EarthCam, Inc. v. OxBlue Corp.

• Decision Date: 22 September 2014
• Docket Number: No. 1:11–cv–02278–WSD.,1:11–cv–02278–WSD.
• Citation: 49 F.Supp.3d 1210
• Parties: EARTHCAM, INC., Plaintiff, v. OXBLUE CORPORATION, Chandler McCormack, John Paulson, Bryan Mattern, and Richard Hermann, Defendants.
• Court: U.S. District Court — Northern District of Georgia

49 F.Supp.3d 1210

EARTHCAM, INC., Plaintiff

v.OXBLUE CORPORATION, Chandler McCormack, John Paulson, Bryan Mattern, and Richard Hermann, Defendants.

No. 1:11–cv–02278–WSD.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Sept. 22, 2014.

Jeffrey R. Cohen, Millen, White, Zelano & Branigan, P.C., Arlington, VA, John Weldon Harbin, Russell Edward Blythe, Atlanta, GA, for Plaintiff.

Christopher Scott Anulewicz, Geremy Walden Gregory, Matthew B. Ames, Michael J. Bowers, Balch & Bingham LLP, Shuli L. Green, Law Offices of Steven J. Newton, P.C., Atlanta, GA, for Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Plaintiff EarthCam, Inc's (“EarthCam”) Motion for Summary Judgment [232], Defendant Richard Hermann's Motion for Summary Judgment (“Hermann”) [230], Defendants OxBlue Corporation's, Chandler McCormack's, John Paulson's, and Bryan Mattern's (collectively, the “Oxblue Defendants”) Motion for Summary Judgment [228], and EarthCam's Motion to Reopen Discovery [237].

I. BACKGROUND

A. Facts

1. The Parties

In this action, EarthCam alleges that its competitor, OxBlue Corporation (“OxBlue”), engaged in various forms of corporate espionage to misappropriate its trade secrets. OxBlue has filed counterclaims against EarthCam for copyright infringement, trademark infringement, false advertising, false designation of origin, unfair competition, and violation of the Georgia Uniform Deceptive Trade Practices Act.

EarthCam is a privately held company, based in New Jersey, that markets and sells high-end web-based camera systems, including traditional security applications, megapixel robotic panoramic cameras, and high-definition streaming video devices. OxBlue is a company based in Atlanta that offers high-end web-based camera systems and streaming video technology. OxBlue's primary client base is the construction industry, and its remote camera monitoring products are utilized in a variety of construction projects.

Defendant Chandler McCormack (“McCormack”) is the President and Chief Executive Officer of OxBlue. Defendant

Bryan Mattern (“Mattern”) is the Chief Technology Officer of OxBlue. Defendant John Paulson (“Paulson”) is a silent financial partner of OxBlue.¹ Hermann is a former employee of EarthCam. Between 2005 and June 2008, Hermann worked at EarthCam as a product technician and camera installer of robotic megapixel cameras. After ending his employment with EarthCam, Hermann became an independent contractor of OxBlue.

2. OxBlue Defendants' Motion for Summary Judgment

i. The 2006 “Brute Force” Attack

In March and April of 2006, Defendant Mattern wrote a script to collect information available on the webpages of EarthCam's customers. Mattern described the script as a “very small script that any CS 101 person or anybody could have written.”² Mattern Dep. at 245: 5–7. The script created over 400,000 Uniform Resource Locator (“URL”) combinations to estimate the current URL combination and location of an EarthCam's customer's webpage. EarthCam alleges that OxBlue utilized the script to gather confidential information on its customers, including customer names, camera names, images from customer cameras, the URL to the image for each camera, and the date and time stamped on the last image taken from a camera. There is no dispute that the basic script written by Mattern did not involve decrypting a password or otherwise breaking into any secure server. EarthCam's Vice President of Technology, Bill Sharp, admitted at his deposition that the information gathered by the OxBlue Defendants during the so-called “brute-force” attack was not password protected. See Sharp Dep. at 107: 11–17.³

ii. Access to Customers' Webpages

On September 10, 2008, Paulson received a username and password from Benning Construction (“Benning”), an EarthCam client, for Benning's EarthCam customer webpage. Paulson forwarded to McCormack an email containing Benning's login credentials. EarthCam claims the OxBlue Defendants used the login credentials they received from Paulson to access information on Benning's customer webpage. EarthCam has not presented any evidence to support this claim.

