Gunsmoke2 - GS2
06-08-2007, 03:12 PM
This was posted on another site with some edits of some names. It appears to come from the Tomico case. The purpose of this is for people to be informed of what an Anton Pillar Order may contain. After the order is served and executed defendants have to the right to go to Court to try to have the order varied or quashed ( See Paragraph 31 )
THE HONOURABLE TUESDAY, THE XTH
JUSTICE ??????? DAY OF XXXXXXXX, 200?
BETWEEN:
ECHOSTAR COMMUNICATIONS CORPORATION, ECHOSTAR SATELLITE LLC,
ECHOSTAR TECHNOLOGIES CORPORATION, and NAGRASTAR LLC
Plaintiffs
- and
The Defendants web sites and JOHN DOE, JANE DOE and other persons unknown who have conspired with the named Defendants.
Defendants
ORDER FOR INTERJM INJUNCTION AND
TO ALLOW ENTRY AND SEARCH OF PREMJSES
THIS MOTION, made without notice by the Plaintiffs, EchoStar Communications Corporation2 EchoStar Satellite LLC and EchoStar ~technologies Corporation (collectively “EchoStar”), for (I) an interim injunction retraining the Defendants (Collectively the “DISH Defendants”), from, inter ala, marketing, selling, distributing, Providing, trafficking in) exposing or offering any Piracy Technology (as defined in paragraph 1 Hereof), and (2) an Order requiring the DISH Defendants to permit representatives of EchoStar, Its solicitors, and other necessary persons, to enter and remain in the premises of the DISH Defendants for the purposes of identifying, inspecting, reproducing, removing and preserving certain evidence set out in Schedule “A” hereto pertaining to the DISH Defendants’ business, was heard this day at 393 University Avenue, Toronto, Ontario.
ON READING the Statement of Claim, the Affidavit of xxxxx sworn xxxx, 2006, the Affidavit of Jerry Lee Gee sworn xxxx, 2006, the Affidavit of Jason Dumbreck sworn xxxx, 2006, the Affidavit of Chad Winslade sworn xxxx, 2006, the Affidavit of Dan Caban sworn xxxx, 2006, the Affidavit of Steve Rogers sworn xxxx, 2006, on hearing the submissions of counsel for EchoStar, and on noting the undertaking of EchoStar to abide by any Order this Court may make concerning damages arising from the enforcement of this Order,
Injunction
1. THIS COURT ORDERS that the DISH Defendants, jointly and severally, and their
officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any and all persons having notice of this injunction, are hereby restrained from directly or indirectly, by any means whatsoever:
(i) Marketing, selling, distributing, providing, trafficking in, exposing or offering for the purpose of trade or otherwise, any device, technology, product, service, equipment or apparatus, software, programming code, or any component thereof, which has or maybe used, or is or was intended to be used, for the purpose of circumventing
EchoStar’s security system, thereby permitting the unauthorized reception and decoding of EchoStar’s encrypted satellite television programming signals, including, without limiting the generality of the foregoing, EchoStar Systems, EchoStar receivers support, “Dishnet” Cards, “Dishnet” programming~ “Dishnet” support, “Dishnet” systems, DISH Network “subscription receivers”, DISH Network ROM 101, 102, 3, 10 and 11 cards, Blue DISH Access Cards, yellow DISH Network ROM 101 access cards (“Yellow Dish Access Cards”), ROMX Cards, Atmega Programmers, Green Light Nagra2 Atmega 128 Boards, “Greenlight Group N2 128-EPA, Wafer 81 6”/”Mega Net Cards”, Green Light ISO Programmers, Coolsat free-to-air (“FTA”)
Receivers, FTA receivers, FTA “repairs”, PTA support, Universal JTAGS, Universal
Iso Programmers, TSOP Locks, TSOP “repairs”, “clones”, Mikobu N2 RUM 102
Unlockers, Modded T91 1 RUM 101, 10, 11 Unlockers, unlocking services, “support”
for RUM 3 0 or 11 cards, Atmega “support”, Dishnet “support”, and piracy software
(“Piracy Technology”);
(ii) Operating, maintaining, servicing, modifying ~or accessing the Internet world Web sites www. ez123dish. com and WWW. ezsatellite.tv. iv (collectively the “Web Sites”) or any other web site for any purpose contrary to this injunction, or participating or engaging in any electronic mail, newsgroup, Internet relay chat communications, and forum web sites for any purpose contrary to this injunction;
(iii) activating, subscribing, or fraudulently procuring from EchoStar any activation or
subscription for any DISH Access Card and receiver for the purpose of stealing
EchoStar Programming, including by way of the “grey market” (“Activation”);
(iv) creating, modifying, operating, maintaining, servicing, or posting content to any other web site for any purpose contrary to this injunction;
(v) soliciting any person to purchase Piracy Technology or Activation from the DISH Defendants or the Web Sites or any other web site;
(vi) advising, instructing, counseling, directing, recommending, or informing any person on the identification, purchase, acquisition or use of any Piracy Technology or
Activation, including but not limited to the activation or subscription of any DISH
Access Card and receiver and the programming of PTA receivers for the purpose of
stealing EchoStar Programming, or providing any services in support of such
activities;
(vii) representing, implying or suggesting to the DISH Defendants’ customers and the public that the DISH Defendants’ products and services are in any way associated
or affiliated or connected with EchoStar, including by using EchoStar’s registered
trademarks, TMA 636 661 and TMA 636 437;
(viii) Infringing EchoStar’s registered trademarks, TMA 636 661 and TMA 636 437, in any way and by any means;
(ix) depreciating the value of the goodwill of EchoStar’s registered trademarks, TMA 636 661 and TMA 636 437, in any way and by any means; and
(x) assisting, aiding or abetting any other person in carrying out any of the activities
described it paragraphs I (i) to I (ix) above.
