Rocky Mountain Bank V Google

Case5:09-cv-04385-PVT Document11 Filed09/18/09 Page1 of 4
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
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12 ROCKY MOUNTAIN BANK, ) Case No.: C 09-4385 PVT
)
13 Plaintiff, ) ORDER DENYING PLAINTIFF’S
) MOTION TO FILE PLEADINGS
14 v. ) UNDER SEAL
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15 GOOGLE, INC., )
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16 Defendant. )
___________________________________ )
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18 On September 18, 2009, Plaintiff filed a motion to file all pleadings and other filings in this
19 matter under seal.1 Having reviewed the papers submitted by the parties, the court finds it
20 appropriate to issue this order without further briefing or oral argument. Based on the moving
21 papers submitted,
22 IT IS HEREBY ORDERED that Plaintiff’s motion is DENIED because Plaintiff has not
23 shown that there are sufficiently compelling reasons for sealing the information to override the
24 public’s common law right of access to records in civil proceedings.
25 I. FACTUAL BACKGROUND
26 Plaintiff is a full service banking institution which, among other things, offers various loans
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This case is assigned to Magistrate Judge Patricia V. Trumbull. However, because
28 Magistrate Judge Trumbull is unavailable until September 23, 2009, Plaintiff’s motion to seal has been
referred to the current duty judge for the San Jose Division of this court.
ORDER, page 1
1 to individual consumers and corporate entities.2 On August 12, 2009, Plaintiff received a request
2 from one of its customers for Plaintiff to send certain loan statements to a third-party representative
3 of that customer. That same day, an employee of Plaintiff attempted to send the requested
4 information to the customer’s representative via email. The next day, Plaintiff discovered that its
5 employee had inadvertently sent the email to the wrong Gmail email address. In addition, Plaintiff
6 discovered that attached to the email was a file containing confidential customer information for
7 1,325 individual and business customer accounts for customers other than just the customer who
8 requested information. The confidential information includes names, addresses, tax identification
9 numbers,3 and loan information for each of the 1,325 customer accounts.
10 After learning of its inadvertent disclosure of confidential customer information, Plaintiff
11 tried to recall the email without success. It then sent another email to the Gmail address, instructing
12 the recipient to immediately delete the prior email and the attached file in its entirety without
13 opening or reviewing it. Plaintiff also requested that the recipient contact Plaintiff to discuss his or
14 her actions. The recipient has not responded to Plaintiff’s email.
15 Plaintiff also contacted Google, the company that provides the Gmail service, and asked
16 whether the Gmail account at issue is active or dormant and what steps could be taken to ensure that
17 the confidential customer information was not used or disclosed. Google advised Plaintiff that it
18 would not provide any information regarding the Gmail account at issue, and would not otherwise
19 assist in preventing disclosure of the confidential customer information unless it was requested
20 through a valid subpoena or other appropriate legal process.
21 II. LEGAL STANDARDS FOR SEALING COURT DOCUMENTS AND FILES
22 The Supreme Court has acknowledged the existence of a common law right of access to
23 records in civil proceedings: “It is clear that the courts of this country recognize a general right to
24 inspect and copy public records and documents, including judicial records and documents.” See
25 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). While the
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The statement of facts herein is based on the allegations in the complaint.
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The court assumes that for individual customers this would be their social security
number.
ORDER, page 2
1 Court recognized that this right to access is not absolute, it did not identify all factors to be weighed
2 in determining whether court files or documents may be sealed. Factors that the Ninth Circuit finds
3 relevant to this determination include:
4 the public interest in understanding the judicial process and whether
disclosure of the material could result in improper use of the material
5 for scandalous or libelous purposes or infringement upon trade secrets.
6 See Hagestad, 49 F.3d at 1434 (internal citation and quotation marks omitted).
7 After considering all relevant factors, a court must “base its decision on a compelling reason
8 and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.” See
9 Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (quoting Valley Broadcasting Co. v.
10 United States Dist. Court, 798 F.2d 1289, 1293 (9th Cir. 1986)); see also, Foltz v. State Farm Mutual
11 Automobile Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003).
12 III. DISCUSSION
13 Plaintiff argues that if its complaint and motion papers are not filed under seal, all of its
14 customers may learn of the inadvertent disclosure. Plaintiff further argues that publication of the
15 disclosure before it determines whether the Gmail account is active or dormant will unnecessarily
16 create panic among all of its customers and result in a surge of inquiry from its customers. In his
17 declaration, Mark Hendrickson, states that “until there is a determination that the Confidential
18 Customer Information was in fact disclosed and/or misused, the Bank cannot advise its customers on
19 whether there was an improper disclosure.” (See Declaration of Mark Hendrickson in Support of
20 Motion to File Under Seal, filed herein on September 18, 2009, ¶ 18.)
21 An attempt by a bank to shield information about an unauthorized disclosure of confidential
22 customer information until it can determine whether or not that information has been further
23 disclosed and/or misused does not constitute a compelling reason that overrides the public’s
24 common law right of access to court filings. Plaintiff is already able to advise its customers that
25 there has been an unauthorized disclosure of confidential customer information, and inform them of
26 the steps it is taking to rectify the situation.4 And Plaintiff has not shown that disclosure of the
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The possibility that the email has not been opened, or that the information has not been
28 misused, does not change the fact that there already was an unauthorized disclosure of the information
to an unknown third party.
ORDER, page 3
1 information contained in its complaint and motion papers “could result in improper use of the
2 material for scandalous or libelous purposes or infringement upon trade secrets,” or invasion of any
3 personal privacy rights that might warrant protection under Federal Rules of Civil Procedure 26(c).
4 Plaintiff has not disclosed any actual customer information in its pleadings or motion papers.5
5 IT IS FURTHER ORDERED that, notwithstanding the foregoing, Plaintiff may redact the
6 specific Gmail account name from copies of its complaint and motion papers that it files in the
7 public record, in order to allow the owner of that account time to seek an order sealing that
8 information if such sealing is warranted. Until it is determined which documents will be filed in
9 redacted form in the public file, the clerk of the court shall maintain all filed documents under seal.
10 No later than September 21, 2009, Plaintiff shall email to the docket clerk for Magistrate Judge
11 Patricia V. Trumbull electronic copies of each document in which the Gmail account name has been
12 redacted, which the clerk of the court shall then file in the court’s electronic filing system. For those
13 documents, the clerk of the court shall file under seal the unredacted originals which were
14 previously filed. For all documents that do not include the specific Gmail account name, Plaintiff
15 shall promptly electronically file them.
16 IT IS FURTHER ORDERED that the clerk of the court shall promptly unseal this case, so
17 that it is accessible through the court’s electronic filing system and through Pacer.
18 Dated: 9/18/09
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RONALD M. WHYTE
20 United States District Judge
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In the event Plaintiff finds it necessary to disclose any actual customer information in
28 future filings, it may move to seal the confidential portions of those filings pursuant to this court’s Civil
Local Rule 79-5.
ORDER, page 4
1 GRACE Y. HOROUPIAN (SBN 180377)

KUTAK ROCK LLP
2 Suite 1100
18201 Von Karman Avenue
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
Email: grace.horoupian@kutakrock.com
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NEIL L. ARNEY (SBN 125682)
6 KUTAK ROCK LLP
Suite 3100
7 1801 California Avenue
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
9 Email: neil.arney@kutakrock.com
10 Attorneys for Plaintiff
ROCKY MOUNTAIN BANK, a
11 Wyoming corporation
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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15 ROCKY MOUNTAIN BANK, a Case No. C09-04385 PVT

Wyoming corporation,
16 CERTIFICATE OF INTERESTED
Plaintiff, PARTIES
17 (FILED UNDER SEAL)
v.
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GOOGLE INC., a Delaware
19 corporation, Complaint filed: September 17, 2009
20 Defendant.
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4842-6376-3460.1
CERTIFICATE OF INTERESTED PARTIES
1 The undersigned counsel of record for Plaintiff, Rocky Mountain Bank, a

2 Wyoming corporation, pursuant to Civil L.R. 3-16, certifies that as of this date,
3 other than the named parties, there is no such interest to report."
4 Dated: September 17, 2009 KUTAK ROCK LLP
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By: /s/ Grace Y. Horoupian
7 Grace Y. Horoupian
8 ATTORNEYS FOR PLAINTIFF
ROCKY MOUNTAIN BANK
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4834-1520-0516.1 CERTIFICATE OF INTERESTED PARTIES

