IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FIDELITY BROKERAGE SERVICES LLC, )

)

Plaintiff, )

) Case No. 1:20-cv-2133

v. )

) REDACTED VERSION FILED 

JENNIFER TAYLOR, FAIRHAVEN WEALTH ) PURSUANT TO LOCAL RULE 26.2

MANAGEMENT, LLC, )

) HEARING REQUESTED

Defendants. )

DEFENDANTS’ OMNIBUS RESPONSE BRIEF

IN OPPOSITION TO PLAINTIFF’S MOTIONS FOR 

PRELIMINARY INJUNCTION AND DISCOVERY SANCTIONS 

Defendants, Jennifer Taylor and Fairhaven Wealth Management, LLC, by and through 

their undersigned counsel, respectfully submit this omnibus response brief in opposition to 

Plaintiff, Fidelity Brokerage Services, LLC’s motion for preliminary injunction (Dkt. 4), including 

Fidelity’s memoranda of law dated April 3, 2020 (Dkt. 5) and February 5, 2021 (Dkt. 82), and to 

Fidelity’s motion for discovery sanctions (Dkt. 84). Defendants respectfully request a hearing and 

oral arguments before the Court – either in-person or via videoconference – on these motions.

GREIMAN, ROME & GRIESMEYER, LLC

205 West Randolph Street, Suite 2300

Chicago, Illinois 60606

(312) 428-2750

Christopher S. Griesmeyer 

cgriesmeyer@grglegal.com

Zachary Mulcrone

zmulcrone@grglegal.com

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .................................................................................................... 1

FACTUAL BACKGROUND......................................................................................................... 4

FIDELITY’S DECLARATIONS ................................................................................................... 9

LEGAL STANDARD FOR PRELIMINARY INJUNCTIONS .................................................. 13

ARGUMENT IN OPPOSITION TO PRELIMINARY INJUNCTION MOTION...................... 13

I. FIDELITY WILL SUFFER NO HARM (BUT, IF IT DID, MONEY DAMAGES WOULD SUFFICE)

................................................................................................................................14

A. No harm is threatened. ................................................................................. 14

B. No imminent harm is threatened. ................................................................. 16

C. Money damages can remedy any possible harm.......................................... 17

D. There is no presumption of irreparable harm here....................................... 20

II. FIDELITY HAS NO LIKELIHOOD OF SUCCESS ON THE MERITS ....................................20

A. Fidelity has no likelihood of success on its claim for breach of the

confidentiality provision. ............................................................................. 23

1. The confidentiality provision is unenforceable, whether or not it 

purports to protect client names.................................................... 23

2. If names of former clients are confidential, then the confidentiality 

provision is unenforceable. ........................................................... 25

B. Fidelity has no likelihood of success on its trade secret claim. ................... 26

1. Fidelity does not identify precisely what trade secret is at issue. . 26

2. Fidelity has done nothing to keep its customer names a secret. ... 27

a. Mr. Duserick’s declaration does not establish secrecy. ........ 27

b. Fidelity does not prohibit clients from disclosing the 

relationship......................................................................... . 28

c. Fidelity has not kept client names secret in this lawsuit. ...... 29

3. Fidelity’s customer names are not trade secrets, whether or not 

Fidelity kept them secret............................................................... 30

a. Fidelity admits names alone are not trade secrets................ 30

b. Fidelity customers are not a “needle in a haystack.” ........... 30

4. Ms. Taylor has not misappropriated any trade secrets.................. 31

C. Fidelity has no likelihood of success on a breach of loyalty theory. ........... 32

D. Fidelity’s claim for breach of the non-solicitation covenant is irrelevant 

here............................................................................................................... 33

1. The non-solicitation covenant is unenforceable. .......................... 34

2. Fidelity has offered no evidence of solicitation............................ 35

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iii

III. THE BALANCE OF HARMS WEIGHS AGAINST AN INJUNCTION .....................................37

IV. THE COURT SHOULD NOT ENJOIN FAIRHAVEN ..........................................................39

OPPOSITION TO SANCTIONS MOTION ................................................................................ 39

I. MS. TAYLOR DID NOT SPOLIATE ANY TEXT MESSAGES ..............................................39

A. Fidelity offers no evidence of spoliation. .................................................... 40

B. Text messages with clients are irrelevant to this proceeding....................... 40

C. Fidelity has not shown the discovery cannot be replaced............................ 41

D. Fidelity has not shown “intent to deprive” under Rule 37(e)(2).................. 41

II. MS. TAYLOR DID NOT SPOLIATE CONTACT CREATION DATES .....................................41

A. Fidelity never asked Ms. Taylor to produce phone contact creation dates.. 42

B. Rule 37(e) applies only when a party fails to take “reasonable steps” to 

preserve information. ................................................................................... 42

C. Contact creation dates fall outside of Rule 26. ............................................ 43

D. Fidelity has not shown any “intent to deprive.”........................................... 43

CONCLUSION............................................................................................................................. 44

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iv

TABLE OF AUTHORITIES

Rules

FED. R. CIV. P. 26(b)(1) .......................................................................................................... 43, 46

FED. R. CIV. P. 37(e)(2)......................................................................................... 42, 43, 44, 45, 46

Statutes

18 U.S.C. § 1839(3)(A)................................................................................................................. 27

765 ILCS 1065/2(d)(2) ................................................................................................................. 27

Cases

Arjo, Inc. v. Handicare USA, Inc., No. 18 C 2554, 2018 WL 5298527 

(N.D. Ill. Oct. 25, 2018).......................................................................................................... 17, 18

AssuredPartners, Inc. v. Schmitt, 2015 IL App (1st) 141863................................................. 23, 25

Atkins v. Robbins, Salomon & Patt, Ltd., 2018 IL App (1st) 161961........................................... 18

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (Ill. 2002)................ 19

Cambridge Eng’g, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 437 (1st Dist. 2007).. 23

Carlson Group, Inc. v. Davenport, No. 16-CV-10520, 2016 WL 7212522 

(N.D. Ill. Dec. 13, 2016)............................................................................................................... 24

Chase Bank USA, N.A. v. Swanson, No. 10-CV-06972, 2011 WL 529487 

(N.D. Ill. Feb. 4, 2011).................................................................................................................. 35

Cincinnati Tool Steel Co. v. Breed, 136 Ill. App. 3d 267 (2d Dist. 1985).................................... 23

Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263 (7th Cir. 1992).............. 27

D.U. v. Rhoades, 825 F.3d 331 (7th Cir. 2016)............................................................................ 18

Dev. Services, Inc. v. Haarmann, 389 Ill. App. 3d 561 (5th Dist. 2009)...................................... 31

E*TRADE Fin. Corp. v. Pospisil, No. 18 C 5908, 2018 WL 4205401 (N.D. Ill. Sept. 4, 2018) . 31

E. St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700 

(7th Cir. 2005)............................................................................................................................... 20

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................ 20

Fed. Trade Comm’n v. Lifewatch Inc., 176 F. Supp. 3d 757 (N.D. Ill. 2016).............................. 10

First Fin. Bank, N.A. v. Bauknecht, 71 F. Supp. 3d 819 (C.D. Ill. 2014)............................... 30, 31

Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012).......................................................... 20

Fleetwood Packaging v. Hein, No. 14 C 9670, 2014 WL 7146439 

(N.D. Ill. Dec. 15, 2014)................................................................................................... 18, 19, 23

Glass v. Allied Waste Transp., Inc., No. 15 C 10041, 2016 WL 6568071

(N.D. Ill. Nov. 3, 2016)................................................................................................................... 6

GlobalTap LLC v. Elkay Mfg. Co., No. 13 C 632, 2015 WL 94235 (N.D. Ill. Jan. 5, 2015)....... 28

Graham v. Med. Mut. of Ohio, 130 F.3d 293 (7th Cir. 1997)....................................................... 13

Harlan v. Scholz, 866 F.3d 754 (7th Cir. 2017)............................................................................ 13

Harper v. United States Beef Corp., No. 15-CV-3112, 2018 WL 3863526777

(C.D. Ill. July 23, 2018)................................................................................................................ 36

H-D U.S.A., LLC v. Guangzhou Tomas Crafts Co., Ltd., No. 16-CV-10096, 2017 WL 6733685 

(N.D. Ill. Dec. 18, 2017)............................................................................................................... 10

Hickman v. Taylor 329 U.S. 495 (1947)....................................................................................... 41

ISC-Bunker Ramo Corp. v. Altech, Inc., 765 F. Supp. 1310 (N.D. Ill. 1990)............................... 20

Jano Justice Sys., Inc. v. Burton, 636 F. Supp. 2d 763 (C.D. Ill. 2009)....................................... 20

Larson v. Bank One Corp., No. 00 C 2100, 2005 WL 4652509 (N.D. Ill. Aug. 18, 2005).......... 41

Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir. 1986) .......................................... 19

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v

Liebert Corp. v. Mazur, 357 Ill. App. 3d 265 (1st Dist. 2005)..................................................... 28

McDavid Knee Guard, Inc. v. Nike USA, Inc., 683 F. Supp. 2d 740 (N.D. Ill. 2010).................. 17

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618 (N.D. Ill. 2000)...... 38

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211 (7th Cir. 1993).............. 15

Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011).................................. 17

Mkt. Track, LLC v. Efficient Collaborative Retail Mktg., LLC, No. 14 C 4957, 

2015 WL 3637740 (N.D. Ill. June 11, 2015)................................................................................ 19

N. Am. Paper Co. v. Unterberger, 172 Ill. App. 3d 410 (1st Dist. 1988)..................................... 25

Packaging Corp. of Am., Inc. v. Croner, 419 F. Supp. 3d 1059 (N.D. Ill. 2020)......................... 18

Park v. City of Chicago, 297 F.3d 606 (7th Cir. 2002)........................................................... 24, 39

Platinum Home Mortg. Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722 (7th Cir. 1998) ........ 38

Reliable Fire Equip. Co. v. Arredondo, 2011 IL 111871 ....................................................... 23, 35

Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984)..................................... 13

Schulenburg v. Signatrol, Inc., 33 Ill. 2d 379 (Ill. 1965).............................................................. 31

Stampede Tool Warehouse, Inc. v. May, 272 Ill. App. 3d 580 (1st Dist. 1995) ........................... 31

In re Teknek, LLC, 343 B.R. 850 (Bankr. N.D. Ill. 2006) ........................................................... 34

Traffic Tech, Inc. v. Kreiter, No. 14-CV-7528, 2015 WL 9259544 (N.D. Ill. Dec. 18, 2015)..... 27

United Asset Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008 (N.D. Ill. 2006) ..................... 16

Wiggins v. Baldwin, No. 17-CV-583-DRH-DGW, 2017 WL 6334369 (S.D. Ill. Dec. 12, 2017) 34

Winkler v. Eli Lilly & Co., 101 F.3d 1196 (7th Cir. 1996) ........................................................... 35

Woodfield Group, Inc. v. DeLisle, 295 Ill. App. 3d 935 (1st Dist. 1998)..................................... 15

 

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PRELIMINARY STATEMENT

Jennifer Taylor worked as a financial advisor at Fidelity for more than 23 years. During 

that time, she developed very close, personal relationships with many of her clients, whom Fidelity 

recognized and openly referred to as “her clients.” Despite her longstanding tenure with Fidelity 

(and her desire to continue working at Fidelity until her retirement), Ms. Taylor learned in early 

2020 that her employment with the company would soon be terminated. Left with no choice, she 

scrambled to secure alternate employment, which she found at small investment advisory firm 

called Fairhaven Wealth Management, on March 6, 2020. Her break from Fidelity was perfectly 

“clean” – she did not take any files, client lists, account information, or documents from Fidelity. 

When Ms. Taylor arrived at Fairhaven, she brought nothing except the generalized knowledge that 

she had accumulated during her 23-year career at Fidelity.

Ms. Taylor’s forced departure from Fidelity could not have come at a worse time. As the 

Court will recall, March of 2020 was the start of the “COVID-19” pandemic. State and local 

authorities issued emergency “shelter-in-place” mandates; businesses across the country were 

ordered to close; unemployment skyrocketed overnight; and the economic turmoil precipitated a 

global financial meltdown. The financial markets were thrown into chaos. Ms. Taylor’s clients 

(many of whom had worked with and trusted her for nearly a quarter-century) were panicked and 

desperately trying to reach her. Fidelity, however, refused to provide Ms. Taylor’s clients with 

her new contact information. This was not only a violation of FINRA regulations, but also of 

Fidelity’s own compliance policies.

Several resourceful clients tracked Ms. Taylor down at Fairhaven, and informed her that 

Fidelity was refusing to provide them with her new contact information. Ms. Taylor recognized 

that she had a professional and fiduciary to ensure that any client who wanted to reach her would 

be able to do so. Accordingly, more than two weeks after she had left Fidelity, Ms. Taylor created 

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– from memory – a list of her closest and most long-standing clients (approximately 10% of her 

total client book). She then used public online resources to locate the contact information for these 

clients. (Exhibit 1). Ms. Taylor used that list to systematically make “announcement calls” to 

inform those clients that she had left Fidelity and, if requested by a client, provide her new contact 

information. 

