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`Case 5:22-cv-02637-EJD Document 23-1 Filed 05/20/22 Page 1 of 30
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`
`BRYAN WILSON (CA SBN 138842)
`BWilson@mofo.com
`KENNETH A. KUWAYTI (CA SBN 145384)
`KKuwayti@mofo.com
`MORRISON & FOERSTER LLP
`755 Page Mill Road
`Palo Alto, California 94304-1018
`Telephone: 650.813.5600
`Facsimile: 650.494.0792
`
`ARTURO J. GONZALEZ (CA SBN 121490)
`AGonzalez@mofo.com
`DIEK O. VAN NORT (CA SBN 273823)
`DVanNort@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105-2482
`Telephone: 415.268.7000
`Facsimile: 415.268.7522
`
`MARY PRENDERGAST (CA SBN 272737)
`MPrendergast@mofo.com
`MORRISON & FOERSTER LLP
`2100 L Street, NW, Suite 900
`Washington, District of Columbia 20037
`Telephone: 202.887.1500
`Facsimile: 202.887.0763
`
`Attorneys for Plaintiff
`APPLE INC.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`APPLE INC., a California corporation,
`Plaintiff,
`
`
`
`v.
`
`RIVOS, INC., a Delaware corporation; WEN
`SHIH-CHIEH a/k/a RICKY WEN, and BHASI
`KAITHAMANA,
`
`Defendants.
`
`Case No. 5:22-CV-2637-EJD
`APPLE’S MEMORANDUM OF
`POINTS AND AUTHORITIES IN
`SUPPORT OF EX PARTE MOTION
`FOR TEMPORARY RESTRAINING
`ORDER, EXPEDITED DISCOVERY,
`AND ORDER TO SHOW CAUSE
`Date: **
`Time: **
`Courtroom: 4, 5th Floor
`Judge: Hon. Edward J. Davila
`
`Action Filed: April 29, 2022
`
`MEMO. OF POINTS AND AUTHORITIES ISO APPLE’S MOT FOR TRO, EXPEDITED DISCOVERY, AND OSC
`CASE NO. 5:22-CV-2637-EJD
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`Case 5:22-cv-02637-EJD Document 23-1 Filed 05/20/22 Page 2 of 30
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`
`
`TABLE OF CONTENTS
`
`
`B.
`C.
`
`D.
`
`Page
`INTRODUCTION .............................................................................................................. 1
`STATEMENT OF FACTS ................................................................................................. 2
`A.
`Apple’s Proprietary and Trade Secret SoC Designs Are Key to Apple’s
`Competitive Edge in Personal and Mobile Computing .......................................... 2
`Apple Diligently Protects Its Trade Secret SoC Designs ........................................ 3
`The Individual Defendants and Other Former Apple Employees Violated
`Their Obligations to Apple When They Took and Retained Apple’s Trade
`Secrets After Accepting Rivos’s Job Offers ........................................................... 5
`1.
`Ricky Wen ................................................................................................... 6
`2.
`Bhasi Kaithamana ....................................................................................... 7
`3.
`Other Apple Employees Departing for Rivos Retained Apple
`Information and Wiped Their Apple Devices To Cover Their
`Tracks .......................................................................................................... 8
`Apple Informed Rivos and Apple’s Former Employees of Their
`Obligations and Sought Return of Its Trade Secrets Before Filing This
`Motion ..................................................................................................................... 9
`LEGAL STANDARD ....................................................................................................... 12
`ARGUMENT .................................................................................................................... 12
`A.
`A Temporary Restraining Order Is Needed To Enjoin Defendant Wen from
`Using or Disseminating Apple’s Trade Secrets .................................................... 12
`1.
`Apple Is Likely To Succeed on Its DTSA and Breach of Contract
`Claims Against Wen ................................................................................. 12
`a.
`Apple’s SoC Designs Are Trade Secrets ...................................... 14
`b.
`Wen Misappropriated Apple’s Trade Secrets ............................... 15
`c.
