Getty Images v. Motamedi: Transcript of Preliminary Injunction Hearing

Case 2:16-cv-01892-RAJ Document 43-1 Filed 02/16/17 Page 1 of 79
Exhibit A
January 12, 2017 - 1
1 UNITED STATES DISTRICT COURT
2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE
3 ________________________________________________________________
)
4 GETTY IMAGES, INC., a Delaware ) C16-1892-RAJ
Corporation, )
5 ) SEATTLE, WASHINGTON
Plaintiff, )
6 ) January 12, 2017
v. )
7 ) Preliminary
ROXANNE MOTAMEDI, an ) Injunction Hearing
8 individual, )
)
9 Defendant. )
10 ________________________________________________________________
11 VERBATIM REPORT OF PROCEEDINGS

BEFORE THE HONORABLE RICHARD A. JONES
12 UNITED STATES DISTRICT JUDGE
________________________________________________________________
13
14
APPEARANCES:
15
For the Plaintiff: Jeffrey A. James
16 Tina M. Aiken
Sebris Busto James
17 14205 SE 36th Street
Suite 325
18 Bellevue, WA 98006
19
20 For the Defendant: Matthew Schmidt

Balsteriere Fariello
21 225 Broadway
29th Floor
22 New York, NY 10007
23 Duncan Manville
Savitt Bruce & Willey
24 1425 Fourth Avenue
Suite 800
25 Seattle, WA 98101
Nickoline Drury - RMR, CRR - Official Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
January 12, 2017 - 2
1 THE COURT: Good morning. Please be seated.
2 ALL: Good morning, Your Honor.
3 THE CLERK: We are here in the matter of Getty Images,
4 Inc. versus Roxanne Motamedi, Cause No. C16-1892, assigned to
5 this Court.
6 If counsel could please rise and make your appearances for
7 the record.
8 MR. JAMES: Good morning. I'm Jeff James. I'm counsel
9 for Getty Images.
10 THE COURT: Good morning.
11 MS. AIKEN: Good morning. My name is Tina Aiken,
12 counsel for Getty Images.
14 MS. MIYASHITA: Good morning. Yoko Miyashita, general
15 counsel for Getty Images.
17 Who will be representing counsel for the plaintiffs?
18 MR. JAMES: I will, Your Honor.
19 THE COURT: All right. You may be seated. Thank you.
20 MR. SCHMIDT: Good morning, Your Honor. Matthew
21 Schmidt, Balsteriere Fariello, counsel for defendant, Roxanne
22 Motamedi.
23 THE COURT: All right. Good morning.
24 MR. MANVILLE: Good morning, Your Honor. Duncan
25 Manville, counsel for Roxanne Motamedi.
January 12, 2017 - 3
2 Who will be speaking on behalf of the defendant?
3 MR. SCHMIDT: I will, Your Honor.
4 THE COURT: All right. Counsel, let me hear from
5 plaintiffs. First of all, it's my understanding that there was
6 some expectation of offering testimony today, counsel, or is that
7 not correct?
8 MR. JAMES: Not on behalf of the plaintiffs, Your Honor.
9 THE COURT: Is there a need to have testimony from the
10 defendant?
11 MR. SCHMIDT: I believe so, Your Honor. I believe
12 hearing from Ms. Motamedi will greatly assist the Court in
13 evaluating this.
14 THE COURT: And, counsel, what's your projection of the
15 amount of time necessary for her testimony?
16 MR. SCHMIDT: Our cross, about 40 minutes, Your Honor --
17 our direct, about 40 minutes, Your Honor.
18 THE COURT: Well, you can't cross unless you have
19 direct, counsel.
20 MR. SCHMIDT: I understand, Your Honor. I misspoke.
21 THE COURT: All right.
22 Counsel.
23 MR. JAMES: Your Honor, if they present testimony -- oh.
24 May I proceed?
25 THE COURT: Yes.
January 12, 2017 - 4
1 MR. JAMES: Okay. I'm sorry. I wasn't sure if --
2 THE COURT: Well, let me hear from the witness first,
3 and we will get the testimony out of the way, and then I will
4 take formal argument from the parties.
5 MR. JAMES: Okay.
6 THE COURT: So if the plaintiff has no need to have an
7 offering of testimony, then we will move to the defense, and
8 counsel can offer whatever testimony he would like to present at
9 this time.
10 MR. SCHMIDT: Thank you, Your Honor.
11 THE COURT: Please step forward.
12 And, counsel, is there something significantly different
13 than any declaration that's been presented to this Court that you
14 are aware of?
15 MR. SCHMIDT: We did not present any declarations from
16 Ms. Motamedi, Your Honor. We believed that if we had offered
17 some testimony today, that would be the best way for the Court to
18 assess her position and her situation.
19 THE COURT: Okay. Good morning.
20 MS. MOTAMEDI: Good morning.
21 THE CLERK: Please raise your right hand.
22 ROXANNE MOTAMEDI,
23 having been sworn under oath, testified as follows:
24 THE CLERK: Okay. Please have a seat.
25 If you could state your first and last names, and spell your
ROXANNE MOTAMEDI - Direct (Schmidt) January 12, 2017 - 5
1 last name for the record?
2 MS. MOTAMEDI: Roxanne Motamedi, M-o-t-a-m-e-d-i.
3 THE COURT: Counsel, you may inquire.
5 DIRECT EXAMINATION
6 BY MR. SCHMIDT:
7 Q Ms. Motamedi, have you worked at Getty Images?
8 A Sixteen years.
9 Q Okay. And what industry did you work in at Getty Images?
10 A I was in charge of the entertainment division.
11 Q Okay. And how long were you working in that industry,
12 including your time at Getty and before that?
13 A A total of about 25 years.
14 Q Have you now left Getty Images?
15 A Yes.
16 Q And when did you leave?
17 A November 7th, I believe, or 4th.
18 Q And did you resign from Getty Images, or were you terminated?
19 A I resigned from Getty Images.
20 Q What was your final title at Getty Images when you left?
21 A VP of entertainment.
22 Q And just so the Court is aware, what does Getty Images do?
23 A We are a photo agency, imagery.
24 Q And what does that mean? What's a photo agency?
25 A We produce content for our clients, from stock photography to
1 entertainment, to sports, news --
2 Q And you said "stock" --
3 A -- media.
4 Q I'm sorry. Are you finished?
5 A Yes.
6 Q Okay. You said "stock photography." What is that, briefly?
7 A Stock photography, basically, it's imagery that is being used
8 for commercial use, and the other part, sport, news, and
9 entertainment, it's called editorial.
10 Q And you worked in the editorial division, I understand?
11 A Correct.
12 Q And what type of content does Getty work with in the
13 editorial division?
14 A It's sports, basically, entertainment, and news photography.
15 Q And you said "entertainment." That was the division that you
16 worked for; is that correct?
17 A Correct.
18 Q And what sort of content does that produce?
19 A It's content that is produced from concerts, from award
20 shows, from red carpet, from movie premiers. It can be anything
21 from opening of a store, working with different brands. It can
22 be liquor. It can be clothing. Anything that basically has
23 celebrities and brands attached to it.
24 Q And you've explained sort of the content. What does it mean
25 to produce that content?
1 A It's basically getting photographers to events so they can
2 photograph the event. And that's done through different ways.
3 It's either you're hired by a client or you ask for a credential
4 and you simply send a photographer. That's what I mean by
5 "producing content."
6 Q And you personally, what was your role in then producing the
7 content with Getty Images?
8 A My role was that I was in charge of, basically, the
9 entertainment division, and my role was in charge of the
10 photographers, relations with publicists, managers, or agents,
11 knowing -- to deal with brands, or relationship base, basically,
12 and working closely with the photographer to make sure we got the
13 right content for our customer.
14 Q And does Getty Images make money from the entertainment
15 division?
16 A Yes.
17 Q How does it make money from the entertainment division?
18 A It's by selling the content that is produced to the clients.
19 Clients can be like , it can be websites, it can
20 be TV shows, just any . I don't know. I mean, different
21 kinds of -- these are considered our clients. Globally,
22 everybody who is interested in the entertainment business, and
23 they're doing or writing a story about entertainment.
24 Q And you talk about how Getty Images sells. Were you
25 personally involved in selling that content to those clients?
1 A No. That was another side.
2 There's only one type of content that I would sell directly
3 myself. That is, if I negotiated a deal with a talent to do
4 either their wedding or their baby pictures, which had a lot of
5 details, then, in that case, I would sell them, myself, directly
6 to magazines. But other than that, I was more on the production
7 side of things than sales.
8 Q And when working production, were there certain, you know,
9 "clients" might not be the right word, that you would work with
10 to produce the content?
11 A Yes. The clients were, in that case, again, they were the
12 publicists or they were the brands that hired us or the movie
13 studios that hired us or -- I don't know, dealing with clients at
14 , , , all of these people,
15 anyone in that industry.
16 Q And all the things you just listed, ,
17 , those are clients, I understand, from the way you
18 answered the question?
19 A Yes. For my side, yes.
20 Q Okay. And would other agencies know that Getty was working
21 with those clients?
22 A Yes.
23 Q And how would they know that?
24 A They would know that because our photographers were at the
25 events, all the other photographers were there too. But, also,
1 typically, Getty Images owned, I would say, of
2 the market, so the next day, or a few hours or minutes later,
3 when you went on any given website, the photos are typically
4 credited to Getty Images.
5 Q And do you know if other agencies work with the same clients,
6 not just Getty?
7 A Yes.
8 Q And how do you know that?
9 A I know that because when you -- simply, if you are at a red
10 carpet, you see hundreds of photographers behind the red carpet,
11 behind the rope on a red carpet, all of these photographers, they
12 have to go through the system to be credentialed, through the
13 same people that we work with.
14 Q And do you expect that if you left Getty Images -- you have
15 left Getty Images -- if you continued to work with those clients,
16 would Getty still work with those clients?
17 A Absolutely.
18 MR. JAMES: Objection. Calls for speculation, Your
19 Honor.
20 MR. SCHMIDT: I will withdraw the question.
21 THE COURT: Next question.
22 Q Of the clients that we talked about, that photo agencies can
23 potentially work with, , et cetera, about what
24 percentage does Getty work with, of those potential clients?
25 A All of them, pretty much.
1 Q Did you ever sign a non-compete agreement with Getty Images?
2 A No.
3 Q Did anyone at Getty Images ever ask you to sign a non-compete
4 agreement?
5 A Yes.
6 Q Just to back up a little bit, what were your responsibilities
7 as VP of entertainment at Getty Images?
8 A To deal with the different clients and photographers,
9 publicists and managers, and all the people in imagery.
10 Q And when you said deal with photographers, what does that
11 mean to you, deal with photographers?
12 A Well, we had a certain amount of staff photographers, where
13 they received a salary from Getty Images, and then there were
14 hundreds of photographers that were a contributor to Getty
15 Images, that they basically gave us their photos, Getty sold them
16 for them, and they will receive -- they would receive a revenue
17 from the sales of the photographs.
18 Q Was most of your work with staff photographers or with what
19 you call contributing photographers?
20 A Contributors.
21 Q Are you aware that a temporary restraining order has been
22 entered in this action against you?
23 A Yes.
24 Q If I refer to that as a TRO, to save a little time, do you
25 understand what I mean by that?
1 A Yes.
2 Q Have you reviewed the TRO in this action?
3 A Yes.
4 Q Have you followed the terms of the TRO?
5 A Yes.
6 Q Are there things that you haven't done because of the TRO?
7 A Pretty much I haven't been in touch with anyone I know
8 because of the TRO, work related, basically.
9 Q And how did the TRO stop you from doing that?
10 A I can't be in contact with anyone, so I haven't contacted
11 anyone.
12 Q Have you looked for work during the pendency of the TRO?
13 A No. Because all my relationships are in the entertainment
14 industry, and these are all the people that Getty Images work
15 with, and due to the TRO, I'm not allowed to be in touch with
16 anyone.
17 Q And do you understand that -- well, I will rephrase my
18 question. Do you understand the reason we're here today is
19 because Getty Images wishes to extend those terms of the TRO into
20 a permanent/preliminary injunction?
21 A Yes.
22 Q And you understand that the preliminary injunction, to a
23 large extent, is the same terms of the TRO?
24 A Yes.
25 Q If the preliminary injunction was entered against you, could
1 you earn a living?
2 A No.
3 Q Why not?
4 A I can't -- the entertainment industry is the only thing I
5 know, and the only people I know in this business are around
6 entertainment. So in order to find a job, I would have to
7 contact those people, and I can't do that.
8 Q Could this have a permanent effect on your ability to earn a
9 living?
10 A Yes.
11 Q Why?
12 A As the time goes by, you become irrelevant in the business,
13 people forget about you, and you just lose the contact, what's
14 going on in the business, the opportunities.
15 Q Do you have any family obligations that could be affected by
16 a preliminary injunction?
17 A Yes. I'm supposed -- my mother had a stroke, and my sister
18 and I are responsible for everything for my mom, and right now, I
19 cannot contribute, and it's very hard for my sister.
20 Q And are you aware that in addition to the TRO terms, Getty
21 Images is seeking a preliminary injunction that would require you
22 to turn over certain of your devices and e-mail accounts?
23 A Sorry. Am I aware?
24 Q Are you aware that what Getty Images is seeking today is to
25 require you to turn over access to certain of your computer
1 devices --
2 A Yes.
3 Q -- and e-mail accounts?
4 A Yes.
5 Q And what effect would that have on you?
6 A I wouldn't have -- I wouldn't have anything. I already can't
7 talk to people. I wouldn't have any e-mail or any -- I mean,
8 basic things you need today.
9 Q And are you aware that Getty Images is seeking, as part of
10 the preliminary injunction, that you could not use any
11 information that you learned while working at Getty Images?
12 A Yes.
13 Q And what effect would that have on you?
14 A Again, the information that I learned at Getty Images, it's
15 my -- I don't even know what it means, "information I learned at
16 Getty Images." My job was to deal with photographers, to deal
