Anti-SLAPP Motion (Judge James L. Crandall)

1. Motion for SLAPP filed by Defendants Friends For Fullerton’s Future, David Curlee and Joshua Ferguson
2. Order to Show Cause re: Preliminary Injunction
3. Order to Show Cause re: Contempt

The court is here presented with two diametrically opposing requests.  The first is a motion by defendants Friends for Fullerton’s Future (“FFF”), Joshua Ferguson, and David Curlee (collectively, “defendants”) for an order from the court striking the Complaint filed against them by plaintiff City of Fullerton (“plaintiff” or the “City”) pursuant to Code of Civil Procedure §425.16, the “anti-SLAPP” statute.

The second is a request by the City for an injunction prohibiting defendants from:

 (1) deleting, altering, or destroying documents from 20 Dropbox folders,

 (2) publishing or disseminating those documents, and

 (3) downloading data or further accessing City networks without permission.

These motions – especially the second – have been through several months of briefing, and the court has had to sift through a large amount of evidence and argument.

Before proceeding to analyze each motion, the court must address evidentiary issues.  In opposition to the anti-SLAPP motion, plaintiff seeks judicial notice of sixteen documents filed in support of its request for TRO and preliminary injunction.  Plaintiff also seeks judicial notice of documents it filed in opposition to defendants’ anti-SLAPP motion.  Thus, it appears that plaintiff desires to have all evidence it submitted in support of its position on both motions considered as to both.

At the time of the previous hearing on 02/06/20 as to the anti-SLAPP motion, the court indicated that it would be willing to take judicial notice of the existence of documents filed pertaining to other motions, but would not necessarily take judicial notice of the truth of the facts stated therein.  See Bach v. McNelis, 207 Cal.App.3d 852, 864-865 (1989).

The parties indicated after meeting and conferring that all referenced declarations may be considered in connection with the anti-SLAPP.  Given this, the court will proceed to address all evidentiary objections pertaining to declarations filed in support of, or in opposition to, either motion, and will draw from evidence filed as to either motion in rendering its rulings below.

Defendants’ Evidentiary Objections

Defendants filed evidentiary objections to the City’s evidence for both the OSC re: preliminary injunction and the anti-SLAPP motion.  But some of the objections filed with respect to the OSC re: preliminary injunction inappropriately group specific pieces of evidence together under one objection.  This is inappropriate because the grounds for objection must be examined with respect to each piece of evidence individually.  Cal. Rule of Court 3.1354(b).

Because defendants have improperly grouped evidence together, the court will overrule all such objections – namely, Objections 1 through 3 to the Klein Declaration, Objections 4 through 6 to the Supplemental Klein Declaration, Objection 8 to the Lee Declaration, Objection 20 to the Tennyson Declaration, Objection 37 to the Lindsay Declaration, Objections 43, 44, 52, 55, 56, and 63 to the Streebe Declaration, and Objections 68 and 69 to the Supplemental Streebe Declaration.  The rulings on the remaining objections are as follows:

 

To Lee Declaration

7. Overruled.
8. Overruled.
9. Overruled.

 

To Marni Rice Declaration

11. Overruled.
12. Overruled.
13. Sustained as to the first sentence in paragraph 9 as lacking in foundation, overruled as to the remainder of paragraph 9.
14. Sustained as to the first sentence in paragraph 10 as lacking in foundation, overruled as to the remainder of paragraph 10.

To Michael Rice Declaration

15. Overruled.
16. Overruled.
17. Sustained as to the first sentence in paragraph 9 as lacking in foundation, overruled as to the remainder of paragraph 9.
18. Sustained as to the first sentence in paragraph 10 as lacking in foundation, overruled as to the remainder of paragraph 10.

To Tennyson Declaration

19. Overruled.
20. Overruled.
21. Sustained – lacking in foundation and personal knowledge; speculative.

To Tsai Declaration

23. Overruled.
24. Sustained – lack of foundation.
25. Overruled.
26. Overruled.
27. Overruled.
28. Overruled.
29. Overruled.
30. Overruled.
31. Sustained – hearsay.
32. Overruled.
33. Overruled.