Ms. Taylor’s employment agreement with Fidelity did not prohibit her from calling her 

clients to announce her departure from the company. Such “announcement calls” are routine in 

the financial services industry; and Ms. Taylor knew that in making her calls, she behaved no 

differently than every other departing advisor from Fidelity’s Oak Brook branch. Ms. Taylor made 

her last announcement call nearly a year ago – on April 6, 2020 – and neither she nor anyone at 

Fairhaven have reached out to any of her clients since then.

The original focus of Fidelity’s preliminary injunction motion was to enjoin Ms. Taylor 

from soliciting Fidelity customers. Instead of proceeding expeditiously on its motion, however, 

Fidelity pursued extensive third-party discovery, which resulted in Fidelity’s motion not being 

fully briefed until after Ms. Taylor’s one-year non-solicitation period had already expired. 

Because Fidelity’s delay rendered the issue of solicitation moot, Fidelity is no longer seeking to 

enjoin Ms. Taylor’s “solicitation” of customers. Instead, Fidelity now requests an injunction 

prohibiting Ms. Taylor and Fairhaven from using the list of client names that Ms. Taylor created 

after she had left Fidelity; and Fidelity also seeks a mandatory injunction requiring Ms. Taylor and 

Fairhaven to destroy that list. That’s all. Fidelity has taxed the Court’s resources and put 

Defendants through a year of litigation to stop Ms. Taylor from using a list containing the names 

of people that she knows by heart.

Despite all of this litigation and its far-reaching discovery, Fidelity cannot establish any of 

the factors necessary for an injunction. First, there is no threat of irreparable harm. Enjoining Ms.

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Taylor from looking at a list of names that she knows by heart (and could re-create again using her 

general memory and publicly available information) could not possibly prevent any harm to 

Fidelity. But, if any harm were actually threatened, it could be easily remedied through an award 

of money damages. Fidelity also has no likelihood of success on the merits. Fidelity can present 

no evidence to suggest Ms. Taylor took any documents or trade secrets; even after a year of 

litigation, Fidelity’s motion is premised almost entirely on vague assertions of wrongdoing, rooted 

in nothing more than speculation and conjecture. All Fidelity can show is what Ms. Taylor has 

admitted since this lawsuit began:

• Several weeks after she left Fidelity, Ms. Taylor created a list of her closest and 

most long-standing clients.

• Ms. Taylor did not use any Fidelity documents or information to create that list; 

nor did she need to. Ms. Taylor has worked with these clients for more than 20 

years, and knows their names by heart.

• Ms. Taylor then used publicly available information on the Internet to find the 

contact information for these clients.

None of this is actionable. Having failed to satisfy the heavy burden required to obtain an

injunction, Fidelity asks the Court to make several adverse inferences against Ms. Taylor. Fidelity 

alleges that when Ms. Taylor purchased a new iPhone, she spoliated certain text messages and 

“contact creation” data that resided on her old “Samsung” (Android) cell phone. But text messages 

would bear no relevance to this preliminary injunction proceeding, which is now limited to 

Fidelity’s allegation that Ms. Taylor misappropriated trade secrets – not any alleged solicitation. 

As to “contact creation dates,” Fidelity never requested their production. Even if it were possible 

to spoliate documents that are irrelevant or which the movant never requested (and, it is not),

Fidelity has still failed to establish the “bad faith intent” necessary to make an adverse inference.

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FACTUAL BACKGROUND

I. MS. TAYLOR RESIGNED FROM FIDELITY AND JOINED FAIRHAVEN

On March 6, 2020, Ms. Taylor was constructively discharged from Fidelity, where she had 

worked as a financial advisor for more than 23 years. (Exhibit 2, Marshall at 52:21-53:15). Ms. 

Taylor never wanted to resign, but was forced to quickly find another job after receiving

discriminatory threats from her manager, Scott Marshall (“Marshall”). On March 6, 2020, she 

started a new job at Fairhaven, a small registered investment advisor, without the benefit of any

employment agreement, without any guaranteed salary or benefits, and without a dedicated fulltime assistant. (Exhibit 3, Taylor at 27:15-28:2; 34:10-18).

When Ms. Taylor resigned, she left all customer information with Fidelity. (Ex. 3, Taylor 

at 58:16-61:1). She did not take any customer lists, download any confidential information, put 

any information on a USB drive, print any files for herself, forward any emails to herself, have 

any customer contacts in her cell phone, or possess anything with the names of Fidelity clients on 

it. (Id. at 41:11-42:1, 42:14-21, 57:19-58:1, 59:3-61:1). There is no evidence to the contrary. 

II. WHEN MS. TAYLOR JOINED FAIRHAVEN, THE MARKETS WERE IN TURMOIL

Ms. Taylor’s forced departure from Fidelity coincided with the onset of the COVID-19 

pandemic. Economic activity shut down quite literally overnight, roiling the financial markets and 

sending them into free-fall. On March 9, 2020, the Dow Jones Industrial Average dropped 8%; 

just three days later, on March 12th, the Dow fell 10% (the largest single-day drop in history); on 

March 16th, the Dow fell another 12% (eclipsing the previous record set just four days prior), and 

both the NASDAQ and S&P 500 dropped 12-13%.1 Financial experts opined that it was the start 

of an economic downturn that could rival, if not eclipse, the Great Depression.2 

1 See https://en.wikipedia.org/wiki/2020_stock_market_crash.

2 https://www.cnbc.com/2020/03/20/analyst-anticipates-worst-crisis-since-1929-amid-recessionfears.html.

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Consequently, Ms. Taylor’s clients – many of whom she had worked with for 20 to 25 years –

were panicking, desperate to get ahold of her for advice, and upset she left Fidelity. (See Ex. 2, 

Marshall 111:16-112:14). Fidelity’s internal records confirm this:

III. MS. TAYLOR ANNOUNCED HER DEPARTURE FROM FIDELITY

Due to the volatile state of the financial markets, her professional obligations as a trusted 

advisor, and her longstanding relationships with many of her clients, Ms. Taylor understood she 

had a fiduciary duty to make sure her clients knew: (a) that she had left Fidelity, and (b) how to 

reach her, if they wanted to. (Ex. 3, Taylor at 73:11-14, 156:12-20). Thus, once she was at 

Fairhaven, Ms. Taylor began making the industry-standard “announcement calls” to her closest 

and most longstanding clients. (Exhibit 5, Taylor Dec. at ¶ 31). 

There was nothing untoward about these announcement calls. In 2011, Ms. Taylor signed 

Fidelity’s Employee Agreement – a form contract that all advisors were required to sign. (Dkt. 

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84-1 at 5-6).3 The Employee Agreement includes a one-year non-solicitation covenant and a 

confidentiality provision. (Id.). It does not, however, include a “non-compete” covenant; nor does 

the agreement prohibit Ms. Taylor from: (i) accepting business from her clients; (ii) contacting

clients or speaking with them in general; (iii) responding to inquiries or answering questions from 

clients; or (iv) or announcing her departure from Fidelity. (Id.; Ex. 2, Marshall at 159:10-17, 

163:4-9). Ms. Taylor knew that “announcement calls” are standard practice in the financial 

services industry; indeed, no less than four (4) departing Vice Presidents from Fidelity’s Oak 

Brook branch told her that they made announcement calls after leaving Fidelity, without any 

complaint. (Ex. 3, Taylor at 190:14-192:22).

During her announcement calls, Ms. Taylor was extremely careful to avoid any 

“solicitation” or “inducement” of her clients. (Ex. 3, Taylor at 68:23-69:4; Ex. 5, Taylor Dec. at 

¶ 32). She stuck to a short and carefully-worded announcement script: “I’m calling to let you 

know I’m no longer with Fidelity Investments. Would you like my new contact information?” 

(Ex. 3 at 78:17-21, 119:20-23, 120:24-121:4).4 If the client answered “yes,” then Ms. Taylor asked 

how they would like to receive her information (most said “e-mail” and provided their addresses). 

(Id. at 121:11-13). However, if the client said “no,” then Ms. Taylor would have politely ended 

the call. (Id. at 114:14-15, 118:12-19). Not surprisingly – especially given Ms. Taylor’s longterm relationship with her clients, and the tenuous financial markets – every single client Ms. 

Taylor talked to asked her questions (usually about the markets and their investments), and every 

single client she talked to, as far as she could recall, asked her to send them her new contact 

information. (Id. at 118:12-119:19, 121:2-122:9). Ms. Taylor sent a follow-up e-mail if – and 

3 This superseded a similar agreement (Dkt. 5-1 at 21-23) she signed in 1999. See Glass v. Allied Waste 

Transp., Inc., No. 15 C 10041, 2016 WL 6568071, at *2 (N.D. Ill. Nov. 3, 2016) (elements of supersession).

4 Fidelity asserts that Ms. Taylor did not produce this script, misleadingly implying she withheld documents. 

(Dkt. 82 at 5). Fidelity ignores the fact that it was not a “written” script. (Ex. 3, Taylor at 120:4-12). 

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only if – the client specifically requested it during their call. (Id. at 93:23-94:8, 96:5-10, 118:16-

19). Ms. Taylor never solicited any of her clients, and never sent any unsolicited e-mails.

IV. FIDELITY WRONGFULLY REFUSED TO PROVIDE MS. TAYLOR’S

NEW CONTACT INFORMATION TO CLIENTS WHO REQUESTED IT

Shortly after leaving Fidelity, Ms. Taylor learned that Fidelity was violating its own rules

and FINRA regulations by refusing to provide her contact information to clients. FINRA 

Regulatory Notice 19-10 requires member firms to “provide customers with timely and complete 

answers, if known, when the customer asks questions about a departing registered representative.” 

(Exhibit 6). In recognition of this regulation, Fidelity instituted a compliance policy requiring

Fidelity to 

 (Exhibit 7; Ex. 2, Marshall at 65:8-

73:10, 76:2-16; Exhibit 8, Meyers at 107:20-108:11). 

When Ms. Taylor resigned, she provided her cell phone number so that Fidelity could give 

it to any clients who sought her contact information. (Ex. 3, Taylor at 35:15-35:3; Ex. 2, Marshall 

at 70:10-13; Dkt. 5-1 at 28). Fidelity was, thus, required to provide Ms. Taylor’s contact 

information to any customers who asked for it. Nevertheless, Fidelity’s internal records show that, 

in mid-March 2020 (during the height of the COVID-19 market volatility), several clients asked 

for Ms. Taylor’s contact information but Fidelity refused to provide it.

5

 Several other clients, 

including , also 

5

 

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informed Ms. Taylor that Fidelity refused to provide them with her contact information. (Ex. 3, 

Taylor at 153:18-154:11, 164:22-165:16, 166:9-23, 167:3-12, 167:16-168:1).6 

Knowing full-well that Ms. Taylor’s clients were panicked about the markets and desperate 

to get ahold of her, Fidelity did not merely violate FINRA regulations (and its own compliance 

policy) by withholding her contact information, Fidelity deceived clients by actively creating the 

false impression that Ms. Taylor still worked at Fidelity. On March 13, 2020 – one week after 

Ms. Taylor’s departure – Fidelity circulated an e-mail blast to Ms. Taylor’s clients, using an e-mail 

account under Ms. Taylor’s name (JenniferATaylor.team@fidelity.com), under her signature. 

(Ex. 2, Marshall at 102:4-23; Exhibit 9). This was carefully designed to make it appear to Ms. 

Taylor’s clients that she still worked at Fidelity, and that they should contact Fidelity if they wanted 

to reach her; understandably, this confused Ms. Taylor’s clients. (See Ex. 9)

V. MS. TAYLOR MADE A LIST OF CLIENTS WHOSE NAMES SHE KNOWS BY HEART

When Ms. Taylor learned that Fidelity was refusing to provide her contact information to 

clients who requested it, she decided to ask an assistant at Fairhaven to help her make 

announcement calls. To aid in that process, Ms. Taylor sat down at her home computer on March 

22, 2020, and created a list of her closest and most long-standing clients. (Ex. 3, Taylor at 61:11-

64:19; Ex. 1). The completed list contained 160 names, representing less than 15% of her book of 

approximately 1,200 clients. (Id. at 122:16-123:1, 211:22-212:13; Ex. 1).7 The only source of this 

6 Fidelity did not produce any documents indicating that it ever provided Ms. Taylor’s contact information 

to these individuals. Mr. Marshall testified that if Fidelity had provided these clients with Ms. Taylor’s 

contact information, that interaction would have been documented in Fidelity’s “Salesforce” notes. But 

Fidelity did not (and cannot) produce any Salesforce notes to show it provided Ms. Taylor’s contact 

information to these clients. (Ex. 2, Marshall at 88:11-16, 97:20-98:1).

7 Fidelity alleges Ms. Taylor’s client book consisted of 435 client households; each household has several 

client names associated with it, and 435 households would equate to approximately 1,200 client names.

