OPINION AND ORDER
WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Amedisys Holding, LLC's Motion for a Preliminary Injunction  and Motion for Leave to File Supplemental Exhibits in Support of its Motion for Preliminary Injunction . The Court, having considered the memorandum submitted by the parties, as well as the arguments of counsel and testimony presented at the May 23, 2011, hearing on Plaintiff's injunction motion, now considers Plaintiff's request for preliminary injunctive relief.
Plaintiff Amedisys Holding, LLC ("Amedisys") and Defendant Interim Healthcare of Atlanta, Inc. ("Interim") compete in providing home healthcare and hospice services. They each employ sales representatives who meet with doctors and other healthcare practitioners to encourage those clinicians to refer patients in need of home healthcare and hospice services. On April 18, 2011, three Amedisys sales representatives, Defendants Jennifer Mack ("Mack"), Brenda Hogan ("Hogan"), and Denise Cathey ("Cathey") (collectively the "Individual Defendants"), resigned from Amedisys to begin employment at Interim. Amedisys alleges that the Individual Defendants took confidential and trade-secret materials before they left and have used those materials at Interim.
The trade-secret materials at issue in this case are known as the "Referral Logs" and the "Workbook." The Referral Logs are a resource to track patient referrals. They contain detailed information regarding current and prospective patients. Amedisys employees use the Referral Logs to target their sales efforts to particular clinicians and facilities most likely to refer patients to Amedisys.
On April 12, 2011, six days before she left Amedisys, Defendant Mack sent a copy of the Referral Logs from her Amedisys email account to her personal email
In the days after the Individual Defendants left Amedisys, several Amedisys employees saw the Individual Defendants soliciting business at local hospitals and patient care centers. Amedisys contends that the Individual Defendants have and continue to use the Referral Logs and the Workbook to compete against Amedisys at their new employer Interim.
On May 4, 2011, Plaintiff filed the Complaint in this action, alleging that the Individual Defendants and Interim (collectively "Defendants") took Amedisys' trade secrets to unfairly compete in the provision of healthcare and hospice services. The Complaint lists eight causes of action, including: (1) violation of the Stored Communications Act, 18 U.S.C. §§ 2701, 2707; (2) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; (3) misappropriation of trade secrets, O.C.G.A. § 10-1-760 et seq.; (4) Computer Theft and Computer Invasion of Privacy, O.C.G.A. § 16-9-93; (5) breach of fiduciary duty and employee duty of loyalty; (6) tortious interference with business relations; (7) trover/conversion of corporate property and assets; and (8) breach of contract.
Plaintiff also sought a Temporary Restraining Order ("TRO") requiring (1) the Defendants to return any Amedisys trade secret materials they had in their possession or to which they had access; (2) the Defendants to submit to a forensic audit of their computer systems; and (3) prohibiting the Individual Defendants from soliciting business on behalf of Interim. Defendants opposed the motion on several grounds. In support of their opposition, Mack and Hogan submitted declarations, made under oath, to the Court.
In her declaration, Mack admitted to sending herself a copy of the Referral Logs on April 12, 2011, but claimed that she did not do so with the intention of using it at Interim. Mack stated that:
On May 6, 2011, the Court held a hearing on Plaintiff's Motion for a TRO. Counsel for the Individual Defendants explained to the Court that the Individual Defendants "represented in their declarations and they've affirmed here today that whatever they have was inadvertently maintained and they are willing to delete it and return it and they certainly haven't used or disclosed it, provided it to Interim Healthcare. They don't need it, they don't want it. It doesn't help them in their business." (Tr.  at 19.) Based on these representations, the Court denied Plaintiff's request to temporarily restrain the Individual Defendants from soliciting business from clinicians. The Court, however, required Defendants to (1) refrain from using any Amedisys information; (2) return any Amedisys material by May 9; and (3) submit to a third party forensic examination of their computers .