 

To Lindsay Declaration

34. Overruled.
35. Overruled.
36. Overruled.

 

To Streebe Declaration in support of Preliminary Injunction

38. Overruled.
39. Overruled.
40. Sustained – conclusion outside the scope of the expertise of the witness.
41. Overruled.
42. Overruled.
43. Overruled.
44. Overruled.
45. Overruled.
46. Overruled.
47. Overruled.
48. Overruled.
49. Overruled.
50. Overruled.
51. Overruled.
52. Material cited does not match paragraph citation.
53. Overruled.
54. Overruled.
55. Overruled.
56. Overruled.
57. Overruled.

To Supplemental Streebe Declaration in Support of Preliminary Injunction:

64. Sustained – improper legal conclusion.
65. Overruled.
66. Overruled.
67. Overruled.

To Further Supplemental Streebe Declaration in Support of Opposition to Anti-SLAPP

70. Overruled.
71. Overruled.
72. Overruled.
73. Overruled.
74. Sustained – legal conclusion, improper subject of expert testimony.
75. Overruled.
76. Overruled.
77. Overruled.
78. Overruled.
79. Overruled.
80. Overruled.
81. Overruled.
82. Overruled.

To Gilbert Declaration

83. Overruled.
84. Overruled.
85. Sustained as to the first sentence in paragraph 6 – argumentative.  Overruled as to the remainder of paragraph 6.

To Beatty Declaration

86. Overruled.
87. Overruled.
88. Overruled.

To Arredondo Declaration

89. Sustained – lack of personal knowledge/foundation.
90. Overruled.
91. Overruled.
92. Sustained – lack of personal knowledge/foundation
93. Sustained – lack of personal knowledge/foundation.
94. Sustained – lack of personal knowledge/foundation.
95. Sustained – lack of personal knowledge/foundation.

To Second Supplemental Streebe Declaration Filed with Reply in Support of Preliminary Injunction

96. Overruled.
97. Overruled.
98. Overruled.
99. Overruled.

To Buchanan Declaration

100. Overruled.
101. Overruled.
102. Overruled.
103. Overruled.
104. Overruled.
105. Overruled.
106. Overruled.

Plaintiff’s Evidentiary Objections

To Bambenek Declaration:

1. Overruled.
2. Overruled.
3. Overruled.
4. Overruled.
5. Overruled.
6. Overruled.
7. Overruled.
8. Overruled.
9. Overruled.
10. Overruled.
11. Overruled.
12. Overruled.
13. Overruled.
14. Sustained – outside the scope of the witness’ stated expertise.
15. Overruled.
16. Overruled.
17. Overruled.
18. Overruled.
19. Sustained – argumentative.
20. Overruled.
21. Overruled.
22. Overruled.

To Ferguson Declaration:

1. Overruled.

To Curlee Declaration:

1. Overruled.
2. Overruled.
3. Overruled.
4. Overruled.
5. Overruled.
6. Overruled.
7. Sustained – hearsay.
8. Overruled.
9. Overruled.
10. Overruled.
11. Overruled.
12. Overruled.
13. Overruled.
14. Overruled.

To Supplemental Bambenek Declaration in Support of Anti-SLAPP

15. Overruled.
16. Overruled.
17. Overruled.
18. Sustained – lacking in foundation, conclusory.
19. Overruled.
20. Overruled.
21. Overruled.
22. Overruled.
23. Overruled.
24. Overruled.

Motion No. 1 (Anti-SLAPP):

Procedural Issues:

The motion is timely under Section 425.16, subdivision (f).  As the court observed in its previous tentative ruling, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d).  Additionally, the court observed that the font used by defendants in the moving and reply brief likely violate font requirements of California Rules of Court 2.104 and 2.105.  As always, the court urges all parties to review and adhere to the formatting requirements provided under the Rules of Court, and it does appear that, since the previous hearing, the parties have endeavored to adhere to those requirements.