`Wen Breached his Contract with Apple ........................................ 16
`Apple Will Suffer Imminent and Irreparable Harm Unless the Court
`Issues Immediate Injunctive Relief ........................................................... 17
`The Balance of Hardships Strongly Favors Apple .................................... 20
`The Relief Apple Seeks Supports the Public’s Strong Interest in
`Protecting Trade Secrets ........................................................................... 21
`Expedited Discovery Is Needed To Uncover the Full Extent of the
`Misappropriation and To Prevent Further Misuse of Apple’s Trade Secrets ....... 21
`CONCLUSION ................................................................................................................. 25
`
`2.
`
`3.
`4.
`
`B.
`
`I.
`II.
`
`III.
`IV.
`
`V.
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`MEMO. OF POINTS AND AUTHORITIES ISO APPLE’S MOT FOR TRO, EXPEDITED DISCOVERY, AND OSC
`CASE NO. 5:22-CV-2637-EJD
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`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Al Otro Lado v. Gaynor,
`513 F. Supp. 3d 1253 (S.D. Cal. 2021) .....................................................................................12
`
`All. for the Wild Rockies v. Cottrell,
`632 F.3d 1127 (9th Cir. 2011) ...................................................................................................12
`
`Am. LegalNet, Inc. v. Davis,
`673 F. Supp. 2d 1063 (C.D. Cal. 2009) ....................................................................................22
`
`Blizzard Ent. Inc. v. Ceiling Fan Software LLC,
`28 F. Supp. 3d 1006 (C.D. Cal. 2013) ......................................................................................12
`
`Carl Zeiss Meditec, Inc. v. Topcon Med. Sys., Inc.,
`19-4162 SBA, 2021 WL 1186335 (N.D. Cal. Mar. 1, 2021) ..............................................17, 21
`
`Comet Techs. USA Inc. v. Beuerman,
`No. 1:18-cv-01441-LHK, 2018 WL 1990226 (N.D. Cal. Mar. 15, 2018) ........................ passim
`
`Cutera, Inc. v. Lutronic Aesthetics, Inc.,
`444 F. Supp. 3d 1198 (E.D. Cal. 2020) ...............................................................................16, 18
`
`eHealthinsurance Servs., Inc. v. Healthpilot Techs. LLC,
`No. 21-CV-4061-YGR, 2021 WL 3052918 (N.D. Cal. July 20, 2021) ....................................22
`
`Farmers Ins. Exch. v. Steele Ins. Agency, Inc.,
`No. 2:13-cv-00784-MCE-DAD, 2013 WL 2151553 (E.D. Cal. May 16, 2013) ................13, 20
`
`Henry Schein, Inc. v. Cook,
`191 F. Supp. 3d 1072 (N.D. Cal. 2016) ....................................................................................16
`
`Miloedu, Inc. v. James,
`No. 21-CV-09261-JST, 2021 WL 6072821 (N.D. Cal. Dec. 23, 2021) .................16, 19, 21, 24
`
`Oculus Innovative Scis., Inc. v. Nofil Corp.,
`No. C 06-1686-SI, 2007 WL 4044867 (N.D. Cal. Nov. 15, 2007) ...........................................17
`
`Penson & Co., LLC v. Cloudstyle Store,
`No. 20-cv-05174-JST, 2020 WL 11885744 (N.D. Cal. Aug. 27, 2020) ...................................23
`
`Posdata Co. v. Kim,
`No. C-07-02504 RMW, 2007 WL 1848661 (N.D. Cal. June 27, 2007) .............................15, 17
`
`Pyro Spectaculars N., Inc. v. Souza,
`861 F. Supp. 2d 1079 (E.D. Cal. 2012) ...................................................................15, 20, 21, 24
`
`MEMO. OF POINTS AND AUTHORITIES ISO APPLE’S MOT FOR TRO, EXPEDITED DISCOVERY, AND OSC
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`
`
`Reichert v. Gen. Ins. Co.,
`68 Cal. 2d 822 (1968) ...............................................................................................................16
`
`Semitool, Inc. v. Tokyo Electron Am., Inc.,
`208 F.R.D. 273 (N.D. Cal. 2002) ..............................................................................................21
`
`Sierra On-Line, Inc. v. Phoenix Software, Inc.,
`739 F.2d 1415 (9th Cir. 1984) ...................................................................................................12
`
`Stuhlbarg Int’l Sales Co. v. John D. Brush & Co.,
`240 F.3d 832 (9th Cir. 2001) .....................................................................................................12
`
`Trulite Glass & Aluminim Sols., LLC v. Smith,
`No. 21-601798, 2016 WL 8738432 (E.D. Cal. Aug. 10, 2016) ................................................21
`
`Waymo LLC v. Uber Techs., Inc.,
`No. 17-00939-WHA, 2017 WL 2123560 (N.D. Cal. May 15, 2017) .................................18, 20
`
`WeRide Corp. v. Huang,
`379 F. Supp. 3d 834 (N.D. Cal. 2019) ..........................................................................19, 24, 25
`
`Winter v. Nat. Res. Def. Council,
`555 U.S. 7 (2008) ......................................................................................................................12
`
`Statutes and Other Authorities
`
`18 U.S.C.