17 with clients, publicists. So I don't understand what it means by
18 "what I learned during my work at Getty Images."
19 We're not brain surgeons. We send photographers to events,
20 they cover an event, and the content goes on a website, and it
21 gets sold.
22 Q Have you heard the name Shutterstock before?
23 A Yes.
24 Q What is Shutterstock?
25 A Shutterstock is a competitor of Getty Images.
1 Q Have you heard the name Ben Pfeifer before?
2 A Yes, I have.
3 Q Who is Ben Pfeifer?
4 A He's the head of business development, I believe, at
5 Shutterstock.
6 Q Have you ever done any work with Shutterstock?
7 A No.
8 Q Have you ever brokered any deals involving Shutterstock?
9 A No.
10 Q Have you ever had any business discussions with Ben Pfeifer?
11 A I don't know if it's business. He, about, I don't remember,
12 a year or so ago -- I don't remember the date exactly -- I know
13 somebody who worked at Shutterstock who called me and said Ben
14 Pfeifer would like to talk to me. Possibly they were looking for
15 someone. So they gave my information to Ben. Ben called me. It
16 was a phone call. We talked. Nothing amazing came out of that
17 call. We said good-bye. And he said, well, maybe he will call
18 me if he comes to LA. I never heard from him. And I never
19 talked to him again.
20 Q Have you ever heard the name Nicholas Evans-Lombe? And
21 that's E-v-a-n --
22 A Can I just go back about Ben Pfeifer?
23 Q Please. Yes.
24 A I'm sorry. The last time I met Ben, and for the first time,
25 was a few weeks ago in -- I don't remember if it was the end of
1 November. It was a brief introduction, and that was it.
2 Q Okay. Thank you.
3 Have you ever heard the name Nicholas Evans-Lombe? And
4 that's E-v-a-n-s hyphen L-o-m-b-e.
5 A Yes.
6 Q Who is Nicholas Evans-Lombe?
7 A He was the COO of Getty Images, and now he is the CEO of
8 SilverHub Media.
9 Q What is SilverHub Media?
10 A It's another photo agency that is a start-up.
11 Q Have you ever been employed by SilverHub Media?
12 A I have done some freelance work for them.
13 Q Okay. What sort of freelance work was that?
14 A After I resigned from Getty Images, I helped them look for
15 office space, made some calls about benefits for them in the
16 States. I don't know. If they needed anything, whatever, I was
17 available.
18 Q And when was that done?
19 A After I resigned from Getty Images.
20 Q Were you paid for that consulting work?
21 A Yes.
22 Q About how much were you paid for that?
23 A 33,000.
24 Q Were you paid for anything you did involving SilverHub Media
25 while you were still at Getty?
1 A No.
2 Q I think you said that Nicholas Evans-Lombe was the CEO of
3 Getty Images; is that right? Or COO?
4 A COO, yes.
5 Q Did you work with him when he was the COO of --
6 A Yes.
7 Q -- Getty Images?
8 And please just let me finish, simply for the court reporter.
9 A I'm sorry.
10 Q How long did you work with him at Getty Images?
11 A I think ten years.
12 Q And do you still keep in touch with Nick?
13 A Yes.
14 Q Would you consider him a friend?
15 A Yes.
16 Q About how often do you speak with him?
17 A Here and there, we talk. Lately we talk a lot more. But,
18 you know, we're in touch.
19 Q And what do you speak with him about?
20 A We talk about his kids, we have talked about his wife, we
21 talk about his dog, my dogs, about business at times, any --
22 any -- those kind of subjects.
23 Q Do you have any business plans with Nicholas Evans-Lombe?
24 A We were talking about me working for him.
25 Q Have you set up any meetings between Nick and anyone else,
1 after he left Getty Images?
2 A Yes.
3 Q What were those meetings for?
4 A I set up a meeting for him with a photographer by the name of
5 , who was a freelance photographer, and -- to see --
6 for them to meet up and talk.
7 After the meeting, the next day or so, told me that he
8 wasn't interested. That was one meeting.
9 There was another girl, somebody else at Getty.
10 was another photographer, but I did not set up
11 that meeting. had reached out directly to Nick.
12 There was an employee at Getty Images in Los Angeles who --
13 you know, she was a friend. We were talking. She wasn't happy.
14 She was starting to maybe look, and she knew I wasn't really that
15 happy and I was considering certain things. She asked me if I
16 could set up a meeting for her, and I said, "I cannot be
17 responsible for you. I'm happy to set up a meeting, but it's
18 your decision."
19 Q And the friend you just mentioned, was that Andrea Collins?
20 A Correct.
21 Q And you mentioned . Was that meeting you set up
22 before or after he left Getty Images?
23 A After.
24 Q Did you ever discuss with Nicholas Evans-Lombe any potential
25 hires for SilverHub from Getty Images?
1 A Yes.
2 Q What was the content of those discussions?
3 A They asked my opinion, and I gave some -- what I thought of a
4 few people. And then later on I found out that those people were
5 directly in contact with SilverHub through Nick's partner. And a
6 couple of them -- SilverHub Media already had a couple of Getty
7 employees working for them, that they knew them, and so they
8 were -- they were -- they had reached out, so ...
9 Q Did you ever discuss any photographers with Nicholas
10 Evans-Lombe?
11 A I mean, not really. I may have suggested some -- a name of
12 somebody that we couldn't work with, that wasn't -- not a Getty
13 photographer, but -- that's the best of my knowledge.
14 Q I think a few questions ago we had discussed and
15 . Are those familiar?
16 A . Uh-huh.
17 Q Thank you.
18 Did you ever discuss any of Getty's clients with Nicholas
19 Evans-Lombe?
20 A Yes, one.
21 Q And what client was that?
22 A .
23 Q And what did you discuss with Nicholas Evans-Lombe about the
24 ?
25 A I told him it could be interesting for him to try to get the
1 .
2 Q Why did you do that?
3 A Up to today, I don't know. It was definitely -- I don't know
4 if I was testing, to see if there was potential. I don't know --
5 I don't know. I did it. I regret it highly.
6 When the deal didn't happen, I was relieved, I was very
7 happy, because I realized that there is no way on earth that a
8 start-up like SilverHub could ever handle such a huge client.
9 They just don't have the means, they don't have the content, and,
10 basically, it was the wrong -- the wrong move.
11 Q Other than what we just talked about, is there any other
12 information you can recall, sitting here today, that you shared
13 with Nicholas Evans-Lombe about Getty Images?
14 A I did send him some documents. I don't remember all the
15 content. There is one that I sent that I think was important, it
16 was the revenue of the photographers, at the beginning when we
17 were talking. And I sent them from my Getty e-mail account. And
18 I think at the time when SilverHub started and I forwarded him
19 that information, it was more like, are you kidding? Like, what
20 are you doing, trying to even have a photo agency look at the
21 revenue of these photographers with Getty? Nobody will ever
22 leave Getty to go to a start-up. And, as a matter of fact, if I
23 recall well, he replied back and said, "Are you saying we
24 shouldn't do this?" And that was -- that's what it was.
25 Q And in the future do you intend to send Nicholas Evans-Lombe
ROXANNE MOTAMEDI - Cross (James) January 12, 2017 - 20
1 any other information about Getty Images?
2 A No.
3 Q Have you ever sent any gifts to anyone on behalf of
4 SilverHub?
5 A No.
6 Q Did you ever tell any clients you were going to work at
7 SilverHub before you left Getty Images?
8 A Absolutely not. When people called me, everyone was -- they
9 were asking me where I was going. I just said, "I don't know.
10 Once I know where I go, I will get back to you."
11 And there were two reasons -- I mean, maybe one reason -- is
12 that I didn't even know if I was going to go work with Nick. I
13 wasn't sure. I kept -- I was thinking about it. I kept getting
14 cold feet. I wasn't sure, because there wasn't really a strategy
15 in place, and I wasn't comfortable. But there it was.
16 Q Thank you.
17 MR. SCHMIDT: I have no further questions, Your Honor.
18 THE COURT: Cross-examination, counsel.
19 CROSS-EXAMINATION
20 BY MR. JAMES:
21 Q Good morning, Roxanne.
22 A Good morning.
23 Q We have met before, haven't we?
24 A Yes, we have.
25 Q We met at your deposition?
1 A Correct.
2 Q Do you remember how many times you said during the deposition
3 "I don't know" or "I don't remember" when I asked you questions?
4 A Actually, no.
5 Q Do you remember I was asking you questions similar to the
6 questions Mr. Schmidt just asked you?
7 A You may have. I was very stressed and very nervous during
8 that process, so I didn't know how -- I don't -- if I said I
9 didn't remember, I didn't remember. And I've had time to think
10 about it afterwards. It's been three days. I have had a lot of
11 hours by myself in my hotel room. So that's the answer.
12 Q How much time did you spend preparing for the testimony you
13 gave today?
14 A Not a lot.
15 Q Ms. Motamedi, it's true that you sent hundreds of e-mails to
16 your personal e-mail address while you were employed by Getty
17 Images, correct?
18 A I did not count them, and I'm not sure of that.
19 Q You also sent e-mails containing highly confidential
20 information to Nick Evans-Lombe and SilverHub, correct?
21 A When I was sending them, I was not looking whether they were
22 confidential or not. Nick was a friend of mine. I was just
23 FYI'ing him. But, yes, I did send them.
24 Q And, in fact, you sent those e-mails to Mr. Lombe so that he
25 could set up a competing business or to aid him in setting up a
1 competing business known as SilverHub?
2 A Absolutely not.
3 Q That's a competing business that you were planning to join
4 once you finally walked out the door of Getty Images; isn't that
5 true?
6 A No, not so black and white.
7 Q You helped Andrea Collins leave Getty Images so that she
8 could set up an office, in advance of you, to work for SilverHub
9 in Los Angeles; isn't that true?
10 A No, I did not send her ahead of me to set up an office. She
11 decided to leave, and she was available to work for Nick.
12 Q In fact, you negotiated a high exit package for Ms. Collins
13 in your role as a vice president of Getty, correct?
14 A I did not negotiate. I don't know if it's called
15 "negotiation." I talked to her. She told me what salary she
16 wanted to leave Getty. I passed on the message to -- she met
17 with Nick in person. They talked.
18 Q When did she meet with Nick in person?
19 A I don't remember.
20 Q How do you know that?
21 A Because she asked me to set up the meeting with Nick.
22 Q When did she ask you to set up a meeting with Nick?
23 A I don't know. I don't remember the time.
24 Q Where did this meeting take place?
25 A At a restaurant.
1 Q What restaurant?
2 A Four Seasons.
3 Q Four Seasons where, what address?
4 A In Los Angeles.
5 Q And who was present at that meeting?
6 A Me, Andrea, and Nick.
7 Q What did you talk about?
8 A She wanted to hear about the opportunities at SilverHub from
9 Nick.
10 Q She was an employee of Getty Images at the time, correct?
11 A Yes.
12 Q And you were a vice president of Getty Images at the time,
13 correct?
14 A Correct.
15 Q And you knew Nick Evans-Lombe was a competitor of Getty
16 Images at the time, correct?
17 A The fact is that I didn't think a company that was a
18 start-up -- and today I believe -- I know they made about
19 $3 million -- was a competitor of a multibillion-dollar company.
20 But I understand how it can be perceived that, yes, he was a
21 competitor.
22 Q In fact, Ms. Motamedi, didn't you tell Nick Evans-Lombe that
23 he was going to have to pay Ms. Collins approximately $200,000
24 for her salary in an e-mail? Didn't you tell him that?
25 A I am sure I did. But that was not a number that I made up.
1 It was something that Andrea wanted. So I passed on the message.
2 Q And she's currently working for SilverHub?
3 A I don't know. I think so. I don't know what happened. I
4 don't know if she's freelancing or -- I don't know what happened,
5 because I haven't talked to her since the lawsuit.
6 Q Do you recall Ms. Collins sending you an app called Contact
7 Mover in order to allow you to move all the Outlook Exchange
8 contacts to your iCloud so that you could access those after
9 November 6, when you started working with SilverHub?
10 A Correct, she sent me that. I didn't know what it was, and
11 she told me. I never did it.
12 Q What did your husband do for SilverHub?
13 A My husband was purely assisting me, helping me a little bit
14 with things that they needed help, because he just knows a little
15 bit better. He knew the real estate market. He was going to
16 give a little help with that, and just basically things that I
17 thought he knew more about than I did.
18 Q Do you remember when I asked you in your deposition whether
19 your husband worked for you?
20 A Yes.
21 Q Do you remember what your answer was?
22 A I said no.
23 Q Do you remember when I asked you if you worked for your
24 husband?
25 A If I worked for my husband?
1 Q Yes.
2 A Yes. Yes. I don't remember the --
3 Q Do you remember what your answer was?
4 A No.
5 Q Can you tell this Court why there would be numerous e-mails
6 and telephone calls going back and forth between either your
7 husband or his cell phone and his e-mail addresses to Nick
8 Evans-Lombe about SilverHub or about you working with SilverHub?
9 A My husband was helping me. He's a lot smarter than I am at a
10 lot of things. He's my husband, and I ask him questions. And he
11 was helping me. And he was using his e-mail address or -- I
12 mean, I don't know. When you're married, don't people -- it
13 was -- it wasn't a planned thing. It was -- that's just how it
14 was. There are a lot more things that my husband knows a lot
15 better than me, and he's more sophisticated than me at a lot of
16 details, and he was helping me. He wasn't working for me. For
17 me, when you say "working," it means when you're getting paid
18 working for somebody.
19 Q Isn't it true that you used your husband's cell phone and
20 e-mail addresses to conceal from Getty Images communications you
21 were having with SilverHub?
22 A Conceal? Sorry. What do you mean?
23 Q Well, let's start with the first part. Isn't it true that
24 you used your husband's cell phone and e-mail addresses to
25 communicate with Nick Evans-Lombe and SilverHub?
1 A Yes. But I do that, the same thing, for my sister; I do the