Because defendants’ notice of motion does not quote in full the portions sought to be stricken in the Complaint, as instructed in California Rule of Court 3.1322, subdivision (a), the court presumes that the entirety of the pleading is the target of the motion, and the court will not strike discrete portions or allegations within the pleading, as is permissible pursuant to Baral v. Schnitt, 1 Cal.5th 376, 396 (2016).

Merits:

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech…in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  Code Civ. Proc. §425.16(b)(1).  “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [citation omitted] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.”  Baral, supra, 1 Cal.5th at 384.

Prong One: Protected Activity

In the Prong One analysis, the court is called upon to decide “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)” [citation omitted]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”  Navellier v. Sletten, 29 Cal.4th 82, 88 (2002).

The Complaint here alleges six causes of action: (1) violation of Penal Code §502 et seq., (2) violation of 18 U.S.C. §1030 et seq. (“CFAA”), (3) violation of Government Code §6204 et seq., (4) conversion, (5) trespass to chattels, and (6) conspiracy.

Defendants contend that these causes of action are all based on the protected activity of making public records requests, newsgathering, reporting, refusing to disclose confidential sources, and litigating in the courts.

The moving party has “the burden to show ‘the challenged cause of action arises from protected activity,” and that burden is met “by demonstrating” that the challenged conduct fits within the anti-SLAPP statute.  See Malin v. Singer, 217 Cal.App.4^th 1283, 1303 (2013).  The court notes that, here, defendants have presented no evidence whatsoever to show what their conduct was, and why it was protected.  They rely completely on the allegations in the Complaint.  Nevertheless, the court agrees that the Complaint alleges conduct that is protected.

Pursuant to Code of Civil Procedure §425.16(e)(4), “any…conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is considered protected.  News reporting and newsgathering constitute such protected conduct, even where the plaintiff contends that the conduct used to gather information was unlawful or illegal.  See Lieberman v. KCOP Television, 110 Cal.App.4^th 156, 165 (2003).

Here, plaintiff alleges that the defendants accessed, reviewed, and downloaded the City’s records and published some of the documents, as well as information learned from them.  Whether the material was allegedly obtained through unauthorized use of the Dropbox account is relevant to the second prong of the analysis, not the first.

The City argues that the allegations in the Complaint bring it within the exemption to the anti-SLAPP statute created by the California Supreme Court in Flatley v. Mauro, 39 Cal.4^th 299, 316 (2006) for conduct that is illegal as a matter of law – in that case, extortion.

But, as defendants point out, the Flatley exception only applies when “either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.”  Id. at 320.  The defendants here do not concede that their activity was illegal, and the evidence does not permit a conclusion by the court that the activity alleged was illegal as a matter of law.

As a result, the burden shifts to plaintiff to show a probability of prevailing.

Prong Two: Probability of Prevailing

To meet its Prong Two burden, the plaintiff must make a prima facie showing of facts that would, if proved, support a judgment in its favor.  Kashian v. Harriman, 98 Cal.App.4^th 892, 906 (2002).  “When assessing the plaintiff’s showing, the court must also consider evidence that the defendant presents. (§ 425.16, subd. (b)(2).)

The court does not, however, weigh that evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.”  1-800 Contacts v. Steinberg, 107 Cal.App.4^th 568, 585 (2003).

Here, given the fact that defendants’ motion seeks to strike the entirety of the Complaint, rather than discrete allegations or causes of action, plaintiff need only make an adequate showing as to one cause of action in order to defeat the motion.

The First Cause of Action, brought under Penal Code §502, supplies the City with an opportunity to do just that.  Pursuant to subdivision (c) of that statute, it is a criminal offense for a person to “[k]nowingly access[] and without permission take[], cop[y], or make[] use of any data from a computer, computer system, or computer network, or take[] or cop[y] any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network” or simply to “[k]nowingly and without permission access[] or cause[] to be accessed any computer, computer system, or computer network.”   Pen. Code §502(c)(2) & (7).