`§ 1836(b)(3)(A) .........................................................................................................................12
`§ 1839(3) .............................................................................................................................13, 14
`§ 1839(5) ...................................................................................................................................13
`§ 1839(6) ...................................................................................................................................13
`
`Fed. R. Civ. P. 26(d)(1) ...................................................................................................................25
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`MEMO. OF POINTS AND AUTHORITIES ISO APPLE’S MOT FOR TRO, EXPEDITED DISCOVERY, AND OSC
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`
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`I.
`
`INTRODUCTION
`Apple brings this motion to prevent its ex-employees from exploiting Apple’s most
`sensitive and valuable trade secrets at their new employer, competing startup Rivos. Apple has
`attempted to reach agreement with counsel for Defendants Ricky Wen and Rivos on the
`reasonable measures it requests in this motion, but counsel has responded with only generalized
`denials and no specific information.
`For decades, Apple has spent billions on research and development to support its industry-
`leading advances in the field of systems-on-chips (“SoCs”). Those investments have resulted in
`Apple’s most advanced, cutting-edge SoCs, including the A15 mobile computing SoC at the heart
`of Apple’s iPhone products and the M1 family of personal computing SoCs. Rivos, a start-up in
`self-described “stealth mode,” intends to build competing SoCs, and has specifically targeted
`Apple engineers with access to Apple’s most valuable trade secrets to do it. In July 2021, just
`after Rivos began its coordinated campaign to target these employees, Apple promptly sent Rivos
`a letter informing Rivos of the confidentiality obligations of Apple’s former employees, but Rivos
`never responded. Since then, Rivos has continued to recruit from Apple, wooing away more than
`40 employees, with the most recent departures occurring in May 2022.
`Apple’s forensic investigation has revealed that after receiving his offer from Rivos,
`Defendant Ricky Wen took hundreds of sensitive SoC documents related to both Apple’s existing
`and unreleased SoCs. This was not an isolated incident—over a dozen others, including
`Defendant Bhasi Kaithamana (collectively with Mr. Wen, “Individual Defendants”), either wiped
`their computers or saved Apple confidential information in places beyond Apple’s reach just
`before leaving for Rivos. Some used multiple USB storage drives to offload material to personal
`devices, accessed proprietary specifications stored within collaboration applications, and used
`AirDrop to wirelessly transfer files to personal devices. Others saved voluminous presentations
`on existing and unreleased Apple SoCs—marked Apple Proprietary and Confidential—to their
`personal cloud storage drives. And several of the employees deleted information or wiped their
`Apple devices entirely to try to cover their tracks, while falsely representing to Apple that they
`
`MEMO. OF POINTS AND AUTHORITIES ISO APPLE’S MOT FOR TRO, EXPEDITED DISCOVERY, AND OSC
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`had not done so. These employees’ actions were in breach of their agreements with Apple and
`amount to repeated and ongoing violations of the Defend Trade Secrets Act (DTSA).