2. THIS COURT ORDERS that. the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any and all persons having control of the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, to forthwith upon the completion of the copying by EchoStar of the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, their databases, and any data stored or contained therein, remove from the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, and render inaccessible by any person any and all text, graphics, electronic data or other content of the Web Sites pertaining to any and all Piracy Technology, however stored, contained or held.
Entry and search of Premises
3. THIS COURT ORDERS that: the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the following premises: (1) 10055 Keele Street, Unit 105, Maple, Ontario, L6A 1R7; and (ii) P.O. Box 926, Maple, Ontario, L6A 158 (collectively the “Premises”) shall forthwith permit entry and re-entry into the Premises to the persons authorized herein for the purposes of searching for, identifying, inspecting, preserving, reproducing, and removing into the custody of the Independent Supervising Solicitor (as defined in paragraph 4 hereof), any and all documents, items, devices, equipment, and any component thereof, which are listed in Schedule “A” hereto (“the Evidence”) or which EchoStar’s solicitors believe to be the Evidence.
4. THIS COURT ORDERS that for purposes of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the Premises, shall grant entry and permit re-entry into each of the Premises during the times and in the manner specified in this Order to the following persons, collectively or individually, at the same time or different times (such persons hereinafter collectively referred to as the “Authorized Persons”):
(a) Four representatives of EchoStar and NagraStar LLC;
(b) three solicitors, students-at-law, or law clerks from the law firm of Borden Ladner
Gervais LLP, solicitors for the Plaintiffs; (c) one solicitor from the law firm of Ross and McBride LLP (“the Independent Supervising Solicitor”), and such other persons as he/she may require;
(d) three individuals designated by Borden Ladner Gervais LLP for the purpose of
locating, identifying, accessing, retrieving and reproducing information from
computer disks, CD ROM’s, USB drives, flash media, biometric devices, memory
cards and sticks, tapes, and any other magnetic or machine readable or electronic
storage media, including the Web Sites; and
(e) two individuals from a professional security or investigation firm designated by
Borden Ladner Gervais LLP to assist in securing the Premises and ensuring
compliance with this Order.
5 THIS COURT ORDERS that following the service of the Order on any person(s) appearing to be in charge of the Premises, no entry to the Premises shall be permitted unless there are present at the time of entry the Authorized Persons, or any of them, provided that the Independent Supervising Solicitor and such other persons as he/she may require are also present.
6. THIS COURT ORDERS that EchoStar’s solicitors shall ensure that a list is made of all Evidence seized or delivered up pursuant to this Order, and shall deliver a copy of the list to the DISH Defendants or their solicitors, and the independent Supervising Solicitor, upon the completion of the search or as soon thereafter as reasonably possible.
7. THIS COURT ORDERS that the DISH Defendants, their officers, directors, servants, agents, employees and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and anyone else acting on their behalf, or any person(s) appearing to being charge of the Premises shall allow the Authorized Persons to remain on the Premises until further Order of this Court, to discharge their duties as set out in this Order.
8. THIS COURT ORDERS that the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the Premises, shall allow the Authorized Persons to record by audio, video or photograph the Evidence, the Premises, and all acts, conversations and discussions occurring in the course of the Authorized Persons’ search of the Premises and that relate to this Order between the time this Order is served and the completion of the search, with the exception of communications between the DISH Defendants and their solicitors.
Execution of Order
9. THIS COURT ORDERS that this Order may only be served and the initial entry to the Premises made between 8 am. and 7:00 p.m. on a weekday.
1 0. THIS COURT ORDERS that all persons responsible for service and execution of this Order he entitled to take all necessary measures to enforce it and to reasonably prevent or remove any impediment to its execution.
11. THIS COURT ORDERS that the Royal Canadian Mounted Police, the York Regional Police, or such other police services having jurisdiction may be notified and requested to attend to keep the peace at the execution of this Order but the presence of the police is not for the purpose of compelling or requiring entry to the Premises.
Rights of the DISH Defendants and Persons Served
12, THIS COURT ORDERS that at the time of initial entry into the Premises, the DISH Defendants and any person(s) appearing to be in charge of the Premises shall be served with this Order, the Statement of Claim herein, and a copy of the Motion Record containing the evidence by which the Order was obtained.
13. This COURT ORDERS that upon service of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith be advised in plain language by the Independent Supervising Solicitor of the nature of the Order, and of their right to seek legal advice and to segregate documents over which legal privilege is claimed ~‘Privileged Documents”), provided that they do so forthwith, and while seeking legal advice and segregating Privileged Documents may refuse entry to the Premises for a period not to exceed two hours to all of the Authorized Persons except for the Independent Supervising Solicitor and such other persons as he or she may require, who shall be and hereby arc authorized to enter the Premises and take such steps as they deem necessary to secure and preserve the Evidence therein and ensure that no steps are taken to alter, deface, discard, conceal or destroy any of the Evidence while the DISH Defendants and/or person(s) served are seeking legal advice.
14. THIS Court ORDERS that the Independent Supervising Solicitor shall act as an officer of the Court in respect of the observanpp and implementation of the terms of this Order.