The Second Cause of Action is brought under the CFAA, 18 U.S.C. §1030.  Pursuant to subdivision (a)(2)(C) of that statute, it is a criminal offense to “intentionally access[] a computer without authorization” or to “exceed[] authorized access” and obtain “information from any protected computer.”

Defendants focus much of their argumentative fire on the Second Cause of Action.  But Penal Code section 502 “is ‘different’ than the CFAA. …“[T]he California statute does not require unauthorized access. It merely requires knowing access.”  Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1069 (9^th Cir. 2016).  “‘Access’ means to gain entry to, instruct, cause input to, cause output from, cause data processing with, or communicate with, the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.”  Pen. Code §502(b)(1).  “‘Computer network’ means any system that provides communications between one or more computer systems and input/output devices, including, but not limited to, display terminals, remote systems, mobile devices, and printers connected by telecommunication facilities.”  Id. at subd.(b)(2).  “…[N]otwithstanding the reference in the title to ‘unauthorized access,’ Penal Code section 502 prohibits knowing access, followed by unauthorized (i.e., ‘without permission’) taking, copying, or use of data.”  Facebook, Inc. v. ConnectU, LLC, 489 F.Supp.2d 1087, 1091 (N.D. Cal. 2007).  For this reason, defendants’ arguments regarding password-protection of data, or the lack of evidence of “hacking,” are unavailing.

Given that Dropbox is a service that permits file sharing through links, it would seem to meet the definition of a computer network under the statute. (Streebe Decl., ¶20.)  Thus, in the court’s estimation, in order to make a prima facie showing of a violation of Section 502 under these facts, the City must show either that defendants knowingly accessed the City’s Dropbox account and took data without permission, or that defendants’ access itself was knowing and without permission.

In determining whether an adequate showing has been made, however, the court must look at the evidence presented specific to each defendant.  Here, both sides appear to have largely grouped all defendants together for purposes of their discussion.  Plaintiff has not organized its presentation of evidence so as to draw clear lines between each defendant and the conduct complained of.  The court is left to piece the evidence together on its own, which it does below.

The Assistant City Clerk, Mea Klein, avers that defendants Ferguson and Curlee are associated with FFF’s blog, and that she has interacted with them in that capacity when handling their Public Records Act (“PRA”) requests.  (Klein Decl., ¶13.)  Neither Mr. Ferguson nor Mr. Curlee deny that they work for and contribute to the FFF blog.  In addition to alleging that defendants Ferguson and Curlee undertook their activities in furtherance of FFF’s blog, plaintiff alleges that documents allegedly taken from the City’s Dropbox account without permission were later posted on the blog.  The City fails to present the court with any of the offending blog posts themselves, even in redacted form.

 However, the City’s computer forensic expert, Matthew Strebe, avers that his review of the blog indicated that documents from a zip file in the City’s Dropbox account labeled “pr1919-Josh Ferguson.zip” were published on the blog in 2019.  (Strebe Decl., ¶¶75-80.)  Ms. Klein avers that the “pr1919” folder was created by the City’s IT department for the purpose of collecting documents potentially responsive to Ferguson’s PRA request made on 01/02/19.  (Klein Decl., ¶17.)  Her declaration suggests that, while she and other City staff have previously given Ferguson and Curlee links to Dropbox folders in response to PRA requests, the “pr1919” file was never among the folders shared with them.  (Id., ¶¶14-15.)  This is prima facie evidence that the defendants did not have permission from the City to be in possession of the “pr1919” zip file.

The next question is whether the City has evidence that FFF, or its representatives Ferguson or Curlee, obtained these documents through an illegal act – accessing the City’s Dropbox account and taking them without permission.  The court concludes that the City has such evidence.