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information was Ms. Taylor’s indelible memory of having worked with certain clients for years or

decades. (Id. at 65:9-14). After typing out the list of names, Ms. Taylor looked up the clients’ 

phone numbers using public sources available on the Internet, and added those numbers (along 

with the states she believes the clients reside in) to the list. (Id. at 53:19-54:8; Ex. 1).

Ms. Taylor’s list of client names is attached hereto as Exhibit 1. Despite that this list forms 

the very basis of its motion, Fidelity does not bother to attach it as an exhibit. Presumably, Fidelity 

does not want the Court to see that it is not a Fidelity document, it does not include any financial 

information, it is not any sort of official customer or client list, and it was not created using any 

Fidelity documents or information. It is merely a compilation of Ms. Taylor’s generalized 

knowledge of the names of people with whom she has closely worked for more than 20 years, and 

information she found on the Internet. 

Ms. Taylor printed two copies of this list and gave one to Jean Lyon (“Lyon”), an 

administrative assistant at Fairhaven who provides part-time support. Ms. Taylor gave Ms. Lyon 

strict instructions to only (i) announce Ms. Taylor’s departure from Fidelity, and (ii) ask if the 

client wanted Ms. Taylor’s new contact information. (Ex. 3, Taylor at 120:16-20, 153:13-154:20, 

160:6-19). If the answer was “yes,” then Ms. Lyon was to answer any questions the client may 

have had. If the answer was “no,” then Ms. Lyon was to politely end the call. (Id. at 154:14-

155:1). Ms. Lyon made calls between March 23 and April 6, 2020. Neither Ms. Lyon nor Ms. 

Taylor have reached out to any clients since April 6, 2020. (Id. at 209:20-210:5).8

FIDELITY’S DECLARATIONS

Fidelity supports its preliminary injunction motion with three declarations: the declaration 

of Charles Meyers (“Meyers”) (Dkt. 1-1); the declaration of Mr. Marshall (Dkt. 5-1); and the 

8 Ms. Lyon no longer has this list, and Fairhaven has no copies of it. (See Dkt. 65; Dkt. 67; Dkt. 70). 

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February 5, 2021 declaration of William Duserick (“Duserick”) (Dkt. 82-2). The Court should 

give no weight to any of these declarations.

The Marshall and Meyers declarations are unreasonably vague and ambiguous. This could 

be because they executed their declarations on or before April 3, 2020, when Fidelity did not have

the benefit of discovery.9 Much of the vagueness is deliberate. For instance, when Mr. Marshall 

states that Fidelity has been receiving reports that Ms. Taylor has been soliciting customers, he

provides no information about the specific clients who provided the reports, the financial advisors 

who received them, or anything else. (Dkt. 5-1 at ¶¶ 15-18). This is insufficient to satisfy 

Fidelity’s burden. 

Moreover, the assertions about solicitation and Ms. Taylor’s customer interactions are all 

hearsay – sometimes double or triple hearsay. While courts may consider hearsay when ruling on 

preliminary injunctions, hearsay goes to the weight the Court should afford the evidence. Fed. 

Trade Comm’n v. Lifewatch Inc., 176 F. Supp. 3d 757, 762 (N.D. Ill. 2016). These relaxed 

evidentiary standards reflect that most injunctions proceed apace, without the benefit of much (if 

any) discovery. Here, however, Fidelity conducted eight (8) months of discovery, and could have 

obtained declarations directly from the customers or any of the advisors who spoke to them. If it 

was unable to do that, Fidelity should have at least included in its declarations names, dates, and 

specific details of conversations. Instead, Fidelity offers nothing more than summary descriptions 

9

It is unclear when Mr. Meyers and Mr. Marshall executed their declarations. The declarations are undated, 

and they testified that they do not know when they signed them. (Ex. 8, Meyers at 25:15-18; Ex. 2, Marshall 

at 25:2-4). Because they are undated, the declarations would be inadmissible on summary judgment, and 

should be given no weight here. H-D U.S.A., LLC v. Guangzhou Tomas Crafts Co., Ltd., No. 16-CV-10096, 

2017 WL 6733685, at *1 (N.D. Ill. Dec. 18, 2017) (“[28 U.S.C.] Section 1746 requires a dated signature. 

Accordingly, this Court does not consider the undated declaration as evidence.”). Mr. Marshall also could 

not explain the curious fact that all of his declaration is double-spaced, except one single-spaced page. (Ex. 

2, Marshall at 28:15-30:22; Dkt. 5-1 at 5-6). These facts suggest there is something about the dates the 

declarations were originally drafted, revised, and executed that Fidelity does not want to disclose. 

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of its financial advisors’ descriptions of its clients’ descriptions of their conversations with Ms. 

Taylor or her administrative assistant. This is not reliable. 

On deposition, Mr. Marshall and Mr. Meyers could not remember even basic details about 

their declarations. For instance, in Paragraph 15 of Mr. Marshall’s declaration, he states that 

Fidelity had been receiving reports that Ms. Taylor was soliciting customers to transfer their 

business to Fairhaven. (Dkt. 5-1 at ¶ 15). During his deposition, Mr. Marshall did not know how 

many such reports Fidelity had received. When asked if Fidelity had received more than 1,000 

reports, he responded with a concerning lack of candor: “I don’t recall. I don’t think it was 1,000.” 

(Ex. 2, Marshall at 171:9-20). When pressed on specific names, Mr. Marshall responded, “I don’t 

recall specific names at this point.” (Id. at 171:22-172:5). 

Mr. Meyers’ testimony is similarly problematic. He states in his declaration, “I understand 

that Taylor has been, and continues, to directly compete with Fidelity and use Fidelity’s trade 

secret customer information to aggressively solicit customers to transfer their accounts to her new 

firm, Fairhaven.” (Dkt. 1-1 at ¶ 14). When asked how he had such an understanding, Mr. Meyers 

testified: “I do not have that understanding. I do not run the Oak Brook branch.” (Ex. 8, Meyers 

at 83:13-84:14). Similarly, in his declaration, Mr. Meyers references “Capital Forensics, the firm 

which maintains and stores the Protocol” for Broker Recruiting. (Dkt. 1-1 at ¶ 13). Mr. Meyers 

testified, however, that he does not know what Capital Forensics is, and that he is “not familiar 

with that part of the declaration.” (Ex. 8, Meyers at 124:15-127:22). When asked why he would 

put that in his declaration if he is not familiar with it, he responded, “I’m confident in Fidelity’s 

legal team.” (Id.).

The defects in the Marshall and Meyers declarations also plague the new declaration by 

Mr. Duserick. For example, Mr. Marshall and Mr. Meyers declare they have personal knowledge 

of Fidelity’s protection of trade secrets and confidential information. (Dkt. 5-1 at 1-2, ¶¶ 1, 6, 8; 

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Dkt. 1-1 at ¶¶ 1, 12).10 Accordingly, at their depositions, Ms. Taylor expected to be able to examine 

the methods that Fidelity supposedly uses to protect its trade secrets. Both Mr. Marshall and Mr. 

Meyers testified, however, that they do not have personal knowledge regarding Fidelity’s data 

protection methods. Mr. Marshall stated “that’s not my expertise,” and admitted he did not know 

how Fidelity monitors employee access to confidential data, whether trade secrets could be printed, 

whether anyone monitors the download of customer data, or even whether an employee could

download data. (Ex. 2, Marshall at 40:21-42:1, 42:18-43:7, 44:22-45:22, 46:15-20, 47:2-52:20). 

Similarly, Mr. Meyers testified that because he is not part of the security department, he does not 

know about Fidelity’s ability to monitor employees. (Ex. 8, Meyers at 136:9-141:1). 

Despite having prevented Ms. Taylor from examining Fidelity’s trade secret protection 

methods on deposition, Fidelity attaches to its memorandum a new declaration by Mr. Duserick 

(an employee in the cybersecurity division of Fidelity’s parent company) purporting to explain 

Fidelity’s trade secret protection methods. (Dkt. 82-2). Fidelity never produced this declaration 

in discovery. Fidelity could have done so, but withheld it until now so that Ms. Taylor would have 

no opportunity to depose Mr. Duserick, or any ability to question Mr. Marshall and Mr. Meyers 

about the matters raised in his declaration. This gamesmanship violates the letter of Fidelity’s 

discovery obligations and the spirit in which expedited discovery was meant to proceed.11 

The Court should afford no weight to Mr. Duserick’s declaration. But if it does, the Court 

should note what is glaringly absent: Fidelity’s cybersecurity expert fails to mention the steps that 

he took – if any – to determine whether Ms. Taylor misappropriated anything from Fidelity.

10 Mr. Marshall, for instance, stated on “personal knowledge” that “Fidelity vigilantly preserves its trade 

secret customer data” and that “Fidelity further protects this confidential information by using various 

safeguards for its computer system....” (Dkt. 5-1 at 2, ¶¶ 6, 8). 

11 A declaration concerning Fidelity’s protection of trade secrets “relates to the ... trade secret information 

that Fidelity contends Ms. Taylor has misappropriated.” Fidelity was, thus, required to produce Mr. 

Duserick’s declaration under Request for Production No. 1. (See Dkt. 44-2 at 4-5). 

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LEGAL STANDARD FOR PRELIMINARY INJUNCTIONS

“‘[T]he granting of a preliminary injunction is an exercise of a very far-reaching power, 

never to be indulged in except in a case clearly demanding it.” Roland Mach. Co. v. Dresser 

Indus., Inc., 749 F.2d 380, 389 (7th Cir. 1984). “In order to obtain a preliminary injunction, a 

plaintiff must show three things: (1) without such relief, he will suffer irreparable harm before his 

claim is finally resolved; (2) he has no adequate remedy at law; and (3) he has some likelihood of 

success on the merits.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017). If the plaintiff is able 

to meet that burden, the Court must then balance the harms to Defendants and the public. Id. 

Fidelity’s test here is even more stringent. Fidelity is seeking a mandatory preliminary 

injunction because it is asking the Court to command Defendants to take an affirmative action –

i.e., to “return” (or destroy) a non-Fidelity list of Ms. Taylor’s clients that she created (from 

memory and public sources) after she left Fidelity. Mandatory injunctions are “cautiously viewed 

and sparingly issued,” while “interlocutory mandatory injunctions are even more rarely issued, 

and neither except upon the clearest equitable grounds.” Graham v. Med. Mut. of Ohio, 130 F.3d 

293, 295 (7th Cir. 1997) (quotations omitted).

ARGUMENT IN OPPOSITION TO PRELIMINARY INJUNCTION MOTION

Fidelity originally moved to enjoin Ms. Taylor from soliciting Fidelity’s customers. (Dkt. 

4; Dkt. 5). As Fidelity recognizes, it can no longer seek to enjoin solicitation because the one-year 

non-solicitation period (if it were ever enforceable) expired on March 6, 2021. (Dkt. 82 at 1; Dkt. 

84-1 at 5-6, ¶ 6). Fidelity therefore dropped its request to enjoin solicitation, and now asks the 

Court to (a) enjoin Defendants from “using” or “possessing” the names of Fidelity’s clients, and 

(b) order Defendants “to return to Fidelity and purge from their possession” any documents 

containing the names of Fidelity’s clients. (Dkt. 82 at 1; Dkt. 82-1 at 2). Fidelity has not 

established any harm (let alone irreparable harm); it has not established a likelihood of success on 

the merits; and the balance of harms weighs against an injunction. 

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I. FIDELITY WILL SUFFER NO HARM (BUT, IF IT DID, MONEY DAMAGES 

WOULD SUFFICE)

Fidelity seeks an order requiring Ms. Taylor to “return” a physical list of names that never 

belonged to Fidelity, and an injunction prohibiting her from using that list. Ms. Taylor worked 

closely with these clients for more than 20 years, and knows their names by heart. Allowing her 

to keep a list of those names (which, again, she created solely from her own memory) could not 

possibly harm Fidelity. While Fidelity suggests that Ms. Taylor might refer to the list if she makes 

more announcement calls, the undisputed evidence reveals she completed her announcement calls 

on April 6, 2020; she has not reached out to any of her clients since then. Moreover, any possible 

harm could be remedied through money damages.

A. No harm is threatened. 

Defendants have already produced to Fidelity all documents that could possibly be covered 

by the proposed injunction.12 Nevertheless, Fidelity does not bother to explain precisely which of 

those documents it wants “returned,” nor does it specify the harm it would suffer from the use of 

any specific document. (This, in itself, demonstrates that Fidelity has not met its heavy burden.) 

The only document at issue appears to be the list that Ms. Taylor created on March 22, 2020. 

Fidelity could not possibly suffer harm from Ms. Taylor’s mere possession of a list of names of 

some of her former clients, much less one she created from memory.