On May 18, 2011, Plaintiff moved the Court for an order preliminarily enjoining the Defendants from using Amedisys' trade-secret information and enjoining the Individual Defendants from soliciting new patients for Interim from doctors and other healthcare providers with whom they had contact while employed by Amedisys. Plaintiff argued that Mack and Hogan made several misrepresentations in the declarations filed with the Court, that the Court should not trust them, and that a preliminary injunction is necessary to protect Amedisys' confidential business information.
Based on information developed during discovery after the TRO hearing, Amedisys now contends that Mack made several misrepresentations in her declaration. Mack stated in her declaration that she sent copies of the Referral Logs to herself, by email, almost every month for years. (Mack Decl. at 2.) In her deposition, however, Mack could not recall any occasion where she sent herself a copy of the Referral Logs, aside from the April 12, 2011, email. (Mack Dep. at 133:14-134:2.) Mack also testified that when she signed her declaration, she did not have a basis for her statement that she sent the Referral Logs to her personal email address "almost every month for years." (Id. at 133:4-18.)
Amedisys also contends that Mack misrepresented why she sent the Referral Logs to herself. Mack stated in her declaration that she sent the Referral Logs to her personal email account on April 12, 2011, so she could work on them from home and add additional patients who had been referred during the previous month. (Mack Decl. at 2.) Mack, however, had already completed this update work and had, on April 11, 2011, sent the updated report to her supervisor. (McDonald Decl. ¶¶ 6-8.)
Amedisys further contends that Mack misrepresented the usefulness of the Referral Logs. In her declaration, Mack stated that the Referral Logs did not help her at Amedisys because she had worked for the same ten healthcare providers for years and knew their contact information by heart. (Mack Decl. at 1.) Mack's new position as Vice President of Business Development
Plaintiff also introduced evidence that Hogan misrepresented the usefulness of the Workbook. In her declaration, Hogan stated that she seldom used the Workbook while at Amedisys and that it would not help her in her duties at Interim because she knew her referral sources by heart. (Hogan Decl. ¶¶ 3, 8.) Hogan testified in her deposition that, while employed at Amedisys, she printed a copy of the Workbook each time she received a copy by email and used the Workbook to determine which doctors to visit. (Hogan Dep. at 108:22-109:2.) At her deposition she was able to recite, by memory, the persons who served as her referral sources while at Amedisys. (Id. at 155:12-160:3.)
On May 23, 2011, the Court held a hearing on Plaintiff's Motion for a Preliminary Injunction. Because Plaintiff's primary basis for relief was the alleged misrepresentations made by Mack and Hogan, the hearing focused on the truthfulness of the statements made by Mack and Hogan and which were communicated to the Court by their counsel.
Mack testified at the hearing that:
Perhaps most troubling is the timing of the April 12, 2011, email. Mack testified that she made the decision to join Interim the weekend of April 16 and officially accepted the job at Interim on April 18, the day she left Amedisys. (Id. at 23, 24.) Plaintiff, however, introduced an April 14, 2011, email exchange between Interim and Mack that directly contradicted her testimony to the Court under oath. The email, entitled "My wish list," detailed several things Mack requested for her "roll out" at Interim, including business cards and letterhead. (Pl's Ex. 61 at 3.) Mack also stated in the exchange: "THANK YOU
Brenda Hogan also testified at the hearing and the Court found her testimony credible. Hogan explained that she had worked in the industry for over twenty years and during that time she had developed substantial relationships, both professional and personal, with the clinicians who refer patients to her. (Id. at 121-23.) Because of these relationships, Hogan did not need the Workbook or other Amedisys materials to know who to contact to generate business. (Id. at 123-26.) Hogan credibly testified that she inadvertently retained a copy of the Workbook when she left Amedisys.