Based on his review of the Dropbox activity logs, Mr. Strebe avers that the “pr1919” zip file was first uploaded to the Dropbox account by the City IT department on 05/07/19.  On 05/10/19, its contents were accessed and downloaded by an unidentified user.  (Strebe Decl., ¶70, Ex. A, pp. 73-74.)  Mr. Strebe avers that Dropbox utilizes unique links such that folders can only be shared by sharing the link itself.  (Id., ¶58.)  Because Ferguson and Curlee had previously been given access to City Dropbox folders, Mr. Strebe was able to ascertain from the Dropbox logs that they employed identity-masking VPN and TOR services to access the folders for which they had permission.  (Id., ¶60.)  This was unlike other persons who downloaded folders from the Dropbox account.  (Id., ¶66.)  Given the fact that the folder taken was of interest to defendants, and their past pattern of using VPN and TOR services to access the City’s Dropbox account and download files, Mr. Strebe concludes that the unidentified user who downloaded the “pr1919” file was “almost certainly” Ferguson.  (Id., ¶66, 70.)

Ferguson also appears to have accessed the Dropbox account without permission and downloaded other folders besides the “pr1919” file.  Ms. Klein avers that the City only ever gave Ferguson access to two Dropbox links, the first of which was sent in December 2018.  (Klein Decl., ¶14c.)  Yet, the City’s Dropbox log shows that Ferguson was accessing and downloading folders from the account, without permission, as early as 12/28/17.  (See Strebe Decl., Ex. D.)

As for Curlee, Mr. Strebe attributes the unlawful downloading of numerous folders and files to him by way of TOR and VPN, because Curlee used such methods to download other files to which he was lawfully given access by the City.  (Id., ¶¶66-67.)  The City avers that he did not have permission to download these documents.  (Klein Decl., ¶¶14-15.)

Defendants make several arguments in response to this evidence.  First, they argue that Mr. Strebe’s Dropbox logs are suspect and lack authentication.  Second, they argue that his evidence is inadequate to attribute the accessing/downloading of files by VPN/TOR users to them.  Third, they argue that the folders were publicly accessible.

The first argument is made by defendants’ competing expert, John Bambenek.  Mr. Bambenek points out that Strebe’s Dropbox logs do not completely match the format of a log he was able to generate from a Dropbox account, and that parts of the IP addresses were actually obscured, raising questions as to whether the information in Mr. Strebe’s declaration was accurate.  (Bambenek Decl., ¶¶38-42.)  Mr. Strebe responds that the logs he provided were streamlined versions of logs that he had received from the City, filtered in order to capture only “relevant” information.  Strebe further avers that, had he attached the full log files, the documents would have numbered in the thousands of pages, which could hardly have been useful to the court in its review.  (Sec. Suppl. Strebe Decl., ¶¶5-8.)  Ultimately, the court has no reason to suspect that the information provided in the Strebe logs is inaccurate, or that any “enriching” or “filtering” by Strebe adulterated data.

Mr. Bambenek’s declaration is also the source of defendants’ second argument.  He avers that Mr. Strebe is essentially speculating that the access to the City’s Dropbox account via anonymizing PureVPN or TOR had to have been Ferguson or Curlee.  But, as the court has already stated, Mr. Strebe’s conclusion was based on the fact that defendants’ prior access of unique Dropbox links sent specifically to them occurred through PureVPN or TOR.  Thus, a linkage was drawn in terms of the methodology previously employed by these defendants to access data in the Dropbox account.  Mr. Bambenek may believe this is to be a “conclusion” rather than “evidence,” but legal definitions are not a subject as to which the court requires an expert opinion.  (Bambenek Decl., ¶48.)  Mr. Strebe’s observations are evidence that defendants were behind the downloading of data without permission – and that is all that the City is required to produce in order to defeat the present motion.