`After performing a forensic analysis, Apple sent letters to Rivos, the Individual
`Defendants, and the other former-Apple-turned-Rivos employees on April 29, 2022 reminding
`them of their obligations and asking them to return Apple’s confidential information. Defendant
`Kaithamana—who is no longer at Rivos and is separately represented—has agreed to a court
`order requiring the return of any Apple confidential information in his possession, to stop using
`any such information, and to allow a third-party forensic search of any devices potentially
`containing such information. (See ECF. No. 19.) Apple asked for the same limited discovery
`from Mr. Wen and Rivos, offering to enter into a mutually agreeable discovery protocol, but their
`counsel refused. In addition, counsel for Rivos has effectively blocked Apple from attempting to
`resolve its concerns directly with the 42 other former Apple employees, as Rivos’s counsel
`refuses to confirm whether or not they directly represent those employees or even whether they
`are searching the devices the employees used to store or transmit Apple confidential information.
`Without further discovery into Rivos’s and Mr. Wen’s actions, Apple has no way of
`knowing whether its most sensitive trade secrets are being used by Rivos to develop competing
`products. Apple therefore has no choice but to seek a temporary restraining order against Mr.
`Wen requiring him to stop using and to return any Apple confidential information in his position,
`along with narrowly-tailored expedited discovery from Mr. Wen and Rivos.
`II.
`STATEMENT OF FACTS
`
`A.
`
`Apple’s Proprietary and Trade Secret SoC Designs Are Key to Apple’s
`Competitive Edge in Personal and Mobile Computing
`Apple is a world-renowned technology company and global leader in consumer
`electronics, mobile communications, and computing. It designs, manufactures, and markets
`smartphones, personal computers, tablets, wearables, and accessories. (Declaration of Daniel
`Murray (“Murray Dec.”) ¶ 2.) One key aspect of Apple’s newest cutting-edge products—and its
`competitive edge in the marketplace—is its use of highly advanced SoCs, which Apple custom
`designs. (Id. ¶ 3.) For over a decade, Apple has been making substantial investments totaling
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`billions of dollars into designing its own SoCs and other chips that are at the heart of its iPhone,
`iPad, Watch, and Mac product lines. (Id. ¶ 2.) The SoCs consist of interconnected component
`designs that include high performance application processors (CPU cores), graphics processors
`(GPU cores), security processors, memories, and/or artificial intelligence accelerators. (Id.)
`Apple’s chip-related investments have resulted in products that consistently outperform its
`competitors’ products by significant margins. By custom designing its SoCs and related
`components, Apple tunes its SoCs to achieve tighter integration among components, which
`reduces chip area, provides extreme performance, and lowers power consumption. (Id. ¶ 3.)
`Apple further customizes its SoCs to provide the best performance possible when used in its
`products (e.g., iPhone, iPad, Mac, Watch, etc.). (Id.) Apple’s first ARM-based SoCs for laptop
`and desktop computers, the M1 chip family, was released in November 2020 and has now
`expanded to include the M1 Pro, M1 Max, and M1 Ultra chips. (Id.)
`The trade secret information that the Individual Defendants and other former employees
`now at Rivos have retained is embodied in Apple’s documents and other information that was
`taken upon their departures from Apple. These documents are described in more detail in the
`declaration of Daniel Murray, a VP in Apple’s Silicon Engineering Group, which has been filed
`under seal. (See id. ¶ 8.) The trade secret information includes chip specifications and designs
`for Apple’s SoCs for the A14, M1, and future (unreleased) SoCs. (Id.; see Declaration of Dan
`Roffman (“Roffman Dec.”) Appendix B (identification of Apple files retained by Wen).) The
`trade secrets also include chip specifications and designs for related components (e.g. CPU cores,
`GPU cores, and cache memories), chip development roadmaps, summaries of technical analyses
`of chip characteristics and parameters, and status reports. (Murray Dec. ¶¶ 8-15.) Many of these
`documents contain Apple’s most valuable core trade secrets. (Id. ¶¶ 1, 11.)
`
`B.
