lawsuit between cs and dealer over confidentiality can be a mess - just ask these guys / can anyone demand camera data March 15, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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lawsuit between cs and dealer over confidentiality can be a mess - just ask these guys / can anyone demand camera data
March 15, 2018
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lawsuit between cs and dealer over confidentiality can be a mess - just ask these guys 
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    No one wants to be involved in litigation, except litigation lawyers [real litigation lawyers].  It's costly and time consuming.  Getting everything you want out of the litigation can be illusive and pyrrhic victories all too often.  That's why most litigation ends in a settlement where both sides are forced to compromise.  Us litigators define a compromise as an agreement where both sides are unhappy [OK sometimes both are happy].  I suppose I should mention, I am a "litigator" and my office has litigation attorneys and we probably commence more lawsuits for the alarm industry than most [or any] other law firms.  We've turned to arbitration recently when the agreement under dispute [and our Standard Form Agreements have the provision] calls for arbitration for dispute resolution.
    But here's a dispute where there is no arbitration provision, and I confess that I am something at a loss of words to explain what this fight is all about.  What I can tell you is that it's between a central station, American Digital Monitoring [who is NOT listed on The Alarm Exchange] and a dealer, NextAlarm, who is out of Georgia and owned by Numerex [out of PA].  The lawsuit is pending in Federal Court venued in state of Washington.
    I am going to give you the facts directly from the Judge's decision [on a discovery and sanction motion - not a decision deciding the case]:
    "This breach of contract/trade secret matter was removed to this Court on April 11, 2017.  According to the Complaint, Defendant NextAlarm, LLC (“NextAlarm”) and Plaintiff Cen Com, Inc. (“Cen Com”) are businesses in the alarm-monitoring industry.   The parties worked together for several years.   That business relationship allowed Cen Com to monitor NextAlarm accounts and respond to signals from those accounts to summon the appropriate first responders.   Cen Com contends that while providing those services, its employees learned that NextAlarm lacked crucial and commercially valuable information/data regarding NextAlarm customers.  Cen Com allegedly acquired that missing information/data while providing services for NextAlarm. Id. When NextAlarm notified Cen Com that Cen Com’s services would no longer be needed, Cen Com offered to sell that data to NextAlarm, but a sale never materialized. Instead, the parties entered into a deal whereby Cen Com agreed to act solely as an intermediary by forwarding NextAlarm signals to a new vendor whose live operators would dispatch emergency services or contact customers as needed.  The agreement required NextAlarm to use reasonable efforts to ensure that the new vendor did not use Cen Com’s data for improper purposes.
    Cen Com contends that NextAlarm violated the agreement by working with the new vendor to steal commercially valuable and confidential information from Cen Com databases.  Based on these allegations, Cen Com asserts twelve claims against NextAlarm, including claims for breach of contract, negligence, fraud/misrepresentation, negligent misrepresentation, tortious interference with a business expectancy, conversion (stolen data), violation of Washington’s Consumer Protection Act (“CPA”), unjust enrichment, aiding and abetting, trade secret misappropriation (Uniform Trade Secrets Act), civil conspiracy and vicarious liability."  references to the record omitted
    Additional explanation of what this case is about is found in the decision:
    "Plaintiff asserts a breach of contract. “Cen Com alleges that the conduct described in this Complaint constitutes a breach of contract by NextAlarm and Numerex.”  The alleged facts focus on the history of the business relationship between Plaintiff and Defendant, the theft/data mining of proprietary information, and Plaintiff’s belief that Defendant is still actively data mining and intentionally stealing Plaintiff’s information.  Plaintiff’s Trade Secret Misappropriation claim relies on the same facts.  Indeed, Plaintiff alleges that its data constitutes a protected trade secret, it took steps to protect that data, it has economic value, that Defendant stole the data and retained it even after Plaintiff demanded its return, that Defendant assisted others in stealing the data, and that Plaintiff was harmed as a result."  references to record omitted
    I don't know what confidential information or data they are fighting over.  I do know that the Judge criticized NextAlarm's counsel for failing to comply with certain procedures before bringing the motion, and for filing a lot of the "confidential" information with the motion so that now its on the public record, for which the Judge has ordered a sanctions hearing.  Sanctions in federal court cases can be significant.
    Well, too bad these guys [not the lawyers] didn't have a better agreement between them providing terms that would have addressed their current dispute.  Too bad they didn't have an arbitration provision to resolve disputes quicker, more efficiently and at less legal and other cost.  [which is not always the case, depending on which arbitration company you use and how many arbitrators you are required to use.  Our Standard Form Agreements call for a single arbitrator administered by Arbitration Services Inc, found at www.ArbitrationServicesInc.com.]  Too bad they didn't use a central station on The Alarm Exchange where they could have asked that I mediate the dispute before jumping off the ship into the murky waters of litigation. 
    Here's the case if you're interested:  2018 WL 1182240 .Only the Westlaw citation is currently available.  United States District Court, W.D. Washington.  CEN COM INC., a Washington corporation d/b/a American Digital Monitoring, Plaintiff,  v.  NUMEREX CORP., a Pennsylvania corporation; NEXTALARM, LLC, a Georgia limited liability corporation, and DOES 1-10, Defendants.  CASE NO. C17-0560RSM 03/07/2018
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can anyone demand camera data
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Ken, 
    I installed cameras for a customer in front of their building which also covers the sidewalk and street.  There was a fight between two people outside of the property.  One of the parties involved in the fight would like the video which he will obviously post on social media to berate the other person. My customer does not want to give over the recording; he does not want to be part of this. 
    The guy who wants the video claims he has a legal right to obtain this recording.  Are there any laws regarding this subject? This is a private property.
Thanks,
Phil Gershbaum 
PG Security inc 
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Response
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    Sorry I didnt post a response to this yesterday.  
    Someone captured on video does not have a right to the data.  Law enforcement can compet production.  A private person may be able to obtain data when involved in a lawsuit and an attorney issues a subpoena for the data.  The data would of course have to be relevant to the pending or potential litigation.  The private owner of the data would not be under any obligation to preserve the data unless put on notice that the data may be requested, and that notice would probably have to let the owner know that it's the owner that may be involved in the litigation.
    Another question is, who owns the data.  If the data is on the end user's DVR, then it's the end user.  If the data is stored on the central station's servers then [if the alarm dealer or central station have used the Standard From Agreement] the central station owns the data.  The data would not be released unless the central station is required to comply with law enforcement request, subpoena or has the consent of the end user.
    So the answer to the question is, no, everyone can't demand camera data [and expect to get it].
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
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