Finally, defendants appear to contend that the City’s use of a more generic link (http://cityoffullerton.com/outbox) indicates that the Dropbox account was publicly accessible.  But, according to Mr. Strebe, this was merely an alias for the unique Dropbox link to the disclosed folder or file.  (Further Suppl. Strebe Decl., ¶¶3-5, 7-8.)  The generic link was never published on the City’s website.  (Id., ¶¶7-8.)

Because the City has produced evidence to make a prima facie showing that defendants knowingly accessed and, without permission, took documents from the City’s Dropbox account, the court finds that Prong Two has been met.

The special motion to strike is therefore DENIED.

Motion No. 2 (Preliminary Injunction):

While the second motion brought by the City entails a slightly different assessment than the first, the court’s analysis of Prong Two above is relevant.

In this motion, it is the City’s burden to show that a preliminary injunction should issue.  O’Connell v. Sup. Ct., 141 Cal.App.4th 1452, 1481 (2006).  That burden is carried through two interrelated prongs.  See Right Site Coalition v. Los Angeles Unified Sch. Dist., 160 Cal.App.4^th 336, 338 (2008).

First, the City must show a “reasonably probable” likelihood of success on the merits.  See San Francisco Newspaper Printing Co., Inc. v. Sup. Ct., 170 Cal.App.3d 438, 442 (1985).

Then the court should also consider whether the City would suffer greater injury from denial of the injunction than the defendants would suffer from its grant.  Shoemaker v. County of Los Angeles, 37 Cal.App.4th 618, 633 (1995).  “Regardless of the balance of interim harm, the preliminary injunction cannot be allowed to stand unless there is ‘some possibility’ [plaintiff] will prevail on the merits of its action.”  Costa Mesa City Employees’ Assn v. City of Costa Mesa, 209 Cal.App.4th 298, 309 (2012).  “The more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm that they allege will occur if the injunction does not issue. ..Further, “if the party seeking the injunction can make a sufficiently strong showing of likelihood of success on the merits, the trial court has discretion to issue the injunction notwithstanding that party’s inability to show that the balance of harms tips in his favor.”  Right Site Coalition, supra, 160 Cal.App.4^th at 338-339.

As the court stated in its previous tentative ruling, there is at present an appeal pending regarding the 10/25/19 Order granting plaintiff’s ex parte application for a Temporary Restraining Order and Order to Show Cause why a Preliminary Injunction should not be issued, and the Court of Appeal has indicated that it is considering issuing a peremptory writ in the first instance with respect to paragraphs (1)(j) and (1)(k) of that order pursuant to Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171, 177-180 (1984), and has stayed that portion of the order.

Given this, the court might have been inclined to strike paragraphs 1(j) and 1(k) from the most recent proposed injunction submitted by the City in any event.  However, since the Court of Appeal indicated in its 12/05/19 order that this court is free to rule on any and all issues related to this motion, the court will not consider itself precluded from reviewing the issue independently.

As the court has already concluded in connection with the anti-SLAPP motion, the City has shown that there is some possibility that it will prevail on the merits of its First Cause of Action.  The court’s task now is to balance the harms, and then weigh the propriety and scope of the injunction to issue, keeping in mind defendants’ valid concerns regarding the constitutionality of any such action.

The City’s most recent proposed injunction, submitted on 02/25/20, proposes to restrict defendants’ conduct with respect to the following Dropbox folders from the City’s account:

• pr1919-Josh Ferguson.zip
• ACUSA_PRR.zip
• CE_PRR_KC.zip
• Council_20180430.zip
• PRR_AIR20180604.zip
• HL_PRR.zip
• Tiger_Signal_PRR
• PRR_JF_20181002.zip
• JR_PRR20181012.zip
• JF_PRR_2.zip
• PPR_Cox.zip
• PRRS01082019.zip
• PRRS01092019.zip
• PRRS01092019_all.zip
• PRRS01152019_JF.zip
• PRRS02042019_VD_2.zip
• PRRS02042019_VD.zip
• PRR_19-134_data@thehourlystruggle.com.zip
• PR19-171VD_1_2.zip
• PR19-188VD.zip

Specifically, the City asks the court to order defendants not to delete, alter, destroy, or copy the data from these folders, or any communications about or summaries of their contents.  The City also wishes to enjoin defendants from further accessing and downloading information from the City’s networks or file sharing accounts without its permission, disrupting City networks, and/or conspiring with others to do those things.