2 same thing for -- it's a -- we share -- yes. Yes, I did.
3 Q So when your husband is sending Getty Images documents to
4 Nick Evans-Lombe or communicating with Nick Evans-Lombe about
5 Getty information, can we infer that that is, in fact, you
6 sending those communications using your husband's cell phone and
7 e-mail addresses?
8 A Yes. If it was sent, yes.
9 Q How many computers does your husband have?
10 A I don't know.
11 Q How many cell phones does he have?
12 A One, I think. I don't know.
13 Q How many cell phones do you have?
14 A One.
15 Q How many cell phones have you used to communicate with Nick
16 Evans-Lombe or SilverHub about joining SilverHub or about Getty
17 Images?
18 A I don't know. Maybe I had another one in the past that was
19 an old -- a broken phone, or old phone, or something that I used,
20 but I don't -- I don't know.
21 I mean, if I sent Nick Evans-Lombe e-mail from my accounts
22 and from my Getty e-mail, and I have used my cell, I have done
23 that, I have communicated on my cell with him.
24 Q You have communicated on more than one cell phone with
25 Mr. Evans-Lombe, haven't you?
1 A Yes.
2 Q But you haven't turned over more than one cell phone to the
3 third-party forensic expert in this case to be imaged, correct?
4 A We had one number that I mentioned that was a temporary
5 phone, a temporary number, a SIM card or whatever. But I have
6 given everything that is in my possession, that was.
7 Q Did you give that SIM card to the expert?
8 A I don't know if it was a SIM card. It's a -- it was a
9 rental -- not a rental, a temporary phone number. Sorry.
10 Q Did you have a Getty Images phone in May of 2016?
11 A Yes.
12 Q Can you tell the Court what you meant when you wrote to
13 Mr. Evans-Lombe on May 26th of 2016, "I got a new number and
14 phone for a month so we can communicate"?
15 A Yes. That's the number I told you, the short -- the
16 temporary number.
17 Q So why did you need a new phone to communicate with
18 Mr. Evans-Lombe if you were just friends and just talking about
19 your dog and your mother or things like that?
20 A I just wanted to have a separate phone for talking to him,
21 because my other phone was for other purposes, and I decided to
22 get a different phone. That's all.
23 Q And the reason you did that was because you were plotting
24 against Getty Images to go to work at SilverHub; isn't that
25 true?
1 A I would not say that.
2 Q Planning to go to work for SilverHub, would you say that,
3 Ms. Motamedi?
4 A No. I would say I was thinking.
5 Q You were thinking, as of May of 2016, about going to work for
6 SilverHub; is that your testimony?
7 A There were discussions, for sure.
8 Q And when did you make your decision?
9 A I didn't. At the end, I was still -- when I left New York in
10 November to go to Los Angeles, I sent an e-mail to Nick that I
11 said, "Are you sure I want to do this?" I still was not sure. I
12 was definitely talking to him about joining. There were
13 conversations. But, I don't know why, but I was still holding
14 back.
15 Q You went to New York in either late October or November for
16 the ostensible purpose of introducing to your
17 replacement at Getty Images, correct?
18 A My replacement?
19 I went to New York -- sorry. In October, I was in New York,
20 yes.
21 Q And did you have a meeting with while you were
22 there?
23 A Yes.
24 Q And did you also have a meeting with Nick Evans-Lombe while
25 you were there?
1 A I'm not sure Nick was there then. I don't remember.
2 Q Did you have a meeting with Shutterstock then?
3 A No. In November -- my only meeting with, as I mentioned
4 before, with Shutterstock, was the day I was catching a flight
5 back to Los Angeles, where Nick introduced me to Ben Pfeifer.
6 Q Okay. So Nick Evans-Lombe was at this meeting where he
7 introduces you to Ben Pfeifer?
8 A Correct.
9 Q How did he happen to be at this meeting?
10 A Nick?
11 Q Yes.
12 A He was in LA -- I mean, he was in New York.
13 Q And how did he happen to be in New York and run into you and
14 Ben Pfeifer at the same time?
15 A He didn't run -- he didn't run into me to meet Ben Pfeifer.
16 He was -- in November, I think it was, when he was -- I don't
17 remember if it was October or November, when I set up a meeting
18 for to meet with Nick Evans-Lombe. Nick was in New
19 York.
20 That day, like a few days -- I was with my mom. I was
21 planning to go back to Los Angeles. The day I was planning to go
22 to Los Angeles, Nick asked me -- he just set up a meeting at a
23 coffee shop to meet with Ben Pfeifer. I met him there for the
24 first time. And after that, I went to the airport to catch my
25 flight, which I had to come back because my friends lost their
1 mother. But that was the first time I met Ben Pfeifer.
2 Q This was just a coincidental, happenstance meeting? People
3 happened to be there and you had coffee?
4 A Nick was in New York. I had set up the meeting with
5 to meet with him. He was in New York to talk to me. We
6 were talking. He was in New York. He asked me to set up a
7 meeting to meet Ben Pfeifer. So I did. And I met him, yes. I'm
8 not sure what -- sorry. I did.
9 Q Roxanne, isn't it true that this meeting was set up through a
10 series of e-mail exchanged back and forth with you, Ben Pfeifer,
11 and Evans-Lombe over a period of time, and it wasn't a
12 happenstance, coincidental meeting, but it was a planned meeting
13 to discuss your role with SilverHub, SilverHub's role with
14 Shutterstock, Shutterstock's role with you?
15 A I don't know if it was -- I don't remember if there were
16 e-mails that it was preplanned to meet with Ben. Maybe there
17 were e-mails. I don't remember at this time. But I do know that
18 Nick wanted me to meet with Ben Pfeifer, yes, he did, and I met
19 with him.
20 Q Why did Nick want you to meet with Ben Pfeifer, senior vice
21 president of business development for Shutterstock?
22 A I've never met him before. He thought it was good for us to
23 meet. That if I was -- he had signed a syndication deal for
24 photos with Shutterstock, I think, a week or ten days later. I
25 don't remember, again, the date. There was a press release that
1 went out that he was -- SilverHub Media does not have
2 salespeople, a sales organization to sell photos, so the content
3 was going to be sold via Shutterstock. That's what -- so they
4 knew each other, they were talking, they had this business deal
5 together.
6 Q And what role did you play in that business? That's what I'm
7 trying to find out here, Roxanne.
8 A In what business?
9 Q In either SilverHub's business or Shutterstock's business.
10 A I had nothing to do in the Shutter -- any role at all in
11 Shutterstock business. I have been in communication with Nick
12 that he wanted to hire me, and actually, towards the end, he told
13 me that it was about time for me to make a decision, make up my
14 mind.
15 Q What did SilverHub and Nick Evans-Lombe pay you $33,000 for?
16 A For different things. Helping with, as I mentioned, real
17 estate, benefits. I set up -- facilitate anything they wanted,
18 basically. I don't at this point remember. But that -- odds and
19 ends.
20 Q Do you have a real estate license?
21 A No, I don't.
22 Q Are you a real estate broker?
23 A No, I'm not.
24 Q What did you do to facilitate real estate for SilverHub?
25 A Looking at offices for them.
1 Q And they paid you $33,000 for that?
2 A No, not that. It wasn't just for that. They paid me $33,000
3 for a fee. I didn't have my job. So that was what was
4 negotiated.
5 Q "That was what was negotiated." So you did have negotiations
6 with SilverHub about providing services to them?
7 A After I left Getty Images, yes.
8 Q So your testimony is, you didn't have any negotiations with
9 them before you left Getty Images?
10 A We were in talks, yes. We were talking, negotiating. We
11 were communicating, yes, absolutely.
12 Q So what relationship did you introduce them to, to earn this
13 $33,000?
14 A What do you mean?
15 Q What contracts did you facilitate on behalf of SilverHub?
16 A I don't understand what you mean by "what contracts did you
17 facilitate for SilverHub." I'm sorry.
18 Q I will be as clear as I can. And I'm trying to find out from
19 you, Roxanne, other than looking at some office space, what did
20 you do for SilverHub to earn that $33,000?
21 A It was a freelancing fee that I received from him, that if I
22 signed, that would, I would say, may be part of my salary if I
23 continued my negotiation with them and signed a contract with
24 them, which I did not. It was just a fee that was agreed, that
25 negotiation.
1 Q For what?
2 A To help them, to be -- to -- I left Getty Images. Nick knew
3 that I needed money. And that's something that was negotiated,
4 to help them with any type of business that he needed for me to
5 do after I left Getty Images.
6 Q You sent them two different invoices, didn't you, Roxanne?
7 A Uh-huh.
8 Q And what did you invoice them for?
9 A One of them was -- I believe it was for a benefit, COBRA,
10 because I didn't have benefits after I left Getty Images.
11 Q Are you saying you invoiced SilverHub for the cost of your
12 COBRA benefits after leaving Getty?
13 A Yes.
14 Q And they agreed to pay that?
15 A Yes.
16 Q What else did you invoice them for?
17 A I don't remember.
18 Q Your testimony, when you were responding to your counsel's
19 questions about , is that you thought it
20 would be interesting for SilverHub to get .
21 A Uh-huh.
22 Q Do you remember that?
23 A Yes.
24 Q In fact, didn't you send e-mails to Mr. Evans-Lombe telling
25 him that it was absolutely essential for them to get the
1 and pushing him to get ?
2 A Nick was very familiar with and the
3 importance of and . And as we were
4 talking, I sent him that contract, and I said, yes, it is very
5 important to get this, because it was a -- in my head, not having
6 made up my decision, it was a clear way to say if there was a
7 chance for SilverHub to even succeed.
8 It was wrong. I sent it. I know I did. And I know I asked
9 him -- I said, it's very important. I did that. I'm very sorry,
10 but I did it.
11 Q And you sent dozens of contracts to SilverHub, didn't you?
12 A I don't recall the dozens. I don't recall what other
13 contracts I sent to SilverHub. That I never -- this is the only
14 contract about a business that I sent -- as far as I remember,
15 that we discussed, that I said this is important. After that
16 went away, it was -- as I mentioned, it was very important -- it
17 was a blessing that he didn't get this.
18 Q Is that what you told him in an e-mail, that this is a
19 blessing you didn't get that, Nick?
20 A No. I told him in person, after -- when we met, I told
21 him -- you know, he -- basically, , I
22 think, told him that he didn't have the content.
23 ,
24 and SilverHub simply doesn't have -- it's made up of very few
25 employees. They don't have staff photographers. They don't --
1 they don't own the right to any photographs that they can give
2 away as an exchange. They don't have the content. They don't
3 have video. There is a lot that they just don't have. They
4 could not have supported that contract.
5 Q So you were just trying to help them, SilverHub?
6 A I think, when I send that e-mail about , it
7 was, not only a stupid move, but it was only a test for me to
8 see, was there ever any chance, I would say, for SilverHub to
9 ever take off.
10 Q Were you just trying to help SilverHub when you forwarded on
11 highly confidential, strategic information about Getty Images
12 that had been shared with you by Craig Peters, Getty Images'
13 chief operating officer?
14 A At the time I send those e-mails, I mentioned I hadn't read
15 that they were highly confidential. I just FYI'd Nick because --
16 I just did. I know it sounds -- when I talk, I know how it comes
17 off. But at the time when I was sending it to him, it was
18 just -- it was FYI. Because I remember also, for the longest
19 time, I almost felt sorry that they were trying to build an
20 agency that was never going to compete with Getty.
21 Getty is the largest photo agency in the world. It's taken
22 20-somewhat years, hundreds of acquisitions, to get to where
23 Getty Images is today. Nobody else, including Shutterstock, will
24 ever come this close to Getty Images and where they are.
25 The fact that I left Getty Images is not going to make any
1 difference in their business, because the clients of Getty
2 Images, whether they know me or they don't know me -- they may,
3 if I end up somewhere else, take a call from me and say, sure,
4 come on, tell us your story, what are you doing -- but they will
5 never leave Getty Images because simply nobody in the world can
6 offer these clients what Getty offers them. Simple.
7 MR. JAMES: Move to strike all of the testimony that was
8 non-responsive to the question.
9 THE COURT: Next question, counsel.
10 THE WITNESS: Sorry.
11 Q (By Mr. James:) Ms. Motamedi, you're free to go out and
12 develop new contacts with photographers you have never worked
13 with before; isn't that true?
14 A Most likely.
15 Q You're able to go out and develop relationships with new
16 clients that you never worked with at Getty; isn't that true?
17 A I wish I knew who the clients were, because if I knew the
18 clients that I didn't know, I would have brought them to Getty.
19 But I think, pretty much, Getty, thumbs up, would have every
20 single deal in place at Getty Images and every -- everybody works
21 with Getty Images.
22 Q In fact, the relationships that you built at Getty Images,
23 you were paid to build, true?
24 A I worked at Getty Images, and when you work somewhere, you
25 build relationships.
1 Q You were paid for 16 years to build those relationships,
2 weren't you?
3 A I was paid to do my job.
4 Q During the time you were employed by Getty Images, didn't you
5 submit expense reports in the thousands of dollars?
6 A Yes. Everybody has expense reports that you expense your --
7 and the company knew about them, correct.
8 Q And, in fact, if we were to go through all your expense
9 reports, they might even be in the tens of thousands of dollars;
10 isn't that true, Ms. Motamedi?
11 A I'm sure, if you say so.
12 Q And those tens of thousands of dollars were spent by you
13 wining and dining or meeting with people to develop a
14 relationship on behalf of Getty Images, correct?
15 A Yes. That's part of the business.
16 Q That's part of the business, exactly.