On May 25, 2011, two days after the hearing, Amedisys filed a Motion for leave to file supplemental exhibits in support of its motion for a preliminary injunction . Amedisys asked the Court to consider a May 4, 2011, text message to Mack from one of her subordinates at Interim, Donnisha Barnes. The "Barnes Message," sent on the day Amedisys filed the Complaint, stated:
Mack responded, the day after the Complaint was filed, stating:
Amedisys also offered an email exchanged between Interim executives dated April 8, 2011. The email referred to Mack as Interim's "new Director of Business Dev[elopement]." This email further confirms that Mack had been untruthful when she testified at the hearing that that she had not accepted a job with Interim before she sent the Referral Logs to herself. Mack's self-serving response to the Barnes Message further discredits Mack's testimony. Importantly, Mack did not deny she had informed Barnes that she had a "cheat sheet" at some time which could be used to target Interim's business solicitation. She simply stated she did not have the materials, which Amedisys, in its Complaint, accused her of taking.
To be eligible for a preliminary injunction a movant must show: (1) a substantial likelihood of prevailing on the merits; (2) that Plaintiff will suffer irreparable injury if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the opposing party; and (4) that if granted, the injunction would not be adverse to the public interest. Fed.R.Civ.P. 65; see Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir.2005); Parker v. State Bd. of Pardons and Paroles, 275 F.3d 1032, 1034-35 (11th Cir.2001); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988). Preliminary injunctive relief is a drastic and extraordinary remedy which should not be granted unless the movant can clearly establish each of the four elements. Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 (11th Cir.2003). "The burden of persuasion on all of the four requirements for a preliminary injunction is at all times upon the plaintiff." Canal Auth. of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir.1974).
A. Likelihood of Prevailing on the Merits on Plaintiff's Claim for Misappropriation of Trade Secrets
"A claim for misappropriation of trade secrets under the Georgia Trade Secrets Act [the "GTSA"] requires a plaintiff to prove that `(1) it had a trade secret and (2) the opposing party misappropriated the trade secret.'" Capital Asset Research Corp. v. Finnegan, 160 F.3d 683, 685 (11th Cir.1998) (quoting Camp Creek Hospitality Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1410 (11th Cir.1998)).
i. Trade Secrets
The GTSA defines trade secrets as confidential, proprietary information not commonly known by the public that: "(A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (B) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." O.C.G.A. § 10-1-761(4). Trade secrets can include methods, financial plans, product plans, or lists of actual or potential customers. Id.
The parties dispute whether the Referral Logs and the Workbook constitute trade secrets. Amedisys contends the Referral Logs reveal which doctors refer which patients to Amedisys and allow its sales representatives to identify which patients require long-term care and are susceptible to "poaching" by a competing home healthcare provider. The Workbook, Amedisys claims, contains information about how often certain clinicians refer patients to in-home care, for what ailments they recommend in-home care, and which in-home care providers receive the referrals. The Defendants argue that the Referral Logs and the Workbook simply contain a collection of names of healthcare providers and facilities, and such information does not constitute a trade secret.
Plaintiff has satisfied its burden of establishing that the Referral Logs and the Workbook constitute trade secrets. The Referral Logs and the Workbook are more than a list of names of healthcare providers and facilities. They are not simply a directory of healthcare providers. They contain valuable, proprietary information uniquely known to Amedisys, and which is not publicly available. This information, which Amedisys collects, evaluates, analyzes, and arranges, enables Amedisys employees to make informed, fact-based decisions on where to focus their business solicitation efforts. It is this information that transforms an ordinary list of doctors
While the names of the doctors and healthcare centers could be developed in the logs by other means, including through a cumbersome and time-intensive deconstruction of medical directories, visitation to hospitals, internet searches,
The evidence also shows that Amedisys undertook reasonable efforts to maintain the confidentiality of the Referral Logs and Workbook.
The Court next considers whether the Defendants misappropriated the trade secrets belonging to Amedisys. A person misappropriates a trade secret by acquiring it improperly or disclosing it without consent. O.C.G.A. § 10-1-761(1), (2) (defining "improper means" as including "theft, bribery, misrepresentation, breach or inducement of a breach of a confidential relationship or other duty to maintain secrecy or limit use, or espionage through electronic or other means.")