Finally, the City desires an injunction prohibiting the defendants from publishing or distributing content obtained from these folders, or conspiring with others to do the same, excluding any content that may be publicly available or disclosed through Public Records Act requests.

There is no evidence at all that defendants attempted to “disrupt” any City computers or networks, so the injunction in that sense is unwarranted.

Regarding the taking, alteration, deletion, or destruction of data, Mr. Strebe indicates that there is forensic evidence that all of the designated folders or zip files were taken by defendants.  (Suppl. Strebe Decl., ¶¶8-26.)  Attribution to defendants of these takings is bolstered by the fact that many of them appear to have been files or folders gathered by the City for review in order to make Public Records Act disclosures to the defendants themselves.  (See Suppl. Strebe Decl., ¶¶8-26; Suppl. Klein Decl., ¶¶7-20, Suppl. Tsai Decl., ¶¶2-4.)

There is also evidence that irreparable harm has and will continue to occur absent the proposed injunction.  The Buchanan Declaration makes an adequate showing that the “pr1919” zip file contains privileged or confidential information.  The court is less clear on whether all of the remaining files contain sensitive or privileged information, but based on the evidence summarized above, defendants’ conduct harmed the City’s right to control access to its data.  And given the documented, repeated instances of defendants accessing and downloading information through anonymizing methods without permission, it seems that they will continue to attempt to do so absent an injunction. Power Ventures, supra, 252 F.Supp.3d at 782.

Given the evidence before the court, the injunction is appropriate insofar as it requires defendants to retain all documents in their possession pertaining to the subject files and folders, and to refrain from further accessing the City’s documents without permission.  The relative harm to defendants from such an injunction is miniscule, given that it would only prohibit defendants from committing further improper acts.

The thornier question is whether the injunction should also prohibit publication or discussion on the blog of documents obtained through such improper acts.

Defendants contend that such an injunction would amount to an unconstitutional prior restraint on the press.  However, the injunction here is not a prior restraint, as it is a content-neutral restriction on defendants based not on their speech, but on their own prior unlawful conduct.  See DVD Copy Control Assn, Inc. v. Bunner, 31 Cal.4^th 864, 886-887 (2003).  Defendants’ citations to authority regarding the protection of journalists for publication of inadvertently disclosed information or information obtained through improper means are inapposite, therefore, because these cases did not involve illegal newsgathering activities by the journalist.  As but one example, in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975), the United States Supreme Court held that a reporter could not be held liable for invading a rape victim’s privacy by disclosing her name when he obtained the name by reviewing court records open to public inspection in the courtroom.  Id. at 496.  He was not accused of obtaining her name through illegal or improper means.  That situation is very different from the one at bar – where there is credible evidence that defendants knowingly accessed and took documents that they had no permission to take.

The court must keep in mind that injunctions are not appropriate where the wrong complained of has already been completed, or where the feared harm has already occurred.   Vincent Petroleum Corp. v. Culver City, 43 Cal.App.2d. 511, 516 (1941); see also Flood v. E.L. Goldstein Co., 158 Cal.247, 250 (1910).  The universe of documents that have already been published, excerpted, or otherwise identified or discussed on the blog is unclear, however.  Thus, the court is unable to say that the damage from their publication is complete.  The court is also unable to ascertain whether the City’s Dropbox account is still active, or whether defendants are still able to access it.

Taking into account all of the above circumstances, the court GRANTS the City’s request for a preliminary injunction as it regards subdivisions 1(a), (b), (c), (d), (e), (f), (g), (j), and (k).

The court DENIES the request for an injunction as to subdivisions 1(h) and (i).