15. THIS COURT ORDERS that any Privileged Documents identified as provided for in paragraph 13 shall be provided directly to the Independent supervising Solicitor and sealed pending further order of the Court.
Obligations of the DISH Defendants and Persons served.
16. THIS COURT ORDERS that upon service of the Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith disclose to the Authorized Persons and deliver up and grant access to the Authorized Persons to any and all of the Evidence, wherever situate, including, but not limited to:
(a) any and all Piracy Technology;
(b) the Web Sites, the databases contained or stored therein, any data contained therein and the servers on which the Web Sites and Evidence reside;
(c) any other web site operated by the DISH Defendants containing the Evidence;
(d) the names and addresses, including e-mail addresses, fictional usernames and Internet Protocol addresses of any and all of the DISH Defendants’ customers, suppliers,
associates, and affiliates, and any and all of the Web Sites’ users, members, and
subscribers, and any and all persons who have been solicited to purchase or who have
purchased any products or services from the DISH Defendants or the Web Sites
pertaining in any way to Piracy Technology;
(e) any and all records of purchases, sales, or distribution of Piracy Technology,
including any invoices, financial or accounting records, ledgers, books, accounts,
banking records, statements, shipping documents, web site databases, online payment
processor or auction accounts (including PayPal), which disclose the nature, volume
and extent of the DISH Defendants’ dealings in Piracy Technology; and
(1) the whereabouts of all of the Evidence, whether under the possession, custody or
control of the DISH Defendants or any third party.
17. THIS COURT ORDERS that upon service of the Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith render any necessary assistance to the Authorized Persons to locate, decode, access, and decrypt the Evidence and any and all information or electronic data to which the Authorized Persons may not have ready and immediate access, including all such materials fixed on computer disks, CD ROMs, USB drives, flash media, biometric devices, memory cards and sticks, tapes, and any other magnetic or machine readable or electronic storage media) and any such information or knowledge necessary to achieve fill and complete access thereto, including the prevision of all keys, identification codes, passwords, and pass phrases, for the purposes of accessing any web site, databases, servers, electronic mail, newsgroups, forums) posts, discussion threads, Internet relay chat communications, online payment processor or auction accounts used, operated or maintained by or accessible to the DISH Defendants, or other information, instructions or data stored in any location remote from the Premises that may contain or constitute the Evidence
1 8. THIS COURT ORDERS that upon service of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith render any necessary assistance to the Independent Supervising Solicitor and the persons assisting him or her to enable them to effectively early out their responsibilities under this Order.
Custody of, Access to and Use of Evidence Seized or Delivered Up
19. THIS COURT ORDERS that, subject to paragraph 23 below) all Evidence seized pursuant to ibis Order shall be held in the custody of the Independent Supervising Solicitor pending the trial of this action, or until such time as the Court orders otherwise.
20. This COURT ORDERS that the DISH Defendants and/or their solicitors shall he provided with reasonable access to all Evidence in the custody of the Independent Supervising Solicitor for the purpose of examining and making copies of the said Evidence in the presence of a representative of the Independent Supervising Solicitor.
21. THIS COURT ORDERS that, subject to paragraphs 24 to 26 inclusive hereof, EchoStar and/or its solicitors shall be provided with reasonable access to, all Evidence in the custody of the Independent Supervising Solicitor for the purpose of examining and making copies of the Evidence in the presence of a representative of the Independent Supervising Solicitor.
22. THIS COURT ORDERS AND DECLARES that any and all Evidence seized, delivered up or disclosed pursuant to this Order may be used in any proceeding commenced by EchoStar against any third party, including but not limited to proceedings against the DISH Defendants’ suppliers, customers, associates, and affiliates and/or the Web Sites’ users, members, and subscribers.
23. THIS COURT ORDERS that Borden Ladner Gervais LLP may take custody of any of the Evidence seized pursuant to this Order if the DISH Defendants consent to same.
Assertion Of Claims of Privilege
24. THIS COURT ORDERS that the DISH Defendants shall have a period of seventy-two (72) hours from the completion of the search in which to review the Evidence seized, including any Privileged Documents in the custody if the Independent Supervising Solicitor pursuant to paragraphs 13 and 1 5 of this order, such review being in the presence of a representative of the Independent Supervising Solicitor, and to assert claims of privilege, which claims shall be communicated to Borden Ladner Gervais LLP and the Independent Supervising Solicitor with particulars of the specific documents, electronic files, or other items of evidence which the EZ DISI-I Defendants assert to be privileged (the “Privileged Evidence”).
25. THIS COURT ORDERS that the 1t~rivileged Evidence shall be placed in sealed containers, with the DISH Defendants or their solicitors signing over the seal, and that the Privileged Evidence shall be retained in the custody of the Independent Supervising Solicitor until further Order of the Court, with no access to the Privileged Evidence being provided to EchoStar and/or its solicitors without the DISH Defendants’ consent or further Order of the Court.
26. THIS COURT ORDERS that in the event that the DISH Defendants fail or refuse to assert claims of privilege in accordance with paragraph 24 hereof, EchoStar and/or its solicitors shall be permitted access to the Evidence forthwith upon the expiry of the seventy-two (72) hour period, in Accordance with paragraph 21 hereof, for the purpose of examining and making copies of evidence in the presence of a representative of the independent Supervisor Solicitor, or requesting the Independent Supervising Solicitor to make copies and forward them to EchoStar and/or its solicitors.
