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John T. Reed' opposition to Russ Whitney' Spring 2004 injunction motion 3 WIN HAS NO TRADE SECRETS 42. WIN's complaint says that YATES knew WIN trade secrets as a result of his work. That allegation implies that WIN has trade secrets. In fact, it does not because of the nature of its business. 43. Florida's Uniform Trade Secrets Act defines trade secrets comprehensively. That is, it has a list that does not say, "including but not limited to" or other words to that effect. So the types of trade secrets that are protected by the law are limited to the list and no others. That list is: "formula, pattern, compilation, program, device, method, technique, or process" [F.S. 688.002(4)] 44. The Uniform Trade Secrets Act also requires [F.S. 688.002 (4)(b)] that ""¦[the trade secrets in question] are the subject of efforts that are reasonable under the circumstances to maintain its secrecy." [sic] 45. Plaintiff WIN sells get-rich-quick seminars, "mentoring" services, and books. Ownership rights to seminars and books are the sole province of federal copyright law. That area of law is preempted by the federal government and is not subject to the Florida Uniform Trade Secrets Act pursuant to the Supremacy Clause of the United States Constitution, Art. VI, U.S. Const. [State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935); AGOs 90-102, 85-03, 81-101, 80-31, 74-372, and 73-278. See also, Wallace v. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997)] More narrowly, the Copyright Act contains a section specifically nullifying state laws that may grant rights that are equivalent to any of the exclusive rights granted by copyright law. 17 U.S.C. 301 Sec. 301(a) preempts any "legal or equitable rights [under state law] that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103." The same would apply to WIN's "mentoring" services to the extent that the "mentors" are reading from a copyrighted script. 46. Advertising of WIN books and services is, by definition, public, not secret. Anyone can see exactly where WIN advertises and the entire content of their ads by watching TV, reading newspapers, or visiting WIN's Web site. Even direct-mail advertising methods cannot be trade secrets under Florida law because direct mail pieces are mailed to the public. The company "Who's Mailing What!" tracks many such mailings and reports on them to the public. Many members of the public have forwarded WIN brochures and direct mail pieces to REED. 47. Although WIN may own copyrights to their seminars, they can have no trade secrets in them because hundreds of thousands of persons have attended them and heard them. REED's Web site contains detailed accounts of what happens at several WIN seminars. The accounts were pieced together from talking to dozens of members of the public who have attended such seminars. 48. WIN may own copyrights to the scripts used by its telemarketers, however they cannot own trade secrets in such scripts because, upon information and belief,

they have been read to hundreds of thousands of members of the public. Reed or any other member of the public can easily obtain such scripts by simply registering for a free WIN come-on seminar. Such registrations trigger sales calls by WIN telemarketers. The recipient of such calls can easily write down what the caller says. In many states, they can record them. 49. The flow of WIN operations is 1. advertise on TV, newspapers, and books to get leads; 2. then convert the leads to seminar or "mentoring" customers through in-person seminars or telemarketing; 3. then present the seminar or make the "mentoring" phone calls. There are no trade secrets-only copyrights-in such an operation. Trade secrets, like the recipe for Coca Cola or the computer code for Microsoft Windows, are almost entirely the province of manufacturers. WIN either has no "formula, pattern, compilation, program, device, method, technique, or process" [F.S.688.002(4)], or, to the extent that they do have any such things, they are not trade secrets under Florida Statute 688.002 because WIN had to disclose them to massive numbers of the public through their advertising, telemarketing, seminars, or "mentoring" sessions. PLAINTIFF'S ALLEGATION THAT DEFENDANT REED'S MOTIONS HAVE BEEN FRIVOLOUS 50. '¶13 of Plaintiff's motion for an emergency preliminary injunction says that Defendant REED as ""¦filed various frivolous motions, which [sic] most, if not all, were denied"¦." That is a blatant misrepresentation to this Court. 51. The cases in question were all in federal courts. Frivolous motions are prohibited by Rule 11(b) of the Federal Rules of Civil Procedure. No court has sua sponte characterized any of Defendant REED's motions as frivolous. Plaintiff could have filed a motion for sanctions under Rule 11(b) on any occasion when Defendant REED filed a frivolous motion. They served one such motion on Defendant REED, but never filed it with the court. 52. On the other hand, Plaintiff and WHITNEY have filed a number of court papers that were arguably frivolous. The first lawsuit filed against Defendant REED by WIN and WHITNEY was withdrawn after eleven months of litigation. The Fort Myers federal court declared Defendant REED the "prevailing party." Plaintiff Win and WHITNEY similarly filed suits in other state and federal courts then withdrew their opposition to Defendant REED's motions for removal and change of venue. 53. Defendant REED erroneously sent a letter to the judge in one case and sent a copy to Plaintiff WIN and WHITNEY. The court ordered the letter returned to Defendant REED unread. After receiving the court's order, Plaintiff WIN and WHITNEY filed a four-page motion to strike the letter as improper and served REED with a Rule 11(b) motion based on the letter. REED filed a four-sentence opposition saying the matter was moot. The court issued an order denying Plaintiff's motion on the grounds that it was moot. Plaintiff WIN and WHITNEY never filed the Rule 11(b) motion with the court. 55. Plaintiff tried twice to subpoena Defendant REED as a non-party to give a deposition in the case of WIN v. Purdy. In that case, as in this one, WIN is suing a former associate for breach of contract and violation of the Uniform Trade Secrets Act. The U.S. District Court for the Northern District of California granted both of REED's motions to quash. In the second such order, the court said sua sponte, "The Court notes that Whitney's showing borders on violation of Rule 11(b) but the Court will not issue sanctions at this time." 56. By belatedly dropping their opposition to REED's longstanding motion to change venue from Fort Lauderdale federal court to Fort Myers federal court, Plaintiff WIN and WHITNEY caused the dismissal of all of their pending motions. They only reinstated two of those pending motions in the new Fort Myers court. 57. In any event, whether Defendant REED ever filed a frivolous motion in litigation against WIN or WHITNEY is irrelevant to this motion for an emergency preliminary injunction. Defendant REED discusses it here only because Plaintiff has raised the issue and the Court may disagree with REED regarding its relevance. NO CONTRACT 58. In this case, there was no YATES-WIN contract for REED to interfere with. WIN had already fired YATES before YATES began his unsolicited email correspondence with REED. WIN was attempting to buy YATES' silence with hush money during the exchange of emails between YATES and REED. However, that was not an attempt by WIN to arrange commercial relations with YATES. Rather, it was arguably an illegal contract to cover up wrongdoing and illegal activities by WIN. Furthermore, there was no certainty or even reasonable expectation of success by WIN in its attempts to silence a would-be writer that it had fired. ""¦[S]ome protection is appropriate against improper interference with reasonable expectations of commercial relations even when an existing contract is lacking." Restatement (Second) of Torts '§766 WIN had no expectation of future commercial relations with YATES. PRIOR RESTRAINT 59. YATES claimed he wanted to write a book about the WIN/WHITNEY litigation against REED. Although YATES is apparently covered by attorney-client privilege and an employment agreement, he could still legally write such a book. A number of Central Intelligence Agency agents have legally written books about their experiences notwithstanding confidentiality agreements and high order state interests. Similarly, many attorneys have written books about their cases without violating attorney-client privilege and many corporate chief executives, who presumably had far more access to confidential information and trade secrets than WIN's paralegal, have written about their tenure as CEOs without breaking the law. 60. WIN's legal actions against YATES and REED are not aimed at stopping wrongdoing. They are aimed at preventing any information about WIN or WHITNEY emanating from a source that they do not control. This is constitutionally impermissible prior restraint of free speech and freedom of the press. If and when YATES and/or REED publish false, defamatory statements about WIN or WHITNEY with actual malice, or illegally reveal WIN trade secrets, WIN and WHITNEY may sue for damages at that time. Until then, they have no legal rights with regard to the mere possibility of such publication. 61. In its classic New York Times Co. v. United States decision [403 U.S. 713 (1971)], the Supreme Court refused to grant the U.S. government an injunction to stop publication of the top secret "Pentagon Papers" during a time of war. Plaintiff's interest in keeping secret, for example, the fact that YATES turned down a corporate severance offer, surely pales in comparison to the rejected Pentagon Papers motion. 62. "A preliminary injunction is a prior restraint, and a party seeking to justify a prior restraint on speech carries a heavy burden of justifying the restraint. In order to obtain a temporary restraining order involving a prior restraint on pure speech, the publication must threaten an interest more fundamental than the First Amendment itself. Freedom of speech may not be suppressed by injunction on the grounds that its exercise may incidentally lead to a tort or breach of contract." Near v. State of Minnesota, 283 US 697 42 Am Jur 2d '§19 63. "Commonly referred to as the 'strong arm' of equity, [injunction] is an extraordinary remedy that should be used sparingly and only in a clear case." 42 Am Jur 2d '§1 "All presumptions and ambiguities will be taken against the party who is seeking to obtain a temporary injunction." 42 Am Jur 2d '§8 64. "Injunctive relief will not be granted merely to allay the fears and apprehensions or to soothe the anxieties of the parties." Township of South Fayette v. Allegheny County Housing Authority, 27 F. Supp. 2d 582 (W.D. Pa. 1998) aff'd 185 F. 3d 863 (3rd Cir. 1999) 'INDUCING AND/OR ATTEMPING TO INDUCE' 65. '¶19 of Plaintiff's motion for an emergency preliminary injunction alleges that REED is ""¦inducing and/or attempting to induce Defendant YATES to disclose privileged information and information that he knows would violate the Confidentiality Agreement that YATES entered into with Plaintiff." That is false. REED explicitly urged YATES not to violate attorney-client privilege in the first email he sent him (Exhibit B) as well as in subsequent emails. REED has not read the Confidentiality Agreement and would not have the expertise to know for sure if it were enforceable if he did. As stated in Defendant REED's affidavit accompanying his pending motion to dismiss for lack of personal jurisdiction, REED never offered YATES anything, therefore there has been no inducement. Whatever YATES did was done on his own initiative. TRUTHFUL, HONEST ADVICE 66. Upon information and belief, YATES dropped out of law school after two years and is a certified, experienced paralegal. Through his Hamletesque agonizing over what to do in the emails he sent to REED, YATES sought REED's advice. REED provided truthful, honest advice in response believing that YATES' final decision would be made by YATES based on his and his attorney's researching the issues including the issues REED pointed out. The giving of advice in such circumstances is not improper interference with another's contractual relations. Restatement (Second) of Torts '§772 BRAINSTORMING LEGAL TACTICS CANNOT BE TORTIOUS INTERFERENCE 67. The emails between YATES and REED involve brainstorming about litigation tactics and strategies. These cannot be the basis for a tortious interference claim. Levin v. U.S. Fire Insurance Co., 639 So. 2d 606 (Fla. 1994) ""¦the question of what privilege applies to pre-suit communications will evolve under case law, depending on the type of communication and the policy considerations involved." Boca Investors Group v. Potash, DCA 3d Case No. 3D01-2587 (2002) "The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but also to judges, witnesses, and counsel as well." Fridovich ; Cox v. Klein, 546 So. 2d 120 (Fla. 1st DCA 1989) 'PROVIDE PLAINTIFF WITH ALL INFORMATION RECEIVED FROM THE OTHER' 68. '¶20 of Plaintiff's motion for an emergency preliminary injunction also seeks an order that Defendant REED provide Plaintiff with all information received from YATES. Defendant REED has already done that with regard to pre-litigation communications in the affidavit exhibits filed and served in conjunction with REED's motion to dismiss for lack of personal jurisdiction and again in this opposition. That affidavit states under penalty of perjury that the attached emails were all of the information received by REED from YATES. Therefore, the matter is moot. 'PURGE' 69. '¶20 of the injunction motion also seeks an order that Defendant REED purge himself of all such documents. That is preposterous. Those emails are the entire body of evidence that REED must use to defend himself in this case. And as stated above, the emails contain nothing but public information that is not covered by any confidentiality agreement or attorney-client privilege. REED or anyone else could find each and every factual assertion in the YATES emails in public sources. As Defendant REED has repeatedly asserted throughout this two-and-a-half years of litigation with Whitney, the purpose of all these legal filings is to harass and intimidate Defendant REED and chill his exercise of free speech with regard to WIN and WHITNEY. In the instant motion, Defendant REED is being forced to prepare and file legal documents to defend his right to possess an email saying-to pick one example from YATES's emails to REED-that Marie Code's maiden name was Gonzalez. PLAINTIFF'S DAMAGES 70. Plaintiff claims its damages are large and unknowable. That is false. Plaintiff's damages as a result of YATES sending emails to REED are zero. For one thing, all the facts conveyed by YATES to REED in those emails are public information. Since those facts were already in the public domain, YATES did not reveal them. He repeated them. Such repetition violates no laws and causes no damage. 71. Even if the facts conveyed by YATES to REED in the emails were not previously in the public record, there would still be no damages because the facts are innocuous. The Court can ask itself the question, "How much damage would revelation of this fact cause WIN?" with regard to each of the facts listed in '¶39 above of this opposition. For example, "How much damage did WIN suffer because YATES told REED that WHITNEY got a ticket for violating the Manatee Act?" That exercise, applied to each and every fact in the YATES emails to REED will show that WIN's damages are almost certainly zero. LIKELIHOOD OF PLAINTIFF SUCCESS AT TRIAL 72. In '¶23 of its injunction motion, Plaintiff asserts, as it must to obtain a preliminary injunction, that it ""¦will be successful on the merits of this lawsuit." Defendant REED makes no statement regarding whether Plaintiff will be successful against Defendant YATES or whether this Court should grant an injunction against YATES. However, as the Court can see by reading all of the emails YATES and REED exchanged, REED did nothing wrong. 73. This Court does not have personal jurisdiction over Defendant REED and even if it did, Plaintiff has not stated a cause of action as explained in REED's prior motions. As far as REED knows, Plaintiff has not filed any opposition to the two REED motions for dismissal. 74. Plaintiff's real concern is the potential danger to WIN and WHITNEY of a former insider like YATES talking to an opponent like REED. Although nothing illegal has yet occurred as a result of YATES sending emails to REED, Plaintiff's paranoia is so great that they have commenced this suit as a "pre-emptive strike." This suit is no doubt also a message to other current and former WIN employees to keep their mouths shut and not to contact REED or any other journalist. As stated in REED's prior motion to dismiss for failure to state a cause of action, all of Plaintiff's complaint allegations against REED use the present or future tense. Plaintiff is not likely to be successful on the merits because, "A cause of action must be complete before an action can be commenced" among other reasons. Orlando Sports Stadium, Inc. v. Sentinel Star Company, 316 So. 2d 607 DCA 4th (1975)

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