17 MR. JAMES: Your Honor, in the interest of time, I could
18 continue with this cross-examination for a longer period of time,
19 but I'm not sure if there's any reason to go on any further at
20 this point.
21 THE COURT: I don't think that there is, counsel. I
22 think you are starting to repeat the same argument that you made
23 in your brief, so it's not required for the Court.
24 MR. JAMES: I will step down. Thank you.
25 THE COURT: Any redirect, counsel?
ROXANNE MOTAMEDI - Redirect (Schmidt) January 12, 2017 - 38
1 MR. SCHMIDT: Just a few questions, Your Honor.
2 THE COURT: All right. You may.
3 REDIRECT EXAMINATION
4 BY MR. SCHMIDT:
5 Q Ms. Motamedi, we talked before about the TRO, and you said
6 that you reviewed it, correct?
7 A Yes.
8 Q And my colleague here was just discussing some devices you
9 turned over pursuant to the TRO. Do you remember that?
10 A Yes.
11 Q Do you remember the language in the TRO that says, "Defendant
12 shall immediately deliver to the third-party expert all
13 computers, flash drives, SD cards, cell phones, and other
14 external drives used by her since January 1, 2015, that are in
15 defendant's possession, custody, and control, of which she is
16 aware"? Do you remember that?
17 A Yes. Yes.
18 Q And did you perform a search of your home for devices that,
19 you know, may correspond to that?
20 A Everything that was around.
21 Q And how shortly did you do that after the TRO was entered?
22 A Immediately.
23 Q And then did you then take those devices and give them to the
24 third-party expert?
25 A Yes.
1 Q Is there any device that you're aware of at the time or are
2 aware of now that you intentionally did not provide to a third
3 party?
4 A Absolutely not.
5 Q Just a few questions about photographers. My colleague was
6 asking questions about photographers. Do you remember those?
7 A Yes.
8 Q When you choose a photographer -- do you choose a
9 photographer for a project that you are working on?
10 A Sometimes we choose a photographer, and sometimes -- can you
11 be more specific?
12 Q Of course. Of course.
13 When you are working on a project, when you are producing
14 content, are there photographers that are involved in that
15 project?
16 A Yes.
17 Q How are those photographers chosen?
18 A Often by the client, and sometimes by Getty. But it's very
19 much of a relationship thing, entertainment. So a client
20 requests certain photographers.
21 Q Thank you.
22 MR. SCHMIDT: I have nothing else, Your Honor.
23 THE COURT: Anything further, counsel?
24 MR. JAMES: Briefly, Your Honor.
25 ///
ROXANNE MOTAMEDI - Recross (James) January 12, 2017 - 40
1 RECROSS-EXAMINATION
2 BY MR. JAMES:
3 Q Ms. Motamedi, in your discovery responses that you served in
4 response to the Court's order, I believe you identified three
5 personal e-mail addresses. Does that sound right?
6 A I believe so.
7 Q And then in your supplemental e-mail responses, you
8 identified, I believe, three or four more personal e-mail
9 addresses; is that right?
10 A I gave what I -- yes, probably.
11 Q So between the time that you served the discovery responses
12 on January 2nd, following my conversation with your counsel, you
13 remembered more e-mail addresses that you hadn't disclosed the
14 day before; is that right?
15 A The e-mail addresses that I provided after, I really -- it
16 was far-fetched, because I don't think I have even used those
17 e-mail addresses. I was trying to be as helpful as I can. I
18 gave -- I don't even know how I came up with those. I was
19 thinking if there would have been one.
20 I gave you everything I had. I wasn't hiding any e-mails.
21 There were -- I wasn't -- I was as clear as I could be.
22 Q So those new e-mail addresses have never been searched by the
23 third-party expert to disclose e-mails that you may have sent
24 from Getty Images to those e-mail addresses, or e-mails you may
25 have sent to Nick Evans-Lombe and SilverHub; is that correct?
1 A I don't know.
2 Q One moment, please.
3 Ms. Motamedi, did you ever use the e-mail address
4 mllucas@gmail.com?
5 A Yes. That's my husband's e-mail.
6 Q That's, in fact, one of your husband's e-mail addresses,
7 correct?
8 A Yes. I think so, yeah.
9 Q And who would have been sending e-mails to Nick Evans-Lombe
10 using that e-mail address in November of 2016?
11 A I don't know. It could have been -- if I told him to send
12 something, it could have been him, or it could have been me. I
13 don't even know if we used that e-mail. I don't know.
14 Q That's one of the e-mail addresses that wasn't disclosed in
15 your discovery responses, though, right?
16 A I don't remember. I don't know because it -- I don't know.
17 MR. JAMES: Nothing further, Your Honor. Thank you.
19 MR. SCHMIDT: Just a few questions, Your Honor.
20 REDIRECT EXAMINATION
21 BY MR. SCHMIDT:
22 Q Ms. Motamedi, my colleague asked you some questions about
23 some e-mail addresses. You used the word "far-fetched." What
24 did you mean by that?
25 A I know, like, there was maybe an e-mail, that I said maybe it
1 was an Apple -- or I don't remember what it was, the last one
2 that you asked me that I gave you.
3 I knew two e-mail accounts that I have, that I use, either
4 roxanne.motamedi@gmail, or swissrox@gmail. Those are the ones
5 that -- you know, you work with the e-mails that you have. Those
6 were -- and the gmail account, the roxanne.motamedi was created,
7 I believe, after I left Getty, even.
8 I was -- I use a lot my work e-mail even for personal, for my
9 family or whatever. So it was just easier.
10 Q And the two accounts that you just mentioned, the
11 swissrox@gmail.com -- it's s-w-i-s-s-r-o-x@gmail.com -- that one
12 you turned over to the third-party expert in this case; is that
13 correct?
14 A Yes.
15 Q And sitting here today, other than what you turned over to
16 the third-party expert, are there any e-mail addresses or other
17 accounts you are aware of that you have used since January 1,
18 2015, that you have not turned over?
19 A Sitting here, and as far as I remember, I don't remember. I
20 think I've -- I've frozen since this lawsuit happened, and I have
21 basically fear of doing the wrong thing. I haven't touched or
22 deleted or texted or anything because I just didn't want anything
23 to be used against me. So what I'm telling you here is the
24 truth. This is what I know.
25 Q Thank you.
January 12, 2017 - 43
1 MR. SCHMIDT: I have nothing further.
3 MR. JAMES: No, Your Honor.
4 THE COURT: All right. Thank you. You may step down.
5 MS. MOTAMEDI: Thank you, Your Honor.
6 THE COURT: Any further evidence or testimony on behalf
7 of the defendant?
8 MR. SCHMIDT: Nothing from us, Your Honor.
9 THE COURT: Counsel, I will take argument at this time.
10 You may step down.
11 MS. MOTAMEDI: Oh. Thank you.
12 THE COURT: And, counsel, before we get started, there's
13 several questions that the Court has that I would like to ask
14 you.
15 MR. JAMES: Yes, Your Honor.
16 THE COURT: Perhaps that will help move along your
17 argument before this Court.
18 Are you ready?
20 THE COURT: The first question, counsel: Under what
21 authority can you prohibit a defendant from contacting Getty
22 Images employees now, now that she's no longer an employee of
23 Getty Images? In other words, there's two different lines we
24 have here. The line of demarcation is up until the point in
25 time, which was November 4th through 7th, according to the
January 12, 2017 - 44
1 witness's testimony, when she resigned, under what authority can
2 you prohibit her from contacting employees after she's no longer
3 employed?
4 MR. JAMES: Under both the Uniform Trade Secrets Act and
5 the Defend Trade Secrets Act, Your Honor, because the information
6 that she would be using to contact those persons is confidential
7 information that she took from Getty Images without
8 authorization. It's not a matter of her simply going into a
9 phone book and calling persons, but rather, the information that
10 she would use to contact them, we submit, are the contacts that
11 she stole from Getty Images, the contacts that she transferred to
12 her phone or did not delete from her computer. So that's Getty
13 Images' property.
14 If she runs into somebody on the street and says, hi, how are
15 you doing, or if she posts an ad in a newspaper and people
16 respond, that's one thing. But we're saying that she's going to
17 be using Getty Images information to contact those people.
18 THE COURT: Do you see the distinction between employees
19 and clients?
20 MR. JAMES: Obviously there's a distinction, Your Honor.
21 But what I'm focusing on is how she would contact them. She
22 can't use Getty Images confidential information to contact them.
23 So if her contacts are scrubbed and she doesn't have Getty
24 Images' information, and then she reaches out to contact a Getty
25 Images employee, that's different. And I would say, under that
January 12, 2017 - 45
1 circumstance, if she's not doing anything to interfere with the
2 business relationship, there's no way to bar her from doing that.
3 THE COURT: Now, if she has a client contact just by the
4 mere fact that she remembers somebody, because you have already
5 indicated to the Court that she was turning in thousands of
6 dollars of reimbursement forms for expenses, and assuming that's
7 correct, she would just know these people, without having to
8 refer or resort back to her technology. So you say that she's
9 prohibited from engaging in that type of approach as well?
10 MR. JAMES: Under Nowogroski, memorized information can
11 be protected as a trade secret. And we have provided evidence to
12 the Court that she was forwarding on this confidential
13 information that she knew she was supposed to keep it
14 confidential and not use it after she left.
15 So, again, Your Honor, I would submit that under the
16 authorities in our brief -- Nowogroski, the Uniform Trade Secrets
17 Act, the Defend Trade Secrets Act -- for her to use information
18 that Getty has protected as a trade secret or confidential
19 information should be and can be prohibited. That would be an
20 affirmative act that this Court can grant.
21 THE COURT: Counsel, does not Nowogroski indicate that,
22 as a general rule, an employee who has not signed an agreement
23 not to compete is free, upon leaving employment, to engage in
24 competitive employment? Isn't that an accurate statement,
25 counsel?
January 12, 2017 - 46
1 MR. JAMES: We're not saying she can't engage in any
2 competitive employment. We don't have a non-compete. That's
3 different, Your Honor, than using trade secrets and confidential
4 information to compete, interfering with relationships.
5 Nowogroski also cites to the John Davis decision, and I
6 believe it's the Cooper decision, where they affirm the law in
7 the state that says you cannot use information you gained at your
8 employer's expense, to take those relationships that were
9 developed at your employer's expense. Which was the point of my
10 questions to Ms. Motamedi, as to whether or not she's free to
11 find new contacts, to find new clients.
12 THE COURT: And let's transition now, counsel, to the
13 area of the specific relief that you are requesting, in terms of,
14 essentially, taking her devices, now that they have been copied,
15 and having a chance just to wipe them clean. Well, aren't you
16 essentially saying, throw away your phone? Because if you are
17 going to wipe everything away, you are saying, wipe it, and then
18 restore it.
19 Let me give you an alternative, counsel, and see if this
20 would be a sufficient remedy if the Court grants your request.
21 In other words, if you were to take the device from the defendant
22 in this case, you already have an identification, from all the
23 documents produced so far, of exactly what's on those devices,
24 correct? You have the images, correct?
25 MR. JAMES: Respectfully, that's not correct. A third
January 12, 2017 - 47
1 party has the image. We have not been provided with that
2 information. We are being filtered information after it goes
3 to -- excuse me. Not filtered. We are being provided
4 information after it goes to defendants and they determine what
5 we will see and what we won't see.
6 THE COURT: What I'm trying to see, counsel, is if
7 there's a method that can be used where the device, or the
8 information derived from the device, with key word searches or
9 even names of clients that could be given to the third party,
10 with instruction to delete those, and that that would be a
11 sufficient remedy. Would you agree or disagree with that
12 proposition or opportunity, counsel?
13 MR. JAMES: I would agree, Your Honor. That's, in
14 essence, what we are arguing for.
15 The challenge and the delay may be in trying to figure that
16 out, as opposed to wiping the devices clean and allowing, if
17 there's personal information that Ms. Motamedi can identify, for
18 that to be restored onto the device. Because as we've tried to
19 make abundantly clear, time is of the essence here. These
20 devices are in her possession. She continues to have access to
21 them. I understand what she's told this Court. I understand
22 what she's told Getty Images.
23 We have evidence that Mr. Evans-Lombe and Mr. Murrell are
24 setting up a meet-for-a-drink-and-discussion in Los Angeles this
25 month, and one of the persons that was contacted, we have reason
January 12, 2017 - 48
1 to believe, could only have been known to them if the information
2 was provided by Ms. Motamedi either prior to or after the Court's
3 injunction was entered.
4 So what you're suggesting, Your Honor, would work. What we
5 are proposing, we think, would be more expedient and would not
6 create an undue hardship for Ms. Motamedi.
7 THE COURT: Now, you used the word "expedient," counsel.
8 What, in your understanding, is the length of time that would be
9 necessary to activate your proposed method of addressing the
10 concerns of what information is on those devices?
11 MR. JAMES: I believe there would have to be
12 communication with the third-party expert, which right now is --
13 you know, we're not having ex parte contact with that person, to
14 identify all the information and to make sure that person can go
15 through and selectively determine what is Getty Images property
16 and what is not. While they're doing that, Ms. Motamedi is
17 deprived of the device. So I can't represent to the Court how