`Apple Diligently Protects Its Trade Secret SoC Designs
`Apple diligently protects its proprietary and trade secret designs and investments in
`research and development. (See Declaration of Donna Cerny (“Cerny Dec.”) ¶ 2.) As a condition
`of employment, Apple employees, including the Individual Defendants, are required to sign
`Apple’s Intellectual Property Agreement (“IPA”). (Id.; Murray Dec. ¶ 7.) Individual Defendants
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`Wen and Kaithamana executed an IPA when they joined Apple. (Cerny Dec. Exs. A-B.) The
`IPA requires employees to hold Apple’s information in confidence both during and after
`employment, and to return all Apple information upon their departure. (Id. Ex. A, § 2.0a.)
`Specifically, employees agree that
`
`employment by Apple requires you to keep all Proprietary
`Information in confidence and trust for the tenure of your
`employment and thereafter, and that you will not use or disclose
`Proprietary Information without the written consent of Apple,
`except as necessary to perform your duties as an employee of
`Apple.
`(Id.) Upon termination, employees agree to
`
`promptly deliver to Apple all documents and materials of any kind
`pertaining to your work at Apple, and you agree that you will not
`take with you any documents, materials, or copies thereof, whether
`on paper, magnetic or optical media, or any other medium,
`containing any Proprietary Information.
`
`(Id.)
`Employees with access to certain particularly-sensitive trade secrets, including certain
`
`Hardware Technologies (“HWT”), are subject to additional protective measures. (Id. ¶ 5.) For
`instance, during employee exit interviews for these employees, including the Individual
`Defendants, Apple provides a “Checklist for HWT Departing Employees” to “help employees
`leaving Apple understand their responsibility to preserve confidentiality of intellectual property.”
`(Id. Exs. C-D.) Both Individual Defendants signed this checklist and acknowledged that they
`“signed an Intellectual Property Agreement (IPA) that does not expire” upon leaving Apple. (Id.)
`By signing the checklist, Wen and Kaithamana also acknowledged that the IPA says they
`“will not use or share Apple confidential information while you are an Apple employee and after
`you leave Apple. Everything you worked on at Apple stays here.” (Id.) They also acknowledged
`that “[a]ll employees must return all Apple confidential information prior to leaving Apple[.]”
`Wen and Kaithamana then “[c]onfirm[ed] that [they] have done a diligent search of spaces [they]
`could have stored Apple property,” including “[p]ersonal computer(s) or laptop(s),” “[f]lash
`drive(s),” “[p]ersonal email,” and “[e]xternal hard drive(s).” (Id.) They also confirmed that they
`“returned or destroyed all Apple confidential information prior to leaving Apple” and that they
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`“returned all Apple Owned Devices (AOU) and [had] not wiped any AOU.” (Id.)
`Apple also provides HWT employees with rules and guidelines on how to preserve the
`confidentiality of Apple’s proprietary information. (Cerny Dec. ¶ 8.) These materials
`specifically forbid distribution of Apple’s confidential information to others except on a need-to-
`know basis. (Id.) Apple further protects its most valuable SoC designs and specifications by
`using internal code names and limiting access to its Confluence and Perforce databases to only
`those projects that an employee is currently working on and authorized to view. (Murray Dec.
`¶¶ 5-7.) Confluence and Perforce are collaborative information management tools that allow
`Apple SoC engineers and designers to share and store their work on Apple’s trade secret SoC
`designs. Engineers require login credentials to access these tools, and the level of access is
`limited to what a particular engineer’s job responsibilities require. (Id. ¶ 6.)
`
`C.
`
`The Individual Defendants and Other Former Apple Employees Violated
`Their Obligations to Apple When They Took and Retained Apple’s Trade
`Secrets After Accepting Rivos’s Job Offers
`Rivos was founded in or around May 2021 to design a computing solution based on
`custom-designed reduced instruction set computer-based SoCs that will compete with Apple’s
`ARM SoCs. (See Declaration of Bryan Wilson (“Wilson Dec.”) ¶ 3, Ex. A.) Since June 2021,
`over 40 former Apple employees have joined Rivos. (See Cerny Dec. ¶ 10.) Rivos continues to
`target Apple engineers with substantial expertise in Apple SoCs and access to Apple’s key SoC
`trade secrets, with more departures occurring in April 2022, and the most recent resignation
`occurring in early May. (Id.) A majority of these former Apple employees were design
`engineers, developing Apple’s cutting-edge proprietary and trade secret SoC designs.