12 Fidelity suggests that Fairhaven is withholding documents because Ms. Lyon contacted some clients not 

on the list Ms. Taylor gave her (implying that there exists another list). Fidelity pretends there is no way 

Ms. Taylor could have simply told Ms. Lyon to contact clients orally, ignoring their physical proximity to 

one another in Fairhaven’s office. (Dkt. 82 at 4). Fidelity claims that it needs an injunction because “the 

threat of contempt” will cause Defendants to produce the documents Fidelity speculates they are 

withholding. (Dkt. 82 at 4). But Ms. Taylor is already under an obligation to produce such documents, 

and Fairhaven is already under the threat of contempt. (Dkt. 67). Defendants simply do not have the 

documents Fidelity thinks they do. In any event, Fidelity’s “threat of contempt” argument is effectively a 

concession that the alleged harm is purely speculative, as any harm is dependent upon the existence of 

documents that Fidelity speculates exist. If the standard for an injunction were lowered from “irreparable 

harm” to “speculates opposing party has unproduced documents,” then every litigant would be able to 

obtain an injunction at will. 

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Rather than grapple with how it might actually suffer harm, Fidelity relies on Merrill 

Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 214 (7th Cir. 1993), for the general

proposition that failing to require a financial advisor to return documents to a former employer 

would result in irreparable harm. (Dkt. 82 at 12). Harm, however, is fact-specific and not easily 

established through citation to general principles. The irreparable harm in Salvano involved 

solicitation; but in this case, Fidelity is not seeking to enjoin solicitation, so Salvano does not speak 

to the harm that might arise if the Court does not enter an injunction here. Moreover, unlike Ms. 

Taylor, the advisor in Salvano actually took documents from his former employer, depriving the 

employer of their use. That never happened in this case. Thus, Salvano does not speak to any 

harm Fidelity might suffer from Ms. Taylor’s continued possession of her March 22, 2020 list. 

The simple fact is that Fidelity cannot be harmed by Defendants’ possession of client 

names.13 A person’s name, without more, is not Fidelity’s property – it is public information. And 

memories of having worked with someone for 20+ years is generalized knowledge that one cannot 

be compelled to erase from memory. See Woodfield Group, Inc. v. DeLisle, 295 Ill. App. 3d 935, 

938 (1st Dist. 1998) (“[o]ne who has worked in a particular field cannot be compelled to erase 

from his mind all of the general skills, knowledge and expertise acquired through his experience.”) 

(quotations omitted). 

Moreover, the Employee Agreement states that its non-solicitation period is limited to one 

year. Now that one year has passed, the Employee Agreement does not prohibit Ms. Taylor from 

using Fidelity’s “Confidential Information” to solicit customers away from Fidelity, nor does it 

prohibit her from soliciting “any customer ... with whom [Ms. Taylor] had personal contact.” 

13 Fidelity has not argued that mere announcement calls are improper or that they would harm Fidelity. 

Indeed, Mr. Meyers could not explain what harm would come to Fidelity if Ms. Taylor notified her former 

clients of her departure when Fidelity itself was required to provide customers with her contact information 

anyway. (Ex. 8, Meyers at 95:9-102:7). 

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(Dkt. 84-1 at 5-6, ¶ 6). Thus, even if Ms. Taylor’s list of client names somehow constituted 

Fidelity’s “Confidential Information” (and it does not), at this point Ms. Taylor would not be 

prohibited from using that information to solicit any Fidelity customers. Consequently, Fidelity’s

injunction request is moot. Fidelity could not possibly be harmed if the Court were to deny a moot 

injunction request. 

B. No imminent harm is threatened.

“[A] plaintiff’s entitlement to preliminary injunctive relief requires it, in addition to 

showing that its harm is irreparable, to show that the harm is ‘imminent’ as well.” United Asset 

Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008, 1041 (N.D. Ill. 2006); see also Unite Here 

Health v. La Plaza Secaucus, LLC, No. 13 C 237, 2014 WL 287447, at *2 (N.D. Ill. Jan. 27, 2014)

(denying preliminary injunction due to failure to show “immediate jeopardy”). 

The protracted nature of this proceeding highlights the lack of any imminent harm. 

Fidelity’s preliminary injunction motion has been pending since April 3, 2020. Were imminent 

harm truly a threat, Fidelity would have moved for a TRO from the start. At the very least, Fidelity 

would have conducted only limited first-party discovery and briefed the preliminary injunction 

motion in June 2020, after Ms. Taylor completed her document production. Incredibly, Fidelity 

blames Defendants for that delay and alleges they “intentional[ly] ... obstruct[ed] discovery.” 

(Dkt. 82). In reality, the delay was caused by Fidelity’s litigation strategy of seeking expansive 

discovery, and by moving to compel even after Fairhaven confirmed it had no additional 

documents to produce.14 

14 In response to that motion, the Court ordered Fairhaven to produce any documents it was withholding or 

confirm in writing that it had no additional documents to produce. (Dkt. 67). Fairhaven, in fact, had no 

additional documents, as it had repeatedly told Fidelity. (Dkt. 70). Defendants set forth a timeline of 

Fidelity’s delay in their response to Fidelity’s motion for leave to amend its Complaint, and in their response 

to Fidelity’s motion to compel. (Dkt. 59 at 6-8; Dkt. 65 at 2-3).

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More substantively, Fidelity has not offered evidence that Ms. Taylor plans to ever use the 

written list again, let alone imminently. See McDavid Knee Guard, Inc. v. Nike USA, Inc., 683 F. 

Supp. 2d 740, 748 (N.D. Ill. 2010) (denying injunction due to lack of evidence of likely use of 

information). Ms. Taylor has not made any announcement calls since April 6, 2020, and has no 

plans to start again – a year after she left. (Ex. 3, Taylor at 209:20-210:5). Fidelity has not 

suggested otherwise.15 In fact, Fidelity points out in its own brief that Ms. Taylor has already 

contacted the clients on her list. (Dkt. 82 at 15). Fidelity thus concedes that Ms. Taylor is unlikely 

to make more announcement calls. “[A] preliminary injunction will not be issued simply to 

prevent the possibility of some remote future injury.” Michigan v. U.S. Army Corps of Engineers, 

667 F.3d 765, 788 (7th Cir. 2011) (quotations omitted). 

In reality, Fidelity is alleging past harm – that Ms. Taylor did something wrong by writing 

down the names of her closest clients, after her employment with Fidelity had terminated. “If ‘the 

damage is done,’ allegations of past irreparable harm, no matter how plausible, are insufficient to 

support a preliminary injunction.” Arjo, Inc. v. Handicare USA, Inc., No. 18 C 2554, 2018 WL 

5298527, at *9 (N.D. Ill. Oct. 25, 2018).

C. Money damages can remedy any possible harm. 

A plaintiff does not suffer “irreparable harm” where, as here, “money damages could make 

[it] whole again.” D.U. v. Rhoades, 825 F.3d 331, 339 (7th Cir. 2016). 

15 Fidelity’s witnesses did not know the last date Ms. Taylor or anyone at Fairhaven reached out to Ms. 

Taylor’s clients, so they would have no basis to suggest she has made any announcement calls recently. 

(Ex. 2, Marshall at 186:5-187:15; Ex. 8, Meyers at 87:10-22). Mr. Marshall admitted, however, that it has 

“been a few months” since Fidelity allegedly received any reports of Ms. Taylor contacting clients. (Id. at 

173:2-6). When asked why Fidelity needs an injunction if Ms. Taylor has not reached out to any clients in 

months, Mr. Marshall answered, “we are still within that one year timeframe” of the non-solicitation 

agreement. (Id. at 190:18-192:15). Even if we were still within that timeframe (and we are not), the mere 

existence of a restrictive covenant does not establish irreparable harm.

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Fidelity argues that, without an injunction, it will be harmed by the diversion of clients. 

(Dkt. 82 at 10). Fidelity, however, can easily determine whether any of Ms. Taylor’s clients have 

stayed at Fidelity or have transferred their assets elsewhere, and then estimate any alleged 

damages. (Ex. 2, Marshall at 194:14-195:12). Packaging Corp. of Am., Inc. v. Croner, 419 F. 

Supp. 3d 1059, 1078 (N.D. Ill. 2020); see also Arjo, 2018 WL 5298527, at *10 (“[T]o the extent 

the defendants are allegedly still luring business away from [plaintiff], it offers no reason that 

money damages in the amount of lost profits would not be an adequate remedy.”); Fleetwood 

Packaging v. Hein, No. 14 C 9670, 2014 WL 7146439, at *10 (N.D. Ill. Dec. 15, 2014) (holding 

that money damages may be sufficient to remedy any harm caused by ongoing efforts to lure away 

customers).16 Fidelity proposes that such an estimate would be impossible because customers 

choose different services every year.17 (Dkt. 82 at 11). It does not cite any evidence suggesting 

that the clients at issue here have historically generated fees so volatile that they are incapable of 

estimation. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 361 

(Ill. 2002) (lost profits need not be proven with mathematical certainty).

Fidelity also argues that it will be harmed by loss of client confidence and goodwill. This 

dispute does not implicate Fidelity’s stature in the marketplace generally, but rather (at most) 160 

16 Until recently, Fairhaven custodied all of its client’s assets at Fidelity. (Ex. 2, Marshall at 197:15-198:2). 

Thus, even if any clients transferred their advisory relationships to Ms. Taylor at Fairhaven, all their assets 

remained on Fidelity’s platform and they remained Fidelity clients. (In other words, a move from Fidelity 

to Fairhaven would be tantamount to moving from the kitchen to the living room – it all happens under the 

same roof). Because of Fidelity’s unique position as both a retail advisor and an institutional custodian, 

Fidelity would not have needed to use historical revenues and trends to estimate alleged damages – it could 

have looked directly to the client accounts themselves, as they remained in Fidelity’s custody. Fidelity, 

however, recently kicked Fairhaven off of its custodial platform. (Id.). Thus, if Fidelity now claims it is 

irreparably harmed because it cannot calculate damages, that “irreparable harm” is of its own making. 

(Moreover, Fidelity kicking Fairhaven off its investment platform establishes Fidelity’s wholesale refusal 

to mitigate alleged damages.) 

17 Fidelity also suggests that damages are not ascertainable because it does not know how long a customer 

might stay with Fidelity. In Illinois, however, lost profits damages accrue only during the restrictive 

covenant period (here, one year). Atkins v. Robbins, Salomon & Patt, Ltd., 2018 IL App (1st) 161961, ¶ 

85. Moreover, there is no reason that Fidelity could not use historical trends to estimate this. 

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specific client relationships. Loss of customer goodwill “would be adequately compensated in lost 

profit damages since any injury would presumably not extend beyond the insular salespersoncustomer relationship to the corporation in general.” Lawson Products, Inc. v. Avnet, Inc., 782 

F.2d 1429, 1441 (7th Cir. 1986); see also Fleetwood, 2014 WL 7146439, at *10 (quoting 

Lawson).18 If a particular client does not divert his or her business away from Fidelity, then there 

is no monetary loss associated with the loss of that customer’s confidence. If a client does divert 

his or her business away from Fidelity, then, as noted above, Fidelity could easily calculate the 

damages from that lost client relationship. 

In any event, Fidelity has not offered evidence to establish any threatened loss of client 

confidence or goodwill. Fidelity has never explained how a former advisor who created a list of 

clients from memory would somehow cause clients to think their information has been 

misappropriated. Nor has Fidelity explained how making announcements to people whose contact 

information is publicly available online would cause them to think their information has been 

misappropriated. 

 (Dkt. 82 at 8). Fidelity’s self-serving 

interpretation of this client interaction is not credible.19 

18 Fidelity, quoting Mkt. Track, LLC v. Efficient Collaborative Retail Mktg., LLC, No. 14 C 4957, 2015 WL 

3637740, at *23 (N.D. Ill. June 11, 2015), argues that because harm to reputation cannot be remedied by 

the payment of damages, there is no adequate remedy at law. (Dkt. 82 at 12). That case was decided in the 

context of the Lanham Act, where misleading statements were directed to the marketplace generally. Here, 

any alleged “reputational harm” would be limited to the handful of clients on Ms. Taylor’s list.

19 Fidelity cites Mr. Marshall’s declaration, but he was not a participant in the supposed conversation 

between . (Dkt. 82 at 8). Instead, Fidelity relies on two levels of 

hearsay: the client’s description to Mr. Marshall of Ms. Taylor’s assistant’s statements, and then Mr. 

Marshall’s description of the client’s description of Ms. Taylor’s assistant’s statements. There is also no 

indication that Mr. Marshall’s declaration, which includes only his generalized summary description instead 

of quotes, is accurate. On deposition, Mr. Marshall could not even remember the name of the Fidelity 

advisor who initially reported this to him, or the name of the client who allegedly complained about the 

issue, until Fidelity’s counsel later reminded him that . (Ex. 2, Marshall at 

176:19-177:7). 

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 That she would be upset about 

someone calling her on that number beggars belief. 

Fidelity also argues it will be harmed by the loss of referrals. Referrals, by their nature, 

are purely speculative; Fidelity has not (and could not) put forth any evidence suggesting 

otherwise. “[A] plaintiff cannot obtain a preliminary injunction by speculating about hypothetical 

future injuries.” E. St. Louis Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 

700, 705–06 (7th Cir. 2005) (reversing entry of preliminary injunction where harm “elude[d] 

calculation because it [was] speculative, not because, if it occurred, it could not be quantified.”). 

