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Council on American-Islamic Relations v. Gaubatz

November 3, 2009

COUNCIL ON AMERICAN-ISLAMIC RELATIONS, PLAINTIFF,
v.
PAUL DAVID GAUBATZ, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on motion by Plaintiff, the Council on American-Islamic Relations (hereinafter, "CAIR" or the "organization"), for a temporary restraining order. CAIR filed the above-captioned civil action on October 29, 2009, accompanied by the now-pending [2] Motion for a Temporary Restraining Order and a Preliminary Injunction. CAIR names as Defendants Paul David Gaubatz, Chris Gaubatz, a.k.a. "David Marshall," and John and Jane Doe Nos. 1-20. As set forth in Plaintiff's Complaint, CAIR alleges that Defendants conceived and implemented a deliberate and concerted scheme to place Defendant Chris Gaubatz in an internship with CAIR under an assumed name and based upon other false representations and material omissions. CAIR further alleges that, as a consequence of these false representations and material omissions, Defendant Chris Gaubatz obtained access to CAIR's facilities and documents and proceeded to remove more than 12,000 of CAIR's internal documents and to make video and audio recordings of private meetings and conversations involving CAIR's officials and employees without consent or authorization and in violation of his contractual, fiduciary, and other legal obligations to CAIR. According to CAIR, Defendants have since disclosed and caused to be published many of these documents and records, including proprietary and privileged documents as well as documents containing the personal information of CAIR's employees and donors.

On November 2, 2009, the Court held an on-the-record hearing to address CAIR's request for a temporary restraining order. Based upon the on-the-record discussion at that hearing, which is fully incorporated herein, as well as CAIR's [2] Motion for a Temporary Restraining Order and a Preliminary Injunction and supporting papers, the relevant case law and the record of this case as a whole, the Court shall GRANT-IN-PART and DENY-IN-PART CAIR's request for a temporary restraining order as set forth in its [2] Motion for a Temporary Restraining Order and a Preliminary Injunction, for the reasons set forth below.

I. BACKGROUND

A. Factual Background

As set forth in the Complaint, CAIR is a self-described national Muslim advocacy group incorporated in the District of Columbia (hereinafter "D.C." or the "District") as a non-profit 501(c)(3) corporation. Complaint, Docket No. [1], ¶ 11. CAIR asserts that, upon information and belief, Defendant Paul David Gaubatz is the father of Defendant Chris Gaubatz, also known as David Marshall, and that both named Defendants are citizens and residents of the Commonwealth of Virginia.*fn1 Id. ¶¶ 12-13. CAIR filed suit against Defendants, alleging that Defendants conceived and implemented a deliberate and concerted scheme to place Defendant Chris Gaubatz in an internship with CAIR under an assumed name and based upon other false representations and material omissions in order to obtain access, copy and/or remove documents from CAIR's offices and to make surreptitious recordings of meetings and conversations. Id. ¶¶ 2-5, 15.

According to CAIR, beginning in or around April 2008 and continuing through August 2008, Defendant Chris Gaubatz worked as an intern at CAIR (working first at CAIR's Maryland-Virginia chapter office in Herndon, VA, before moving in June 2008 to CAIR's national office located in D.C., where he worked through August 2008). Id. ¶¶ 16-17; see also Pl.'s Mem. in Support of Pl.'s Mot. for TRO/PI, Ex. 1 (Declaration of Raabia Wazir (herinafter "Wazir Decl.")), ¶¶ 3-4; Pl.'s Mem. in Support of Pl.'s Mot. for TRO/PI, Ex. 2 (Declaration of Nadhira Al-Khalili (herinafter "Al-Khalili Decl.")), ¶¶ 2-4. Defendant Gaubatz also returned briefly to perform additional work over the 2008 Labor Day holiday weekend. Wazir Decl. ¶ 12.

CAIR asserts that Defendant Chris Gaubatz obtained this internship using an assumed name ("David Marshall") and based upon other various false representations and material omissions. Compl. ¶ 18; Wazir Decl. ¶¶ 3, 5; Al-Khalili ¶¶ 2-3. CAIR alleges that he did so with the express purpose of spying on CAIR and other Muslim organizations. Compl. ¶ 21; Wazir Decl. ¶ 6; Al-Khalili ¶¶ 6-8. According to sworn declarations submitted by CAIR, had Defendant Chris Gaubatz informed the organization that his name was Chris Gaubatz (not David Marshall) and that he intended to work for CAIR only as a means of accessing, copying, and/or removing CAIR documents and to record meetings and conversations with and among CAIR officials and employees, CAIR would not have hired him or allowed him access to its properties. Wazir Decl. ¶ 7; Al-Khalili Decl. ¶ 5.