`(Murray Dec. ¶ 15.) These designs represent the culmination of substantial research and
`development costs and could be used by a competitor to significantly accelerate development of a
`custom SoC. (Id. ¶¶ 2-3, 17-18.)
`Following their interviews with Rivos and accepting offers for employment, but before
`leaving Apple, Defendants Bhasi Kaithamana and Ricky Wen accessed and downloaded Apple’s
`proprietary and trade secret information regarding the design and operation of Apple’s most
`advanced SoCs. (See Roffman Dec. ¶¶ 5-24.) Mr. Wen spent his last days at Apple compiling
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`and downloading to personal devices or cloud storage locations large volumes of key Apple
`information regarding SoC design—the very thing he was hired by Rivos to do. These actions are
`in direct violation of Mr. Wen’s IPA and represent ongoing trade secret misappropriation. In
`addition, as discussed below, this was not an isolated incident, as over a dozen other former
`Apple employees now at Rivos took substantial Apple confidential information with them upon
`their departure, and/or wiped their computers to prevent Apple from learning of their actions.
`
`1.
`Ricky Wen
`Ricky Wen was originally hired by Apple in April 2008 to work as a CPU design
`engineer. (Cerny Dec. ¶ 12.) On August 6, 2021, he left Apple to take on a similar role for
`Rivos. (Id.) Wen accepted his employment offer from Rivos on July 23, 2021. (Id.)
`Over the next three days, Wen transferred approximately 390 gigabytes from his Apple-
`issued computer to a personal external hard drive. (Roffman Dec. ¶¶ 16-17.) Among the data
`transferred are confidential Apple documents describing Apple trade secrets, including aspects of
`the microarchitecture for Apple’s past, current, and unreleased SoCs. (Murray Dec. ¶¶ 13-14.)
`As of his termination, Wen’s Apple-issued computer included over 400 gigabytes of Apple
`confidential information. (Roffman Dec. ¶ 16.) It also stored approximately 200 gigabytes of
`photos and movies that Apple presumes are personal in nature but could account for only a
`fraction of the data transferred. (Id.) While at Apple, Wen also transferred files to his personal
`Google Drive, in violation of Apple’s policies (see Cerny Dec. ¶ 9), including architectural
`diagrams depicting Apple trade secret SoC designs and other files associated with Apple SoC
`development projects. (Roffman Dec. ¶ 24.)
`On August 3, 2021, after transferring all of this data, Wen tendered his resignation to
`Apple. (Cerny Dec. ¶ 12.) Nevertheless, until the day before he left, he continued to access
`Apple proprietary information, including files related to Apple’s unreleased SoC designs, from
`his Apple-issued computer while an external hard drive was attached. (Roffman Dec. ¶¶ 22-23.)
`In his last two days before leaving Apple, Wen conducted his exit interview and signed an
`exit checklist acknowledging that he was subject to the IPA and had returned or deleted all Apple
`proprietary and trade secret information in his possession. (Cerny Dec. ¶ 12; Ex. C.) Wen also
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`deleted recent iMessage and iChat histories on his Apple-issued computers as well as numerous
`folders and files in online and cloud storage drives immediately prior to his termination from
`Apple. (Roffman Dec. ¶¶ 14.) Because of Wen’s false representations to Apple and his efforts to
`cover his tracks, Apple cannot know the full extent of Wen’s access to and use of Apple’s trade
`secrets since he began working at Rivos.
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`2.
`Bhasi Kaithamana
`Bhasi Kaithamana was hired by Apple in September 2013 to work as a CPU
`implementation engineer. (Cerny Dec. ¶ 11.) In August 2021, he left Apple to take on a nearly
`identical role, CPU implementation lead, for Rivos. (See Wilson Dec. ¶ 6, Ex. E.) Kaithamana
`accepted his employment offer from Rivos in early August 2021. (Cerny Dec. ¶ 11.) Shortly
`thereafter, on August 10, he took a vacation day. (Id.)