D. There is no presumption of irreparable harm here. 

Fidelity argues that there is a rebuttable presumption of irreparable harm in trade secret

misappropriation cases.20 (Dkt. 82 at 10). No actual trade secrets are at issue, so this premise is 

wholly inapplicable. (See infra at Section II.B.). Moreover, if any presumption applied here, 

Defendants have handily rebutted it for the several reasons described above (not least of which is

the uncontested evidence that Ms. Taylor has not called any clients since April 6, 2020).

II. FIDELITY HAS NO LIKELIHOOD OF SUCCESS ON THE MERITS

After eight months of first and third-party discovery, Fidelity continues to equivocate about 

what information Ms. Taylor supposedly took from Fidelity. Fidelity’s February 5, 2021 

20 Fidelity has the law wrong. The decision it cites, Jano Justice Sys., Inc. v. Burton, 636 F. Supp. 2d 763, 

767 (C.D. Ill. 2009) (emphasis added), holds that a presumption of harm exists in “trade secret 

misappropriation and copyright infringement” cases. The use of the conjunctive in that holding is 

important because all the other decisions we have found concerning a presumption of harm in trade secret 

cases are traceable back to copyright infringement cases. See, e.g., ISC-Bunker Ramo Corp. v. Altech, Inc., 

765 F. Supp. 1310, 1329 (N.D. Ill. 1990) (analyzing copyright separate from trade secret, and applying 

presumption only to copyright component). Because the instant case does not involve copyright, no 

presumption applies. In addition, the Supreme Court has rejected the presumption of harm, and the Seventh 

Circuit applied that principle in the context of copyright infringement. See Flava Works, Inc. v. Gunter, 

689 F.3d 754, 755 (7th Cir. 2012) (applying eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 

(2006)). 

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preliminary injunction brief is littered with vague references to “customer information,” “trade 

secrets,” “client data” and “client lists.” (See generally Dkt. 82). Conspicuously absent is any 

explanation of what comprises that information. The closest Fidelity comes to explaining its 

theory is by suggesting Ms. Taylor misappropriated the “list of Fidelity customers” that she has in 

her memory (and which she wrote down after leaving Fidelity). (Dkt. 82 at 2-3 n.1 & n.2). Fidelity 

also speculates that Ms. Taylor took customer phone numbers. (Dkt. 82 at 3). Thus, as best we 

can tell, at issue are only customer names and phone numbers. 

Ms. Taylor testified under oath that she obtained all phone numbers on her list by searching 

the Internet. (Ex. 3, Taylor at 63:12-64:17). Fidelity – ignoring the wealth of contact information 

available online from data aggregators – implies that it is “unlikely” Ms. Taylor was able to find 

54 cell phone numbers though publicly available online sources, and presumes she took them from 

Fidelity. (Dkt. 82 at 3). Rank speculation is insufficient to establish a likelihood of success on the 

merits, particularly after eight months of discovery. Fidelity does not provide any evidence 

regarding which of the 54 numbers correspond to cell phones, any evidence that Fidelity originally 

had those numbers in its possession (such that Ms. Taylor even could have taken them), or any 

information whatsoever refuting Ms. Taylor’s sworn testimony.21

Ms. Taylor also testified under oath that she took no documents or customer information 

from Fidelity. (Ex. 3, Taylor at 58:16-61:1). Fidelity cites no evidence contradicting that

testimony. Mr. Marshall could not answer whether Ms. Taylor had ever sent confidential 

information from Fidelity to an outside email account, whether she downloaded any confidential 

21 Fidelity also relies on innuendo. Fidelity states that it “knows that Taylor possessed and used Fidelity 

customer cellphone numbers shortly after she resigned because she called and texted them on those 

numbers.” (Dkt. 82 at 3). This is meant to insinuate that Ms. Taylor took cell phone numbers with her 

from Fidelity. But Ms. Taylor had those numbers “shortly after she resigned” because she found them on 

publicly available sources shortly after she resigned, not because she took them from Fidelity. 

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22

information, or whether she printed any confidential information.22 (Ex. 2, Marshall at 47:21-

48:13). Similarly, Mr. Meyers did know whether anyone searched Ms. Taylor’s computer or 

otherwise investigated whether she took information from Fidelity. (Ex. 8, Meyers at 136:9-

141:1). And Mr. Duserick – who executed his declaration after Mr. Meyers and Mr. Marshall 

testified to their lack of knowledge – does not give any indication that Fidelity ever attempted to 

investigate whether Ms. Taylor actually accessed or took Fidelity’s Confidential Information. 

(Dkt. 82-2). Fidelity either conducted no investigation to find out what (if anything) Ms. Taylor 

actually took (in which case, Fidelity cannot characterize that information as a “trade secret”), or

Fidelity investigated and found no evidence of wrongdoing. 

Fidelity’s lack of evidence is underscored by its discovery responses. When Ms. Taylor 

requested the production of all documents that related to the “information that Fidelity contends 

Ms. Taylor has misappropriated,” Fidelity did not produce any documents in response, so Ms. 

Taylor moved to compel. The Court ordered Fidelity to produce “documents containing Fidelity’s 

confidential information that Taylor took with her when she resigned,” and noted that if Fidelity 

has nothing to produce in response, Ms. Taylor “can hardly complain about Fidelity’s inability to 

produce materials that would provide evidentiary support for its claims.” (Dkt. 53 at 2). Fidelity, 

in fact, had nothing to produce in response and has no evidentiary support for its claims. 

Thus, Fidelity is left with what Ms. Taylor has admitted all along: she knows by heart the 

names of her closest and most long-standing clients, wrote them down two weeks after leaving 

Fidelity, and then looked up their phone numbers online. This is not actionable under either a 

breach of contract or trade secret theory.

22 Indeed, Mr. Marshall did not know whether it was possible to print out a client list or download 

information onto a USB drive. (Ex. 2, Marshall at 38:20-40:21, 46:15-20). He also did not know about 

Fidelity’s surveillance capabilities generally, or whether Fidelity’s IT department actually undertook any 

type of investigation to determine whether Ms. Taylor absconded with any confidential information when 

she left. (Id. at 40:23-42:7, 44:22-45:22, 48:14-49:23, 51:18-52:20). 

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23

A. Fidelity has no likelihood of success on its claim for breach of the 

confidentiality provision. 

The confidentiality provision in the Employee Agreement is unenforceable. If it were

enforceable, it would not protect the names of Ms. Taylor’s clients. 

1. The confidentiality provision is unenforceable, whether or not it purports 

to protect client names. 

“Postemployment restrictive covenants operate as partial restrictions on trade, so they are 

scrutinized carefully....” Cambridge Eng’g, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill. App. 3d 

437, 447 (1st Dist. 2007). “An employer seeking to enforce a restrictive covenant bears the burden 

of demonstrating that the full extent of the restraint is necessary for protecting its interests.” Id. 

Confidentiality agreements are subject to the same reasonableness requirements as non-competes. 

Cincinnati Tool Steel Co. v. Breed, 136 Ill. App. 3d 267, 275 (2d Dist. 1985).

23

 

“[U]nder Illinois law, [a confidentiality provision] must be reasonably limited in scope 

(geographical and durational) in order to mitigate its potentially anticompetitive effects.”

Fleetwood, 2014 WL 7146439, at *8; see also Carlson Group, Inc. v. Davenport, No. 16-CV10520, 2016 WL 7212522, at *5 (N.D. Ill. Dec. 13, 2016) (“Illinois courts have invalidated 

confidentiality agreements lacking [durational and geographic] limitations.”). The confidentiality 

provision here lacks geographical and express durational limitations.

24

 (Dkt. 84-1 at 5-6). 

Accordingly, it represents an unreasonable restriction on trade and is unenforceable.

But even if the confidentiality provision included reasonable geographic and durational 

limitations, the breadth of the information it purports to protect would still render it unenforceable. 

23 Under Illinois law, “[a] restrictive covenant ... is reasonable only if the covenant: (1) is no greater than 

is required for the protection of a legitimate business interest of the employer-promisee; (2) does not impose

undue hardship on the employee-promisor; and (3) is not injurious to the public.” Reliable Fire Equip. Co. 

v. Arredondo, 2011 IL 111871, ¶ 17. Furthermore, the activity restrictions must be reasonable. 

AssuredPartners, Inc. v. Schmitt, 2015 IL App (1st) 141863, ¶ 32.

24 The confidentiality obligation purports to continue until the information “becomes known to the general 

public.” (Dkt. 84-1 at 6, ¶ 10). 

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24

The confidentiality provision provides:

Confidential Information consists of all information pertaining to 

the business of any of the Fidelity Companies that is not generally 

known to the public at the time made known to Employee. 

(Dkt. 84-1 at 5, ¶ 1). It is difficult to imagine a broader restriction than this. The provision purports 

to restrict all manner of information that would not implicate Fidelity’s legitimate business 

interests even though it is not generally known (for instance, the color of the walls at the Oak 

Brook office, the number of parking spaces at the Highland Park office, etc.). It would purport to

even restrict the “use” of general business skills an employee picked up on the job. This provision 

is patently overbroad and, thus, unenforceable. 

This court analyzed the enforceability of a similar confidentiality provision in Carlson 

Group, 2016 WL 7212522, at *6 – one which “purport[ed] to protect ‘all information of or 

concerning the business of Company,’ including without limitation, ‘information relating to the 

Company’s products and services,’ its various ‘plans,’ the ‘identities’ of its customers, and the 

‘contact information’ of its employees.” Id., at *4. The court denied a preliminary injunction 

because that confidentiality provision raised “enforceability concerns” which “preclude[d] [the 

employer] from demonstrating ‘some likelihood of success’ on its contract claim.” Id. As here, 

the confidentiality provision in Carlson Group carved out information that “has become generally 

or publicly known outside the Company.” Id. That carve-out did not, however, render it 

enforceable, as “‘[t]here is a great deal of information that is not ‘generally’ known to the public; 

not all of it merits protection under a confidentiality provision.’” Id. (quoting AssuredPartners, 

2015 IL App (1st) 141863, ¶ 48). 

Similarly, in AssuredPartners, the Illinois Appellate Court analyzed the enforceability of 

a confidentiality provision that purported to prohibit the use of any information “concerning ‘the 

business or affairs’ of every company affiliated with [the employer].” 2015 IL App (1st) 141863, 

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25

¶ 46. This “include[d] virtually every fact, plan, proposal, data, and opinion that [the employee] 

became aware of during the time he was employed by [the employer] – without regard as to 

whether such information was in any way proprietary or confidential in nature, or whether he in 

fact obtained the information through a source outside of his work.” Id. The court concluded such 

a covenant “‘purport[ed] to protect virtually every kind of information that [the employee] learned 

during the period of his employment even if non-confidential, and [went] far beyond any possible 

legitimate protectable interest of [the employer].’” Id. at ¶ 45 (quoting N. Am. Paper Co. v. 

Unterberger, 172 Ill. App. 3d 410, 416 (1st Dist. 1988)). Characterizing the confidentiality 

provision as “patently overbroad,” the Illinois Appellate Court held that it was void as a matter of 

law and refused to “blue pencil” it. Id. at ¶¶ 46, 52.

25

2. If names of former clients are confidential, then the confidentiality 

provision is unenforceable.

Whether or not the confidentiality provision is generally unenforceable (as argued above), 

there is no question it would be unenforceable if knowledge of the names of former clients were

considered “Confidential Information.”

26

 The confidentiality provision prohibits the “use” of 

Confidential Information after termination, and purports to restrict that use indefinitely. (Dkt. 84-

1 at 5, ¶¶ 1, 10). If calling one’s former customers is considered improperly “using” Confidential

25 The Court should not “blue pencil” the confidentiality provision here. Fidelity has not asked the Court 

to narrow the provision and has not provided any reason for the Court to do so. As in AssuredPartners, the 

deficiencies are “too great to permit modification.” 2015 IL App (1st) 141863, ¶ 52. 

26 In its April 2020 memorandum, Fidelity argues that there are federal Privacy of Consumer Financial 

Information regulations concerning the “non-public information (‘NPI’) of financial services customers.” 

(Dkt. 5 at 11). Fidelity does not seek relief under those regulations, and the existence of such regulations 

has no bearing on the enforceability of the confidentiality provision at issue. Further, NPI does not include 

mere names alone, but names and addresses together. Fidelity also claims that NPI includes the fact that a 

person was a former client, but the list Ms. Taylor made from memory did not include any indication 

whether the person was or was not a former client. Fidelity also ignores that the confidentiality provision 

defines “Confidential Information” to mean something that is capable of being returned. (See infra). 

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26

Information, then the confidentiality provision would effectively operate as an unbounded (and, 

thus, unenforceable) non-solicitation covenant.

27

Moreover, if the names of former clients were considered “Confidential Information,” then 

performance would be impossible. The agreement provides that the Employee will “return” and 

“will not retain” any Confidential Information upon termination of his or her employment, and 

will not “in any way access Confidential Information without authorization.” (Dkt. 84-1 at 5, ¶ 1). 

It is impossible for employees to “return” or purge client names from their casual memories (or to 

refrain from “accessing” those memories in their minds), particularly for an employee like Ms. 