18 long that would take, but I assume it wouldn't be a number of
19 hours. I assume it would be days or longer. If she's deprived
20 of the devices during that time, there's no potential harm. But
21 we're talking about not only her phone and her computer; we're
22 talking about the two computers that she says her husband uses,
23 her husband's phone, all of the devices.
24 So the quick, effective way to remedy this would be to wipe
25 the devices, keep the operating system on there. If there's
January 12, 2017 - 49
1 anything that they say is personal or unrelated to Getty, then
2 they can ask the third-party expert to restore that, counsel can
3 decide whether or not there's any room for disagreement over
4 whether something is personal versus Getty property, and in the
5 meantime, the irreparable harm that Getty is suffering at this
6 point and will continue to suffer will at least be blocked.
7 THE COURT: And, counsel, do you think you are in a
8 position to identify the specifics to the third party of exactly
9 what needs to be wiped or deleted by key word searches?
10 MR. JAMES: We could certainly endeavor to do that, Your
11 Honor.
12 THE COURT: I mean, you don't need a client database,
13 counsel, correct?
14 MR. JAMES: Correct.
15 And we know the telephone numbers of persons who worked for
16 us or worked with Ms. Motamedi. So, yes, we could identify that
17 information. It would take us time, but, of course, we could do
18 that.
19 THE COURT: So are you asking the Court to essentially
20 tell the defendant that she can't have access to any of her
21 methods of communicating by e-mail, cell phone, or any other
22 device for the duration of the time that you're going through the
23 analysis; is that what you are asking the Court to do?
24 MR. JAMES: Your Honor, I'm asking that she can't have
25 access to those devices. She has shown in her e-mails that she
January 12, 2017 - 50
1 has the means and the ability to get a temporary phone, she has
2 shown in her e-mails that she has the means and the ability to
3 get a new computer. We have in the e-mails -- and I asked
4 Ms. Motamedi about it -- evidence that she at least had in her
5 possession an app that allowed her to transfer all of the
6 contact information belonging to Getty onto those machines. So
7 absent some evidence from her that she wouldn't be able to --
8 well, let me also say, Your Honor, she's not working right now,
9 by her own testimony. She doesn't have a job. She doesn't have
10 a job offer. So absent testimony from her that whatever it is
11 that she would want to do, she couldn't do by getting a temporary
12 phone or another computer, I think the balance of equities tips
13 greatly in Getty's favor to get this information out of her
14 possession so that it can be scrubbed. And if the delay is
15 caused by us putting together key word searches, we will work as
16 quickly as we can on that. But in the meantime, the devices
17 should not be in her possession; they should be in the third
18 party's possession.
19 THE COURT: Counsel, the fact that she is looking for
20 employment, counsel, and the fact that you know that there's
21 certain categories of information she shouldn't have access to,
22 what about the other personal contacts that she has, the friends
23 or relationships that she has, that are completely independent of
24 Getty Images, that she may want to contact during that time and
25 possibly secure employment?
January 12, 2017 - 51
1 MR. JAMES: I don't think that we're asking to have that
2 information wiped long-term.
3 I had at one point talked with -- or put together a proposal
4 that I was going to share with Mr. Schmidt -- at the moment, I'm
5 not sure if I shared it or if I was just putting it together to
6 share -- that would allow her to identify her personal contacts
7 so those aren't wiped off. Whatever her personal information is,
8 Getty Images has no interest in and is not seeking to get from
9 her. So if there's a means whereby she can identify those
10 personal contacts so they're not wiped by the third-party expert,
11 we would have no objection to that.
12 THE COURT: And, counsel, are you familiar with any set
13 of circumstances where what you are proposing to this Court has
14 actually been authorized or approved under any circumstances?
15 MR. JAMES: I can't cite the Court to a specific case.
16 I would just be giving anecdotes of matters where I have had --
17 involving similar things where the Court has ordered affirmative
18 relief in terms of scrubbing computers or requiring SD phone
19 cards to be turned over or phone numbers to be reported back to
20 the defendant -- or, excuse me, to the employer.
21 THE COURT: And if I'm an employee of Getty Images and I
22 terminate employment today, what do you do with my communication
23 devices, my cell phone, my e-mail accounts?
24 MR. JAMES: A couple things. The devices used are to be
25 turned back to Getty Images. So the computers. Cell phones
January 12, 2017 - 52
1 might be turned back or there might be permission to allow the
2 individual to continue to use that. The individual will also,
3 though, be asked to sign a separation statement whereby they
4 affirm their obligation not to use Getty Images confidential
5 information, to preserve and protect that, which is one of the
6 things that Ms. Motamedi has not done in this case. And that's
7 one of the things that was covered in her deposition.
8 We're not offering a double standard here, Your Honor, if
9 that's what your question is getting at. Getty Images protects
10 confidential information from all departing employees, to the
11 best of its ability.
12 THE COURT: And what if that employee has their own
13 personal phone, would you be trying to access that information as
14 well?
15 MR. JAMES: At that point, Your Honor, we are relying on
16 the employee's integrity and their commitment to comply with
17 their non-disclosure obligations and confidentiality obligations
18 and the code of conduct. This is not that case. This is a
19 unique case involving extraordinary circumstances. We have
20 provided evidence to the Court showing that Ms. Motamedi has --
21 she will say one thing and she will do another. And in this case
22 we're asking for affirmative relief that goes beyond what would
23 occur in the ordinary course, because she has shown by her
24 actions that she cannot be trusted to keep her word.
25 THE COURT: Let me ask another question, counsel. Now
January 12, 2017 - 53
1 that you have the information from having taken her deposition
2 and the other discovery that you referenced, and she's
3 represented to the Court that one of the contacts that she had,
4 the negotiations fell through and didn't go forward, so aren't
5 you in a position now to identify what types of contracts, what
6 specific contracts were affected or impacted, compared to those
7 that weren't impacted or that you didn't lose? In other words,
8 I'm trying to see if there's some way that you can say monetary
9 damages are sufficient, as opposed to looking for injunctive
10 relief.
11 MR. JAMES: Your Honor, we will be in the position of
12 having to seek monetary damages. We're not in a position of
13 being able to say monetary damages are sufficient because, first
14 off, we don't know the full extent of the harm. We know that the
15 keys to the kingdom, if you will, were transferred to Nick
16 Evans-Lombe and SilverHub; we know that SilverHub is engaged in a
17 relationship with Shutterstock, Getty's key competitor; and we
18 are in the process of doing discovery. We were provided with
19 80,000 pages of documents, and we have not had the opportunity to
20 look through all of those. But even that, we suspect, is the tip
21 of the iceberg.
22 So in order to stop, to the greatest extent possible, the
23 harm that's going on, that's why we need injunctive relief at
24 this point. That's why we'll ultimately seek injunctive relief,
25 if we're able, against SilverHub, to stop them from using this
January 12, 2017 - 54
1 information as well. Once discovery proceeds in the ordinary
2 course, we will attempt to figure out the full extent of the
3 damages. But we're trying to limit that at this point.
4 THE COURT: And, counsel, at page 12 of the defendant's
5 response, they argue that "Getty Images has made no showing that
6 any of these documents show any of this information constituted
7 trade secrets."
8 Do you have any specific evidence at this point in time that
9 demonstrates that there was trade secret information?
10 MR. JAMES: Yes, Your Honor. One of the documents, for
11 example, that she sent to her home e-mail is a document involving
12 Getty's .
13
14 . It provides a
15 cutting edge to Getty Images. It is a technological aspect
16 that -- there's no -- I can represent to the Court there's no
17 question it is a trade secret.
18 Further, when she forwarded to herself the strategic plan in
19 which Getty is identifying the strengths and weaknesses in its
20 industry and in the organization, that is clearly something that
21 would meet the definition of a trade secret. It would be
22 valuable to a competitor, whether SilverHub or Shutterstock.
23 THE COURT: The next question, counsel, is, at page 4,
24 what direct evidence -- they are giving the same response -- at
25 page 4, what direct evidence is there that the defendant
January 12, 2017 - 55
1 improperly solicited employees, diverted corporate opportunities,
2 or conspired with SilverHub?
3 Now, we have got some testimony, counsel, that you have asked
4 questions about today. Other than that, are there any specifics
5 that you can point the Court to?
6 MR. JAMES: Your Honor, there is a mountain of specific
7 evidence attached to the second declaration of Craig Peters. I
8 will give the Court a few examples, if I may.
9 One document, identified as Motamedi-0084072, is an e-mail
10 that is purportedly sent from Mitchell Lucas, it's sent to Nick
11 Evans-Lombe, it's dated 7/28/2016, the subject is "Move." And
12 reading excerpts of it, it says, quote, "Hi, Nick. I forwarded
13 you a few e-mails. Please read them carefully. I have talked to
14 a few people on my team. I believe some will follow and the rest
15 after. However, you need to know that one person on my team must
16 leave before me to start taking care of the office phones and
17 other things."
18 Moving down an e-mail, it says, "I am risking a lot by
19 sending you these e-mails, so do not forward them. My team makes
20 a lot of money. They all feel very secure" -- all caps -- "so I
21 just want to make sure that you are well funded. Just text my
22 cell if you need to talk as this e-mail is from Mitchell's." And
23 it's signed off as "R."
24 That's but one example, Your Honor. And there are scores of
25 examples attached to the second declaration of Craig Peters.
January 12, 2017 - 56
1 THE COURT: And then the last question, I think,
2 counsel, one last question I have is, are you asking the Court to
3 prohibit her from having contact forever with any person that she
4 had a relationship or contact with at Getty Images? In other
5 words, can't a former employee or can't a former client of Getty
6 Images independently initiate contact with the defendant in this
7 case, and how is the Court to prohibit that type of contact,
8 which she hasn't initiated? How are we going to be in a position
9 to assess if she had any involvement in that contact?
10 MR. JAMES: So to answer the first part of your
11 question, we're not asking for a prohibition forever. At this
12 point we're only seeking preliminary injunction through the date
13 of trial. And at trial, to the extent that we have a basis for
14 further injunctive relief, we will put on the evidence at that
15 time.
16 The second part of your question, though, I believe deals
17 with solicitation and what she would do in that kind of a
18 situation. So, for example, if an employee reaches out and says,
19 "Hi, Roxanne, I have just left Getty Images, I would like to work
20 with you," in that hypothetical situation, Your Honor, I think we
21 would need to look at the circumstance, because she says she's
22 not working, she says she is not working with SilverHub, so is
23 this a purely personal contact or is this something that was set
24 up ahead of time while she was at Getty? Is that person also
25 taking confidential information from Getty?
January 12, 2017 - 57
1 And if I may, Your Honor, several of the people that we
2 believe she solicited and are working now with SilverHub, as we
3 do our investigation, we're finding out also were forwarding
4 confidential information to their personal e-mail addresses. So
5 it would depend on the circumstance.
6 Purely hypothetically, if someone reaches out to her,
7 unsolicited by her, and she's not using any Getty Images
8 confidential information, there would be nothing to restrict her
9 from having a relationship with that person.
10 THE COURT: Okay. I think that's all the questions I
11 have, counsel.
12 And, again, counsel, you don't have any idea of what the time
13 frame would be for the neutral third party to make an assessment
14 of the wiping or imaging process, beyond what they have already
15 done?
16 MR. JAMES: I don't. I would be more than happy to
17 investigate that after this hearing and report back to the Court.
18 But at the moment, I do not have any information.
19 THE COURT: All right. That's all the questions I have,
20 counsel. If you wish to make additional remarks, counsel.
21 MR. JAMES: Your Honor, we've pretty much covered what I
22 intended to say. I just would like to emphasize that the
23 magnitude of this matter, as we go through this evidence, it runs
24 from coast to coast, it runs to the UK, it runs to Italy, it runs
25 to France. When I was deposing Ms. Motamedi and I asked her
January 12, 2017 - 58
1 specifically, "Have you done anything to harm Getty Images?" that
2 was one of the few questions she answered where she didn't
3 equivocate, she said, "No." The evidence in front of you shows
4 just the opposite. It shows her plotting for years, and most
5 specifically in the weeks leading up to her last day of
6 employment, to, in fact, harm Getty Images; forwarding highly
7 confidential information and trade secrets; forwarding on salary
8 information for employees for the specific purpose of SilverHub
9 hiring those individuals away from Getty Images; reaching out to
10 her staff at Getty Images to tell them, don't sign this contract,