KUTAK ROCK LLP
2 Suite 1100
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
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6 KUTAK ROCK LLP
Suite 3100
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
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15 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

16 MOTION TO FILE PLEADINGS
Plaintiff, UNDER SEAL
v.
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GOOGLE INC., a Delaware Hearing Date: __________
19 corporation, Time: a.m.
Room:
20 Defendant.
Trial Date: Not Scheduled
21 Date Action Filed: __________
Judge: Hon.
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MOTION TO FILE UNDER SEAL

CASE NO. __________
4835-4594-6884.1
1 Plaintiff Rocky Mountain Bank, by and through its attorneys Kutak Rock
2 LLP, hereby submits the following Motion to File Pleadings Under Seal and in
3 support thereof, states and alleges as follows:
4 INTRODUCTION
5 The Bank is a full service banking institution which, among other things,
6 offers various loans to individual consumers and corporate entities. (See Mark
7 Hendrickson’s Declaration filed herewith (the “Declaration”), ¶ 4) In connection
8 with a request for information from one of the Bank’s customers, the Bank
9 inadvertently sent the information to the wrong “gmail” account, which is an email
10 account established through www.google.com. (Declaration, ¶¶ 5 and 6) In
11 sending the email, the Bank also inadvertently attached confidential account
12 information of 1,324 other accounts, including names, addresses, tax identification
13 numbers, and account numbers of customers. (Declaration, ¶ 8) The Bank is
14 taking all appropriate steps to protect the confidential customer information and to
15 prevent the misuse of such information.
16 In connection with the Bank’s internal investigation and evaluation of the
17 likelihood that the confidential customer information has been or will be misused
18 and to adequately protect the confidential customer information, the Bank has
19 determined that it is necessary to: (a) prevent Google Inc. (“Google”) and the
20 Google account holder from using the Confidential Customer Information; (b) have
21 the Gmail Account immediately frozen or deactivated to prevent any access to the
22 confidential customer information; (c) permanently delete the inadvertent email
23 from Google’s system; (d) determine the status of the “gmail” account, specifically,
24 whether the “gmail” account is active or dormant and whether the inadvertent email
25 was opened or otherwise manipulated by the account holder; and (e) in the event
26 that the “gmail” account is not dormant, ascertain the identity of the “gmail”
27 account holder, so that the Bank can take appropriate steps with the account holder
28 to ensure that the confidential customer information is not distributed or otherwise
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CASE NO. __________
4835-4594-6884.1
1 misused. (Declaration, ¶15) The Bank has requested information from Google
2 regarding the “gmail” account and has requested Google’s assistance in preventing
3 further disclosure of the confidential customer information. Google, however, has
4 refused to disclose any information to the Bank or to assist the Bank in its efforts to
5 prevent disclosure of the confidential customer information, unless and until it is
6 subject to legal process. (Declaration, ¶14)
7 Accordingly, the Bank has filed a Verified Complaint for Declaratory and
8 Injunctive Relief against Defendant Google Inc. (the “Verified Complaint”). In
9 connection therewith, the Bank has filed its Memorandum of Points and Authorities
10 in Support of Motion for Temporary Restraining Order and Preliminary Injunction
11 (the “Motion for Injunctive Relief”). (Declaration, ¶17) However, until the Bank is
12 able to determine the status of the “gmail” account there is no need for the Bank to
13 contact its account holders or needlessly panic its customers. Therefore, it is
14 imperative that the pleadings and filings in this action are filed under seal.
15 ARGUMENT
16 Although there is a presumption in favor of access to court records, it “is not
17 absolute and can be overridden given sufficiently compelling reasons for doing so.”
18 Foltz v. State Farm Mutual Automobile Insurance Co., 331 F.3d 1122, 1135 (9th
19 Cir. 2003); see also Kamakana v. City and County of Honolulu, 447 F.3d 1172,
20 1178-9 (9th Cir. 2003). As the Verified Complaint and the Motion for Injunctive
21 Relief contain information that could potentially alarm the Bank’s customers and
22 create needless panic, compelling reasons exist to grant the Bank’s Motion to File
23 Under Seal.
24 The Bank is taking all appropriate steps to ensure that the confidential
25 customer information is not misused. However, until the Bank is able to determine
26 the status of the “gmail” account there is no need for the Bank to contact its account
27 holders. If the Motion and the Verified Complaint are not permitted to be filed
28 under seal, all of the Bank’s customers may learn of the inadvertent disclosure and
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CASE NO. __________
4835-4594-6884.1
1 assume that it was in fact their confidential information that was disclosed.
2 Publication of the inadvertent disclosure of confidential information prior to
3 making a determination as to whether the “gmail” account is active or dormant will
4 unnecessarily create panic among all of the Bank’s customers and result in a surge
5 of inquiry from the Bank’s customers.
6 WHEREFORE, Plaintiff Rocky Mountain Bank respectfully requests that its
7 Verified Complaint, Motion for Injunctive Relief and all other pleadings and filings
8 in this matter be filed under seal and for such other relief as the Court deems
9 appropriate.
10 Respectfully submitted this 18th day of September, 2009.
11 KUTAK ROCK LLP
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CASE NO. __________
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12 (PROPOSED) ORDER GRANTING
Plaintiff, MOTION FOR TEMPORARY
13 RESTRAINING ORDER AND
v. PRELIMINARY INJUNCTION
16 Defendant.
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18 THE COURT, having considered Plaintiff Rocky Mountain Bank’s

19 Memorandum of Points and Authorities in Support of its Motion for Temporary
20 Restraining Order and Preliminary Injunction (the “Motion”), and being fully
21 advised in the premises, hereby FINDS as follows:
22 1. The Bank has satisfied the requirements for the issuance of a
23 temporary restraining order under F.R.C.P. 65(b).
24 2. The Bank has shown a substantial likelihood of success on the merits
25 of its legal claims against Defendant Google Inc. (“Google”).
26 3. The Bank and its customers will suffer immediate and irreparable
27 injury, loss, and/or damage if the Confidential Customer Information is
28 not adequately protected and the Bank is unable to take appropriate
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ORDER GRANTING MOTION FOR TRO AND PRELIMINARY INJUNCTION
CASE NO. __________
4834-3217-6388.1
1 steps to ensure that the Confidential Customer Information is not

2 misused.
3 4. The Bank and its customers will suffer greater injury from the denial
4 of temporary injunctive relief than Google will suffer from the
5 granting of such relief.
6 5. The granting of this temporary restraining order will serve the public
7 interest.
8 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
9 1. Google and the Google account holder are enjoined from using the
10 Confidential Customer Information;
11 2. The Gmail Account shall immediately be frozen or deactivated to
12 prevent any access to the Confidential Customer Information;
13 3. Google shall immediately delete the Inadvertent Email from Google’s
14 system;
15 4. Google shall immediately determine the status of the Gmail Account,
16 specifically, whether the Gmail Account is active or dormant and
17 whether the Inadvertent Email was opened or otherwise manipulated
18 by the account holder and disclose such information to the Bank; and
19 5. In the event that the Gmail Account is not dormant, Google shall
20 ascertain the identity of the Gmail Account holder, so that the Bank
21 can take appropriate steps with the account holder to ensure that the
22 Confidential Customer Information is not distributed or otherwise
23 misused.
24 6. This Temporary Restraining Order entered on this ___ day of
25 _____________________, 2009 at ________ a.m./p.m. and shall
26 expire within ten days unless within that time it is extended for good
27 cause shown.
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CASE NO. __________
4834-3217-6388.1
1 7. A hearing shall be held in Courtroom ___ of the United States district

2 Court Northern District of California commencing at _____ _.m. on
3 the ___ day of ______________, 2009 on Plaintiff’s Motion for
4 Temporary Restraining Order and Preliminary Injunction.
5 8. This Temporary Restraining Order and all supporting pleadings and
6 papers must be served upon Google on or before the ___ day of
7 _____________________, 2009.
8 IT IS SO ORDERED.
9 Dated: September ____, 2009
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11 District Court Judge

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CASE NO. __________
4834-3217-6388.1

