time so let me just go to some facts here it looks so these fellows leave about last year around it's about this time  who uses hernandez's browsing history from his s t g years sure design computer to access information that's on there correct he went on to after so he went to a facebook account good information with respect to a bank account and the good information with respect to  dropbox correct in this is all it set forth in our expert report that we submitted to the district court i'm not sure if i can opine on the order of what happened but as we see it he goes on the laptop computer i think he's getting he's testified to this he was clicking everything he could find on that computer looking for anything you could find he makes his way into the facebook the private and password protected facebook messenger came up and he finds communications between and amongst the defendants as well as communications mr hernandez was having with other individuals having no relation to this last set of user certain software that the person whose information he is seeking doesn't plaintiff from seeking retaining equitable relief in this case doesn't the case law say that even if there was illegality or in writing that alone is not sufficient to invoke the doctrine and don't those who are seeking the doctor in this case the defendants have to also show a related ness between the alleged unclean behavior by plaintiffs and plaintiffs cause of action which is the breach of loyalty don't have to show that really didn't do your honor and how do you show that here when the breach of someone can find the case that no one in in our case has that this is an issue of first impression we're going to some district court opinions that have had a circumstance sort of like this and said that the use dropping is not  on to the computer after these individuals left the company they find past communications that's true there is that the complaint this complaint cites to and has screenshots of but they didn't just stop but that they also continued to look at communications that the individuals were having well after well after this communication well after they left we submit to the court they did that because they were trying to find additional evidence to build their case so what happened here is the core foundation of this case are those facebook messages i think any fair reading of the complaint is going to indicate that the good messages are screenshot it and are shown in isolation in the complaint and that's the fundamental basis for this lawsuit and for their requests for client and intellectual property that's their argument of the point that's what they're seeking they want to stop that your point is proof of their breaches come from being used try and prove that was sufficient were which same thing yet that purpose this discussion none of that created some kind of right in the plaintiffs that they didn't sought to capitalize on they had a preexisting right to their own client lists their own intellectual property and they had a right to expect two in the can in connection with the request for equity and there what the court said was it's not about letting defendant up the hook it's not about you know they're excusing them for their conduct it's about the court's own integrity that's what application of the unclean hands the fence is about in this court and isn't then decision to be made by the court itself or as to whether its integrity has been breached by the court's decision well that the district court didn't really used by the courts to preserve the integrity of the proceedings and what i would submit to the court is whereas here you have evidence that was in appropriately obtained that evidence was then used as the foundation for both the lawsuit and the request for equitable relief and the court relied on that information in granting the injunction do you think the horse integrity is at issue i believe in it's this illusion do you think the court might have weighed the obtaining of information through the hacking or going into the defendant's computer with the m h that of the intellectual property you think the court might  weighed in bounds those two competing interests we all know your honor we don't know because the court really didn't provide a balancing test for its decision the court what the court said was that there was a a disputed issue  find it as i think was asking his didn't we can read from the district's opinion it did do some kind of consideration sort of balancing for using kind of your best context of likely of success because it was our position and we had deposition testimony from representatives of exton that that testified that they pulled the word from s t g not because of anything to word or improper that our clients did but because list or other information they have a claim for damages but the case is moving forward in and i made the point about the about the dismissal because that's that they have some some i think some language in there in their opposition group which seems to indicate that we're asking for more than  decision they told everything in place until we get to the merits of this problem via a temporary restraining order that's where we've been for the past eight months in the case and so you were here today because we believe that that that the related to the case before the court so there's a relatedness issue if somebody is saying alleging that about a year ago there was a breach of loyalty and then subsequent to that several weeks subsequent to that there was for lack of a better word hacking into the account how does the hacking into the account whether it be bad or against the law of whatever ha anything to do we laid into the breach of the duty of will to well because if you're looking at the breach of duty of wilkie in my view you're looking at the merits of the clarion junction application you're looking at the likelihood of success pran of the standard  our position is you don't get there you get to the unclean hands issue being a threshold issue the court has to decide in to your question i'll repeat what i said earlier it's our position that the that the factual basis for both the lawsuit the request for injunctive relief we're taking in appropriately through these facebook messages accounts and that's why we're asking for the court to apply the unclean has your position be different it the district court didn't rely it all on the communications the fact of the intrusion before hypothetically the fact of the intrusions before the district court the district court sees the complaints as you know i'm not going to rely on any of those communications i think there is sufficient evidence in front of me to issue the would you be here i'm unclean hands i think we still would be your honor because it's our view from experience a good first hand i can tell you that the information that set forth that those texts screenshots that are in the complaint we believe take that to judge whether or not worry mid feb to mid march it would take them off the table i'm not going to look at them at all and consider considering what to do here and i'm using my discretion in balancing that the before factors here everything in the browser history so if it is called banking information to say a piastre tain that someone had an account and such as such a bank then that's backing information but that would not be considered private information breaking it was was was well would it not have the information absolutely would have for two reasons one is that it would have been impossible for it to realize that a substantial number of its clients have left for no obvious reason and that the work of the small community of the world of the world of telecommunications towers construct our constructions it would have come to the attention of our client that led s t g to believe that the employees who left were breaching their loyalty before he became privy to the facebook messages we obviously know from the recitation of the facts that  up not doing business with us d g ended up doing business with mr schwartz and and one of the individuals who left before that individual left and that's what we know from the chronology preheating but the question i have is i think very similar to judge appointed is was there anything that would  that asked as d g to do work as d g turned it down and that's why the work walks in fact with the record subsequently showed was that the there was a confederate of the defendants who  gerstenfeld got from hernandez's facebook account how much of that was used in connection with the complaint