Prohibited Acts
27. THIS COURT ORDERS that unless otherwise ordered by this Court the DISH
Defendants, their officers, directors, savants, agents, employees and anyone else acting on their behalf, and any person(s) upon whom the Order is served shall not directly or indirectly, by any means whatsoever:
(a) disclose or discuss by any medium or form of communication the existence or
contents of the Order with any third party except their legal counsel, or inform any third party, directly or indirectly, by any medium or form of communication, that EchoStar might commence legal proceedings or serve such Order on any such party;
(h) remove any of the Evidence from the Premises, or alter, deface, discard, conceal or destroy in any manner any of the Evidence wherever situate;
(c) erase, delete, or alter any of the Evidence from any electronic media, transmit any of the Evidence from the Premises or otherwise remove or alienate any electronic data containing any of the Evidence; and
(d) touch, activate, or operate any computer equipment containing the Evidence either
locally or remotely from any location, or access any electronic mail, newsgroup,
Internet relay chat communications, or forum, or other information, instructions or
data whether stored at or in any location remote from the Premises that may
constitute the Evidence.
28. THIS COURT ORDERS that, in order to give effect to the Order, any person who is ordered not to do something shall not do it personally, through others acting on his behalf or on his instructions, or with his ~ncouragemeptor acquiescence, or in any other way.
Variation/Discharge or Confirmation of Order
29. This COURT ORDERS that the terms of this Order shall remain in force until varied or discharged by a further Order of the Court
30. THIS COURT ORDERS that EchoStar shall apply for a confirmation of this Order within ten (10) days hereof, failing which this Order will terminate.
31. THIS COURT ORDERS that the DISH Defendants and anyone with notice of this Order may apply to the Court at any time to vary or discharge this Order or so much of it as affects such person, hut anyone wishing to do so shall provide EchoStar’s solicitors with at least twenty-four (24) hours notice thereof.
Confidentiality of Court File
32. This COURT ORDERS that the Court file in this action shall be sealed for ten (10) days from the date of this Order and all of the materials filed and to be filed in these proceedings shall be secured by the Registrar during that period of time, and the public shall not he granted access to the Court file or any materials therein during that period of time without an Order of the Court.
SCHEDULE “A” - THE EVIDENCE
(a) Piracy Technology, including any device, technology, product, service, equipment or apparatus, software, programming code, or any component thereof, which has or may be used, or is 3r was intended to be used, for the purpose of circumventing the EchoStar
Security System, thereby permitting the unauthorized reception and decoding of
EchoStar’s encrypted satellite television programming signals, including, without
hunitmg the generality of the foregoing, EchoStar Systems EchoStar receiver support,
“Dishnet” Cards, “Dishnet” programming, “Dishnet” support, “Dishnet” systems, DISH
Network “subscription receivers”, DISH Network RUM 101, 102,3, 10 and 11 cards,
Blue DISH Access Cards and Yellow DISH Access Cards, RUMX Cards, Atmega
Programmers, Green Light Nagra2 Atmega 128 Boards, “Greenlight Group N2 128-
EFA, Wafer 816/Mega Net Cards, Green Light ISU Programmers, Coolsat free-to-air
(’FTA”) receivers, FTA receivers, ETA “repairs”, FTA support, Universal JTAGS,
Universal ISO Programmers, TSOP Locks, TSUP “repairs”~ “clones”, Mikobu N2 RUM
102 Unlockers, Modded T9l I RUM 101, 10, 11 Unlockers, unlocking services,
“support”, Atmega “support”, Dishnet “support”, and piracy software;
(b) any designs, drawings, diagrams, sketches, schematics, screens, electronic files
(including gerber files) or other evidence pertaining to the creation, design, manufacture,
or reverse-engineering of Piracy Technology;
(a) any software, programming code, graphic files, or electronic data pertaining to the
creation, design, manufacture, or reverse-engineering of Piracy Technology;
(c) the Web Sites, the databases contained or stored therein, any data contained therein and the servers on which the Web Sites and Evidence reside;
(d) any other web site operated by the DISH Defendants;
(b) any document, record, note, information, instructions, correspondence sent and received, electronic mail, and internet relay chat communications (including all such materials fixed on computer disks, CD ROM’s, USB drives, flash media, biometric devices, memory cards and sticks, tapes, and any other magnetic or machine readable or
electronic storage media) pertaining to:
(i) the DISH Defendants’ dealings in Piracy Technology or Activations
or products or services in support thereof or related thereto;
(ii) the nature, operation, scale, volume, and extent of the DISH
Defendants’ business dealing in Piracy Technology or Activations, including any and all records of purchase, sale, distribution, or offering of Piracy Technology or Activations, including any invoices, financial or accounting records, ledgers, books, accounts, banking records, statements, shipping documents, source documents, transaction journals,
summary reports~ financial summaries, web site databases, and online payment processor or auction accounts (including PayPal);
(iii) the DISH Defendants’ dealings with customer, suppliers, associates, affiliates, users, members, and subscribers, with respect to Piracy Technology or Activations, including the names, addresses, e-mail
addresses, fictional usernames, aliases, Internet Protocol addresses, and other panatelas of the identities of any persons who have been provided with or purchased Piracy Technology or Activations from or whose
business has been solicited by the DISH Defendants for the purpose
of selling any Piracy Technology or Activations, and including any
business cards, ~ aries, phone records, messages, memoranda, notes, promotional material, literature, brochures and advertising
(c) DISH Access Cards and software and programming code for use in or with DISH
Access Cards;
(d) any other evidence of the acts and omissions alleged in the Statement of Claim herein.