KUTAK ROCK LLP
2 Suite 1100
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
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6 KUTAK ROCK LLP
Suite 3100
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
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16 PLAINTIFF’S NOTICE OF
Plaintiff, MOTION AND MOTION FOR
17 TEMPORARY RESTRAINING
v. ORDER AND PRELIMINARY
18 INJUNCTION
GOOGLE INC., a Delaware (FILED UNDER SEAL)
19 corporation,
Hearing Date: __________
20 Defendant. Time: a.m.
Room:
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Judge: Hon.
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NOTICE OF MOTION AND MOTION FOR TRO AND PRELIMINARY INJUNCTION

CASE NO. __________
4847-3306-4452.1
1 TO DEFENDANT AND TO THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on September _____, 2009, at _______, or
3 as soon thereafter as counsel may be heard, before the Honorable _____________
4 in Courtroom ____ of the above-referenced court located at
5 _______________________________, San Jose, California, Plaintiff Rocky
6 Mountain Bank will and hereby does move this Court for a temporary restraining
7 order (“TRO”) and preliminary injunction pursuant to Rule 65 of the Federal Rules
8 of Civil Procedure.
9 In its motion for injunctive relief, Plaintiff asks this Court to enter a
10 temporary restraining order, preliminary injunction, and permanent injunction,
11 ordering that:
12 a. Google and the Gmail Account holder are permanently enjoined
13 from accessing, using, or distributing the Confidential Customer Information;
14 b. Google immediately deactivate the Gmail Account and delete
15 the Inadvertent Email and attachment from its system;
16 c. Google immediately disclose the status of the Gmail Account,
17 specifically, whether the Gmail Account is dormant or active, whether the
18 Inadvertent Email was opened or otherwise manipulated, and in the event
19 that the Gmail Account is not dormant, the identity and contact information
20 for the Gmail Account holder; and
21 4. Any other and further relief the Court deems just and proper under the
22 circumstances.
23 This motion is based on this Notice of Motion and Motion for Temporary
24 Restraining Order and Preliminary Injunction, the Memorandum of Points and
25 Authorities filed herewith, and the Verified Complaint for Declaratory and
26 Injunctive Relief filed herewith, and such other matters that may properly come
27 before the Court on this Motion.
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CASE NO. __________
4847-3306-4452.1

2 KUTAK ROCK LLP
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ROCKY MOUNTAIN BANK
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CASE NO. __________
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12 (PROPOSED) ORDER GRANTING
Plaintiff, MOTION FOR TEMPORARY
13 RESTRAINING ORDER AND
v. PRELIMINARY INJUNCTION
16 Defendant.
17
18 THE COURT, having considered Plaintiff Rocky Mountain Bank’s

19 Memorandum of Points and Authorities in Support of its Motion for Temporary
20 Restraining Order and Preliminary Injunction (the “Motion”), and being fully
21 advised in the premises, hereby FINDS as follows:
22 1. The Bank has satisfied the requirements for the issuance of a
23 temporary restraining order under F.R.C.P. 65(b).
24 2. The Bank has shown a substantial likelihood of success on the merits
25 of its legal claims against Defendant Google Inc. (“Google”).
26 3. The Bank and its customers will suffer immediate and irreparable
27 injury, loss, and/or damage if the Confidential Customer Information is
28 not adequately protected and the Bank is unable to take appropriate
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CASE NO. __________
4834-3217-6388.1
1 steps to ensure that the Confidential Customer Information is not

2 misused.
3 4. The Bank and its customers will suffer greater injury from the denial
4 of temporary injunctive relief than Google will suffer from the
5 granting of such relief.
6 5. The granting of this temporary restraining order will serve the public
7 interest.
8 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT:
9 1. Google and the Google account holder are enjoined from using the
10 Confidential Customer Information;
11 2. The Gmail Account shall immediately be frozen or deactivated to
12 prevent any access to the Confidential Customer Information;
13 3. Google shall immediately delete the Inadvertent Email from Google’s
14 system;
15 4. Google shall immediately determine the status of the Gmail Account,
16 specifically, whether the Gmail Account is active or dormant and
17 whether the Inadvertent Email was opened or otherwise manipulated
18 by the account holder and disclose such information to the Bank; and
19 5. In the event that the Gmail Account is not dormant, Google shall
20 ascertain the identity of the Gmail Account holder, so that the Bank
21 can take appropriate steps with the account holder to ensure that the
22 Confidential Customer Information is not distributed or otherwise
23 misused.
24 6. This Temporary Restraining Order entered on this ___ day of
25 _____________________, 2009 at ________ a.m./p.m. and shall
26 expire within ten days unless within that time it is extended for good
27 cause shown.
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CASE NO. __________
4834-3217-6388.1
1 7. A hearing shall be held in Courtroom ___ of the United States district

2 Court Northern District of California commencing at _____ _.m. on
3 the ___ day of ______________, 2009 on Plaintiff’s Motion for
4 Temporary Restraining Order and Preliminary Injunction.
5 8. This Temporary Restraining Order and all supporting pleadings and
6 papers must be served upon Google on or before the ___ day of
7 _____________________, 2009.
8 IT IS SO ORDERED.
9 Dated: September ____, 2009
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11 District Court Judge

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CASE NO. __________
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Case5:09-cv-04385-JW Document18 Filed09/22/09 Page1 of 9

KUTAK ROCK LLP
2 Suite 1100
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
5
6 KUTAK ROCK LLP
Suite 3100
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
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15 ROCKY MOUNTAIN BANK, a Case No.

16 VERIFIED COMPLAINT FOR
Plaintiff, DECLARATORY AND
17 INJUNCTIVE RELIEF
v. (FILED UNDER SEAL) [REDACTED]
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19 corporation,
20 Defendant.
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VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. __________
4834-1520-0516.1
2 LLP, hereby submits the following Verified Complaint for Declaratory and
3 Injunctive Relief against Defendant Google Inc., in support thereof, states and
4 alleges as follows:
5 PARTIES
6 1. Plaintiff Rocky Mountain Bank (the “Bank”) is a Wyoming
7 corporation with its principal place of business in Wilson, Wyoming.
8 2. Defendant Google Inc. (“Google”) is a Delaware corporation with its
9 principal place of business in Mountain View, California. Plaintiff and Defendant
10 are collectively referred to as the “Parties.”
11 JURISDICTION AND VENUE
12 3. Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1332 on the
13 grounds that the amount in controversy exceeds $75,000, exclusive of interest and
14 costs, and the controversy is between citizens of different states. For purposes of
15 diversity, the Bank is a citizen of Wyoming, since it is incorporated in Wyoming
16 and has its principal place of business in Wyoming. Upon information and belief,
17 Defendant Google is a citizen of the States of California and Delaware because its
18 principal place of business is in California and it is incorporated in Delaware.
19 4. This Court may exercise personal jurisdiction over Google because,
20 among other things, Google’s principal place of business is in California and in this
21 District.
22 5. Venue is proper in this District under 28 U.S.C. § 1391(a)(1) and (3).
23 GENERAL ALLEGATIONS
24 6. The Bank is a full service banking institution which, among other
25 things, offers various loans to individual consumers and corporate entities.
26 7. On August 12, 2009, the Bank received a telephone call from a
27 customer (the “Customer”), wherein the Customer requested that the Bank send
28 certain annual loan statements via e-mail (the “Requested Information”) to a third-
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CASE NO. __________
4834-1520-0516.1
1 party representative of the Customer (the “Request”).
2 8. In connection with the Request, on August 12, 2009, at approximately