11 don't pursue that deal with a client, while she's simultaneously
12 e-mailing with Nick Evans-Lombe saying, you need to get this
13 contract, Getty is about to sign it, I can only hold them off for
14 so long.
15 In my experience, I have never seen as clear-cut egregious
16 behavior as what is reflected in these e-mails, and it is for
17 that reason this case warrants extraordinary injunctive relief,
18 so we can stop this harm and get to the bottom of it and figure
19 out how far it goes beyond just Ms. Motamedi and to the UK and
20 into France and Italy.
21 THE COURT: All right. Thank you, counsel.
22 MR. JAMES: Thank you, Your Honor.
23 THE COURT: Okay. We will take a ten-minute recess, and
24 we will return back at twenty minutes of 12:00. We will finish
25 this hearing this morning, and you will have a preliminary
January 12, 2017 - 59
1 indication from the Court as to whether or not the Court is going
2 to grant the request or deny the request.
3 Ten minutes.
5 (Proceedings recessed.)
6 THE COURT: Please be seated. Good morning, again.
7 Counsel for the defendant. Counsel, I have several questions
8 for you, once you get settled.
9 MR. SCHMIDT: Of course, Your Honor.
10 THE COURT: Ready?
11 MR. SCHMIDT: I am, Your Honor.
12 THE COURT: All right. Counsel, multiple times, for
13 example, on page 2 of your response, you suggest that there's no
14 showing that your client intends to use any of Getty Images'
15 information in the future. And I believe in your questioning of
16 your client today, you also asked her about her intentions on
17 using this type of information in the future.
18 Is there any authority that the mere expression of intent not
19 to use or not to violate is sufficient?
20 MR. SCHMIDT: Not that I'm aware of, Your Honor. Of
21 course, the Court does not have to take my client at her word.
22 But the Court had an opportunity to see my client testify. You
23 see that she's not a liar.
24 The plaintiffs, their theory that she's lying is just based
25 on that, simply based on saying she's a liar. They presented no
January 12, 2017 - 60
1 testimony otherwise. They have provided some declarations.
2 There's no one else live here. But, yes, if you think my client
3 is lying and is going to then provide that information, then, you
4 know, that argument does not hold. But there's nothing that
5 shows that she is lying about that.
6 THE COURT: Let me ask you this, counsel: If the Court
7 doesn't grant a preliminary injunction, under what basis could
8 the Court exercise control over your client or her conduct if
9 there were concerns expressed by counsel downstream because of
10 information that they learned or information that is shared with
11 them about what they suspect that she's doing? In other words, I
12 don't have an order to refer back to. I don't have a preliminary
13 injunction to refer back to. I'm not in a position to hold her
14 in contempt other than the fact that she says, it's not my
15 intention, just ask me.
16 MR. SCHMIDT: If the concern is only the sharing of the
17 additional confidential information which is in her possession,
18 we don't have an issue with that portion of the TRO, Your Honor,
19 which is, I believe, paragraph --
20 THE COURT: Is that 12?
21 MR. SCHMIDT: I believe it's 12, Your Honor. It's
22 broader. As you may see in the PI proposed today, it includes
23 all information she learned at Getty Images, which I assume is
24 intended to cover, you know, trade information, the skills she
25 had learned.
January 12, 2017 - 61
1 But simply disclosing information she has in her computer, we
2 don't have an issue with that. We understand the evidence shows
3 she carelessly sent some e-mails. That's all in the past. It's
4 in her possession now. The contempt powers of the Court are more
5 than enough to ensure that she does not share that information
6 further.
7 But there's two issues, I think, with what plaintiff is
8 seeking here. One, it's simply not relying on the contempt
9 power. It's saying that my plaintiff -- my client needs to turn
10 over all of her devices, even any deletion. That's unnecessary.
11 There's no showing that she's going to be in contempt, provided
12 the TRO. I know plaintiff has made some noises that, you know,
13 they understand that she might be intending to do so or she's,
14 you know, sent some e-mails since filing of the suit. There's no
15 showing she's done that since the TRO. And I'm quite certain
16 that if there was, they would be making a lot of noise about that
17 right now. They have not done so.
18 THE COURT: Well, counsel, you refer back to the Court's
19 contempt powers --
20 MR. SCHMIDT: Of course. Yes.
21 THE COURT: -- and you refer back to the TRO. The TRO
22 expires today.
23 MR. SCHMIDT: I understand.
24 THE COURT: Second, counsel, the contempt opportunity
25 usually cross-references an order or a lawful order of a court.
January 12, 2017 - 62
1 If there's no order in place, under what basis can the Court go
2 back and hold your client in contempt of court?
3 MR. SCHMIDT: I understand, Your Honor.
4 My argument was intending that the paragraph of the TRO that
5 only prohibits her from turning over that information, from
6 violating her NDA further, or, you know -- not that she has
7 violated -- you know, anything that would violate her NDA, we
8 don't have an issue with that, because she's not going to do
9 that. She's not going to do anything. And if the PI only covers
10 that one paragraph, just continues that from the TRO, I don't
11 have an issue with that. And I think that is narrowly tailored
12 to maintain the status quo in this action, and I think that's
13 fully sufficient.
14 THE COURT: Okay. Now, page 4 of your response suggests
15 that the plaintiff has -- your words -- no right to prevent your
16 client from contacting customers, photographers, or suppliers
17 whom she had contact with on behalf of Getty Images.
18 Now, does this cover the time when she was employed at Getty
19 Images, or are you talking about after she left Getty Images?
20 MR. SCHMIDT: There's nothing prohibiting her. She's
21 never signed a non-compete. She's never signed a
22 non-solicitation. I understand the plaintiff has argued it's a
23 trade secret. But using their own case, with Nowogroski -- I'm
24 on page 441 -- it says, "Trade secret protection will not
25 generally attach to customer lists where the information is
January 12, 2017 - 63
1 readily ascertainable." Page 442, it lists several factors when
2 a customer list is a trade secret. It says, "whether it is
3 valuable because unknown to others."
4 As my client explained ostensibly in testimony, simply the
5 business that she's in, everyone knows who the customers are.
6 It's not a secret. You know, some other person can look up on
7 Getty Images' website or something, they see an event that's
8 covered at the Oscars or something, it will say, "Copyright -
9 Getty Images," it lists the photographer. This is readily
10 ascertainable information.
11 What's valuable isn't the secret knowledge. It's not a trade
12 secret. It's a relationship she's built with these people and
13 just her knowledge of how to work in the industry. And I
14 understand the plaintiff has argued that since she's built the
15 relationship, it's the property of Getty Images. I am not aware
16 of anything they have cited to that actually stands for that
17 proposition. People build relationships and they use them in
18 other companies all the time. That's simply her skill. And if
19 there was a non-compete or non-solicitation, that would be
20 completely different. I absolutely agree with you. But there is
21 none of that. She's never signed a non-compete. She's never
22 signed a non-solicitation.
23 THE COURT: Well, counsel, Nowogroski -- and that's
24 N-o-w-o-g-r-o-s-k-i -- that case also makes reference to the
25 following language: "The former employee, even in the absence of
January 12, 2017 - 64
1 an enforceable covenant not to compete, remains under a duty not
2 to use or disclose, to the detriment of the former employer,
3 trade secrets acquired in the course of previous employment."
4 So, counsel, how do you align that language of that
5 particular case with the argument you just made to this Court?
6 MR. SCHMIDT: Because, as I said, the fact -- the
7 identity of these customers, these clients and these
8 photographers, they're not secret. You know, my client, anyone
9 in the industry, knows them. You know, Nicholas Evans-Lombe, who
10 we have talked about, he was the COO of Getty for 15 years. He's
11 with a competing agency now. He knows this information. And my
12 client has talked about the reason competitors know this is
13 because the customers here are events, and the photographers go
14 to the events, you see the photographers, they're credited in the
15 image. It's simply not secret information.
16 And in Nowogroski, the customer lists were secret
17 information. The former employee had memorized a customer list,
18 which is completely the case in some industries. In some
19 industries, you have a secret customer list, and that's a secret.
20 You know, many consumer industries are completely like that.
21 This is not one of them. This is like a law firm. For instance,
22 you know, Sullivan & Cromwell. They are a client of Goldman
23 Sachs. And everyone knows Sullivan & Cromwell do work for
24 Goldman Sachs. It's public record. If then an attorney moves to
25 Cravath and they do work for Goldman Sachs, it's not a secret,
January 12, 2017 - 65
1 that's not a trade secret.
2 THE COURT: Counsel, it's my understanding, from what
3 you just stated to the Court in paragraph 12, that you don't have
4 any objection to limited aspects of what counsel for the
5 plaintiff is requesting. And that's assuming the Court grants
6 their preliminary injunction. Are there any other sections or
7 components of the TRO that you have no objection to continuation?
8 MR. SCHMIDT: No, Your Honor. Much of the TRO consists
9 of expedited discovery procedures, which, at this point,
10 plaintiff is attempting to -- it wishes to continue into the PI.
11 And while we had no issue with that at the time, it's unnecessary
12 now. We have had the expedited discovery. We have had the PI
13 hearing. We will continue forth with --
14 THE COURT REPORTER: Excuse me, counsel. You need to
15 slow down.
16 MR. SCHMIDT: I'm sorry.
17 -- we contend, normal discovery at a later time.
18 And, you know, just to briefly address, I think, related to
19 that, you know, in their reply brief, plaintiff made the argument
20 that the terms were uncontested at the TRO hearing, so there
21 shouldn't be an issue now.
22 As Your Honor knows, we were retained very shortly before the
23 TRO hearing. To have those terms shortly, for a short period of
24 time, was, as my client said, harsh. She couldn't look for a job
25 for a few weeks. But, you know, in the interest of expediting
January 12, 2017 - 66
1 things, we agreed to it. But if you continue it onward until
2 trial, as my client testified, it could render her permanently
3 unemployable, she could never work again. She has family
4 obligations. I'm not exactly sure what she would do. It's a
5 massive hardship upon her, which is not justified by anything,
6 especially harm to Getty Images, because all of this is in the
7 past. Anything she may have sent out, anything that she may have
8 disclosed, that's happened. They can seek monetary damages on
9 that. I think they have many issues for their case, but that's
10 not for today. For today is a preliminary injunction to preserve
11 the status quo, that's narrowly tailored to prevent specific harm
12 to Getty Images.
13 THE COURT: Counsel, plaintiff lists a series of
14 references of what they characterize as uncontested evidence, on
15 page 3 of their reply, and you don't address that in your
16 opposition or had not addressed those issues in your opposition.
17 Is that a tacit agreement or concurrence or acceptance of those
18 representations as being true and correct?
19 MR. SCHMIDT: That is not, Your Honor.
20 We have checked the reference here, and there is no case law
21 we have seen that says that simply because you do not address
22 every single factual argument in opposition, that it's then
23 admitted. I believe, actually, the rule that they reference here
24 is a situation where a party does not file an opposition brief at
25 all. And, also, you know, I'm aware, of course, that if an
January 12, 2017 - 67
1 argument is not made on opposition, then it's waived for
2 purposes -- or not opposed, it's waived for purposes of that
3 motion. But the idea that, you know, every factual assertion
4 that's not specifically dealt with on opposition is, therefore,
5 admitted as a matter of law, I'm unaware of any authority.
6 THE COURT: Counsel, those are pretty significant
7 allegations and representations being uncontested, as opposed to
8 not just filing a brief. We're talking about very precise
9 statements. For example, that your client met with
10 Mr. Evans-Lombe in as early as March 2015 and began communicating
11 at that time regarding the development of a business to compete
12 with Getty Images. That goes directly to the heart of the
13 allegations, one of the allegations in this case, and you didn't
14 even respond to that in your response.
15 MR. SCHMIDT: Your Honor, at this preliminary stage, we
16 are dealing with preliminary injunction. We're not going to deal
17 with every -- we don't need to, and it's simply -- let me back up
18 for a moment.
19 Their allegation largely -- back up -- largely falls in two
20 categories. There's information that my client may have sent
21 out, and there's this solicitation and conspiring with Nicholas
22 Evans-Lombe. This conspiracy, as the evidence shows, primarily,
23 it's someone discussing future employment. It's discussing
24 future job opportunities. She may have discussed it with some
25 employees at Getty who weren't happy and wanted to go somewhere
January 12, 2017 - 68
1 else. She's allowed to do that. There's nothing that says she
2 can't do that. The fact that they turned this into -- they
3 characterize it as conspiring and, you know, et cetera, et
4 cetera, that doesn't change that.
5 The same with the sharing of information. My client
6 addressed that in her testimony. She sent some things that she
7 perhaps got a little, you know, aggressive when sharing. Again,
8 it doesn't show any malice intent. It doesn't show anything