Plaintiff contends that Mack misappropriated Amedisys' trade secrets when
The Barnes Message confirms Mack's untruthfulness and that she is conceding her possession and use of Amedisys' confidential information.
Amedisys contends that Hogan misappropriated Amedisys' trade secrets when she kept her Workbook after resigning. Hogan testified that she kept her copy of the Workbook in her carry-all bag and that she inadvertently took it with her when she left Amedisys. (Tr.  at 133-35, 139.) When Amedisys asked for the Workbook back, she promptly returned it. (Id. at 138-40.) Hogan further testified that she rarely used the Workbook while at Amedisys, and that she only looked at it once every quarter to see if any doctors had been added or removed from her territory. (Id. at 124.) She also stated that over her many years in the industry she developed close personal and professional relationships with the majority of the doctors who referred patients to her. (Id. at 125.) Because of these relationships, Hogan did not need the Workbook to know
The Court finds Hogan's testimony credible. The Court believes that Hogan inadvertently failed to return the Workbook after leaving Amedisys and did not, and had no intent to, use the Workbook to compete against Amedisys. The Court concludes that Plaintiff has failed to show a substantial likelihood of prevailing on its trade secret claim against Hogan.
Plaintiff has not offered any evidence that Cathey took or received any trade secrets. Amedisys, instead, argues that because Cathey works as an assistant to Mack, Cathey inevitably will use material Mack misappropriated from Amedisys. Plaintiff's speculation about use of misappropriated material is insufficient to meet Plaintiff's burden to show a likelihood of prevailing on the merits. The requested relief, with respect to Cathey, is denied.
Amedisys argues that "[b]y allowing Mack, Hogan, and Cathey to continue soliciting healthcare facilities, providers, and patients with whom they had contact or about whom they obtained information for Amedisys, Interim has misappropriated Amedisys trade secrets." (Pl's Br. [25.1] at 12.) Amedisys relies on Bennett v. United States, to argue that Interim is liable for the acts of its employees. 102 F.3d 486, 489 (11th Cir.1996). In Bennett, the Eleventh Circuit considered whether the United States could be held liable for a soldier's accidental shooting on an army base. Id. at 488. The court looked to Georgia respondeat superior law and noted that "Georgia courts will hold an employer responsible for the conduct of its employee if the employee acted in the course of the employer's business and with a desire to benefit the employer." Id. at 489. Conversely, "when an employee undertakes an act purely personal in nature, no respondeat superior liability may be imposed." Id. The Eleventh Circuit noted that "[t]he question of whether a given act falls within the scope of employment is highly fact-specific, and turns on the unique circumstances of the case at bar." Id.
In this case, Plaintiff has established that Mack acted within the scope of her employment with Interim when she continued to use the misappropriated Referral Logs to solicit patients.
B. Irreparable Harm
The Court concludes that Amedisys will suffer irreparable harm if Mack is allowed to solicit patients from the same doctors and facilities that were referenced
Because of Mack's repeated misrepresentations, the Court simply cannot trust that Mack no longer has a copy of the Referral Logs, or has not maintained a copy of the Referral Logs in some other form, or that she will not use the Referral Logs to compete unfairly with Amedisys. Mack misrepresented (1) how often she sent herself the Referral Logs; (2) why she sent herself the Referral Logs; (3) how useful the Referral Logs would be to her at Interim; (4) when she accepted the position at Interim; and (5) whether she intended to use the Referral Logs at Interim. Based on these misrepresentations, the Court concludes that Mack and Interim are required to be prevented from allowing Mack to solicit healthcare facilities and providers of patients that are listed in the Referral Logs that Mack transmitted to her personal email account on April 12, 2011.