it was found on march ninth a great deal absolutely so how can you say that the it wasn't related to the duty of loyalty that information that was found by the six weeks of five or six weeks of providing a better word hacking it was related to time but what also became very apparent was that a wealth of data and information have been painstakingly assembled cole aided organized and stored b attachment to the respective workstations of the departing employees before they left of portable media which would allow them to download data in the files which would not have the necessary in the normal course of their work because they had a laptop so there is no reason for them to download data what they were doing in fact and which was the cause which this corroborated this with important point of the complaint the audit trail that mr gerson felt was able to establish using the normal window auditing tools it it has to demonstrate an immediate necessary relationship between the challenge conduct in the claims for me and the challenge conduct here is the alleged hacking and the claims for relief you're making the breach of loyalty is there the disloyal acts took place beforehand it would be speculation for anyone to say whether a lawsuit would have eventually been brought or not but he ended the day what defendants are saying is that this is not an attempt to transport the criminal doctrine of the fruit of the poison tree to a simple case no it's unclean hands but i would ask the court to reflect on what exactly would be the distinction between the because in fact look what we've heard is the foundation of the lawsuit and the threshold issue was the information in other words if they didn't have this information they never would have found us out of it never would have found us they would have had a lawsuit that's the that's the part of the poison tree and that does not apply in a civil case this is discover information and there may very well be a claim in fact there are help your claims sounding in the alleged invasion of privacy that doesn't vitiate the conduct that was enjoined and it also doesn't in terms minor standing from mr gracewood problems testimony is that there were two stages here one was what i should back up a little bit on the chronology the three three of the four defect individual defendants ga of their resignations approximately the same day and when they were asked to cooperate with transition the briefing handing over materials they agreed and then they subsequently retracted their agreement after a day in the office this raise suspicions mr gorst about was instructed by management the record shows to see if there was anything on the computer that would indicate any misconduct he then went through the browser history the native proud history not using any special software that's when he discovered the facebook messages all we after that happened did he get the analytical tools to see what else he could learn so there is a difference or other that some point to use nurse on to to recover deleted facebook messages i'm not sure that that is i think the i'm not sure that if you're if that's look nurse off that's its purpose you're saying maybe that they dispute they're saying that the verse off was used to recover deleted messages you're saying that the messages were not to leave yet is not on without the if you have a facebook account if i access that that's not right is it it might not be but it might be but it might not rise to the level of unclean hands sufficient to overcome the record o determination of a judge in this case of the equities and based on the fact you make a mess of the behavior complained of which is absolutely a relevant consideration because i mean if you have a policy that says ok have gotten this was by using magic and using tools if he didn't think if his expectation was not that the information that he had left on the computer would be reviewed and that access that he had left a vailable with computer have been reviewed he would not have to do what he says he did and what you have will think is to be pretty mean we don't know what happened because it's in dispute is to whether he had deleted them or not deleted them but you would think the usual human being would be pretty careful to delete know you was not he with that he deleted it which means that is about his expectation was that if you didn't delete it it would be read by as d j so wouldn't it be better if if somehow that fact were determined at some point in connection with this probably be more period for a permanent injunction or should that fact be determined before the injunction analysis is done it appears that the judge did not alert the judge thompson did not find it the record was sufficiently well developed of it that the matter was in dispute and i should point out she will live acts ever do in the what issues might come up on appeal she had no difficulty finding in the record not only corroboration of the facebook claims but a wealth when you found the complaint what were some of the items on the facebook account of mr  discussions of the glee with which they anticipated seeing s t g not only reveal to them as competitors but actually be destroyed and go out of business precisely the things that any advocate given such information would include in  and then you say that despite what is claimed here that there was no looking at the bank account there on there that is absolutely there's nothing in the record to support this suggestion what was the basis for the claim that there was that th ey had looked into his account that mr gerson fell click through every place that had been visited that was found in the browser history so we got to a got to a banking account got there no passwords what's it became evident that there was this aspect of disloyalty and information data client files client contacts were being transferred there was concern that perhaps payments and therefore nothing happened or not none of that information relating to the bank account was was used in connection with the point there was no information can start with you and i don't think it's a huge issue but the reason we allege that the bank accounts were at least attempted to be accessed is because that's what our forensic computer expert found when he had the mirror image of the hard drive  laptop and that's it a two forty three of the appendix where you could see multiple instances of mr gerstenfeld attempting to access the same bank of america bank account as well as a yahoo back wall as well as a yahoo account here it even says that the that there was an error to try to get in the in the narrative as to what was happening with the access to that so i think what this requirement is saying is that he tried but nothing was fruitful but if oh crikey we're not we're not to build a factual foundation for a lawsuit and for requests for equitable relief based upon those intercepted communications system clean hands it's really a tradition i mean it's for the court to ensure and preserve the integrity of proceeding court and it seems to me it would be a high bar to scale to never tell the judge times in new york abuse your discretion even though with the judge is trying to do the course is to preserve the status quo district courts integrity is absolutely a play when the circumstances presented here were that they used intercepted communications to the as the basis for the lawsuit requests michael were we i mean employer they know about good customers and they go out and they try to gain those customers for themselves when they start up their own entity and really why if that happens i'm not saying you know who's right or wrong here but if that happens it then you've got a a problem for bad conduct on behalf of the employees who left and not applying it to the serious the employer has bad conduct let's say in without consent looking into an account what stops a district judge from saying you know what until i resolve this finally with regard to a permanent injunction hearing i'm just going to preserve the status quo nothing prevents a district court from doing that that's what happened here but you say it was  yes because because the lawsuit is predicated on legally fact information that the plaintiff got through improper means but they're also saying that there were a lot of examples of bad conduct information other than the facebook account that's all they knew at the time they filed suit and and thereafter they serve a document demanding produce or you facebook pages none of this is protected it's getting disclosed and at that moment they come in and se