3 4:13 p.m., an employee of the Bank attempted to send the Customer’s
4 representative the Requested Information via e-mail.
5 9. At approximately 7:22 p.m., the Customer’s representative informed
6 the Customer, via email, that he had not received the Requested Information. The
7 Customer forwarded the email to an employee of the Bank at approximately 7:50
8 p.m.
9 10. On August 13, 2009, an employee of the Bank discovered that the
10 Requested Information was inadvertently sent to the wrong email address (the
11 “Inadvertent Email”). The e-mail was sent to the following address:
12 “[Redacted]@gmail.com” (the “Gmail Account”), which is an account that was set
13 up and maintained through www.google.com. Additionally, the Bank discovered
14 that the information that was attached to the Inadvertent Email contained
15 Confidential Customer Information relating to 1,325 individual and business
16 customer accounts (the “Customer Accounts”), i.e., for customers other than just
17 the Customer who requested information.
18 11. The customer information that was attached to the Inadvertent E-Mail
19 included names, addresses, tax identification numbers and loan information for
20 each of the 1,325 customer accounts. The attached information is confidential
21 information of the Bank’s customers and to which the Bank’s customers have a
22 right to privacy (hereinafter the “Confidential Customer Information”).
23 12. Because of the inadvertent disclosure of the Confidential Customer
24 Information, state and federal regulations require the Bank to make a prompt and
25 good faith investigation to determine the likelihood that the Confidential Customer
26 Information has been or will be misused. The reason for this investigation is to
27 ascertain if the privacy rights of the Customers are protected.
28 13. After learning of the inadvertent disclosure of Confidential Customer
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CASE NO. __________
4834-1520-0516.1
1 Information, the Bank immediately attempted to recall the Inadvertent Email, which
2 was sent using Microsoft Outlook. However, the Bank’s efforts to recall the
3 Inadvertent Email were not successful. The Bank is advised that the recipient of the
4 email must also be using Microsoft Outlook to recall an email. Further, the Bank is
5 advised that, if the Inadvertent Email had already been opened, a recall attempt
6 would be futile.
7 14. On August 13, 2009, at approximately 1:57 p.m., Mark Hendrickson,
8 the President of the Bank, sent an email to the Gmail Account, whereby Mr.
9 Hendrickson instructed the recipient to immediately delete the Inadvertent Email
10 and the file attached thereto in its entirety without opening or reviewing it. Mr.
11 Hendrickson also requested that the recipient immediately contact the Bank to
12 discuss his/her actions. As of the date of this Complaint, the Bank has not received
13 a response from the Gmail Account holder.
14 15. In an effort to determine whether the Gmail Account is a valid, active
15 email address, on or about August 13, 2009, an employee of the Bank attempted to
16 register the email address through Google.com. The Bank employee was unable to
17 register the address. Therefore, the Bank concluded that Gmail Account was a
18 valid Google email address.
19 16. The Bank believes and understands that Google has information
20 regarding the Gmail Account holder, and regarding the status and activity level of
21 the Gmail Account. The Bank also believes that Google has the ability to freeze the
22 Gmail Account and to take other steps to prevent access to and dissemination of the
23 inadvertently disclosed Confidential Customer Information. Accordingly, in further
24 efforts to protect the Confidential Customer Information, both the Bank and the
25 Bank’s undersigned counsel contacted Google’s legal support via email and
26 informed Google that Confidential Customer Information was sent to one of its
27 “gmail” accounts and inquired as to whether the account was active or dormant and
28 what steps could be taken to ensure that the Confidential Customer Information was
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CASE NO. __________
4834-1520-0516.1
1 not used or disclosed. However, Google advised the Bank and undersigned counsel
2 that it would not provide any information regarding the Gmail Account and would
3 not otherwise assist in preventing disclosure of the Confidential Customer
4 Information except and unless it was requested through “a valid third-party
5 subpoena or other appropriate legal process.”
6 17. In connection with the Bank’s internal investigation and evaluation of
7 the likelihood that the Confidential Customer Information has been or will be
8 misused, the Bank has determined that it is necessary to: (a) prevent Google or the
11 Confidential Customer Information; (c) delete the Inadvertent Email from Google’s
12 system; (d) determine the status of the Gmail Account, specifically, whether the
13 Gmail Account is active or dormant and whether the Inadvertent Email was opened
14 or otherwise manipulated by the account holder; and (e) in the event that the Gmail
15 Account is not dormant, ascertain the identity of the Gmail Account holder, so that
16 the Bank can take appropriate steps with the account holder to ensure that the
17 Confidential Customer Information is not distributed or otherwise misused.
18 18. In connection with the Bank’s internal investigation, on September 1,
19 2009 the Bank notified the Wyoming Division of Banking and the Tenth Federal
20 Reserve District (collectively, the “Regulators”) of the Inadvertent Email and the
21 steps the Bank had taken and planned to take to protect its customer information.
22 The Regulators confirmed that the Bank was taking proper steps in connection with
23 the Inadvertent Email and agreed that the Bank must take action to have the Gmail
24 Account frozen and/or determine the status of the Gmail Account.
25 ///
26 ///
27 ///
28 ///
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CASE NO. __________
4834-1520-0516.1
1 FIRST CAUSE OF ACTION

2
(Declaratory Relief)
3 19. The Bank incorporates the allegations of paragraphs 1 through 18

4 inclusive, as if fully set forth herein.
5 20. The Bank and its Regulators believe it is imperative for the Bank to
6 obtain information regarding the Gmail Account and stop access to the Confidential
7 Customer Information in order to protect the privacy rights of the Bank’s
8 Customers whose information was inadvertently disclosed.
9 21. The Bank has requested information from Google regarding the Gmail
10 Account and has requested Google’s assistance in preventing further disclosure of
11 the Confidential Customer Information. Google, however, has refused to disclose
12 any information to the Bank or to assist the Bank in its efforts to prevent disclosure
13 of the Confidential Customer Information, unless and until it is subject to legal
14 process.
15 22. Because of Google’s refusal to provide information or other assistance
16 to the Bank that is necessary to protect confidential information of the Bank’s
17 customers, there is a dispute between the parties.
18 23. The Bank, therefore, requests a declaration that, in connection with its
19 efforts to protect the Confidential Customer Information, it is entitled to the
20 information requested concerning the Gmail Account, specifically, whether the
21 Gmail Account is active or dormant, whether the Inadvertent Email was opened or
22 otherwise manipulated; and in the event that the Gmail Account is not dormant, the
23 identity of the Gmail Account holder. In addition, the Bank requests a declaration
24 that Google is required to take all reasonable steps to ensure that the Confidential
25 Customer Information is not accessed, used or distributed, including, but not
26 limited to, deactivating the Gmail Account and deleting the Inadvertent Email from
27 its system.
28
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CASE NO. __________
4834-1520-0516.1
1 SECOND CAUSE OF ACTION

2
(Injunctive Relief)
3 24. The Bank incorporates the allegations of paragraphs 1 through 23

4 inclusive, as if fully set forth herein.
5 25. Injunctive relief is warranted because the Bank has no plain, speedy
6 and adequate remedy at law to prevent disclosure or misuse of the Confidential
7 Customer Information.
8 26. The Bank is likely to prevail on the merits of its claims, or at a
9 minimum, there is a serious question going to the merits of the Bank’s claim, and
10 the balance of the equities tip decidedly in favor of issuing injunctive relief in favor
11 of the Bank.
12 27. The granting of injunctive relief preventing the unlawful use of
13 Confidential Customer Information will serve the public interest.
14 28. Based on the foregoing, the Bank is entitled to a temporary restraining
15 order, a preliminary injunction, and a permanent injunction: (a) restraining and
16 permanently enjoining Google and its account holder from accessing, distributing,
17 or using the Confidential Customer Information; (b) requiring Google to
18 immediately deactivate the Gmail Account or any other steps within its power to
19 prevent access to the Gmail Account; (c) requiring Google to delete the Inadvertent
20 Email and the Confidential Customer Information from its system; (d) requiring
21 Google to immediately disclose the status of the Gmail Account; specifically,
22 whether the Gmail Account is active or dormant and whether the Inadvertent Email
24 that the Gmail Account is not dormant, requiring Google to disclose all information
25 that it has regarding the Gmail Account holder to allow the Bank to prevent the
26 account holder from using or distributing the Confidential Customer Information
27
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CASE NO. __________
4834-1520-0516.1
1 PRAYER FOR RELIEF

