GOLDMAN, SACHS & CO., Plaintiff, against GOOGLE, INC., Defendant. Index No.
GOLDMAN, SACHS & CO.S MEMORANDUM OF LAW IN SUPPORT OF ITS APPLICATION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
J une 27, 2014 BRUNE & RICHARD LLP One Battery Park Plaza New York, New York 10004 Tel: (212) 668-1900 Fax: (212) 668-0315
Counsel for plaintiff Goldman, Sachs & Co.
FILED: NEW YORK COUNTY CLERK 06/27/2014 INDEX NO. 156295/2014 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/27/2014
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 2 BACKGROUND ............................................................................................................................ 2 STANDARDS FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJ UNCTION ........................................................................................... 3 DISCUSSION ................................................................................................................................. 4 I. Goldman Sachs Is Likely to Prevail on the Merits .............................................................. 4 II. Goldman Sachs Faces the Risk of Immediate and Irreparable Injury ................................. 5 III. The Balancing of the Equities Favors Goldman Sachs ....................................................... 5 CONCLUSION ............................................................................................................................... 6 - 2 -
INTRODUCTION This application seeks to protect highly confidential brokerage account information that an outside consultant for the plaintiff, Goldman, Sachs & Co. (Goldman Sachs), inadvertently sent to a gmail email account belonging to an unknown account holder. Emergency relief is necessary to avoid the risk of inflicting a needless and massive privacy violation upon Goldman Sachss clients, and to avoid the risk of unnecessary reputational damage to Goldman Sachs. The defendant, Google, Inc. (Google), which operates the gmail service, appears willing to cooperate with Goldman Sachs so long as its cooperation is pursuant to a court order. The Court can and should provide that order by granting this application. BACKGROUND Goldman is a broker-dealer registered with the Securities and Exchange Commission and the Financial Industry Regulatory Authority (FINRA) and an indirect wholly-owned subsidiary of The Goldman Sachs Group, Inc., a publicly-traded bank holding company and global financial services firm. (Collie Aff. 2.) FINRA requires certain member firms, including Goldman Sachs, to periodically generate certain reports relating to their clients investments. (Id. 3.) One step in the process of preparing one of the FINRA reports is for the Goldman Sachss technology and operations areas to send data that will be used to prepare the report, including certain client information, to its compliance department for validation. (Id.) Goldman Sachs hired an outside technology consulting firm to assist with this process. (Id.) On J une 23, 2014, an employee of the consulting firm was testing changes to Goldman Sachss internal reporting and validation process. (Id. 4.) The employee intended to send a copy of the internal report to the email address provided to her by Goldman Sachs, which is in the form [first name].[last name]@gs.com, but instead mistakenly sent a copy of the internal - 3 -
report to an address in the form [first name].[last name]@gmail.com. (Id.) She is not the owner of the gmail address. (Id.) The mistakenly sent email contains certain account and client related information (the Confidential Client Information). (Id. 5.) Goldman Sachss clients have a right to maintain the confidentiality of the Confidential Client Information. (Id.) Furthermore, Goldman Sachs has an obligation to protect the privacy of its customers confidential information. (Id.) Goldman Sachs has made efforts to retrieve, have deleted or otherwise protect the mistakenly sent Confidential Client Information. As part of those efforts, on J une 26, 2014, Goldman Sachs sent an email to the gmail address to which the information was mistakenly sent requesting that it be promptly deleted and that the recipient confirm in writing that s/he had done so. (Id.) There has been no response. (Id.) Further, on J une 26, 2014, Goldman Sachs spoke with an employee on Googles Incident Response Team, who reported that the email could not be deleted without legal process i.e., a court order. (Id. 7) Absent an immediate injunction to ensure that the mistakenly sent email is not accessed in any way, Goldman Sachss clients face the risk of an invasion of privacy and disclosure of sensitive, confidential information about themselves and their accounts. (Id. 8.) Further, Goldman Sachs faces the risk of unnecessary reputational harm if it cannot reassure its clients that their privacy is being properly safeguarded. (Id.) STANDARDS FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION A party moving for a preliminary injunction generally must show: (1) a likelihood of success on the merits, (2) irreparable harm, and (3) that a balancing of the equities tips in that partys favor. W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 (1981). - 4 -