GS2
THE HONOURABLE TUESDAY, THE XTH
JUSTICE ??????? DAY OF XXXXXXXX, 200?
BETWEEN:
ECHOSTAR COMMUNICATIONS CORPORATION, ECHOSTAR SATELLITE LLC,
ECHOSTAR TECHNOLOGIES CORPORATION, and NAGRASTAR LLC
Plaintiffs
- and
The Defendants web sites and JOHN DOE, JANE DOE and other persons unknown who have conspired with the named Defendants.
Defendants
ORDER FOR INTERJM INJUNCTION AND
TO ALLOW ENTRY AND SEARCH OF PREMJSES
THIS MOTION, made without notice by the Plaintiffs, EchoStar Communications Corporation2 EchoStar Satellite LLC and EchoStar ~technologies Corporation (collectively “EchoStar”), for (I) an interim injunction retraining the Defendants (Collectively the “DISH Defendants”), from, inter ala, marketing, selling, distributing, Providing, trafficking in) exposing or offering any Piracy Technology (as defined in paragraph 1 Hereof), and (2) an Order requiring the DISH Defendants to permit representatives of EchoStar, Its solicitors, and other necessary persons, to enter and remain in the premises of the DISH Defendants for the purposes of identifying, inspecting, reproducing, removing and preserving certain evidence set out in Schedule “A” hereto pertaining to the DISH Defendants’ business, was heard this day at 393 University Avenue, Toronto, Ontario.
ON READING the Statement of Claim, the Affidavit of xxxxx sworn xxxx, 2006, the Affidavit of Jerry Lee Gee sworn xxxx, 2006, the Affidavit of Jason Dumbreck sworn xxxx, 2006, the Affidavit of Chad Winslade sworn xxxx, 2006, the Affidavit of Dan Caban sworn xxxx, 2006, the Affidavit of Steve Rogers sworn xxxx, 2006, on hearing the submissions of counsel for EchoStar, and on noting the undertaking of EchoStar to abide by any Order this Court may make concerning damages arising from the enforcement of this Order,
Injunction
1. THIS COURT ORDERS that the DISH Defendants, jointly and severally, and their
officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any and all persons having notice of this injunction, are hereby restrained from directly or indirectly, by any means whatsoever:
(i) Marketing, selling, distributing, providing, trafficking in, exposing or offering for the purpose of trade or otherwise, any device, technology, product, service, equipment or apparatus, software, programming code, or any component thereof, which has or maybe used, or is or was intended to be used, for the purpose of circumventing
EchoStar’s security system, thereby permitting the unauthorized reception and decoding of EchoStar’s encrypted satellite television programming signals, including, without limiting the generality of the foregoing, EchoStar Systems, EchoStar receivers support, “Dishnet” Cards, “Dishnet” programming~ “Dishnet” support, “Dishnet” systems, DISH Network “subscription receivers”, DISH Network ROM 101, 102, 3, 10 and 11 cards, Blue DISH Access Cards, yellow DISH Network ROM 101 access cards (“Yellow Dish Access Cards”), ROMX Cards, Atmega Programmers, Green Light Nagra2 Atmega 128 Boards, “Greenlight Group N2 128-EPA, Wafer 81 6”/”Mega Net Cards”, Green Light ISO Programmers, Coolsat free-to-air (“FTA”)
Receivers, FTA receivers, FTA “repairs”, PTA support, Universal JTAGS, Universal
Iso Programmers, TSOP Locks, TSOP “repairs”, “clones”, Mikobu N2 RUM 102
Unlockers, Modded T91 1 RUM 101, 10, 11 Unlockers, unlocking services, “support”
for RUM 3 0 or 11 cards, Atmega “support”, Dishnet “support”, and piracy software
(“Piracy Technology”);
(ii) Operating, maintaining, servicing, modifying ~or accessing the Internet world Web sites www. ez123dish. com and WWW. ezsatellite.tv. iv (collectively the “Web Sites”) or any other web site for any purpose contrary to this injunction, or participating or engaging in any electronic mail, newsgroup, Internet relay chat communications, and forum web sites for any purpose contrary to this injunction;
(iii) activating, subscribing, or fraudulently procuring from EchoStar any activation or
subscription for any DISH Access Card and receiver for the purpose of stealing
EchoStar Programming, including by way of the “grey market” (“Activation”);
(iv) creating, modifying, operating, maintaining, servicing, or posting content to any other web site for any purpose contrary to this injunction;
(v) soliciting any person to purchase Piracy Technology or Activation from the DISH Defendants or the Web Sites or any other web site;
(vi) advising, instructing, counseling, directing, recommending, or informing any person on the identification, purchase, acquisition or use of any Piracy Technology or
Activation, including but not limited to the activation or subscription of any DISH
Access Card and receiver and the programming of PTA receivers for the purpose of
stealing EchoStar Programming, or providing any services in support of such
activities;
(vii) representing, implying or suggesting to the DISH Defendants’ customers and the public that the DISH Defendants’ products and services are in any way associated
or affiliated or connected with EchoStar, including by using EchoStar’s registered
trademarks, TMA 636 661 and TMA 636 437;
(viii) Infringing EchoStar’s registered trademarks, TMA 636 661 and TMA 636 437, in any way and by any means;
(ix) depreciating the value of the goodwill of EchoStar’s registered trademarks, TMA 636 661 and TMA 636 437, in any way and by any means; and
(x) assisting, aiding or abetting any other person in carrying out any of the activities
described it paragraphs I (i) to I (ix) above.