As set forth in the sworn declaration submitted by Ms. Rabbia Wazir, then-Internship Coordinator for CAIR's Washington, D.C. office, Defendant Chris Gaubatz (a.k.a., David Marshall) was required to sign a Confidentiality and Non-Disclosure Agreement (hereinafter, "Agreement") upon being hired in June 2008 as an intern at the Washington, D.C. national office. Wazir Decl. ¶¶ 8-11. Ms. Wazir states that the Defendant signed the Agreement and returned it to her, and that she placed the signed Agreement in an intern file for "David Marshall." See id. ¶ 10. CAIR indicates that it has been unable to locate the intern file for "David Marshall," which was stored in an unlocked file cabinet in Ms. Wazir's office, despite its efforts to do so. See Al-Khalili Decl. ¶ 23. As there is no evidence now before the Court to contradict or otherwise refute Ms. Wazir's sworn declaration, there is no reason at this time to discredit Ms. Wazir's testimony. Accordingly, based on the record presently before it, the Court finds that CAIR has submitted sufficient evidence indicating that Defendant Chris Gaubatz signed the Agreement, a sample of which is attached as Exhibit A to Ms. Wazir's Declaration.

In signing the Agreement, an intern such as Defendant Chris Gaubatz agrees, in relevant part, that he or she: shall not at any time after the termination of my internship with CAIR, use for myself or others, or disclose or divulge to others . . . any trade secrets, confidential information, or any other proprietary data of CAIR . . ., including, but no limited to: . . . directly or indirectly disclose to any other person, firm or corporation the names or addresses of any [sic] customers or clients of CAIR. The intern further agrees to take and protect the secrecy of, and to avoid disclosure or use of, the "Confidential Information"*fn2 in order to prevent it from falling into [the] public domain or into the possession of persons not bound to maintain the confidentiality of the Confidential Information.

Intern agrees to return any originals or copies of confidential and proprietary information obtained during the course of internship, whether tangible or intangible, to CAIR immediately upon termination regardless of whether said termination is involuntary or not.

Intern agrees not to distribute this information in any medium (i.e., faxes, voicemail, electronic mail systems, or computer systems).

Id.

CAIR has also provided evidence that Defendant Chris Gaubatz access to CAIR's internal documents and computer systems was limited. As set forth in both Ms. Wazir and Ms. Al-Khalili's sworn declarations provided in support of the organization's motion, CAIR did not authorize Defendant Chris Gaubatz or any other CAIR interns to: (a) access, copy , keep, take home or otherwise remove from CAIR's premises or computer systems any of CAIR's documents; (b) access any of CAIR's password-protected email or computer systems; or (c) record any meetings, conversations or other events. Wazir Decl. ¶ 14-16; Al-Khalili Decl. ¶¶ 17-22. Although Defendant Chris Gaubatz was given limited access to CAIR's computers and computer systems, such access was limited and authorized the interns to use the computer systems only to access the Internet and to save documents to the desktop space. Al-Khalili Decl. ¶ 19. In addition, although Defendant Chris Gaubatz and other interns were given access to certain CAIR documents in order to assist the organization's effort to shred and dispose of the material, such access was similarly limited for the sole purpose of shredding the documents in accordance with CAIR's instructions; neither Defendant Chris Gaubatz nor the other interns assisting with disposal of the material were authorized to make any other use of the documents. Wazir Decl. ¶¶ 13-16. Again, as there is no evidence now before the Court to contradict or otherwise refute these sworn statements, there is no reason at this time to discredit CAIR's evidence that Defendant Chris Gaubatz was not authorized to access, copy , keep, take home or otherwise remove the materials discussed above.