9 else. And, again, it's in the past. It can be dealt with by
10 money damages. There's no injunction necessary to, you know,
11 stop that. Let alone the injunction would just stop her from
12 working indefinitely.
13 THE COURT: Counsel, in the briefing, it appears in the
14 Aiken, A-i-k-e-n, declaration, it's paragraph 2, or page 6 of the
15 reply, says that the defendant has been specifically permitted by
16 her agreements with the plaintiff to retain documents after
17 leaving employment. What agreements are you referring to?
18 MR. SCHMIDT: I'm sorry?
19 Oh. I believe her argument simply was that, under the NDA,
20 the NDA only requires that it's covered by -- I will back up a
21 moment. The NDA covers confidential information. That is,
22 things/information learned while working at Getty Images that
23 does not fall into one of two categories. One, it's something
24 that she was specifically permitted to keep, and, two,
25 information that is publicly known. And our point was they had
January 12, 2017 - 69
1 not met their argument of showing that it was not falling into
2 any one of those categories. It wasn't necessarily all
3 confidential information. I don't think that's a major issue we
4 deal with today, because there's simply such a volume of
5 information, plaintiff has not even specifically identified what
6 it claims to fall into certain categories.
7 THE COURT: But I'm talking specifically about a
8 specific agreement. Are you aware of any specific agreement,
9 counsel?
10 MR. SCHMIDT: I am not, Your Honor.
11 THE COURT: Okay. Counsel, that's all the questions I
12 have at this time. Do you wish to make an additional record or
13 argument?
14 MR. SCHMIDT: Just a few additional points, Your Honor.
15 We discussed briefly with Mr. James about the deletion of my
16 client's devices, and, you know, as we discussed briefly here,
17 that's unnecessary. My client is -- you know, simply requiring
18 my client not to disclose such information achieves the same end,
19 without requiring her to be without her phone for an extended
20 period of time. I would have difficulty contacting her while
21 that would happen. It would not provide any additional
22 protections to plaintiff than are already in place here.
23 For trade secrets, Mr. James covered a few specifics when you
24 asked him. He identified the and some strategic
25 plan. Now, regarding the , my client testified at
January 12, 2017 - 70
1 deposition, it's not something she worked closely with. She saw
2 some e-mails, she was aware of it, she doesn't have information
3 about that. Even if she did, again, it's in the past. Any
4 information she sent out is done.
5 Same with the strategic plan. That's something that has
6 happened in the past. There's not been a showing that she will
7 use it or be able to use that knowledge going forward to harm
8 Getty.
9 We talked about the solicitation. And plaintiff has made
10 some allegations based on, you know, some documents, the
11 declaration of this Craig Peters. Again, you have seen no live
12 testimony from this. It's relying on these documents, just
13 showing the documents. They didn't ask my client about the
14 documents. They didn't show her any documents. These are
15 e-mails she sends with -- or she sends things, perhaps you see,
16 quickly, but exactly, you know, to interpret these documents
17 simply by presenting them to the Court and then arguing that they
18 mean certain things is, I think, not s sufficient showing.
19 Other than that, Your Honor, you know, I just want to
20 emphasize again, what they're seeking here is that my client very
21 potentially could never work again. She has family obligations.
22 They simply say that, oh, she can find different clients. But as
23 we have discussed about the industry and as you have seen today,
24 that's not an option, that's not the sort of work that my client
25 worked into. If this is granted, she simply would not be able to
January 12, 2017 - 71
1 work again.
2 I have nothing further, Your Honor, unless you have any
3 questions of me.
4 THE COURT: No additional questions, counsel.
6 THE COURT: Counsel, any rebuttal?
8 Obviously, we're in the process of digesting the information
9 and do not have a complete index or digest of all the
10 information. We would love to present that to the Court. We
11 apologize for the volume of information we did provide attached
12 to Mr. Peters' declaration.
13 We also have evidence, Your Honor, that since the TRO was
14 entered, Ms. Motamedi made a number of calls on November 16th.
15 She has contacted a high-level Getty employee on January 6th via
16 phone out of the blue. The context of the call is, at least from
17 my client's perspective, an attempt to recruit him, because there
18 had been some prior communications, I understand. She contacted
19 another individual, who there's no reason that we can think of, a
20 personal reason, for her to have contacted that person over the
21 holidays. Again, the understanding of my client was that that
22 call was to try and recruit that person.
23 THE COURT: Counsel, is that anything more than just
24 rank speculation, in terms of why the call was made? You are
25 talking about the holidays, and people oftentimes call friends
January 12, 2017 - 72
1 and past associates that they haven't talked to for a while. How
2 do you leap to the conclusion that this was for some improper
3 purpose?
4 MR. JAMES: It's not -- I'm not at liberty to disclose
5 the confidential aspect of the e-mail at this point, but the
6 e-mail itself suggests that the recipient said this was an
7 out-of-the-blue call, there was nothing personal about it, and
8 the understanding was that this person was going to be
9 potentially recruited to SilverHub.
10 I'm also handed information here that based on the call log
11 that we have reviewed, there was 61 calls to photographers since
12 the lawsuit was filed. And these are persons that would
13 otherwise be persons that she should not be having contact with
14 if she was going to be abiding by her duty of loyalty.
15 There is a case, Your Honor, that is cited in our materials.
16 It's the Blackbird case. I believe it's cited on page 4 or 5.
17 Bear with me a moment. My screen closed, Your Honor. I don't
18 want to waste the Court's time. There is a case, it's a U.S.
19 District Court case, with a Lexis cite, and I believe it's on
20 page 5 of our reply. The case name is Blackbird. And the
21 parenthetical is that the court in that case imposed an ongoing
22 injunction based on the breach of the duty of loyalty of the
23 former employee because there was no reason to allow that person
24 to continue to cause harm, given the overwhelming evidence of the
25 breach of duty of loyalty. That provided the ongoing injunctive
January 12, 2017 - 73
1 relief.
2 Ms. Motamedi forwarded ten or more contracts that she
3 negotiated and that she signed off on that include pricing
4 information that is not public information. That information was
5 forwarded to her home e-mail addresses, and we believe was
6 forwarded on to Mr. Evans-Lombe as well. That's not information
7 that you can know the identity of a customer and then simply, you
8 know, make a cold call. That's insider information. That is a
9 contract that she specifically negotiated, and it's a contract to
10 provide Getty Images with exclusive access so that they can go to
11 events, have exclusive access, and get these photographs. She
12 knows the terms of those deals. Passing that along allows her to
13 undermine Getty Images in future negotiations, for her to
14 contract for a better deal with those persons. This is the type
15 of information she forwarded. And to simply say it's in the
16 past, it's no big deal, is to, respectfully, just put a gloss on
17 it, and it's not going to cure the egregious, egregious amount of
18 information that's been forwarded out there, both to her home and
19 to Mr. Evans-Lombe.
20 Your Honor, what we would ask in terms of her phones, her
21 contacts, all of that information, is that she have the burden,
22 because she's the one who was engaged in this egregious breach,
23 of identifying those contacts that she claims are personal, those
24 items that she claims are personal. Photographs of her family or
25 her pets, clearly personal. Documents related to SilverHub,
January 12, 2017 - 74
1 those aren't necessarily personal, and I would say she shouldn't
2 be allowed to just retain them, but maybe that information should
3 be given to her counsel so that she no longer has access to it.
4 But we believe that the devices could be imaged within 24 to
5 48 hours, depending on the new devices that may be provided,
6 because we believe the first time it was done in 24 hours.
7 She should also be able to provide a list of those personal
8 contacts to the expert at that time so that those contacts can be
9 retained on the device. And she should also be able to, at least
10 through her counsel, be able to identify those documents or other
11 items, like photographs, that she claims are personal, so that
12 her counsel can notify the expert of those personal items.
13 Otherwise, the appropriate way to handle this, we submit, is to
14 have the devices submitted, imaged, wiped, and then returned to
15 Ms. Motamedi.
16 THE COURT: Okay.
18 THE COURT: Let me ask you a question, counsel.
19 MR. JAMES: Yes.
20 THE COURT: And I'm not getting into trying to mediate
21 this case or resolve your differences by way of negotiation, but
22 one of the tools that is available to the Court is to order the
23 parties to mediation, pending any motions or deadlines, so that
24 the parties can expedite the resolution of this case.
25 Now, when I had the parties on a telephone conference about a
January 12, 2017 - 75
1 week-plus ago, the parties appeared to be very civil, very
2 amenable to working with each other in trying to resolve your
3 differences, and you essentially came up with an agreed TRO which
4 has seemed to work for at least the last several days. One of
5 the reasons that the Court always looks at mediation at the
6 beginning of litigation is to let parties know that litigation is
7 costly and it can be time consuming. And although you have a
8 current trial date now, that doesn't necessarily mean that,
9 because of what you learn, that trial date would stay in place.
10 Counsel for the defendant has already expressed some concerns
11 about the delay of her being able to go on with her life. She's
12 also expressed concerns about the impact on her life, the care of
13 her mother, her ability to make a living, and other
14 representations to this Court.
15 So my question is, is there any consideration or willingness,
16 from the plaintiff's perspective, to engage in mediation at this
17 point in time to try and resolve the concerns so that the parties
18 have their own hand in crafting a resolution? Without question,
19 the Court is going to craft a determination on the motions made,
20 but I'm also looking down the road, to give the parties a chance
21 to have your hands craft your resolution that will get Getty's
22 concerns addressed and get the defendant's concerns addressed.
23 You don't have to give a long answer, counsel, but is that
24 something that you might be interested in, from your client's
25 perspective?
January 12, 2017 - 76
1 MR. JAMES: I always recommend to my clients that they
2 consider mediation. We have not had that discussion, Your Honor.
3 THE COURT: All right.
4 Counsel for the defense, is that a consideration?
5 MR. SCHMIDT: I think that would be very reasonable,
6 Your Honor. We have already made a settlement offer to
7 plaintiff. He told us --
8 THE COURT: I'm not looking for settlement discussions,
9 counsel. That's improper for me to even know about that.
10 MR. SCHMIDT: I'm sorry. My point was simply, I think
11 that would be very productive, Your Honor.
14 Oh, Your Honor, one -- I neglected to mention, there is one
15 other key date that's affecting things for my client, and that is
16 Mr. Evans-Lombe is under a deadline of January 24th to respond to
17 the undertakings that he has committed to in the UK, and that
18 information may shed a lot of light on what information has been
19 shared and the ongoing relationship. And we simply do not have
20 that information at this time. I just wanted the Court to be
21 aware of that. Thank you.
23 All right. Counsel, this is what the Court is going to do.
24 The Court, first of all, will have a final order that will be
25 issued before the close of business tomorrow. If we get to it
January 12, 2017 - 77
1 today, we will have it for your availability. But I will tell
2 the parties, so that the temporary restraining order doesn't
3 expire without anything else in place, that I'm satisfied, based
4 upon the record that's been presented to this Court, that counsel
5 has met the requirements and expectations for a preliminary
6 injunction to carry over the conditions of the temporary
7 restraining order.
8 Now, when I say "carry over the conditions," not every single
9 one of the conditions that the Court previously authorized in the
10 TRO or the expansive nature that it referenced in the TRO are
11 going to carry over to the order on preliminary injunction. Some
12 of them will; some of them won't.
13 But I want the parties to know that, effective today, there
14 is a preliminary injunction in place, the plaintiff has met their
15 burden, but the specifics will be detailed in an order, just as
16 the TRO, and you will have that tomorrow. So I don't want you to
17 think that the defendant is essentially free of any obligations
18 or requirements to this Court. Those conditions as existed
19 previously are in place. The modified conditions will be
20 provided to the parties tomorrow. So there's no gap in terms of
21 controls or restraining limitations upon the defendant.
22 So with that, we will be in recess. Thank you.
23 (Proceedings adjourned.)
24
25
January 12, 2017 - 78
1 C E R T I F I C A T E
3 I, Nickoline M. Drury, RMR, CRR, Court Reporter for the
4 United States District Court in the Western District of
5 Washington at Seattle, do certify that the foregoing pages are a
6 true and accurate transcription of the proceedings to the best of
7 my ability.
10 /s/ Nickoline Drury
11 Nickoline Drury
12
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Getty Images v. Motamedi: Transcript of Preliminary Injunction Hearing