2 WHEREFORE, Plaintiff Rocky Mountain Bank prays that judgment be
3 entered in its favor and against Defendant Google Inc. on the claims asserted herein
4 and that it be awarded the following relief:
5 1. A declaration that it is entitled to the information concerning the Gmail
6 Account; specifically, whether the Gmail Account is active or dormant, whether the
7 Inadvertent Email was opened or otherwise manipulated; and in the event that the
8 Gmail Account is not dormant, the identity of the Gmail Account holder.
9 2. A declaration that Google is required to take all reasonable steps to
10 ensure that the Confidential Customer Information is not accessed, used or
11 distributed, including, but not limited to, deactivating the Gmail Account and
12 deleting the Inadvertent Email and the Confidential Customer Information from its
13 system.
14 3. A temporary restraining order, preliminary injunction, and permanent
15 injunction, ordering that:
16 a. Google and the Gmail Account holder are enjoined from
17 accessing, using, or distributing the Confidential Customer Information;
18 b. Google immediately deactivate the Gmail Account and delete
19 the Inadvertent Email and attachment from its system;
20 c. Google immediately disclose the status of the Gmail Account,
21 specifically, whether the Gmail Account is dormant or active, whether the
22 Inadvertent Email was opened or otherwise manipulated, and in the event
23 that the Gmail Account is not dormant, the identity and contact information
24 for the Gmail Account holder.
25 4. Any other and further relief the Court deems just and proper under the
26 circumstances.
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CASE NO. __________
4834-1520-0516.1

2 KUTAK ROCK LLP
3
4
ROCKY MOUNTAIN BANK
7
8 Plaintiff’s Address:
9 Rocky Mountain Bank
Pinedale
10 145 E. Pine Street
Pinedale, WY 82941
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CASE NO. __________
4834-1520-0516.1
Case5:09-cv-04385-JW Document18-1 Filed09/22/09 Page1 of 1

KUTAK ROCK LLP
2 Suite 1100
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
5
6 KUTAK ROCK LLP
Suite 3100
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
12
13
14

16 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
17 MOTION FOR TEMPORARY
v. RESTRAINING ORDER AND
18 PRELIMINARY INJUNCTION
GOOGLE INC., a Delaware (FILED UNDER SEAL) [REDACTED]
19 corporation,
Hearing Date: __________
20 Defendant. Time: a.m.
Room:
21
Judge: Hon.
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MEMORANDUM IN SUPPORT OF MOTION FOR TRO AND PRELIMINARY INJUNCTION

CASE NO. __________
4826-6632-1156.2
1 TABLE OF CONTENTS
Page
2
3
INTRODUCTION AND SUMMARY OF ARGUMENT .......................................1
STATEMENT OF FACTS ......................................................................................2
4
ARGUMENT ..........................................................................................................5
5
I. TRO AND PRELIMINARY INJUNCTION STANDARD. ..........................5
6
II. THE BANK IS LIKELY TO PREVAIL ON THE MERITS, OR AT A
7 MINIMUM, THERE IS A SERIOUS QUESTION GOING TO THE
8 MERITS OF THE CLAIM. ...........................................................................6
III. THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN FAVOR
9
OF ISSUING TRO AND PRELIMINARY INJUNCTION. ..........................7
10
IV. THE PUBLIC INTEREST DICTATES THAT PLAINTIFF’S
11 REQUEST FOR EXTRAORDINARY RELIEF BE GRANTED. .................9
12 CONCLUSION .......................................................................................................9
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CASE NO. __________
4826-6632-1156.2
1 TABLE OF AUTHORITIES
Page
2
3 CASES
Diamontiney v. Borg,
4 918 F.2d 793, 795 (9th Cir. 1990).................................................................... 5
5 First Brands Corp. v. Fred Myers, Inc.,
809 F.2d 1378, 1381 (9th Cir. 1987)................................................................ 5
6 Intel Corp. v. ULSI System Technology, Inc.,
7 995 F.2d 1566, 1568 (9th Cir. 1993)................................................................ 6
Rodeo Collection, Ltd. v. West Seventh,
8 812 F.2d 1215, 1217 (9th Cir. 1987)................................................................ 5
9
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CASE NO. __________
4826-6632-1156.2
2 LLP, hereby submits the following Memorandum of Points and Authorities in
3 Support of its Motion for Temporary Restraining Order and Preliminary Injunction
4 against Defendant Google Inc. (“Google”):
5 INTRODUCTION AND SUMMARY OF ARGUMENT
7 offers various loans to individual consumers and corporate entities.
8 The Bank is instituting this action against Google and is seeking the
9 injunctive relief requested herein to protect confidential and private information of
10 approximately 1,325 customer accounts, which was inadvertently sent to a Google
11 email account, namely [Redacted]@gmail.com. The information disclosed
12 includes customer names, addresses, tax identification numbers, and account
13 numbers.
14 After learning of the inadvertent disclosure the Bank took various steps to
15 ensure that the confidential customer information was not disclosed further or used
16 for any improper purpose, including contacting Google to request information and
17 assistance in preventing use and disclosure of the customer information. Google,
18 however, took the position that it was not able to assist the Bank unless and until it
19 was served with legal process. Therefore, the Bank has been forced to initiate this
20 action in order to protect the confidential and private information of its customers.
21 The Bank is entitled to the relief requested herein under the standards of this
22 Court for issuing temporary restraining orders and preliminary injunctions. In
23 particular, the balance of harm weighs heavily in favor of the Bank and its
24 customers and there is, at least, a serious question going to the merits of the Bank’s
25 claims. In regard to the merits, Google and its email account holder have no rights
26 in or to the inadvertently disclosed information, while the Bank and its customers
27 have every right to prevent further disclosure and use of such information. The
28 Bank, therefore, is likely to prevail on its requests to prevent disclosure and use of
-1-
CASE NO. __________
4826-6632-1156.2
1 the customer information.

2 In regard to the balance of harms, the Bank and its customers will suffer
3 extreme harm, including possible theft of customer identities and loss of customers
4 and reputation by the Bank. Google, on the other hand, will suffer little or no harm
5 if it is ordered to disclose information about the email account and taking steps to
6 deactivate the account and deleting the inadvertently disclosed information.
7 Finally, there is a substantial public interest in preventing further disclosure
8 and use of customer information.
9 The Bank, therefore, is entitled to a temporary restraining order and
10 preliminary injunction as requested herein.
11 STATEMENT OF FACTS
13 offers various loans to individual consumers and corporate entities. (Verified
14 Complaint (“Complaint”), ¶ 6.) On August 12, 2009, the Bank received a
15 telephone call from a customer (the “Customer”), wherein the Customer requested
16 that the Bank send certain annual loan statements (the “Requested Information”) to
17 a third-party representative of the Customer (the “Request”). (Complaint, ¶ 7.)
18 In connection with the Request, on August 12, 2009, at approximately 4:13
19 p.m., an employee of the Bank attempted to send the Customer’s representative the
20 Requested Information via e-mail. (Complaint, ¶ 8.) At approximately 7:22 p.m.,
21 the Customer’s representative informed the Customer, via email, that he had not
22 received the Requested Information. The Customer forwarded the email to an
23 employee of the Bank at approximately 7:50 p.m. (Complaint, ¶ 9.)
24 On August 13, 2009, an employee of the Bank discovered that the Requested
25 Information was inadvertently sent to the wrong email address (the “Inadvertent
26 Email”). The e-mail was sent to the following address: “[Redacted]@gmail.com”
27 (the “Gmail Account”), which is an account that was set up and maintained through
28 www.google.com. Additionally, the Bank discovered that the information that was
2
CASE NO. __________
4826-6632-1156.2
1 attached to the Inadvertent Email contained confidential customer information

2 relating to 1,325 individual and business customer accounts (the “Customer
3 Accounts”), i.e., for customers other than just the Customer who requested
4 information. (Complaint, ¶ 10.)
5 The customer information that was attached to the Inadvertent E-Mail
10 (Complaint, ¶ 11.)
11 Because of the inadvertent disclosure of the Confidential Customer
12 Information, state and federal regulations require the Bank to make a prompt and
13 good faith investigation to determine the likelihood that the Confidential Customer
14 Information has been or will be misused. The reason for this investigation is to
15 ascertain if the privacy rights of the Customers are protected. (Complaint, ¶ 12.)
16 After learning of the inadvertent disclosure of Confidential Customer
18 was sent using Microsoft Outlook. However, the Bank’s efforts to recall the email
19 were not successful. The Bank is advised that the recipient of the email must also
20 be using Microsoft Outlook to recall an email. Further, the Bank is advised that, if
21 the Inadvertent Email had already been opened, a recall attempt would be futile.
23 On August 13, 2009, at approximately 1:57 p.m., Mark Hendrickson, the
24 President of the Bank, sent an email to the Gmail Account, whereby Mr.
25 Hendrickson instructed the recipient to immediately delete the Inadvertent Email
26 and the file attached thereto in its entirety without opening or reviewing it. Mr.
27 Hendrickson also requested that the recipient immediately contact the Bank to
28 discuss his/her actions. As of the date of this Memorandum, the Bank has not
3
CASE NO. __________
4826-6632-1156.2
1 received a response from the Gmail Account holder. (Complaint, ¶ 14.)

2 In an effort to determine whether the Gmail Account is a valid, active email
3 address, on or about August 13, 2009, an employee of the Bank attempted to
6 valid Google email address. (Complaint, ¶ 15.)
7 The Bank believes and understands that Google has information regarding
8 the Gmail Account Holder, and regarding the status and activity level of the Gmail
9 Account. The Bank also believes that Google has the ability to freeze the Gmail
10 Account and to take other steps to prevent access to and dissemination of the
17 not used or disclosed. However, Google advised the Bank and undersigned counsel
18 that it would not provide any information regarding the Gmail Account and would
19 not otherwise assist in preventing disclosure of the Confidential Customer
20 Information except and unless it was requested through “a valid third-party
21 subpoena or other appropriate legal process.” (Complaint, ¶ 16.)
22 In connection with the Bank’s internal investigation and evaluation of the
23 likelihood that the Confidential Customer Information has been or will be misused,
24 the Bank has determined that it is necessary to: (a) prevent Google or the Google
25 account holder from using the Confidential Customer Information; (b) have the
26 Gmail Account immediately frozen or deactivated to prevent any access to the
27 Confidential Customer Information; (c) delete the Inadvertent Email from Google’s
28 system; (d) determine the status of the Gmail Account, specifically, whether the
4
CASE NO. __________
4826-6632-1156.2
1 Gmail Account is active or dormant and whether the Inadvertent Email was opened
2 or otherwise manipulated by the account holder; and (e) in the event that the Gmail
3 Account is not dormant, ascertain the identity of the Gmail Account holder, so that
4 the Bank can take appropriate steps with the account holder to ensure that the
5 Confidential Customer Information is not distributed or otherwise misused.
7 In connection with the Bank’s internal investigation, on September 1, 2009
8 the Bank notified the Wyoming Division of Banking and the Tenth Federal Reserve
9 District (collectively, the “Regulators”) of the Inadvertent Email and the steps the
10 Bank had taken and planned to take to protect its customer information. The
11 Regulators confirmed that the Bank was taking proper steps in connection with the
12 Inadvertent Email and agreed that the Bank must take action to have the Gmail
13 Account frozen and/or determine the status of the Gmail Account. (Complaint, ¶
14 18.)
15 ARGUMENT
16 I. TRO AND PRELIMINARY INJUNCTION STANDARD.
17 Federal Rule of Civil Procedure 65 sets forth the procedure for issuance of a
18 temporary restraining order (“TRO”) and preliminary injunction. The Ninth Circuit
19 has held that, a plaintiff is entitled to a TRO and preliminary injunction if there
20 exists a combination of probable success on the merits and the probability of
21 irreparable injury if an injunction is not granted, or, even if there are serious
22 questions going to the merits of the claim, where the balance of hardships tips
23 heavy in favor of the moving party. See First Brands Corp. v. Fred Myers, Inc.,
24 809 F.2d 1378, 1381 (9th Cir. 1987); see also Diamontiney v. Borg, 918 F.2d 793,
25 795 (9th Cir. 1990). These are not two distinct and independent tests: they are “the
26 opposite ends of a single continuum in which the required showing of harm varies
27 inversely with the required showing of meritoriousness.” See Rodeo Collection,
28 Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987); see also Diamontiney,
5
CASE NO. __________
4826-6632-1156.2
1 918 F.2d at 795. The court should also consider the impact of the injunction on the
2 public interest. Intel Corp. v. ULSI System Technology, Inc., 995 F.2d 1566, 1568
3 (9th Cir. 1993).
4 II. THE BANK IS LIKELY TO PREVAIL ON THE MERITS, OR AT A
5 MINIMUM, THERE IS A SERIOUS QUESTION GOING TO THE
6 MERITS OF THE CLAIM.
7 The Bank has asserted two causes of action in its Verified Complaint, namely
8 declaratory relief and injunctive relief against Google.
9 In the Bank’s first cause of action for declaratory judgment, the Bank seeks a
10 declaration that it is entitled to the information regarding the status of the Gmail
11 Account, including whether the Inadvertent Email was delivered, opened, or
12 otherwise manipulated so that it can determine what further steps are necessary to
13 protect the Confidential Customer Information. In the event that the Gmail
14 Account is not dormant, then Google requests a declaration that it is entitled to
15 information sufficient to identify of the Gmail Account holder. In addition, the
16 Bank requests a declaration that Google is required to take all reasonable steps to
17 ensure that the Confidential Customer Information is not accessed, used or
18 distributed, including, but not limited to, deactivating the Gmail Account and
19 deleting the Inadvertent Email from its system.
20 The Bank’s second cause of action for injunctive relief seeks an order to: (a)
21 restrain and permanently enjoin Google and its account holder from accessing,
22 distributing, or using the Confidential Customer Information; (b) require Google to
24 prevent access to the Gmail Account; (c) require Google to delete the Inadvertent
25 Email and the Confidential Customer Information form its system; (d) require
6
CASE NO. __________
4826-6632-1156.2
1 that the Gmail Account is not dormant, require Google to disclose all information
3 account holder from using or distributing the Confidential Customer Information.
4 The Bank is entitled to the relief requested because it has an obligation, legal
5 and otherwise, to protect the privacy of its customers. In addition, in light of
6 Google’s refusal to provide information on the Gmail Account or otherwise assist
7 the Bank in preventing further disclosure or use of the Confidential Customer
8 Information, the Bank has no other avenue or remedy at law to ensure that its
9 customer’s privacy rights are protected. Furthermore, neither Google nor the
10 recipient of the Inadvertent Email has any legal right to the Confidential Customer
11 Information or any right to retain or use such information for any purpose.
12 Therefore, the Bank is likely to prevail on the merits of its request for
13 declaratory and injunctive relief, or the facts presented herein create a serious
14 question as to the merits of the Bank’s claim that support entry of a TRO and
15 preliminary injunction.
16 III. THE BALANCE OF HARDSHIPS TIPS DECIDEDLY IN FAVOR OF
17 ISSUING A TRO AND PRELIMINARY INJUNCTION.
18 If the TRO and preliminary injunction are not issued as requested herein, the
19 Bank and its customers will suffer substantial and irreparable harm.
20 The Bank has an affirmative obligation to take reasonable steps to protect the
21 Confidential Customer Information and to make a prompt and good faith
22 investigation to determine the likelihood that the Confidential Customer
23 Information has been or will be misused. The only way for the Bank to determine
24 if the Confidential Customer Information has been or could be misused is for this
25 Court to enter the TRO and preliminary injunction requested herein. If the Bank’s
26 requested relief is not granted, the Bank will be forced to notify every account
27 holder of the inadvertent disclosure. Such notice will result in the Bank losing
28 customers and will significantly and negatively impact the Bank’s reputation. This
7
CASE NO. __________
4826-6632-1156.2
1 harm would be irreparable and unnecessary if the Bank is able to determine that the
2 Confidential Customer Information was not accessed, disclosed further, or used by
3 Google or the Google Gmail Account holder, and if the Bank can ensure that such
4 information cannot be used in the future. In addition, the Bank customers may be
5 needlessly alarmed if in fact the Gmail Account is dormant, the Inadvertent Email
6 was deleted or destroyed without disclosure of the Confidential Customer
7 Information. Further, there is a significant cost involved in notifying Bank
8 customers of the inadvertent disclosure, which could be avoided if the requested
9 relief is granted.
10 In addition to the harm to the Bank, the Bank’s customers also would be
11 irreparably harmed if this Motion is not granted and the Confidential Customer
12 Information is allowed to be used and/or disclosed. In particular, the use and
13 disclosure of the Confidential Customer Information could result in the identify
14 theft of more than 1,300 customers.
15 Google is in the unique position of having information that is essential to
16 determining whether and how the Confidential Customer Information was used and
17 in the position of being able to prevent access to and use of such information.
18 Accordingly, the Bank cannot take necessary steps to protect its customers and the
19 Confidential Customer Information until it is able to determine the status of the
20 Gmail Account and what if any action was taken by the recipient in connection with
21 the Inadvertent Email.
22 Google stands to suffer little more than a minor inconvenience if it is
23 required to disclose the information requested with respect to the Gmail Account
24 and to deactivate the account to ensure the Confidential Customer Information is
25 not disclosed, accessed or used. Moreover, it is the Bank’s understanding that to
26 determine whether an account is fact active and whether the Inadvertent Email was
27 opened is a very simple task which may be performed with little effort. To the
28 extent that the Gmail Account is active and Google discloses information regarding
8
CASE NO. __________
4826-6632-1156.2
1 the account holder, the Bank will agree that such disclosure will be subject to a
2 reasonable protective order.
3 IV. THE PUBLIC INTEREST DICTATES THAT PLAINTIFF’S
4 REQUEST FOR EXTRAORDINARY RELIEF BE GRANTED.
5 The public interest in the issuance of a TRO and preliminary injunction is a
6 factor that can be considered in appropriate cases. In this case the public interest in
7 ensuring that the Confidential Customer Information relating to both individual
8 consumers and business entities is not misused weighs strongly in favor of issuing
9 the preliminary injunction and requiring Google to disclose the information
10 regarding the status of the Gmail Account.
11 The public clearly has an interest in protecting confidential information and
12 maintaining confidence in banking institutions. The Bank is acting on behalf of the
13 holders of the Customer Accounts which clearly need some avenue of redress to
14 ensure that their information has not been and cannot be misused and to potentially
15 mitigate any damages which may have already occurred.
16 CONCLUSION
17 For the foregoing reasons, Plaintiff Rocky Mountain Bank respectfully
18 requests that the Court issue a TRO and preliminary injunction (a) restraining and
19 permanently enjoining Google and its account holder from accessing, distributing,
20 or using the Confidential Customer Information; (b) requiring Google to
22 prevent access to the Gmail Account; (c) requiring Google to delete the Inadvertent
23 Email and the Confidential Customer Information from its system; (d) requiring
27 that the Gmail Account is not dormant, requiring Google to disclose all information
9
CASE NO. __________
4826-6632-1156.2
1 account holder from using or distributing the Confidential Customer Information.

3
4
KUTAK ROCK LLP
6 By: /s/ Grace Y. Horoupian

Grace Y. Horoupian
7
ATTORNEYS FOR PLAINTIFF
8 ROCKY MOUNTAIN BANK
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CASE NO. __________
4826-6632-1156.2

KUTAK ROCK LLP
2 Suite 1100
3 Irvine, CA 92612-1077
Telephone: (949) 417-0999
4 Facsimile: (949) 417-5394
5
6 KUTAK ROCK LLP
Suite 3100
Denver, CO 80202
8 Telephone: (303) 297-2400
Facsimile: (303) 292-7799
15 DECLARATION OF MARK
Plaintiff, HENDRICKSON IN SUPPORT OF
16 MOTION TO FILE UNDER SEAL
v. (FILED UNDER SEAL) [REDACTED]
17
18 corporation,
19 Defendant.
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DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE UNDER SEAL

CASE NO. __________
4823-4178-8420.1
1 I, Mark Hendrickson, being over the age of 18, and having been duly sworn
2 and under oath, state as follows:
3 1. I am the President of Rocky Mountain Bank (the “Bank”). As such, I
4 have personal knowledge of the facts stated herein.
5 2. I submit this affidavit in support of the Bank’s Motion to File Under
6 Seal.
7 3. As Defendant Google Inc. has not yet been served with the Verified
8 Complaint for Declaratory and Injunctive Relief (the “Verified Complaint”) and the
9 Memorandum of Point and Authorities in Support of Motion for Temporary
10 Restraining Order and Preliminary Injunction (the “Motion for Injunctive Relief”)
11 the Bank is unable to obtain a stipulation regarding the Bank’s Motion to File
12 Under Seal (the “Motion”). Once Google’s counsel has entered an appearance in
13 this action the Bank intends to discuss the Motion with them.
14 4. The Bank is a full service banking institution which, among other
15 things, offers various loans to individual consumers and corporate entities.
16 5. On August 12, 2009, the Bank received a telephone call from a
17 customer (the “Customer”), wherein the Customer requested that the Bank send
18 certain annual loan statements via e-mail (the “Requested Information”) to a third-
19 party representative of the Customer (the “Request”).
20 6. In connection with the Request, on August 12, 2009, at approximately
21 4:13 p.m., an employee of the Bank attempted to send the Customer’s
22 representative the Requested Information via e-mail.
23 7. At approximately 7:22 p.m., the Customer’s representative informed
24 the Customer, via email, that he had not received the Requested Information. The
25 Customer forwarded the email to an employee of the Bank at approximately 7:50
26 p.m.
27 8. On August 13, 2009, an employee of the Bank discovered that the
28 Requested Information was inadvertently sent to the wrong email address (the
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CASE NO. __________
4823-4178-8420.1
1 “Inadvertent Email”). The e-mail was sent to the following address:

2 “[REDACTED]@gmail.com” (the “Gmail Account”), which is an account that was
3 set up and maintained through www.google.com. Additionally, the Bank
4 discovered that the information that was attached to the Inadvertent Email
5 contained Confidential Customer Information relating to 1,325 individual and
6 business customer accounts (the “Customer Accounts”), i.e., for customers other
7 than just the Customer who requested information.
8 9. The customer information that was attached to the Inadvertent E-Mail
13 10. The Bank has taken and continues to take all reasonable and
14 appropriate steps to ensure that the Confidential Customer Information is not
15 disclosed or used for an improper purpose. Because of the inadvertent disclosure of
16 the Confidential Customer Information, state and federal regulations require the
17 Bank to make a prompt and good faith investigation to determine the likelihood that
18 the Confidential Customer Information has been or will be misused. The reason for
19 this investigation is to ascertain if the privacy rights of the Customers are protected.
20 11. After learning of the inadvertent disclosure of Confidential Customer
22 was sent using Microsoft Outlook. However, the Bank’s efforts to recall the email
23 were not successful. The Bank is advised that the recipient of the email must also
24 be using Microsoft Outlook to recall an email. Further, the Bank is advised that, if
25 the Inadvertent Email had already been opened, a recall attempt would be futile.
26 12. On August 13, 2009, at approximately 1:57 p.m., I sent an email to the
27 Gmail Account, whereby I instructed the recipient to immediately delete the
28 Inadvertent Email and the file attached thereto in its entirety without opening or
-2-
CASE NO. __________
4823-4178-8420.1
1 reviewing it. I also requested that the recipient immediately contact the Bank to
2 discuss his/her actions. As of the date of this Complaint, the Bank has not received
3 a response from the Gmail Account holder.
4 13. In an effort to determine whether the Gmail Account is a valid, active
5 email address, on or about August 13, 2009, an employee of the Bank attempted to
8 valid Google email address.
9 14. The Bank believes and understands that Google has information
10 regarding the Gmail Account Holder, and regarding the status and activity level of
11 the Gmail Account. The Bank also believes that Google has the ability to freeze the
12 Gmail Account and to take other steps to prevent access to and dissemination of the
19 not used or disclosed. However, Google has been unwilling to provide information
20 to the Bank or to assist the Bank in its efforts to prevent disclosure of the
21 Confidential Customer Information. In particular, Google advised the Bank and
22 undersigned counsel that it would not provide any information regarding the Gmail
23 Account and would not otherwise assist in preventing disclosure of the Confidential
24 Customer Information except and unless it was requested through “a valid third-
25 party subpoena or other appropriate legal process.”
26 15. In connection with the Bank’s internal investigation and evaluation of
27 the likelihood that the Confidential Customer Information has been or will be
28 misused, the Bank has determined that it is necessary to: (a) prevent Google or the
-3-
CASE NO. __________
4823-4178-8420.1
3 Confidential Customer Information; (c) permanently delete the Inadvertent Email
4 from Google’s system; (d) determine the status of the Gmail Account, specifically,
7 that the Gmail Account is not dormant, ascertain the identity of the Gmail Account
8 holder, so that the Bank can take appropriate steps with the account holder to ensure
9 that the Confidential Customer Information is not distributed or otherwise misused.
10 16. In connection with the Bank’s internal investigation, on September 1,
11 2009 the Bank notified the Wyoming Division of Banking and the Tenth Federal
12 Reserve District (collectively, the “Regulators”) of the Inadvertent Email and the
13 steps the Bank had taken and planned to take to protect its customer information.
14 The Regulators confirmed that the Bank was taking proper steps in connection with
15 the Inadvertent Email and agreed that the Bank must take action to have the Gmail
16 Account frozen and/or determine the status of the Gmail Account.
17 17. In an effort to compel Google to provide information regarding the
18 Gmail Account and to prevent disclosure, distribution, or use of the Confidential
19 Customer Information, the Bank has instituted an action against Google and has
20 filed a Motion for TRO and preliminary injunction.
21 18. As stated above, the Bank is taking all appropriate and reasonable
22 steps to determine whether there was an improper disclosure and misuse of
23 Confidential Customer Information. The Bank’s Regulators have determined that
24 the Bank is taking appropriate steps. However, until there is a determination that
25 the Confidential Customer Information was in fact disclosed and/or misused, the
26 Bank cannot advise its customers on whether there was an improper disclosure.
27 19. Publication of a possible inadvertent disclosure of Confidential
28 Customer Information prior to making a determination whether there was in fact a
-4-
CASE NO. __________
4823-4178-8420.1
1 disclosure of such information will unnecessarily create panic among all of the
2 Bank’s customers and result in a surge of inquiry and concern from the Bank’s
3 customers.
4 I declare under penalty of perjury under the laws of the United States that the
5 foregoing statements are true and accurate to the best of my knowledge.
6
7 [SIGNATURE PAGE TO FOLLOW]

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-5-
CASE NO. __________
4823-4178-8420.1
1 DATED this ___ day of September, 2009.

2
3 Mark Hendrickson, President

Rocky Mountain Bank
4
10
11
[SIGNATURE PAGE TO DECLARATION OF MARK HENDRICKSON
12 IN SUPPORT OF MOTION TO FILE PLEADINGS UNDER SEAL]
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-6-
CASE NO. __________
4823-4178-8420.1
Case5:09-cv-04385-JW Document20-1 Filed09/22/09 Page1 of 1

3 SAN JOSE DIVISION
4
ROCKY MOUNTAIN BANK, C 09-04385 PVT
5
6 CLERK’S NOTICE OF
Plaintiff(s), IMPENDING REASSIGNMENT
7 TO A UNITED STATES
DISTRICT JUDGE
8 VS.
9 GOOGLE, INC.,
10 Defendant(s).
________________________________
11
The Clerk of this Court will now randomly reassign this case to a United
12
States District Judge because one or more of the parties has requested reassignment to
13
a United States District Judge or has not consented to jurisdiction by a Magistrate Judge.
14
PLEASE TAKE NOTICE that a Case Management Conference in the above-
15
entitled matter which was previously set for January 12, 2010 before Magistrate
16
Judge Patricia V. Trumbull has been continued to January 11, 2010 @ 10:00 a.m., before
17
the Honorable Judge James Ware. Parties are to appear in courtroom #8, 4th floor of the
18
U.S. Courthouse, 280 South First Street, San Jose, California. Parties are to submit a
19
Joint Case Management Statement on or before December 28, 2009.
20
If the above-entitled matter settles counsel are required to notify the Court
21
by contacting the Courtroom Deputy at (408) 535-5356, so as to take this matter off
22
calendar.
23
24 Dated: September 22, 2009 RICHARD W. WIEKING,
Clerk of Court
25 /s/ Corinne Lew
__________________
26 Corinne Lew
Deputy Clerk
27
28

Northern District of California
280 South First Street
San Jose, California 95113
_____________
www.cand.uscourts.gov
Richard W. Wieking General Court Number
Clerk 408.535.5364
September 22, 2009
CASE NUMBER: CV 09-04385 PVT

CASE TITLE: Rocky Mountain Bank -v- Google, Inc.
REASSIGNMENT ORDER
GOOD CAUSE APPEARING THEREFOR,
IT IS ORDERED that this case is reassigned to the San Jose division.
The Honorable James Ware for all further proceedings.
Counsel are instructed that all future filings shall bear the initials JW immediately after
the case number.
ALL MATTERS PRESENTLY SCHEDULED FOR HEARING ARE VACATED AND

SHOULD BE RENOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THE CASE
HAS BEEN REASSIGNED.
Date: 9/22/09
FOR THE EXECUTIVE COMMITTEE:
________________________________
Clerk
NEW CASE FILE CLERK:
Copies to: Courtroom Deputies Special Projects

Log Book Noted Entered in Computer 9/22/09-srm
CASE SYSTEMS ADMINISTRATOR:

Copies to: All Counsel Transferor CSA

Rocky Mountain Bank V Google

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Case5:09-cv-04385-PVT Document11 Filed09/18/09 Page1 of 4

1 GRACE Y. HOROUPIAN (SBN 180377)

15 ROCKY MOUNTAIN BANK, a Case No. C09-04385 PVT

1 The undersigned counsel of record for Plaintiff, Rocky Mountain Bank, a

1 GRACE Y. HOROUPIAN (SBN 180337)

15 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

MOTION TO FILE UNDER SEAL

8 UNITED STATES DISTRICT COURT

11 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

18 THE COURT, having considered Plaintiff Rocky Mountain Bank’s

1 steps to ensure that the Confidential Customer Information is not

1 7. A hearing shall be held in Courtroom ___ of the United States district

11 District Court Judge

1 GRACE Y. HOROUPIAN (SBN 180337)

15 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

NOTICE OF MOTION AND MOTION FOR TRO AND PRELIMINARY INJUNCTION

1 TO DEFENDANT AND TO THEIR ATTORNEYS OF RECORD:

1 Respectfully submitted this 18th day of September, 2009.

8 UNITED STATES DISTRICT COURT

11 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

18 THE COURT, having considered Plaintiff Rocky Mountain Bank’s

1 steps to ensure that the Confidential Customer Information is not

1 7. A hearing shall be held in Courtroom ___ of the United States district

11 District Court Judge

1 GRACE Y. HOROUPIAN (SBN 180377)

15 ROCKY MOUNTAIN BANK, a Case No.

VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 party representative of the Customer (the “Request”).

2 8. In connection with the Request, on August 12, 2009, at approximately

1 FIRST CAUSE OF ACTION

3 19. The Bank incorporates the allegations of paragraphs 1 through 18

1 SECOND CAUSE OF ACTION

3 24. The Bank incorporates the allegations of paragraphs 1 through 23

1 PRAYER FOR RELIEF

1 Respectfully submitted this 17th day of September, 2009.

1 GRACE Y. HOROUPIAN (SBN 180337)

15 ROCKY MOUNTAIN BANK, a Case No. 5:09-CV-04385 PVT

MEMORANDUM IN SUPPORT OF MOTION FOR TRO AND PRELIMINARY INJUNCTION

1 the customer information.

1 attached to the Inadvertent Email contained confidential customer information

1 received a response from the Gmail Account holder. (Complaint, ¶ 14.)

1 account holder from using or distributing the Confidential Customer Information.

6 By: /s/ Grace Y. Horoupian

1 GRACE Y. HOROUPIAN (SBN 180337)

DECLARATION OF MARK HENDRICKSON IN SUPPORT OF MOTION TO FILE UNDER SEAL

1 “Inadvertent Email”). The e-mail was sent to the following address:

7 [SIGNATURE PAGE TO FOLLOW]

1 DATED this ___ day of September, 2009.

3 Mark Hendrickson, President

1 UNITED STATES DISTRICT COURT

UNITED STATES DISTRICT COURT

September 22, 2009

CASE NUMBER: CV 09-04385 PVT

GOOD CAUSE APPEARING THEREFOR,

IT IS ORDERED that this case is reassigned to the San Jose division.

The Honorable James Ware for all further proceedings.

the case number.

ALL MATTERS PRESENTLY SCHEDULED FOR HEARING ARE VACATED AND

FOR THE EXECUTIVE COMMITTEE:

NEW CASE FILE CLERK:

Copies to: Courtroom Deputies Special Projects

CASE SYSTEMS ADMINISTRATOR:

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