2. THIS COURT ORDERS that. the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any and all persons having control of the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, to forthwith upon the completion of the copying by EchoStar of the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, their databases, and any data stored or contained therein, remove from the Web Sites and any other web sites owned or operated by the DISH Defendants pertaining to Piracy Technology, and render inaccessible by any person any and all text, graphics, electronic data or other content of the Web Sites pertaining to any and all Piracy Technology, however stored, contained or held.
Entry and search of Premises
3. THIS COURT ORDERS that: the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the following premises: (1) 10055 Keele Street, Unit 105, Maple, Ontario, L6A 1R7; and (ii) P.O. Box 926, Maple, Ontario, L6A 158 (collectively the “Premises”) shall forthwith permit entry and re-entry into the Premises to the persons authorized herein for the purposes of searching for, identifying, inspecting, preserving, reproducing, and removing into the custody of the Independent Supervising Solicitor (as defined in paragraph 4 hereof), any and all documents, items, devices, equipment, and any component thereof, which are listed in Schedule “A” hereto (“the Evidence”) or which EchoStar’s solicitors believe to be the Evidence.
4. THIS COURT ORDERS that for purposes of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the Premises, shall grant entry and permit re-entry into each of the Premises during the times and in the manner specified in this Order to the following persons, collectively or individually, at the same time or different times (such persons hereinafter collectively referred to as the “Authorized Persons”):
(a) Four representatives of EchoStar and NagraStar LLC;
(b) three solicitors, students-at-law, or law clerks from the law firm of Borden Ladner
Gervais LLP, solicitors for the Plaintiffs; (c) one solicitor from the law firm of Ross and McBride LLP (“the Independent Supervising Solicitor”), and such other persons as he/she may require;
(d) three individuals designated by Borden Ladner Gervais LLP for the purpose of
locating, identifying, accessing, retrieving and reproducing information from
computer disks, CD ROM’s, USB drives, flash media, biometric devices, memory
cards and sticks, tapes, and any other magnetic or machine readable or electronic
storage media, including the Web Sites; and
(e) two individuals from a professional security or investigation firm designated by
Borden Ladner Gervais LLP to assist in securing the Premises and ensuring
compliance with this Order.
5 THIS COURT ORDERS that following the service of the Order on any person(s) appearing to be in charge of the Premises, no entry to the Premises shall be permitted unless there are present at the time of entry the Authorized Persons, or any of them, provided that the Independent Supervising Solicitor and such other persons as he/she may require are also present.
6. THIS COURT ORDERS that EchoStar’s solicitors shall ensure that a list is made of all Evidence seized or delivered up pursuant to this Order, and shall deliver a copy of the list to the DISH Defendants or their solicitors, and the independent Supervising Solicitor, upon the completion of the search or as soon thereafter as reasonably possible.
7. THIS COURT ORDERS that the DISH Defendants, their officers, directors, servants, agents, employees and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and anyone else acting on their behalf, or any person(s) appearing to being charge of the Premises shall allow the Authorized Persons to remain on the Premises until further Order of this Court, to discharge their duties as set out in this Order.
8. THIS COURT ORDERS that the DISH Defendants, their officers, directors, servants, agents, employees, and any and all persons acting on behalf of or in conjunction with any of the DISH Defendants, and any person(s) appearing to be in charge of the Premises, shall allow the Authorized Persons to record by audio, video or photograph the Evidence, the Premises, and all acts, conversations and discussions occurring in the course of the Authorized Persons’ search of the Premises and that relate to this Order between the time this Order is served and the completion of the search, with the exception of communications between the DISH Defendants and their solicitors.
Execution of Order
9. THIS COURT ORDERS that this Order may only be served and the initial entry to the Premises made between 8 am. and 7:00 p.m. on a weekday.
1 0. THIS COURT ORDERS that all persons responsible for service and execution of this Order he entitled to take all necessary measures to enforce it and to reasonably prevent or remove any impediment to its execution.
11. THIS COURT ORDERS that the Royal Canadian Mounted Police, the York Regional Police, or such other police services having jurisdiction may be notified and requested to attend to keep the peace at the execution of this Order but the presence of the police is not for the purpose of compelling or requiring entry to the Premises.
Rights of the DISH Defendants and Persons Served
12, THIS COURT ORDERS that at the time of initial entry into the Premises, the DISH Defendants and any person(s) appearing to be in charge of the Premises shall be served with this Order, the Statement of Claim herein, and a copy of the Motion Record containing the evidence by which the Order was obtained.
13. This COURT ORDERS that upon service of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith be advised in plain language by the Independent Supervising Solicitor of the nature of the Order, and of their right to seek legal advice and to segregate documents over which legal privilege is claimed ~‘Privileged Documents”), provided that they do so forthwith, and while seeking legal advice and segregating Privileged Documents may refuse entry to the Premises for a period not to exceed two hours to all of the Authorized Persons except for the Independent Supervising Solicitor and such other persons as he or she may require, who shall be and hereby arc authorized to enter the Premises and take such steps as they deem necessary to secure and preserve the Evidence therein and ensure that no steps are taken to alter, deface, discard, conceal or destroy any of the Evidence while the DISH Defendants and/or person(s) served are seeking legal advice.
14. THIS Court ORDERS that the Independent Supervising Solicitor shall act as an officer of the Court in respect of the observanpp and implementation of the terms of this Order.
15. THIS COURT ORDERS that any Privileged Documents identified as provided for in paragraph 13 shall be provided directly to the Independent supervising Solicitor and sealed pending further order of the Court.