A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. N.Y. C.P.L.R. 6301. DISCUSSION I. GOLDMAN SACHS IS LIKELY TO PREVAIL ON THE MERITS Goldman Sachs seeks declaratory and injunctive relief to recover Confidential Client Information that indisputably should not be publicly disclosed. (Compl. 12-21.) Neither Google nor the email account holder has contended that they have grounds to keep or disclose the Confidential Client Information. Rather, the email account holder has not addressed the issue, and Google appears willing to cooperate so long as there is judicial process. In a materially indistinguishable case, a federal court in California granted a temporary restraining order requiring Google to block all access to an email containing confidential customer information that Rocky Mountain Bank mistakenly sent to a gmail account. See Temporary Restraining Order, Rocky Mountain Bank v. Google, No. 09 Civ. 04585 (N.D. Cal. Sep. 23, 2009) (attached as Ex. C to the accompanying affirmation of Charles Michael). Two of the three causes of action hare are substantially identical to the claims here (compare Compl. 15-21 with Michael Aff. Ex. A 19-27), and this Court should likewise conclude that claims to retrieve inadvertently emailed confidential bank information are sufficiently meritorious to warrant interim relief. 1
1 Goldman Sachs has added a cause of action for replevin that was not raised in the Rocky Monutain case but which is clearly meritorious, as well. Replevin requires proof of [d]emand upon, and refusal of, the person in possession of the chattel to return it, In re Peters, 34 A.D.3d 29, 34, (N.Y. 1st Dept 2006) and applies in the context of computer data. F & M Schaefer Corp. v. Elec. Data Sys. Corp., 430 F. Supp. 988, 992 (S.D.N.Y. 1977) (rejecting argument that data processing system, being wholly services or intangibles, cannot be made the subject of replevin). - 5 -
Even if the Court harbors any doubts about Goldman Sachss claims, New York law recognizes that the likelihood-of-success element may be relaxed in circumstances where the irreparable harm element is particularly strong, such as where denying the preliminary injunction would render any final judgment ineffectual. Gramercy Co. v. Benenson, 223 A.D.2d 497, 498 (1st Dept 1996). As discussed below, those circumstances are present in this case. II. GOLDMAN SACHS FACES THE RISK OF IMMEDIATE AND IRREPARABLE INJURY The disclosure of confidential information is a quintessential type of irreparable harm that cannot be compensated or undone by money damages. Hirschfeld v. Stone, 193 F.R.D. 175, 187 (S.D.N.Y. 2000); see also Doe v. Greco, 62 A.D.2d 498, 501 (3d Dept 1978) (Public disclosure of what is now confidential and should remain confidential would lead to an irreversible breach of that confidentiality. The harms which would naturally flow from disclosure could not be redressed nor could the parties ever be returned to the status quo ante.). Accordingly, courts have found irreparable harm in cases involving threatened disclosure of personal information and banking information. See, e.g., Krebs v. Rutgers, 797 F. Supp. 1246, 1260 (D.N.J . 1992) (social security numbers); Natl City Corp. v. Boyd, 1:08-CV-2189, 2008 WL 4346444, at *3 (N.D. Ohio Sept. 17, 2008) (finding irreparable harm and observing that brokerage customers expect their customer information, addresses and account histories to be secure and the loss resulting from the breach of such security is difficult to quantify); see also Michael Aff. Ex. C (TRO in Rocky Mountain case). Disclosure of the confidential information could happen at any moment, and thus immediate relief is urgently needed. III. THE BALANCING OF THE EQUITIES FAVORS GOLDMAN SACHS The balancing of equities weighs strongly in favor of Goldman Sachs, whose clients, absent an injunction, face the risk of disclosure of sensitive personal and account information. (Collie Af f . ^| 8. ) Further, Goldman Sachs faces the risk of substantial and unnecessary reputational harm i f it cannot reassure its clients that their privacy is being properly safeguarded. (Id.) By contrast, Google faces little more than the minor inconvenience of intercepting a single email an email that was indisputably sent in error. CONCL USI ON For the stated reasons, the Court should grant Goldman Sachs's application for a temporary restraining order and preliminary injunction. Dated: New York, New York Respectfully submitted, June 27, 2014 Hillary Richard Charles Michael BRU N E & RI CHARD LLP One Battery Park Plaza New York, New York 10004 Tel: (212) 668-1900 Fax: (212) 668-0315 Counsel for plaintiff Goldman, Sachs & Co. - 6-