CAIR asserts that Defendant Chris Gaubatz nonetheless: (1) removed more than 12,000 internal, sensitive documents - including documents marked for confidential treatment with such designations as "Company Proprietary" and "Not for Distribution-For Board Members Only" as well as attorney-client privileged documents - without CAIR's consent or authorization and delivered those documents to Defendant Paul David Gaubatz; (2) accessed emails, computer-generated spreadsheets, and other electronic documents, which he was not authorized to access, and delivered printouts and copies of those documents to Defendant Paul David Gaubatz; and (3) made surreptitious video and audio recordings of meetings and conversations involving CAIR's officials and employees without consent or authorization, which he also delivered to Defendant Paul David Gaubatz. Compl. ¶¶ 29-32. CAIR further alleges that Defendants subsequently disclosed and caused to be published many of these documents and records, both in a book published by Defendant Paul David Gaubatz, which is entitled Muslim Mafia: Inside the Secret Underworld That's Conspiring to Islamize America and was released on or around October 15, 2009 (hereinafter "Muslim Mafia"), and on Defendant Paul David Gaubatz's internet blog, located at http/://dgaubatz.blogspot.com. Compl. ¶¶ 33-42; see also AlKhalili Decl. ¶¶ 9, 11-12. For example, CAIR asserts that Defendant Paul David Gaubatz's blog includes postings on October 20, 2009, disclosing names, addresses, telephone numbers and email addresses of former CAIR employees, and on October 26, 2009, disclosing names, addresses, telephone number and email addresses of persons who have made donations to CAIR. Id. ¶¶ 16-17.

CAIR further provides evidence that Defendant Paul David Gaubatz has admitted in his book, Muslim Mafia, that: "David Marshall" is, in fact, Defendant Chris Gaubatz's "nom de guerre;" Defendant Chris Gaubatz acted as the "chief field investigator" for Defendant Paul David Gaubatz; the internship by Defendant Chris Gaubatz was intended as a "counterintelligence operation;" and during the course of his internship with CAIR, Defendant Chris Gaubatz "routinely load[ed] the trunk of his car with boxes of sensitive documents and deliver[ed] them into the custody of investigative project P. David Gaubatz who in turn stockpiled them at his office in Richmond, Virginia." Al-Khalili Decl. ¶¶ 6-8.

Since the release of Defendant Paul David Gaubatz's book, CAIR represents that it and its employees have received various threats, including a threatening fax sent to CAIR's national office in Washington DC on October 15, 2009 and addressed to CAIR's communications director, which CAIR reported to the Federal Bureau of Investigation, and a threatening voicemail message left on October 19, 2009 for CAIR's legal counsel. Al-Khalili Decl. ¶¶ 25-26.

B. Procedural Background

CAIR filed the above-captioned civil action on October 29, 2009. As set forth in its Complaint, CAIR asserts five legal causes of action against Defendants: (1) Conversion; (2) Breach of Fiduciary Duty; (3) Breach of Contract; (4) Trespass; and (5) Violations of the Electronic Communications Privacy Act, 18 U.S.C. § 2701(a). See generally Compl. Along with filing its Complaint in this matter, CAIR filed the now-pending Motion for a Temporary Restraining Order and a Preliminary Injunction. CAIR seeks entry of a temporary restraining order that: (1) enjoins Defendants from making any use, disclosure or publication of any (a) documents (including emails and other electronic documents) or copies thereof obtained from any office or facility of CAIR or (b) recording (whether audio or video) of meetings of or conversations involving CAIR officials or employees, or copies thereof; (2) requires Defendants to promptly remove such documents and/or recordings from any blog or other Internet site under their control; and (3) requires Defendants to promptly return such documents and recordings to CAIR. See Pl.'s Mem. in Support of Pl.'s Mot. for TRO/PI at 1.

Given the emergency nature of CAIR's motion, the Court issued an [4] Order on October 29, 2009, scheduling a hearing for Monday, November 2, 2009, to consider CAIR's request for a temporary restraining order, and directing Defendants to appear at that time in order to respond to CAIR's allegations. See 10/29/09 Order, Docket No. [4]. The Court further advised Defendants that if they failed to appear in person at the time and place designated herein, the Court may treat CAIR's motion for a temporary restraining order as conceded. See id.

Despite repeated efforts by both this Court and CAIR to contact Defendants prior to the hearing in order to provide timely notice of the instant suit and motion for temporary restraining order, neither Defendants nor anyone else on Defendants' behalf contacted the Court or attended the November 2, 2009 hearing. As previously noted in the Court's October 29, 2009 Order, Chambers had attempted to contact both Defendant Paul David Gaubatz and Defendant Chris Gaubatz, a.k.a. "David Marshall, by telephone at the numbers provided by Plaintiff in its LCvR 65.1 Certification, but was unable to reach either Defendant in person. A voicemail message was left for Defendant Chris Gaubatz advising him of the November 2, 2009 hearing and directing him to contact Chambers; however, no attempt to contact Chambers was made. As the voicemail messaging box for Defendant Paul David Gaubatz was ...


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