Exhibit A 

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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

JONATHAN VILLAREAL, 

individually and derivatively on behalf of

ZROBLACK LLC, 

Plaintiff, 

v.

JOHN SAENZ; MIGUEL VILLAREAL, 

JR.; and GUNN, LEE & CAVE, P.C.; 

Defendants. 

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No. 5:20-CV-00571-OG

DEFENDANT JOHN SAENZ’S SUR-REPLY IN SUPPORT OF HIS RESPONSE IN 

OPPOSITION TO PLAINTIFF’S FIRST AMENDED APPLICATION FOR SEIZURE, 

TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND 

PERMANENT INJUNCTIVE RELIEF 

Defendant John Saenz (“Saenz”), through his undersigned counsel, hereby submits this SurReply in Support of his Response in Opposition to Plaintiff’s First Amended Application for Seizure, 

Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief. In support 

thereof, Saenz states as follows. 

I. PLAINTIFF ALLEGES THAT HE—NOT SAENZ—UPLOADED THE PROPRIETARY CODE TO 

EVERNOTE. 

In his Reply, Plaintiff alleges for the first time that the proprietary code at issue is “stored 

in text files in the application Evernote, a cross-platform note taking application.” Reply at ¶ 4 

(ECF No. 44) (footnote omitted). Plaintiff alleges further that he—not Saenz—“remotely accessed 

[Saenz’s] computer and uploaded the text files containing ZroBlack’s proprietary code to the 

Evernote application.” Id. at ¶ 5. Thus, Plaintiff claims, “[t]he reason that Defendant Saenz’s expert 

has not been able to find the proprietary code is because the numbers and letters that make up the 

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code are saved in text files in the application Evernote.” Unsworn Decl. of Jonathan Villareal at ¶ 

8 (ECF No. 44-4).1

II. DATA UPLOADED TO EVERNOTE RESIDES IN WEB-BASED CLOUD STORAGE, NOT ON 

SAENZ’S LAPTOP. 

Evernote is a web-based application. See April 5, 2021 Aff. of Steven S. Broderhausen at 

¶ 4, attached as Exhibit 1. When a user uploads data to Evernote, the data is stored in a web-based 

storage cloud. Id. The user may then access the uploaded data from a device (e.g., smart phone, 

tablet, laptop) by running the Evernote application and logging in to the user’s Evernote account. 

Id. The data is not stored on the device on which the Evernote application runs. Id. A user may 

access uploaded data and copy it to a personal device, but simply accessing the data through 

Evernote does not copy the data to the user’s device. Id. 

III. THE ALLEGEDLY PROPRIETARY CODE DOES NOT RESIDE ON SAENZ’S LAPTOP. 

Even if Plaintiff’s allegations are true—that he remotely accessed the laptop and uploaded 

the alleged proprietary code to the Evernote application—there is no evidence that the allegedly 

proprietary code was copied from Evernote to the laptop itself. Indeed, “the numbers and letters 

that make up the code are saved in text files in the application Evernote,” Unsworn Decl. of 

Jonathan Villareal at ¶ 8 (emphasis added), but not on the laptop itself. See February 4, 2021 Aff. 

of Steven S. Broderhausen (ECF No. 42-2) at ¶¶ 5–6; see also Ex. 1 at ¶¶ 5–8. 

1

 Saenz objects to Plaintiff’s Unsworn Declaration on the basis that it is factually inconsistent on 

its face. Compare Decl. at ¶ 9 (stating laptop at issue was purchased May 2, 2020) with Decl. at ¶ 

14 (alleging laptop was in Finland on May 7, 2019, a year prior). Therefore, Plaintiff’s Unsworn 

Declaration is insufficient to support his allegations. See Freeman v. City of Fort Worth, No. 4:10-

CV-888-Y, 2011 U.S. Dist. LEXIS 72963, at *11 (N.D. Tex. July 7, 2011) (finding “selfcontradictory” affidavit was “insufficient to create a dispute of fact as to any material issues”) 

(citing Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984)). 

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Saenz’s laptop does not contain any proprietary code, nor does it contain any computer 

code, data, or other trade secrets capable of performing ZroBlack’s security services. February 4, 

2021 Aff. of Steven S. Broderhausen at ¶ 6.; Ex. 1 at ¶ 8. The laptop does not contain any of the 

files identified at paragraphs 9, 10, and 17 of Plaintiff’s Unsworn Declaration. Ex. 1 at ¶ 5. 

Because there is no evidence that the proprietary code was copied from Evernote to the 

laptop—only evidence that the laptop has no such code—Saenz respectfully requests that the Court 

deny Plaintiff’s First Amended Application for Seizure, Temporary Restraining Order, Preliminary 

Injunction, and Permanent Injunctive Relief. 

Respectfully submitted this 6th day of April 2021.

By: /s/ Ryan J. Sullivan

David A. Vanderhider 

State Bar No. 24070787 

DVanderhider@dykema.com 

Ryan J. Sullivan 

State Bar No. 24102548 

RSullivan@dykema.com 

DYKEMA GOSSETT PLLC 

112 East Pecan St., Suite 1800 

San Antonio, Texas 78205 

(210) 554-5500 – Telephone 

(210) 226-8395 – Facsimile 

Attorneys for John Saenz

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CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing was electronically filed with the Court on the 

6th day of April 2020, and electronically served on the date reflected in the ECF system upon all 

parties registered to receive notice pursuant to the Court’s CM/ECF system. 

By: /s/ Ryan J. Sullivan 

Ryan J. Sullivan 

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EXHIBIT 1

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