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Getty Images v. Motamedi: Transcript of Preliminary Injunction Hearing

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Case 2:16-cv-01892-RAJ Document 43-1 Filed 02/16/17 Page 1 of 79

1 UNITED STATES DISTRICT COURT

2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE

11 VERBATIM REPORT OF PROCEEDINGS

20 For the Defendant: Matthew Schmidt

1 THE COURT: Good morning. Please be seated.

2 ALL: Good morning, Your Honor.

3 THE CLERK: We are here in the matter of Getty Images,

4 Inc. versus Roxanne Motamedi, Cause No. C16-1892, assigned to

6 If counsel could please rise and make your appearances for

8 MR. JAMES: Good morning. I'm Jeff James. I'm counsel

9 for Getty Images.

10 THE COURT: Good morning.

11 MS. AIKEN: Good morning. My name is Tina Aiken,

12 counsel for Getty Images.

13 THE COURT: Good morning.

14 MS. MIYASHITA: Good morning. Yoko Miyashita, general

15 counsel for Getty Images.

16 THE COURT: Good morning.

17 Who will be representing counsel for the plaintiffs?

18 MR. JAMES: I will, Your Honor.

19 THE COURT: All right. You may be seated. Thank you.

20 MR. SCHMIDT: Good morning, Your Honor. Matthew

21 Schmidt, Balsteriere Fariello, counsel for defendant, Roxanne

23 THE COURT: All right. Good morning.

24 MR. MANVILLE: Good morning, Your Honor. Duncan

25 Manville, counsel for Roxanne Motamedi.

1 THE COURT: Good morning.

2 Who will be speaking on behalf of the defendant?

3 MR. SCHMIDT: I will, Your Honor.

4 THE COURT: All right. Counsel, let me hear from

5 plaintiffs. First of all, it's my understanding that there was

6 some expectation of offering testimony today, counsel, or is that

8 MR. JAMES: Not on behalf of the plaintiffs, Your Honor.

9 THE COURT: Is there a need to have testimony from the

11 MR. SCHMIDT: I believe so, Your Honor. I believe

12 hearing from Ms. Motamedi will greatly assist the Court in

14 THE COURT: And, counsel, what's your projection of the

15 amount of time necessary for her testimony?

16 MR. SCHMIDT: Our cross, about 40 minutes, Your Honor --

17 our direct, about 40 minutes, Your Honor.

18 THE COURT: Well, you can't cross unless you have

20 MR. SCHMIDT: I understand, Your Honor. I misspoke.

21 THE COURT: All right.

23 MR. JAMES: Your Honor, if they present testimony -- oh.

25 THE COURT: Yes.

1 MR. JAMES: Okay. I'm sorry. I wasn't sure if --

2 THE COURT: Well, let me hear from the witness first,

4 take formal argument from the parties.

5 MR. JAMES: Okay.

6 THE COURT: So if the plaintiff has no need to have an

7 offering of testimony, then we will move to the defense, and

8 counsel can offer whatever testimony he would like to present at

10 MR. SCHMIDT: Thank you, Your Honor.

11 THE COURT: Please step forward.

12 And, counsel, is there something significantly different

14 are aware of?

15 MR. SCHMIDT: We did not present any declarations from

16 Ms. Motamedi, Your Honor. We believed that if we had offered

18 assess her position and her situation.

19 THE COURT: Okay. Good morning.

20 MS. MOTAMEDI: Good morning.

21 THE CLERK: Please raise your right hand.

23 having been sworn under oath, testified as follows: