SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK

GOLDMAN, SACHS & CO.,
Plaintiff,
—against—
GOOGLE, INC.,
Defendant.
Index No.




GOLDMAN, SACHS & CO.’S MEMORANDUM OF LAW
IN SUPPORT OF ITS APPLICATION FOR A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION







J une 27, 2014
BRUNE & RICHARD LLP
One Battery Park Plaza
New York, New York 10004
Tel: (212) 668-1900
Fax: (212) 668-0315

Counsel for plaintiff
Goldman, Sachs & Co.

FILED: NEW YORK COUNTY CLERK 06/27/2014
INDEX NO. 156295/2014
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/27/2014


TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 2
BACKGROUND ............................................................................................................................ 2
STANDARDS FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJ UNCTION ........................................................................................... 3
DISCUSSION ................................................................................................................................. 4
I. Goldman Sachs Is Likely to Prevail on the Merits .............................................................. 4
II. Goldman Sachs Faces the Risk of Immediate and Irreparable Injury ................................. 5
III. The Balancing of the Equities Favors Goldman Sachs ....................................................... 5
CONCLUSION ............................................................................................................................... 6
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INTRODUCTION
This application seeks to protect highly confidential brokerage account information that
an outside consultant for the plaintiff, Goldman, Sachs & Co. (“Goldman Sachs”), inadvertently
sent to a “gmail” email account belonging to an unknown account holder. Emergency relief is
necessary to avoid the risk of inflicting a needless and massive privacy violation upon Goldman
Sachs’s clients, and to avoid the risk of unnecessary reputational damage to Goldman Sachs.
The defendant, Google, Inc. (“Google”), which operates the gmail service, appears willing to
cooperate with Goldman Sachs so long as its cooperation is pursuant to a court order.
The Court can and should provide that order by granting this application.
BACKGROUND
Goldman is a broker-dealer registered with the Securities and Exchange Commission and
the Financial Industry Regulatory Authority (“FINRA”) and an indirect wholly-owned subsidiary
of The Goldman Sachs Group, Inc., a publicly-traded bank holding company and global financial
services firm. (Collie Aff. ¶ 2.) FINRA requires certain member firms, including Goldman
Sachs, to periodically generate certain reports relating to their clients’ investments. (Id. ¶ 3.)
One step in the process of preparing one of the FINRA reports is for the Goldman Sachs’s
technology and operations areas to send data that will be used to prepare the report, including
certain client information, to its compliance department for validation. (Id.) Goldman Sachs
hired an outside technology consulting firm to assist with this process. (Id.)
On J une 23, 2014, an employee of the consulting firm was testing changes to Goldman
Sachs’s internal reporting and validation process. (Id. ¶ 4.) The employee intended to send a
copy of the internal report to the email address provided to her by Goldman Sachs, which is in
the form “[first name].[last name]@gs.com,” but instead mistakenly sent a copy of the internal
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report to an address in the form “[first name].[last name]@gmail.com.” (Id.) She is not the
owner of the gmail address. (Id.)
The mistakenly sent email contains certain account and client related information (the
“Confidential Client Information”). (Id. ¶ 5.) Goldman Sachs’s clients have a right to maintain
the confidentiality of the Confidential Client Information. (Id.) Furthermore, Goldman Sachs
has an obligation to protect the privacy of its customers’ confidential information. (Id.)
Goldman Sachs has made efforts to retrieve, have deleted or otherwise protect the
mistakenly sent Confidential Client Information. As part of those efforts, on J une 26, 2014,
Goldman Sachs sent an email to the gmail address to which the information was mistakenly sent
requesting that it be promptly deleted and that the recipient confirm in writing that s/he had done
so. (Id.) There has been no response. (Id.) Further, on J une 26, 2014, Goldman Sachs spoke
with an employee on Google’s “Incident Response Team,” who reported that the email could not
be deleted without legal process — i.e., a court order. (Id. ¶ 7)
Absent an immediate injunction to ensure that the mistakenly sent email is not accessed
in any way, Goldman Sachs’s clients face the risk of an invasion of privacy and disclosure of
sensitive, confidential information about themselves and their accounts. (Id. ¶ 8.) Further,
Goldman Sachs faces the risk of unnecessary reputational harm if it cannot reassure its clients
that their privacy is being properly safeguarded. (Id.)
STANDARDS FOR A TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
A party moving for a preliminary injunction generally must show: (1) a likelihood of
success on the merits, (2) irreparable harm, and (3) that a balancing of the equities tips in that
party’s favor. W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 (1981).
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A temporary restraining order “may be granted pending a hearing for a preliminary
injunction where it appears that immediate and irreparable injury, loss or damage will result
unless the defendant is restrained before the hearing can be had.” N.Y. C.P.L.R. 6301.
DISCUSSION
I. GOLDMAN SACHS IS LIKELY TO PREVAIL ON THE MERITS
Goldman Sachs seeks declaratory and injunctive relief to recover Confidential Client
Information that indisputably should not be publicly disclosed. (Compl. ¶¶ 12-21.) Neither
Google nor the email account holder has contended that they have grounds to keep or disclose
the Confidential Client Information. Rather, the email account holder has not addressed the
issue, and Google appears willing to cooperate so long as there is judicial process.
In a materially indistinguishable case, a federal court in California granted a temporary
restraining order requiring Google to block all access to an email containing confidential
customer information that Rocky Mountain Bank mistakenly sent to a gmail account. See
Temporary Restraining Order, Rocky Mountain Bank v. Google, No. 09 Civ. 04585 (N.D. Cal.
Sep. 23, 2009) (attached as Ex. C to the accompanying affirmation of Charles Michael). Two of
the three causes of action hare are substantially identical to the claims here (compare Compl.
¶¶ 15-21 with Michael Aff. Ex. A ¶¶ 19-27), and this Court should likewise conclude that claims
to retrieve inadvertently emailed confidential bank information are sufficiently meritorious to
warrant interim relief.
1


1
Goldman Sachs has added a cause of action for replevin that was not raised in the Rocky
Monutain case but which is clearly meritorious, as well. Replevin requires proof of “[d]emand
upon, and refusal of, the person in possession of the chattel to return it,” In re Peters, 34 A.D.3d
29, 34, (N.Y. 1st Dep’t 2006) and applies in the context of computer data. F & M Schaefer
Corp. v. Elec. Data Sys. Corp., 430 F. Supp. 988, 992 (S.D.N.Y. 1977) (rejecting argument that
“data processing system, being wholly services or intangibles, cannot be made the subject of
replevin”).
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Even if the Court harbors any doubts about Goldman Sachs’s claims, New York law
recognizes that the likelihood-of-success element may be relaxed in circumstances where the
irreparable harm element is particularly strong, such as where denying the preliminary injunction
would render any final judgment ineffectual. Gramercy Co. v. Benenson, 223 A.D.2d 497, 498
(1st Dep’t 1996). As discussed below, those circumstances are present in this case.
II. GOLDMAN SACHS FACES THE RISK OF IMMEDIATE AND IRREPARABLE INJURY
The “disclosure of confidential information” is a “quintessential type of irreparable harm
that cannot be compensated or undone by money damages.” Hirschfeld v. Stone, 193 F.R.D. 175,
187 (S.D.N.Y. 2000); see also Doe v. Greco, 62 A.D.2d 498, 501 (3d Dep’t 1978) (“Public
disclosure of what is now confidential and should remain confidential would lead to an
irreversible breach of that confidentiality. The harms which would naturally flow from disclosure
could not be redressed nor could the parties ever be returned to the status quo ante.”).
Accordingly, courts have found irreparable harm in cases involving threatened disclosure
of personal information and banking information. See, e.g., Krebs v. Rutgers, 797 F. Supp. 1246,
1260 (D.N.J . 1992) (social security numbers); Nat’l City Corp. v. Boyd, 1:08-CV-2189, 2008
WL 4346444, at *3 (N.D. Ohio Sept. 17, 2008) (finding irreparable harm and observing that
“brokerage customers expect their customer information, addresses and account histories to be
secure and the loss resulting from the breach of such security is difficult to quantify”); see also
Michael Aff. Ex. C (TRO in Rocky Mountain case).
Disclosure of the confidential information could happen at any moment, and thus
immediate relief is urgently needed.
III. THE BALANCING OF THE EQUITIES FAVORS GOLDMAN SACHS
The balancing of equities weighs strongly in favor of Goldman Sachs, whose clients,
absent an injunction, face the risk of disclosure of sensitive personal and account information.
(Collie Af f . ^| 8. ) Further, Goldman Sachs faces the risk of substantial and unnecessary
reputational harm i f it cannot reassure its clients that their privacy is being properly safeguarded.
(Id.) By contrast, Google faces little more than the minor inconvenience of intercepting a single
email — an email that was indisputably sent in error.
CONCL USI ON
For the stated reasons, the Court should grant Goldman Sachs's application for a
temporary restraining order and preliminary injunction.
Dated: New York, New York Respectfully submitted,
June 27, 2014
Hillary Richard
Charles Michael
BRU N E & RI CHARD LLP
One Battery Park Plaza
New York, New York 10004
Tel: (212) 668-1900
Fax: (212) 668-0315
Counsel for plaintiff
Goldman, Sachs & Co.
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