On May 20 and May 21, 2011, Chip Foley of Forrest City Ratner (“FCR”), an EarthCam client, provided FCR's login credentials for its customer webpage to the OxBlue Defendants to determine whether OxBlue could provide a solution to certain issues it had encountered with EarthCam's cameras. Foley initially provided a series of screenshots from FCR's EarthCam account to the OxBlue Defendants. Foley also sent to OxBlue a screenshot from one of FCR's cameras. The forwarded information was not enough for OxBlue to troubleshoot and advise FCR on its problems. As a result, Foley sent FCR's login credentials to OxBlue. The OxBlue Defendants logged into FCR's account, and provided Foley with three possible solutions to the problem FCR had encountered. Two of those solutions did not involve using OxBlue's services. FCR took OxBlue's advice into consideration, and continued to do business with EarthCam. After logging into FCR's EarthCam account, Correy Potts, an OxBlue employee, took screenshots from FCR's webpage, and provided a link to a directory containing the screenshots to OxBlue's marketing department. EarthCam has not presented any evidence that the marketing department ever viewed the screenshots, or that OxBlue used the screenshots to develop its products or otherwise use them in its business.

EarthCam's customers are required to enter into an End User License Agreement (“EULA”) that prohibits the unauthorized access, display, and copying of EarthCam's information. The EULA does not prohibit EarthCam's customers from sharing their passwords with a third party, and there is no evidence that the OxBlue Defendants knew any of the EULA's provisions when they logged into the FCR account. On October 15, 2012, Mr. Sharp admitted at his deposition that the EULA is presented to the customer when the customer first logs into his or her account, and it does not appear again unless there is a change in the EULA's terms. See Sharp Dep. at 147: 11–148:25. Mr. Sharp also admitted at his deposition that there is no evidence that the OxBlue Defendants were presented with, or were otherwise aware of, the EULA when they accessed FCR's EarthCam account. Id. at 148:23–149–16.⁴

EarthCam concedes that some of its customers “elect” to have their websites and information made public, but insists that the majority of its customers' websites are not in the public domain.⁵ In other words, EarthCam does not require its customers to shield their “user interface” experience from the public to maintain the secrecy of EarthCam's alleged “trade secrets.”

EarthCam also has a live demonstration of its services on its website that provides a graphical representation of how the cameras appear on a customer account.

EarthCam claims that “administrative access” to a password protected account allows the user to interact with EarthCam's hardware, and view the actual code that operates the camera. This claim, however, is not relevant here because Mr. Sharp, at his October 15, 2012 deposition, conceded that there is no evidence the OxBlue Defendants either viewed or copied EarthCam's code, or accessed and manipulated EarthCam's hardware from FCR's account in May, 2011. See Sharp Dep. at 56:12–20; 57:20–58–12.

iii. Information Received from Hermann

EarthCam alleges that between May 2008 and August 2010, Hermann provided the OxBlue Defendants with information that EarthCam considered “trade secrets,” including detailed information about EarthCam's cameras, customers, suppliers, and pricing information. This claim is based on EarthCam's claimed interpretation of the email correspondence between Hermann and the OxBlue Defendants from 2008–2010. Because the parties are unable, or unwilling, to agree on what was said or described in these emails, the Court has examined the email correspondence between Hermann and the OxBlue Defendants. The Court's conclusions regarding whether these emails contain EarthCam's trade secrets can be found in Section II(B)(2)(ii) of this Order.

3. Hermann's Motion for Summary Judgment

i. Non–Compete Agreement and Release

On July 10, 2006, Hermann and EarthCam executed a Noncompetition, Nondisclosure, and Inventions Agreement (“Employment Agreement”). The provision in the Employment Agreement that governs confidentiality provides:

Except as required by law, Employee will not, whether during or after the termination or cessation of his employment, reveal to any person, association, or company any of the trade secrets or confidential information concerning the organization, business, or finances of the Company so far as they have come or may come to the knowledge of the Employee, except as may be in the public domain through no fault of Employee or as required to be disclosed by law or court order, and Employee shall keep secret all matters entrusted to him and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated to injure or cause loss, whether directly, or indirectly, to the Company.

See Pl.'s Ex. A, attached to Ex. 50.

In June 2008, Hermann ended his employment with EarthCam. On June 20, 2008, Hermann requested EarthCam to pay certain employment related expenses, in the amount of $1,038.00, that he had incurred when working for EarthCam. Hermann threatened to file claims against EarthCam for these unpaid expenses if they were not paid. EarthCam requested Hermann to sign a release in consideration of settling his claim for unpaid expenses. Hermann rejected EarthCam's request for a unilateral release, and demanded that EarthCam execute a mutual release. On July 24, 2008, EarthCam's Vice President, Joe Nizza (“Nizza”), asked Hermann to draft the language Hermann wanted to include in the mutual release. Hermann refused to draft the mutual release language, and demanded payment for...