Taylor who worked with some of the same clients for over twenty years. Fidelity concedes there 

is no way for Ms. Taylor to have purged or “returned” those memories – and, therefore, they cannot 

be considered “Confidential Information.” (Ex. 2, Marshall at 130:20-131:3, 143:23-144:18).

Accordingly, either client names are not considered “Confidential Information” or the 

confidentiality provision is unenforceable. Either way, Fidelity has no likelihood of success.

B. Fidelity has no likelihood of success on its trade secret claim.

Fidelity has no likelihood of success on its trade secret claim because (i) it does not identify 

precisely what the trade secret is, (ii) it has done nothing to keep customer names a secret, and 

(iii) the names of Ms. Taylor’s clients would not be trade secrets even if Fidelity had kept them 

secret. 

1. Fidelity does not identify precisely what trade secret is at issue. 

Fidelity was required to produce the trade secret at issue. (Dkt. 53 at 2). It did not do so, 

and does not even identify precisely what the trade secret is. Instead, Fidelity vaguely asserts that 

27 Indeed, because there is no way to solicit a customer without “using” or “possessing” the customer’s 

name, the Employee Agreement necessarily allows Ms. Taylor to now “use” and “possess” the names of 

Fidelity’s customers. Enjoining the “use” of client names would function as a de facto injunction against 

solicitation, even though Fidelity recognizes that it is not entitled to such an injunction.

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27

Ms. Taylor misappropriated “customer information” and “trade secrets.” Speaking in generalities

does not suffice – it is Fidelity’s burden to “connect the dots” and single out the specific trade 

secret at issue. Traffic Tech, Inc. v. Kreiter, No. 14-CV-7528, 2015 WL 9259544, at *20 (N.D. 

Ill. Dec. 18, 2015); see also Composite Marine Propellers, Inc. v. Van Der Woude, 962 F.2d 1263, 

1266 (7th Cir. 1992) (“The plaintiff must show concrete secrets.”). Because Fidelity has failed to

produce, or even identify, its alleged trade secret, its claim is unlikely to succeed.

28

2. Fidelity has done nothing to keep its customer names a secret.

A trade secret must be “the subject of efforts that are reasonable under the circumstances 

to maintain its secrecy or confidentiality.” 765 ILCS 1065/2(d)(2); see also 18 U.S.C. § 

1839(3)(A). Fidelity does not keep customer names secret. 

a. Mr. Duserick’s declaration does not establish secrecy.

As explained above, the Court should give no weight to Mr. Duserick’s declaration. (See 

supra at pp. 11-12). However, were the Court to consider Mr. Duserick’s declaration, it would do 

little to help Fidelity’s trade secret claim. Mr. Duserick uses only vague terms like “customer 

information,” “other proprietary information,” “personal information” and “customer lists,”

without any explanation of what these terms mean. (Dkt. 82-2). “The court cannot analyze ... 

whether [plaintiff] took reasonable efforts to keep information secret without first knowing, with 

particularity, what information comprises the secret.” GlobalTap LLC v. Elkay Mfg. Co., No. 13 

C 632, 2015 WL 94235, at *6 (N.D. Ill. Jan. 5, 2015). 

The two times Mr. Duserick provides specifics, he makes clear that Fidelity does not

protect client names unless those names are bundled with other information. As an example of 

28 If the list Ms. Taylor created from memory does not exist in some form at Fidelity, then it is not a trade 

secret. If it does exist in some form, Fidelity was required to produce it. A trade secret is not simply 

“whatever an ex-employee happens to remember.” Ms. Taylor was entitled to compare the information on 

the list she created from memory to the supposed trade secret to determine the extent of overlap, if any. 

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highly confidential information, he cites “[c]ustomer personally identifiable information (PII) 

(e.g., name with external IP address, email, phone number, HR data, HIPAA data or account 

number).”29 (Dkt. 82-2 at 2, ¶ 8) (emphasis added). He also notes that “personally identifiable 

customer information (such as a name with a telephone number)” is highly confidential. (Id. at 2,

¶ 9) (emphasis added). He does not explain how, or if, Fidelity protects client names alone.

Mr. Duserick also states that “customer lists” are highly confidential, but never explains 

what comprises this highly confidential “customer list.” Is it Fidelity’s complete list of 32 million 

customers? The list of customers in a particular region? In a particular office? Are only names 

on the lists, or other information as well? Because Mr. Duserick never specifies precisely what 

constitutes the “customer list” Fidelity allegedly protects, there is no indication that Fidelity 

protects the information it alleges Ms. Taylor misappropriated (whatever that might be).

b. Fidelity does not prohibit clients from disclosing the relationship.

Fidelity places no restrictions on customers revealing that they have a relationship with 

Fidelity. Indeed, “Fidelity clients talk about being Fidelity clients.” (Ex. 3, Taylor at 220:8-9). If 

any customer is free to divulge the putative “trade secret” at will, it is not a trade secret.

Moreover, Fidelity actively works to make it easier for third parties – even competing 

financial institutions – to identify a Fidelity client. Fidelity has partnered with some of its 

competitors to create a data aggregation platform called “Akoya” that allows Fidelity customers 

to “shar[e] financial data between financial institutions,” including other financial institutions such 

as JPMorgan Chase (a Fidelity competitor). (Exhibit 13; Exhibit 14). Fidelity also offers a 

service called “Full View,” which allows Fidelity customers to consolidate financial data from 

29 Fidelity cites Liebert Corp. v. Mazur, 357 Ill. App. 3d 265 (1st Dist. 2005), in support of its assertion that 

it has taken reasonable security measures to protect its confidential information. (Dkt. 82 at 13). The 

alleged trade secret at issue in Liebert was a bundle of consumer information. Liebert, therefore, does not 

speak to the measures that would suffice to protect the mere name of a client, standing alone. 

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“Fidelity and non-Fidelity accounts.” (Exhibit 15). This account aggregation service is operated 

by eMoneyAdvisor, LLC, a company that helps financial advisors by “connect[ing] accounts from 

hundreds of financial institutions across the country to automatically power your platform—and 

your advice.” (Exhibit 16). Offering these types of aggregation services is common for Fidelity’s 

competitors. Schwab, for instance, offers a data aggregation tool that can aggregate accounts 

across “15,000+ financial institutions.” (Exhibit 17). Thus, if a customer has a Schwab account 

and uses the Akoya system to aggregate her Fidelity account information into Schwab’s 

“dashboard,” then every single financial advisor at Schwab will instantly know that this person is 

a “Fidelity client.” Were the Fidelity-client relationship truly a trade secret, Fidelity would not 

encourage clients to give third parties access to the financial information in their Fidelity accounts.

Further, Fidelity’s business model appears to rely on customers divulging to others that 

they are Fidelity clients. Fidelity claims that it will be harmed if clients follow Ms. Taylor to 

Fairhaven, as they will no longer refer others to Fidelity. (Dkt. 82 at 11). Fidelity cannot expect 

clients to refer people to Fidelity and claim as a trade secret the fact that a client relationship exists.

c. Fidelity has not kept client names secret in this lawsuit. 

Fidelity has not even kept client names and phone numbers secret in this lawsuit. On 

February 5, 2021, Fidelity attached to its sanctions motion excerpts from the transcript of Ms. 

Taylor’s deposition. (Dkt. 84-4). In those excerpts, Fidelity introduces the names and telephone 

numbers of two of its clients. (Id. at 10, 13, Taylor at 142:3-21; 145:7-12). Fidelity did not file 

this transcript under seal or redact the names and telephone numbers before publicly filing it. 

Because Fidelity has made no effort whatsoever to keep the names of its clients or their telephone 

numbers a secret, they cannot possibly be considered “confidential” (much less a trade secret).

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3. Fidelity’s customer names are not trade secrets, whether or not Fidelity 

kept them secret. 

a. Fidelity admits names alone are not trade secrets.

In its initial memorandum, Fidelity explains, “Fidelity’s trade secret is not simply a list of 

names. It includes far more information, including contact and financial information such as 

customer statements, investment goals and history, assets, income, and net worth....” (Dkt. 5 at 

13) (emphasis added). Similarly, Mr. Meyers testified that the confidential “client information” is 

“a long list of details about the client and their financial situation and their assets,” which includes 

current client assets, current investment products that the client owns, age, employment 

information, investment objectives, and tax information. (Ex. 8, Meyers at 46:20-48:24). Client

names, by themselves, do not qualify – even when they are remembered by a former advisor. 

b. Fidelity customers are not a “needle in a haystack.” 

Fidelity relies heavily on First Fin. Bank, N.A. v. Bauknecht, 71 F. Supp. 3d 819, 840–41 

(C.D. Ill. 2014), which concerns a former bank employee who memorized a list of clients (his own 

clients and another employee’s) that needed agricultural loans, and then contacted those clients

when he left for a new job. (Dkt. 82 at 14-15). That ruling hinged on the fact that the bank served 

“diffuse customers that have particular needs,” i.e., those in the market for a particular agricultural 

loan. Id. at 841. The court distinguished that from a scenario where, as here, “customers are easily 

identifiable because of broad and non-specific needs,” in which case customer lists would not be

protectable. Id. at 840. 

Fidelity attempts to analogize its customer base to that of the bank in Bauknecht by arguing 

that its clients’ names are not known to the public, as the names of people in need of financial 

planning are “proverbial needles in the haystack.” (Dkt. 82 at 13). But Fidelity has 32 million 

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31

customers, and there are only 255 million adults in the U.S.30 (Ex. 3, Taylor at 217:2-5). If you

open the phonebook for any affluent suburb, a large percentage of listings will, thus, be comprised 

of the names and phone numbers of Fidelity customers. The names of these clients are not trade 

secrets. See Sys. Dev. Services, Inc. v. Haarmann, 389 Ill. App. 3d 561, 575 (5th Dist. 2009)

(holding that the customer list of a computer network company was not a trade secret because “[i]n 

today’s modern world, computers and computer networks are common business tools,” so 

“[l]ocating potential customers is merely a matter of identifying businesses in a particular town, 

county, or area and looking up their contact information”).

4. Ms. Taylor has not misappropriated any trade secrets.

Fidelity cites several decisions for the proposition that memorization can qualify as 

misappropriation of a trade secret. (Dkt. 82 at 14-15). These cases are distinguishable because 

they involve intentional memorization, or the taking of actual documents. See Bauknecht, 71 F. 

Supp. 3d 819 (“improperly took a customer list through memorization”); Stampede Tool 

Warehouse, Inc. v. May, 272 Ill. App. 3d 580, 585 (1st Dist. 1995) (“deliberately memorized”); 

Schulenburg v. Signatrol, Inc., 33 Ill. 2d 379, 381 (memorized blueprints); E*TRADE Fin. Corp. 

v. Pospisil, No. 18 C 5908, 2018 WL 4205401, at *4 (N.D. Ill. Sept. 4, 2018) (“downloaded an 

extensive list of client information.”). Ms. Taylor never intentionally memorized client 

information and never purposely committed it to memory – rather, she happens to know and 

remember, as part of her generalized knowledge developed over her 23-year career at Fidelity, the 

names of people with whom she has worked closely for more than 20 years. (Ex. 3, Taylor at 

210:6-211:21). There is a stark difference between the intentional memorization of information, 

and remembering generalized knowledge developed over time. Fidelity even concedes that it 

30 https://data.census.gov/cedsci/table?q=United%20States&g=0100000US&tid=ACSDP1Y2019.DP05

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would have been okay for Ms. Taylor to remember confidential information. (Ex. 2, Marshall at 

142:15-22). 

C. Fidelity has no likelihood of success on a breach of loyalty theory.

As an apparent afterthought, Fidelity asserts that Ms. Taylor breached her duty of loyalty 

to Fidelity by virtue of not placing meetings into Fidelity’s calendar system far enough in advance. 

(Dkt. 82 at 9). Fidelity’s actual breach of loyalty claim has nothing to do with calendaring, so 

Fidelity has not established any likelihood of success. (See Dkt. 61 at ¶¶ 110-114). Even if 

calendaring were at issue, it plainly would not support a cause of action for breach of loyalty. 

Fidelity claims that Ms. Taylor did not calendar well enough and was, thus, “incompetent.” 

(Dkt. 82 at 9). Directly at odds with its assertion of incompetence, Fidelity vaguely suggests that 

Ms. Taylor was purposely keeping appointments off the Salesforce appointment system so that 

when she went to Fairhaven, clients (who did not have Ms. Taylor’s cell phone number) would

somehow keep their previously-scheduled meetings with Ms. Taylor.