`Apple’s forensic investigation revealed that beginning August 10 and continuing through
`August 16, Kaithamana copied nearly two thousand Apple documents containing proprietary and
`trade secret information to a folder he created entitled “APPLE_WORK_DOCS.” (Roffman Dec.
`¶¶ 6-7.) Many of the files Kaithamana copied related to Apple’s proprietary SoC designs,
`including those for unreleased projects. (See id. ¶ 7.) Kaithamana also connected a USB drive
`seven times between the evening of August 14, 2021, and afternoon of August 15, 2021. (Id. ¶¶
`8-13.) In the same time period, he opened untitled Excel, Keynote, and Numbers documents on
`the USB drive that correspond to documents on his computer marked Apple Proprietary &
`Confidential. (Id. ¶¶ 9-10.) He then viewed file listings for folders containing Apple files with
`proprietary and trade secret information, repeatedly opened documents, and then cleared the list
`of recently opened documents. (Id. ¶¶ 10-11.) Kaithamana also cleared his browsing history,
`recent applications access list, and recent search lists. (Id. ¶¶ 13.) Kaithamana represented on his
`exit checklist that he had returned or deleted all such information and that he had not wiped data
`from his Apple-issued devices. (Cerny Dec. Ex. D.)
`Kaithamana has now entered into a stipulated order agreeing to return any Apple
`confidential information in his possession, to make available for forensic inspection any devices
`that were used to store or transmit Apple information, and to refrain from making use of Apple
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`confidential information. (See ECF Nos. 14, 19.)
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`3.
`
`Other Apple Employees Departing for Rivos Retained Apple
`Information and Wiped Their Apple Devices To Cover Their Tracks
`Numerous other Apple employees who left Apple for Rivos downloaded and retained
`Apple’s trade secret and confidential information after accepting their offers from Rivos, leaving
`Apple exposed to yet more trade secret theft. (Roffman Dec. ¶¶ 25-36.) One employee kept full
`backups of his entire Apple hard drive—with all of its Apple confidential information—on a
`personal external hard drive via Time Machine, even after he resigned from Apple. (Id. ¶ 27.)
`The local archive stored on the Apple-issued laptop of another former employee shows that, at the
`time the employee disconnected their iCloud Drive, they retained access to several highly
`confidential proprietary and trade secret files. (Id. ¶ 32.) Another employee copied confidential
`Apple information to a USB flash drive the day before his Apple departure. (Id. ¶¶ 35-36.) At
`least five other employees connected external hard drives to Apple-issued computers in the days
`following their hire by Rivos. (Id. ¶¶ 28-34.)
`In addition, several employees took steps to conceal or delete information that would have
`tipped Apple off to their improper activities. (See id. ¶¶ 25-26.) A number of Apple employees
`installed encrypted communications apps, including Signal, to communicate with Rivos and
`amongst one another without risk of their communications being exposed. (See Wilson Dec.
`¶¶ 18-19.) For instance, after joining Rivos, a former Apple employee provided a then-Apple
`employee a link to download Signal for communicating about Rivos with Rivos’s CTO Belli
`Kuttanna. (Id. ¶ 18, Ex. O.) In the weeks before leaving Apple for Rivos, that same employee
`installed Signal and invited another employee that also left for Rivos to communicate on the
`platform, noting that “there are things [that] should not be recorded through apple’s interface
`now.” (Id. ¶ 19, Ex. P.) Yet another Apple employee warned a colleague against using iMessage
`to discuss Rivos, causing that colleague to delete messages related to the discussion. (Id. ¶ 20,
`Ex. Q.) Some of these employees demonstrated their own concerns about their behavior through
`the searching and deletions conducted in their last days at Apple. One employee ran internet
`searches for “when you lost a lawsuit what do you have to pay” and viewed webpages relating to
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`attorneys’ fees for losing parties to lawsuits. (Roffman Dec. ¶ 30.)
`Despite being told not to, at least nine employees completely wiped their Apple-issued
`devices and/or reinstalled the operating systems, which results in all other data on the device
`being deleted. (Id. ¶¶ 25-26.) In at least five case