Obligations of the DISH Defendants and Persons served.
16. THIS COURT ORDERS that upon service of the Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith disclose to the Authorized Persons and deliver up and grant access to the Authorized Persons to any and all of the Evidence, wherever situate, including, but not limited to:
(a) any and all Piracy Technology;
(b) the Web Sites, the databases contained or stored therein, any data contained therein and the servers on which the Web Sites and Evidence reside;
(c) any other web site operated by the DISH Defendants containing the Evidence;
(d) the names and addresses, including e-mail addresses, fictional usernames and Internet Protocol addresses of any and all of the DISH Defendants’ customers, suppliers,
associates, and affiliates, and any and all of the Web Sites’ users, members, and
subscribers, and any and all persons who have been solicited to purchase or who have
purchased any products or services from the DISH Defendants or the Web Sites
pertaining in any way to Piracy Technology;
(e) any and all records of purchases, sales, or distribution of Piracy Technology,
including any invoices, financial or accounting records, ledgers, books, accounts,
banking records, statements, shipping documents, web site databases, online payment
processor or auction accounts (including PayPal), which disclose the nature, volume
and extent of the DISH Defendants’ dealings in Piracy Technology; and
(1) the whereabouts of all of the Evidence, whether under the possession, custody or
control of the DISH Defendants or any third party.
17. THIS COURT ORDERS that upon service of the Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith render any necessary assistance to the Authorized Persons to locate, decode, access, and decrypt the Evidence and any and all information or electronic data to which the Authorized Persons may not have ready and immediate access, including all such materials fixed on computer disks, CD ROMs, USB drives, flash media, biometric devices, memory cards and sticks, tapes, and any other magnetic or machine readable or electronic storage media) and any such information or knowledge necessary to achieve fill and complete access thereto, including the prevision of all keys, identification codes, passwords, and pass phrases, for the purposes of accessing any web site, databases, servers, electronic mail, newsgroups, forums) posts, discussion threads, Internet relay chat communications, online payment processor or auction accounts used, operated or maintained by or accessible to the DISH Defendants, or other information, instructions or data stored in any location remote from the Premises that may contain or constitute the Evidence
1 8. THIS COURT ORDERS that upon service of this Order, the DISH Defendants, their officers, directors, servants, agents, employees, and anyone else acting on their behalf, and any person(s) upon whom the Order is served, shall forthwith render any necessary assistance to the Independent Supervising Solicitor and the persons assisting him or her to enable them to effectively early out their responsibilities under this Order.
Custody of, Access to and Use of Evidence Seized or Delivered Up
19. THIS COURT ORDERS that, subject to paragraph 23 below) all Evidence seized pursuant to ibis Order shall be held in the custody of the Independent Supervising Solicitor pending the trial of this action, or until such time as the Court orders otherwise.
20. This COURT ORDERS that the DISH Defendants and/or their solicitors shall he provided with reasonable access to all Evidence in the custody of the Independent Supervising Solicitor for the purpose of examining and making copies of the said Evidence in the presence of a representative of the Independent Supervising Solicitor.
21. THIS COURT ORDERS that, subject to paragraphs 24 to 26 inclusive hereof, EchoStar and/or its solicitors shall be provided with reasonable access to, all Evidence in the custody of the Independent Supervising Solicitor for the purpose of examining and making copies of the Evidence in the presence of a representative of the Independent Supervising Solicitor.
22. THIS COURT ORDERS AND DECLARES that any and all Evidence seized, delivered up or disclosed pursuant to this Order may be used in any proceeding commenced by EchoStar against any third party, including but not limited to proceedings against the DISH Defendants’ suppliers, customers, associates, and affiliates and/or the Web Sites’ users, members, and subscribers.
23. THIS COURT ORDERS that Borden Ladner Gervais LLP may take custody of any of the Evidence seized pursuant to this Order if the DISH Defendants consent to same.
Assertion Of Claims of Privilege
24. THIS COURT ORDERS that the DISH Defendants shall have a period of seventy-two (72) hours from the completion of the search in which to review the Evidence seized, including any Privileged Documents in the custody if the Independent Supervising Solicitor pursuant to paragraphs 13 and 1 5 of this order, such review being in the presence of a representative of the Independent Supervising Solicitor, and to assert claims of privilege, which claims shall be communicated to Borden Ladner Gervais LLP and the Independent Supervising Solicitor with particulars of the specific documents, electronic files, or other items of evidence which the EZ DISI-I Defendants assert to be privileged (the “Privileged Evidence”).
25. THIS COURT ORDERS that the 1t~rivileged Evidence shall be placed in sealed containers, with the DISH Defendants or their solicitors signing over the seal, and that the Privileged Evidence shall be retained in the custody of the Independent Supervising Solicitor until further Order of the Court, with no access to the Privileged Evidence being provided to EchoStar and/or its solicitors without the DISH Defendants’ consent or further Order of the Court.
26. THIS COURT ORDERS that in the event that the DISH Defendants fail or refuse to assert claims of privilege in accordance with paragraph 24 hereof, EchoStar and/or its solicitors shall be permitted access to the Evidence forthwith upon the expiry of the seventy-two (72) hour period, in Accordance with paragraph 21 hereof, for the purpose of examining and making copies of evidence in the presence of a representative of the independent Supervisor Solicitor, or requesting the Independent Supervising Solicitor to make copies and forward them to EchoStar and/or its solicitors.
Prohibited Acts
27. THIS COURT ORDERS that unless otherwise ordered by this Court the DISH
Defendants, their officers, directors, savants, agents, employees and anyone else acting on their behalf, and any person(s) upon whom the Order is served shall not directly or indirectly, by any means whatsoever:
(a) disclose or discuss by any medium or form of communication the existence or
contents of the Order with any third party except their legal counsel, or inform any third party, directly or indirectly, by any medium or form of communication, that EchoStar might commence legal proceedings or serve such Order on any such party;
(h) remove any of the Evidence from the Premises, or alter, deface, discard, conceal or destroy in any manner any of the Evidence wherever situate;
(c) erase, delete, or alter any of the Evidence from any electronic media, transmit any of the Evidence from the Premises or otherwise remove or alienate any electronic data containing any of the Evidence; and
(d) touch, activate, or operate any computer equipment containing the Evidence either
locally or remotely from any location, or access any electronic mail, newsgroup,
Internet relay chat communications, or forum, or other information, instructions or
data whether stored at or in any location remote from the Premises that may
constitute the Evidence.
28. THIS COURT ORDERS that, in order to give effect to the Order, any person who is ordered not to do something shall not do it personally, through others acting on his behalf or on his instructions, or with his ~ncouragemeptor acquiescence, or in any other way.
Variation/Discharge or Confirmation of Order
29. This COURT ORDERS that the terms of this Order shall remain in force until varied or discharged by a further Order of the Court
30. THIS COURT ORDERS that EchoStar shall apply for a confirmation of this Order within ten (10) days hereof, failing which this Order will terminate.
31. THIS COURT ORDERS that the DISH Defendants and anyone with notice of this Order may apply to the Court at any time to vary or discharge this Order or so much of it as affects such person, hut anyone wishing to do so shall provide EchoStar’s solicitors with at least twenty-four (24) hours notice thereof.
Confidentiality of Court File
32. This COURT ORDERS that the Court file in this action shall be sealed for ten (10) days from the date of this Order and all of the materials filed and to be filed in these proceedings shall be secured by the Registrar during that period of time, and the public shall not he granted access to the Court file or any materials therein during that period of time without an Order of the Court.
SCHEDULE “A” - THE EVIDENCE
(a) Piracy Technology, including any device, technology, product, service, equipment or apparatus, software, programming code, or any component thereof, which has or may be used, or is 3r was intended to be used, for the purpose of circumventing the EchoStar
Security System, thereby permitting the unauthorized reception and decoding of
EchoStar’s encrypted satellite television programming signals, including, without
hunitmg the generality of the foregoing, EchoStar Systems EchoStar receiver support,
“Dishnet” Cards, “Dishnet” programming, “Dishnet” support, “Dishnet” systems, DISH
Network “subscription receivers”, DISH Network RUM 101, 102,3, 10 and 11 cards,
Blue DISH Access Cards and Yellow DISH Access Cards, RUMX Cards, Atmega
Programmers, Green Light Nagra2 Atmega 128 Boards, “Greenlight Group N2 128-
EFA, Wafer 816/Mega Net Cards, Green Light ISU Programmers, Coolsat free-to-air
(’FTA”) receivers, FTA receivers, ETA “repairs”, FTA support, Universal JTAGS,
Universal ISO Programmers, TSOP Locks, TSUP “repairs”~ “clones”, Mikobu N2 RUM
102 Unlockers, Modded T9l I RUM 101, 10, 11 Unlockers, unlocking services,
“support”, Atmega “support”, Dishnet “support”, and piracy software;
(b) any designs, drawings, diagrams, sketches, schematics, screens, electronic files
(including gerber files) or other evidence pertaining to the creation, design, manufacture,
or reverse-engineering of Piracy Technology;
(a) any software, programming code, graphic files, or electronic data pertaining to the
creation, design, manufacture, or reverse-engineering of Piracy Technology;
(c) the Web Sites, the databases contained or stored therein, any data contained therein and the servers on which the Web Sites and Evidence reside;
(d) any other web site operated by the DISH Defendants;
(b) any document, record, note, information, instructions, correspondence sent and received, electronic mail, and internet relay chat communications (including all such materials fixed on computer disks, CD ROM’s, USB drives, flash media, biometric devices, memory cards and sticks, tapes, and any other magnetic or machine readable or
electronic storage media) pertaining to:
(i) the DISH Defendants’ dealings in Piracy Technology or Activations
or products or services in support thereof or related thereto;
(ii) the nature, operation, scale, volume, and extent of the DISH
Defendants’ business dealing in Piracy Technology or Activations, including any and all records of purchase, sale, distribution, or offering of Piracy Technology or Activations, including any invoices, financial or accounting records, ledgers, books, accounts, banking records, statements, shipping documents, source documents, transaction journals,
summary reports~ financial summaries, web site databases, and online payment processor or auction accounts (including PayPal);
(iii) the DISH Defendants’ dealings with customer, suppliers, associates, affiliates, users, members, and subscribers, with respect to Piracy Technology or Activations, including the names, addresses, e-mail
addresses, fictional usernames, aliases, Internet Protocol addresses, and other panatelas of the identities of any persons who have been provided with or purchased Piracy Technology or Activations from or whose
business has been solicited by the DISH Defendants for the purpose
of selling any Piracy Technology or Activations, and including any
business cards, ~ aries, phone records, messages, memoranda, notes, promotional material, literature, brochures and advertising
(c) DISH Access Cards and software and programming code for use in or with DISH
Access Cards;
(d) any other evidence of the acts and omissions alleged in the Statement of Claim herein.
GS2