prohibits all other uses of the Retained Material by Defendant (or any individual acting on behalf of or at the Defendant's instruction, control, or for the benefit of Defendant). Further, nothing in this Order prohibits Defendant from (i) using or continuing to use or disseminating or continuing to disseminate documents or electronic files the Plaintiff may request or require Defendant to use or continue to use, or (ii) using or continuing to use or disseminating or continuing to disseminate, information already publicly known (except in a form substantially similar to any of the Retained Material, or information made public by consequence of Defendant's prior unauthorized disclosure, if any).
If the Plaintiff becomes aware that the Defendant appears to be in violation of any provision of this Order, the Plaintiff shall notify the Defendant in writing, of the particular Retained Material it believes the Defendant is using or has used, or is disseminating or has disseminated, and the particular manner in which Defendant used or disseminated such materials. Upon receipt of such notice, the Defendant shall respond in writing within five days, and the parties shall endeavor in good faith to resolve their dispute. If the parties are unable to do so, the Plaintiff may then seek relief from the Court, including requesting that the Court hold Defendant's actions to be in violation of this Order, and thus punishable by contempt. To the extent any part of this Order is subject to Fed.R.Civ.P. 65, Defendant irrevocably waives his right to insist on compliance with Fed.R.Civ.P. 65(d) and his right to appeal from the entry of this Order.
Any Retained Material is hereby preliminarily deemed designated Confidential, and shall be treated in accordance with the provisions in the Expedited Discovery Order regarding same. The preceding sentence is in no manner intended to limit the rights of the parties to request that the designation be modified.

         Plaintiff has identified its concerns with Defendant's counsel representing Defendant and its major competitor: Plaintiff believes that counsel may disclose trade secrets learned through representing Defendant to Advisors Excel, or alternatively, counsel's inability to zealously represent Advisors Excel because counsel will not be allowed to disclose information learned through representing Defendant to Advisors Excel. These general observations, alone, are ...


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