31

 (Dkt. 82 at 9). Fidelity 

does not provide any specifics, let alone cite any evidence supporting this serious allegation. Nor 

could it, as Ms. Taylor was not hiding any appointments. Like many advisors in Fidelity’s Oak 

Brook branch, Ms. Taylor calendared all of her upcoming appointments on her Fidelity Outlook 

calendar; this was a shared Outlook calendar, which everyone in the Oak Brook office – including 

31 This baseless assertion echoes Fidelity’s assertion in its initial memorandum that Ms. Taylor was asking 

clients to join Fairhaven before she resigned Fidelity. (Dkt. 5 at 6) (citing Dkt. 5-1 at ¶¶ 16-17). During 

his deposition, Mr. Marshall admitted that this was based on three levels of hearsay: his description of a 

Fidelity advisor’s description of the client’s description of Ms. Taylor’s statements. (Ex. 2, Marshall at 

163:12-164:5, 173:9-177:7). He admitted he had no idea whether the advisor’s description was correct. 

(Id. at 255:15-256:20). When asked which advisor it was, Mr. Marshall could not remember. (Id. at 173:9-

177:7). When asked the name of the client, he could not remember. (Id.). Later in the deposition, when 

questioned instead by Fidelity’s counsel, Mr. Marshall remembered that

 

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Mr. Marshall – could access, read, and edit. (Ex. 3, Taylor at 129:15-136:17; Ex. 2, Marshall at 

212:17-24).

Fidelity’s “calendaring” theory was also roundly refuted on deposition, as Mr. Marshall 

had no actual knowledge of any malfeasance, only speculation. (Ex. 2, Marshall at 163:12-165:5, 

213:10-215:24, 219:2-225:9, 235:7-239:6). Indeed, Mr. Marshall admitted he did not know

whether alleged mis-calendaring meant that Ms. Taylor was trying hide any appointments from 

Fidelity. (Id. at 231:16-232:6). Ms. Taylor, by contrast, confirmed that when she scheduled 

meetings for after March 6, 2020, she expected to take those meetings at Fidelity because she had 

not planned to leave. (Ex. 3, Taylor at 198:11-206:16). 

Another major issue with Fidelity’s “calendaring” theory is that Fidelity did not produce 

calendar entries with “Start Dates” after March 6, 2020, so Ms. Taylor now lacks the opportunity 

to direct the Court to particular calendar entries proving that she did, in fact, document her future 

meetings.32 

D. Fidelity’s claim for breach of the non-solicitation covenant is irrelevant

here.

Fidelity dropped its solicitation injunction request, rendering its claim for breach of the 

non-solicitation provision irrelevant to the instant motion. See In re Teknek, LLC, 343 B.R. 850, 

868–69 (Bankr. N.D. Ill. 2006) (looking to the character of the claim that corresponds to the 

injunctive relief requested); Wiggins v. Baldwin, No. 17-CV-583-DRH-DGW, 2017 WL 6334369, 

at *2 (S.D. Ill. Dec. 12, 2017) (denying injunction for failure to establish likelihood of success on 

the only claim that related to the requested injunction, out of four total claims). Nevertheless, out 

of an abundance of caution, we will briefly address Fidelity’s likelihood of success on that claim. 

32 Moreover, Marshall admitted to relying on the “Date Created” field to try and establish Ms. Taylor’s 

alleged solicitation. (Ex. 2, Marshall at 222:1-12). Yet, many of the calendar entries that Fidelity produced 

were modified or even created weeks after Ms. Taylor left Fidelity. (Id. at 216:1-217:22, 222:1-12, 239:16-

241:9; see, e.g., Exhibit 18 & Exhibit 19). 

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34

1. The non-solicitation covenant is unenforceable. 

The non-solicitation covenant is generally unenforceable for the reasons already discussed 

above – i.e., if Ms. Taylor is never allowed to use her client’s names to solicit business, then the 

non-solicitation covenant is effectively unlimited in duration and geographic scope. The nonsolicitation covenant is also unenforceable because its language is ambiguous. 

The first sentence of the non-solicitation provision does not prohibit solicitation; rather, it 

prohibits the use of “Confidential Information” to accomplish solicitation:

during his/her employment and for a period of one year following 

his/her separation from employment by the Fidelity Companies, 

Employee will not use any Confidential Information...to directly 

or indirectly...solicit in any manner or induce or attempt to induce 

any customer or prospective customer ... to divert or take away all 

or any portion of his/her/its business....

(Dkt. 84-1 at 5, ¶ 6) (emphasis added). Stated differently, this sentence merely prohibits the use 

of Confidential Information to solicit customers away from Fidelity, it does not prohibit 

solicitation itself. As explained above, Ms. Taylor did not use any Confidential Information, so 

this sentence does not apply to her conduct. (See supra). 

The second sentence of the non-solicitation provision is ambiguous:

During this same period [i.e., one year following separation from 

Fidelity], Employee will not directly or indirectly, on his/her own 

behalf or on behalf of anyone else or any company, solicit in any 

manner or induce or attempt to induce any customer or 

prospective customer [to do what?] with whom Employee had 

personal contact or about whom Employee otherwise learned during 

the course of Employee’s employment with the Fidelity Companies. 

(Dkt. 84-1 at 5, ¶ 6) (emphasis added). Unlike the first sentence, which clearly prohibits the use 

of Confidential Information to solicit clients to divert or take away their business from Fidelity, 

the second sentence raises the question: “Solicit or induce a customer to do what?” Donate to 

charity? Buy Girl Scout cookies? Vote Republican? The Employee Agreement does not say. All 

we know is that it could not mean solicit or induce “to divert or take away all or any portion of 

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35

his/her/its business from,” or this sentence would have used the same phrasing as the first sentence. 

This sentence is ambiguous.33 Because the Employee Agreement is a contract of adhesion, any 

ambiguity is construed strictly against the drafter: Fidelity.34 Chase Bank USA, N.A. v. Swanson, 

No. 10-CV-06972, 2011 WL 529487, at *5 (N.D. Ill. Feb. 4, 2011). Accordingly, this provision 

is not enforceable against Ms. Taylor.

2. Fidelity has offered no evidence of solicitation. 

Despite dropping its request to enjoin solicitation, Fidelity spends much of its brief 

attempting to establish that Ms. Taylor solicited clients. Fidelity, however, offers no proof, only 

speculation and layer upon layer of unsound inference. “[A]n injunction based on nothing but 

speculation and conjecture is as much an abuse of discretion as an injunction based on clearly 

erroneous facts.” Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1204 (7th Cir. 1996). 

When Ms. Taylor announced her departure from Fidelity, her clients all asked follow-up 

questions (often about the condition of the market, about Fairhaven, or whether they could 

continue the advisory relationship), and Ms. Taylor would send follow-up emails if they asked her 

to. (See supra at pp. 6-7). These follow-up emails often included pleasantries, which Fidelity 

contends “does not make sense,” so it must have been solicitation. (Dkt. 82 at 5-6). On the 

contrary, it makes perfect sense that Ms. Taylor would make such statements to the customers who 

asked her for information about potentially continuing their advisory relationship. Fidelity’s 

argument is nothing more than conjecture. See Harper v. United States Beef Corp., No. 15-CV33 Alternatively, this restrictive covenant is broader than required for the protection of a legitimate business 

interest and, thus, unenforceable. Reliable, 2011 IL 111871, ¶ 17. 

34 Mr. Meyers testified that employees are not able to revise or negotiate the terms of the contact. (Ex. 8, 

Meyers at 82:22-83:5). Mr. Marshall was not aware of any employee ever negotiating a change of the 

language. (Ex. 2, Marshall at 138:19-22). 

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36

3112, 2018 WL 3863526, at *5 (C.D. Ill. July 23, 2018) (“An inference equally likely to another 

inconsistent inference is speculation or conjecture”). 

In addition, Fidelity asserts that Ms. Taylor must have solicited clients because she called 

some of them several times.35 (Dkt. 82 at 4-5). Ms. Taylor made multiple calls to clients whom 

she was unable to reach, or who had a series of questions for Ms. Taylor, but that does not mean 

she solicited them. 

Fidelity also cites a recap email Ms. Taylor sent to a client, and argues that all the factual 

statements Ms. Taylor made in the email represent solicitation because “there is no way this client 

... would have asked questions that would elicit those responses.” (Dkt. 82 at 6-7; Dkt. 82, Ex. B. 

at FAIRHAVEN-0002501). On the contrary, no reasonable factfinder could read the exchange 

and believe that Ms. Taylor was not simply answering the client’s questions. Indeed, the email 

indicates

 (Dkt. 82, Ex. B. at FAIRHAVEN-0002501). 

Further, Fidelity asserts that after a customer emailed Ms. Taylor seeking a 

recommendation for a new advisor at Fidelity, “instead of recommending someone,” Ms. Taylor 

said she wanted to continue working with the customer. (Dkt. 82 at 7). Fidelity fails to mention 

that Ms. Taylor’s email was a follow-up to a telephone call, and Ms. Taylor’s statement about 

potentially working together in the future was in response to comments the client made during that

call. (Dkt. 82, Ex. B at FAIRHAVEN-0002644). 

35 For instance, Fidelity suggests that “One client indicated that she did not want to transfer but Taylor kept 

at it, trying to convince her to move.” (Dkt. 82 at 7-8). But the actual email Fidelity cites tells a different 

story. It shows that the client reached out to Ms. Taylor, had asked Ms. Taylor questions about potentially 

transferring to Fairhaven, and indicated that she may wish to do so in the future. (Dkt. 82, Ex. B at 

FAIRHAVEN-0002658). 

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The evidence is 

undisputed that every client who received an announcement call from Ms. Taylor engaged her in 

a discussion, asked her questions, and requested her to send follow-up e-mails during the market 

turmoil of 2020.

Fidelity also accuses Ms. Taylor’s administrative assistant, Ms. Lyon, of having solicited 

clients. (Dkt. 82 at 8). Ms. Lyon merely followed the instructions Ms. Taylor provided her (i.e., 

to announce Ms. Taylor’s departure from Fidelity and ask if the client wanted Ms. Taylor’s new 

contact information), and then she sent Ms. Taylor short summaries of each call. (Ex. 3, Taylor at 

120:16-20, 153:13-154:20, 160:6-19). When Ms. Lyon asked the customer if he or she wanted 

Ms. Taylor’s new contact information, some clients asked for Ms. Taylor to call them back, and 

others said they were not interested in Ms. Taylor’s new contact information because they would 

prefer to stay with Fidelity. Fidelity cites some of Ms. Lyon’s call summaries to Ms. Taylor, but 

none indicate that Ms. Lyon disregarded Ms. Taylor’s instructions not to deviate from the script.36

III. THE BALANCE OF HARMS WEIGHS AGAINST AN INJUNCTION

By narrowing its injunction request to seek only the destruction of a list of client names 

that Ms. Taylor created from memory, Fidelity appears to be hoping the Court will think an

injunction presents little harm, and make that its primary consideration. However, the entry of any

injunction (no matter how anemic) will result in immediate and very real harm to Ms. Taylor. The 

entry of a preliminary injunction here will trigger a series of procedures before FINRA that would 

not otherwise apply. (See Dkt. 18 at 8-9) (explaining the relevant FINRA procedures). An

injunction would, therefore, result in Ms. Taylor being forced to immediately expend additional 

attorneys’ fees defending an expedited FINRA Rule 13804(b) injunction hearing. 

36 Had Ms. Lyon solicited any clients, it would have been outside of her authority. Fidelity knows of no 

facts suggesting otherwise. (Ex. 2, Marshall at 242:18-243:6, 251:9-252:15). 

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Another consideration is that granting an injunction will also harm Fidelity’s own clients, 

who have a strong interest in maintaining contact with their longtime advisor. Merrill Lynch, 

Pierce, Fenner & Smith, Inc. v. O’Connor, 194 F.R.D. 618 (N.D. Ill. 2000). In O’Connor, the 

plaintiff-employer sought an injunction that would have prevented a financial advisor from calling 

his former clients to provide them with his new contact information. The court analyzed the 

competing harms and explained that “the relationship between broker and client is, in many cases 

at least, personal and, particularly in a time of uncertain markets, they may be harmed, or feel 

that they will be harmed, by being deprived of that relationship.” Id. at 619 (internal quotations 

omitted) (emphasis added). The court continued, 

It would be unlawful, as well as unreasonable, for Merrill Lynch to 

seek to prohibit [its former employee] from giving his former 

customers an announcement of his intent to move to other 

employment and notice where he could be reached should the 

customers wish to contact him .... otherwise customers with 

longstanding trust in their brokers with immediate need of advice 

would not be able to contact them.

Id. at 620 (emphasis in original).37 

This sentiment is particularly apt, given the ongoing pandemic and economic volatility. 

Denial of an injunction will also benefit the public generally, as “courts have generally 

recognized that the public substantially benefits from competition.” Platinum Home Mortg. Corp. 

v. Platinum Fin. Group, Inc., 149 F.3d 722, 726 (7th Cir. 1998). Fidelity uses its financial strength

to restrict trade and competition through lawsuits like this. Indeed, Fidelity has forced Defendants 

to spend a lot of money defending against a preliminary injunction, despite that it is seeking only 

the destruction of an innocuous list that Ms. Taylor created from memory.

37 Mr. Marshall even confirmed that it is in a client’s best interest to be able to reach a financial advisor he 

or she has worked with for 20 years. (Ex. 2, Marshall at 83:2-19).