C. Balance of the Harms
The balance of the harms favors Amedisys. If Mack continues to unfairly compete, Plaintiff stands to lose significant revenue and the value of its trade secrets will erode materially. Mack, on the other hand, "cannot suffer compensable harm when enjoined from an unlawful activity." Specialty Chem. & Servs., Inc. v. Chandler, No. Civ. 1:87-cv-2338MHS, 1988 WL 618583, at *4 (N.D.Ga. Sept. 29, 1988); see MediaOne of Delaware, Inc. v. E & A Beepers and Cellulars, 43 F.Supp.2d 1348, 1354 (S.D.Fla.1998). Interim also will suffer little harm as it is merely prohibited from allowing Mack to continue to use the information contained in the misappropriated Referral Logs.
The Individual Defendants argue that if the Court grants an injunction, Mack "will be precluded from maintaining gainful employment in the field and industry in which [she has] extensive experience." (Individual Def.'s Opp'n  at 23.) This is simply not true. The Court is only enjoining Mack from soliciting healthcare facilities and patients referenced in the Referral Logs that Mack misappropriated from Amedisys. Mack is permitted to solicit healthcare facilities, providers, and patients that were not listed in the Referral Logs. Interim argues that Amedisys is trying to subject Mack to a non-competition agreement, where no such agreement exists. The proposed injunctive relief prevents only a subset of competition. It does not prohibit Mack from competing or engaging in other meaningful work for Interim. It also does not prohibit Interim from competing, it simply prohibits Interim from allowing Mack to compete unfairly. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1547 (11th Cir.1987) ("We review the district court's order [issuing an injunction] only for an abuse of discretion; `[t]he trial judge's ability to formulate a decree tailored to deal with the violations existent in each case is normally superior to that of
D. Public Interest
An injunction prohibiting Mack from soliciting patients from doctors and facilities that are referenced in the Referral Logs she took from Amedisys will best serve the public interest. There is a strong public policy in favor of promoting fair competition. MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1243 (11th Cir.2005); Salsbury Labs., Inc. v. Merieux Labs., Inc., 735 F.Supp. 1537, 1544 (M.D.Ga.1987) ("public interest favoring competition `does not mean that defendants are entitled to free access to plaintiff's trade secrets nor does this mean that defendants may compete unfairly.'"). There is also a strong public policy for protecting trade secrets from misappropriation. Wesley-Jessen, Inc. v. Armento, 519 F.Supp. 1352, 1361 (N.D.Ga.1981). Allowing Mack to compete unfairly and use Amedisys' trade secrets would undermine those policies.
E. Remaining Claims Against Mack
In addition to its trade secret claim, Plaintiff alleges that Mack violated the Computer Fraud and Abuse Act ("CFAA"), the Store Communications Act ("SCA"), and breached her employment contract with Amedisys. The Court concludes that Plaintiff has shown that it has a substantial likelihood of prevailing on the merits of each of these additional claims against Mack.
The Computer Fraud and Abuse Act ("CFAA") provides a private cause of action against a person who "accesses a computer without authorization or exceeds authorized access," to obtain "information from any protected computer." 18 U.S.C. § 1030(a)(2)(C). The CFAA defines the term "exceeds authorization" as "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled to obtain or alter." Id. § 1030(e)(6).
Plaintiff contends that Mack exceeded her authorized access by sending Referral Logs to herself for reasons that had nothing to do with her work at Amedisys. (Pl's Br. [25.1] at 13.) While there is some question of whether Plaintiff generally permitted Mack to send the Referral Logs to her personal email account, there is no question that Mack exceeded any authority she had when she sent them to herself after accepting a position at Interim for use in competing with Amedisys.
Plaintiff similarly alleges that Mack violated the Stored Communications Act ("SCA") by sending herself the Referral Logs. The SCA imposes civil liability on those who "intentionally access without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby
The Court also agrees that Mack likely breached her employment contract with Amedisys. Mack's employment contract required her to return any confidential information to Amedisys upon leaving the company. Mack clearly retained a copy of the Referral Logs after leaving Amedisys and Plaintiff has shown that it is likely to succeed on the merits of its breach of contract claim against Mack.
For the foregoing reasons,