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IV. THE COURT SHOULD NOT ENJOIN FAIRHAVEN 

Fidelity seeks drastic relief against Fairhaven, yet it does not devote even one sentence to 

explain why Fairhaven – which owes Fidelity no duties – should be subject to an injunction. 

OPPOSITION TO SANCTIONS MOTION

The merits of Fidelity’s claim against Ms. Taylor will be adjudicated before a FINRA 

arbitration panel, in a proceeding not subject to the Federal Rules. Nevertheless, in its February 

5, 2021 sanctions motion, Fidelity effectively asks this Court to rule on the merits of its claim by 

way of adverse inference, based on Ms. Taylor having allegedly spoliated (a) certain text messages 

with clients, and (b) the dates on which she entered contacts into her cell phone. (Dkt. 84). 

The sanctions motion is baseless. Text messages with clients bear no relevance to the 

instant preliminary injunction action and, in any event, the two text messages Fidelity claims were 

spoliated were sent one-to-two weeks before Fidelity ever sent Ms. Taylor a perseveration notice. 

As to the cell phone contact creation dates Fidelity claims spoliated, Fidelity never requested their 

production. 

Even if it were possible to spoliate documents that are irrelevant or which the movant never 

requested, Fidelity has failed to establish a critical element of its claim: bad faith. Adverse

inferences are one of the most “severe” sanctions and so require a finding that the party “destroyed 

the documents in bad faith.” Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002); FED. R.

CIV. P. 37(e)(2), 2015 Amendment Advisory Committee Notes. Fidelity has offered no evidence 

concerning Ms. Taylor’s intentions. Fidelity has not come close to meeting its burden. 

I. MS. TAYLOR DID NOT SPOLIATE ANY TEXT MESSAGES

In April 2020, Ms. Taylor replaced her old Samsung phone with a new iPhone. Fidelity 

asserts that because Ms. Taylor did not produce client texts that were on her old Samsung phone, 

Ms. Taylor spoliated those text messages. Not so.

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A. Fidelity offers no evidence of spoliation. 

Fidelity asserts that after cross-matching client phone numbers with the text message log 

Ms. Taylor produced, it discovered “numerous” texts with clients that Ms. Taylor did not produce. 

(Dkt. 84 at 3-4). Fidelity fails to substantiate this grandiose claim. In reality, Fidelity cites only 

two text messages that Ms. Taylor did not produce. (Dkt. 84-4 at 12-13, Taylor at 144:7-145:24). 

Importantly, these text messages were sent on March 12 and March 14, 2020 – approximately one 

week before Fidelity sent its March 20, 2020 preservation letter (which Ms. Taylor did not receive 

until several days later). Ms. Taylor did not produce the March 12 and March 14, 2020 text 

messages because she did not have them on her Samsung phone when she received Fidelity’s 

March 20, 2020 preservation letter. Ms. Taylor testified under oath that she produced and 

preserved all the text messages that she had on her phone. (Dkt. 84-4 at 12, Taylor at 144:18-24). 

Fidelity, which had the opportunity to question Ms. Taylor about this, cites no evidence that Ms. 

Taylor failed to produce any texts that were in her possession after a preservation duty arose.

38

 

B. Text messages with clients are irrelevant to this proceeding.

Ms. Taylor’s text messages with clients bear no relevance to this preliminary injunction

proceeding, as Fidelity has dropped its request to enjoin solicitation. If documents are irrelevant

to this proceeding, they are outside the scope of discovery (and, consequently, cannot possibly be 

spoliated). FED. R. CIV. P. 26(b)(1). 

38 Based on Fidelity’s procedural gamesmanship throughout this proceeding, Ms. Taylor expects Fidelity, 

on reply, to claim that Ms. Taylor spoliated some entirely different text messages, thereby preventing Ms. 

Taylor from explaining whether the text was: actually sent to or from a client; sent before Ms. Taylor 

received a preservation letter; sent before or after the individual became a Fairhaven client (as Defendants 

were not asked to produce documents created after the Fairhaven client relationship was established); etc. 

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C. Fidelity has not shown the discovery cannot be replaced. 

Rule 37 sanctions are available only when the electronic discovery at issue “cannot be 

restored or replaced through additional discovery.” FED. R. CIV. P. 37(e). Fidelity included a 

finding in its proposed order that the “text message communications cannot be replaced,” but has 

never explored whether they are available from the clients or T-Mobile. (Dkt. 84-6 at 1). 

D. Fidelity has not shown “intent to deprive” under Rule 37(e)(2). 

Fidelity seeks an adverse inference, which is governed by Rule 37(e)(2) and requires a 

“finding that the party acted with the intent to deprive another party of the information’s use in the 

litigation.”39 FED. R. CIV. P. 37(e)(2). “Negligent or even grossly negligent behavior does not 

logically support [an adverse] inference.” FED. R. CIV. P. 37(e), 2015 Amendment Advisory 

Committee Notes. Yet, Fidelity does not attempt to show any intent to deprive – it relies solely 

on the alleged deprivation itself rather than on Ms. Taylor’s state of mind.

II. MS. TAYLOR DID NOT SPOLIATE CONTACT CREATION DATES

Fidelity also argues that when Ms. Taylor got a new iPhone in April 2020, she spoliated 

evidence by disposing of the contact creation dates on her old Samsung phone.40 Fidelity 

speculates that these would have shown that Ms. Taylor had client contact information in her phone 

at the time of her March 6, 2020 departure. Again, Fidelity has not shown spoliation. 

39 To the extent Fidelity is moving under Rule 37(e)(1) and seeking something lesser than an adverse 

inference, it could not possibly establish the requisite “prejudice.” Fidelity cites two decisions – neither 

involving a preliminary injunction or expedited discovery – for the proposition that a party is prejudiced if 

it is unable to use “all available relevant evidence” or “all the relevant facts” in prosecuting its case. (Dkt. 

84 at 12-13) (citing Larson and Hickman). “All available relevant evidence” is never available in deciding 

a preliminary injunction. Moreover, text messages with clients would have no impact on whether Fidelity 

is entitled to a preliminary injunction to enjoin the use of client names. 

40 Fidelity believes Ms. Taylor had confidential information on her phone upon termination. (Dkt. 84 at 5 

n.2). Fidelity does not cite any evidence for this accusation; it is mere speculation, and soundly refuted by 

Ms. Taylor’s sworn testimony. (Ex. 3, Taylor at 41:11-42:1, 42:14-21). 

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A. Fidelity never asked Ms. Taylor to produce phone contact creation dates.

On May 25, 2020, Fidelity issued a document request to Ms. Taylor requesting:

All Documents containing the names, or other identifying 

information, of any Fidelity Customers in the possession of Taylor, 

including documents or information created by using Taylor’s 

memory to access publicly available information, and information 

contained in contact management databases, notes, emails, text 

messages, on social media sites, LinkedIn, Facebook, and on 

electronic devices, including in cellular telephones. 

(Dkt. 84-3 at 6) (emphasis added). The Request makes clear that the only “information” requested 

was the “names or other identifying information” of Fidelity customers. The Request did not seek 

the contact creation date, and it did not seek a forensic image of an entire iPhone.41 It is selfevident that a party cannot spoliate documents that it was never asked, let alone ordered, to 

produce.42

B. Rule 37(e) applies only when a party fails to take “reasonable 

steps” to preserve information.

Rule 37(e) does not apply every time information is lost, but only when it is lost “because 

a party failed to take reasonable steps to preserve it.” FED. R. CIV. P. 37(e). Ms. Taylor took 

reasonable preservation steps by asking T-Mobile to transfer her contacts from the old phone to 

the new phone. (Ex. 3, Taylor at 45:7-46:20). Ms. Taylor had no reason to suspect (and no way 

to know) that any data would be lost when T-Mobile transferred her contacts from one phone to 

41 In granting expedited discovery, the Court ordered, “All document requests should be narrowly 

targeted...” (Dkt. 29 at 3) (emphasis added). Fidelity’s spoliation theory, however, relies on an expansive 

post-hoc reading of its discovery requests – one that would render its discovery requests all-encompassing 

rather than narrowly targeted. 

42 Fidelity asserts that its March 20, 2020 preservation letter gave notice to Ms. Taylor to preserve “any 

data generated by and/or stored on any smart phones or computers.” (Dkt. 84 at 2). Not so. The letter did 

not require Ms. Taylor to preserve “any data” on the phone – only “confidential or proprietary information 

belonging to Fidelity in [Ms. Taylor’s] possession.” (Dkt. 84-2 at 2). The date on which Ms. Taylor added 

a contact to her phone is not Fidelity’s confidential information, so the preservation letter would not have 

required her to preserve that information.

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another. The date that a contact is entered into a phone is not information available to the enduser; rather, it is an operating system-level detail only accessible by forensic technicians. Indeed, 

this information is so obscure that Fidelity’s own forensic expert was not entirely certain whether 

it would transfer between phones. (Dkt. 84 at 6).

Ms. Taylor also testified under oath that she had no client information in her phone at the 

time she left Fidelity. (Ex. 3, Taylor at 42:14-21). Because contacts added to her phone after her 

departure from Fidelity could not establish that she took any information while at Fidelity, Ms. 

Taylor had no reason to think that her contact creation dates would be relevant to this proceeding. 

C. Contact creation dates fall outside of Rule 26.

Electronically stored information is exempt from discovery if it is “not reasonably 

accessible because of undue burden or cost.” FED. R. CIV. P. 26(b)(2)(B). Operating system-level 

files of a cell phone are not reasonably accessible, and certainly not during expedited discovery. 

D. Fidelity has not shown any “intent to deprive.”

Again, to obtain an adverse inference under Rule 37(e)(2), there must be a finding of “intent 

to deprive.”43 FED. R. CIV. P. 37(e)(2). To establish an intent to deprive, Fidelity would have had 

43 If Fidelity were, instead, moving under Rule 37(e)(1), it could never establish the requisite “prejudice.” 

The only relief Fidelity seeks in this preliminary injunction hearing is the return of confidential information 

it claims Ms. Taylor misappropriated. In reality, this means “deletion,” as Fidelity is not claiming it is 

without use of any of the information at issue. But if Ms. Taylor already deleted confidential information, 

as Fidelity claims she did, then Fidelity would have already obtained the very relief it is seeking in this 

proceeding. In an attempt to establish prejudice where it does not exist, Fidelity falsely asserts that Ms. 

Taylor “has even gone so far as to state that the new iPhone Contacts prove that” she did not have Fidelity 

information in her possession. (Dkt. 84 at 6). Fidelity misconstrues the record. In Fidelity’s June 16, 2020 

response to Ms. Taylor’s motion to compel, it falsely asserted that “documents already produced by Taylor 

indicate that she had retained extensive Fidelity confidential customer information in her personal cell 

phone at the time she resigned.” (Dkt. 49 at 1-2). In her reply, Ms. Taylor termed this an “egregious 

misrepresentation” because her iPhone contacts did not establish that she took any information from 

Fidelity. (Dkt. 50 at 15). Denying that her contacts establish she took any information from Fidelity is far 

different than suggesting they “prove” she did not take any information from Fidelity.

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44

to show, at a minimum, that Ms. Taylor knew her phone saved contact creation dates in the 

underlying operating system files. It did not do so.

CONCLUSION

For all these reasons, the Court should deny Fidelity’s preliminary injunction motion and 

its sanctions motion in full. 

Dated: March 12, 2021 Respectfully submitted, 

JENNIFER TAYLOR and FAIRHAVEN

WEALTH MANAGEMENT, LLC,

Defendants / Counter-Plaintiffs

By: /s/ Christopher S. Griesmeyer 

One of Their Attorneys

Christopher S. Griesmeyer (# 6269851)

Zachary Mulcrone (# 6300387)

GREIMAN, ROME & GRIESMEYER, LLC

205 West Randolph Street, Suite 2300

Chicago, Illinois 60606

(312) 428-2750

cgriesmeyer@grglegal.com

zmulcrone@grglegal.com

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CERTIFICATE OF SERVICE

I hereby certify that on March 12, 2021, I electronically filed the foregoing the Redacted Version

of Defendants’ Omnibus Response Brief In Opposition To Plaintiff’s Motions For Preliminary 

Injunction And Discovery Sanctions with the Clerk of the Court via the CM/ECF System, which 

will send notification of such filing to those registered to receive electronic notices via email 

transmission at the email addresses provided by them including:

Joel W. Rice

Franklin Z. Wolf

FISHER & PHILLIPS, LLC

10 South Wacker Drive, Suite 3450

Chicago, Illinois 60606

jrice@fisherphillips.com

fwolf@fisherphillips.com

Susan M. Guerette

FISHER & PHILLIPS, LLC

150 N. Radnor Chester Road, Suite C300

Radnor, PA 19087

sguerette@fisherphillips.com

 /s/ Christopher S. Griesmeyer 

Christopher S. Griesmeyer (ARDC No. 6269851)

GREIMAN, ROME & GRIESMEYER, LLC

205 West Randolph St., Ste. 2300 

Chicago, Illinois 60606

Bus: (312) 428-2750

Fax: (312) 332-2781

cgriesmeyer@grglegal.com 

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