27-CV-18-5602

Judicial District Court 4/5/2018 2:27 PM

Hennepin County, MN

STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT CASE TYPE:

In re Petition of Air T, Inc. to Perpetuate the Testimony of Yahoo! Inc.

Court File No. PETITIONER AIR T, INC.'S RULE 27.01 PETITION TO PERPETUATE THE TESTIMONY OF YAHOO! INC.

Petitioner Air T, Inc. ("ATI"), for its Rule 27.01 Petition, states and alleges as follows; PARTIES. JURISDICTION AND VENUE

1.

ATI is a Delaware corporation with its principal place of business in North

Carolina. The executive office of ATI's CEO, as well as a number of other key employees, are

located in St. Louis Park, Minnesota. ATI anticipates that it may be a party to an action, but is

presently unable to bring the action because it does not yet know the identity of the potential defendant.

2.

ATI expects that any such action will involve claims for, among other things,

breach of contract for violation of a nondisparagement clause. ATI recently learned that, over

the last year, an individual using the screen name "Blueskiesformel" (hereinafter, "Tortfeasor")

has posted numerous messages on the Internet through the California-based internet service provider ("ISP") Yahoo! Inc. ("Yahoo") disclosing disparaging and defamatory statements about ATI. Tortfeasor appears to be a current or former employee of ATI or someone who otherwise has access to confidential information. It is currently unknown whether there are additional ISPs

that the Tortfeasor has used. (Declaration ofNick Swenson ("Swenson DecL") Hlf 2-3).

27-CV-18-5602

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Filed in Fourth Judicial Distnct Court 4/5/2018 2:27 PM

Hennepin County, MN

3.

Beginning over a year ago, Tortfeasor started posting disparaging comments

reg^ding ATI on Yahoo's Air T "message board." A true and correct copy of certain of those messages are attached to the Swenson Declaration as Eyhihit A. As discussed, the messages disclosed information conceming ATI that was defamatory and disparaging regarding the integrity of the company and its business practices. The nature of the messages indicate that they were posted by someone with inside information about ATI, likely a former employee or current employee. 4.

For example, over a year ago, Tortfeasor stated: hey nick, any reason not to expect another bloody quarter like the last one? [G]ive us something here to feel good about. [Y]our stock price heading back down to waiter dark territory and thats [sic] not good... printer business. [N]o plan, no vision, just manipulation, that only gets you so far in this world.

(Swenson Decl., UTI4 and Ex. A at pp. 6-7.)

5.

More recently, about a month ago, Tortfeasor commented; "Nice quarter nick.

[0]nly day trader nick could take a company with a near 30% increase in revenues qtr over qtr and turn it into a 700k loss. [T]his company needs some professional management." Swenson Decl., f 5, and Ex. A at p. 1. Over the past two years, Tortfeasor has posted more than thirty other similarly disparaging and defamatory comments on Yahoo's Air T, Inc. page. (See id. Ex. A.)

6.

The disparaging statements about ATI that Tortfeasor posted may be subject to a

nondisparagement agreement to which ATI is a party. ATI needs to determine the identity of the Tortfeasor to properly assert any claim. The Tortfeasor is likely someone with access to inside information—a current or former ATI employee, who would be bound by a duty of non-

disparagement. (Swenson Decl. ^ 7.) If, however, this order is not entered, the information to determine that identity will likely be destroyed pursuant to Yahoo's standard retention policies.

27-CV-18-5602

Judicial District Court 4/5/2018 2:27 PM

Hennepin County, MN

7.

Certain former ATI employees are subject to separation agreements, such as a

Transition and Consulting Agreement for former high-level employees.

The person ATI

believes is posting these messages signed a Transition and Consulting Agreement, which prohibits former employees from making disparaging statements regarding ATI: Nondisparagement. From and after the date hereof, Employee agrees not to make any statement... or take any action that would disrupt, impair, embarrass, harm or affect adversely the Company, its affiliates or any of their employees, officers, directors, or customers, or place the Company, its affiliates or such individuals in any negative light. (See Swenson Decl.,

7-8 and Ex. B, at f 7.) If Tortfeasor is the former

employee ATI believes, he or she is in breach of contract. 8.

ATI's counsel has contacted Yahoo repeatedly in order to obtain information,

such as the message headers and user's account profile information, that would identify the Tortfeasor. (Affidavit of Annie Trimberger ("Trimberger Aff"),

2-7.) Despite multiple

requests fi-om counsel, Yahoo has refused to provide the identifying information to ATI. Id. All prior requests have been denied but ATI believes that Yahoo will provide that information pursuant to a court order. ATI is concerned that if Yahoo is not required to provide this information in the immediate future, that information might be purged and forever lost pursuant to Yahoo's document retention policy. 9.

ATI is unable to identify the name of the person it expects to be an adverse party,

other than to state that the person, using the name "Blueskiesformel," has posted multiple

messages on Yahoo alleging disparaging comments regarding ATI. Such conduct harms ATI and causes damage to ATI. (Swenson Decl., If 11.) 10.

If ATI cannot identify and take action against the Tortfeasor, the Tortfeasor may

continue to post disparaging comments regarding ATI and ATI will have no recourse. (Id.)

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Judicial District Court 4/5/2018 2:27 PM

Hennepin County, IVIN

11.

The entity to be named is Yahoo, which is located at the following address: 701

First Avenue, Sunnyvale, CA, 94089. The substance of the testimony is extremely limited. ATI

merely seeks to establish the identity and Internet Protocol ("BP") address of the person who posted the information described in this Petition and attached hereto before the information is deleted from Yahoo's files.

12.

ATI respectfully requests that the Court issue an order authorizing it to take the

deposition of the document custodian of Yahoo for the purpose of perpetuating its testimony related to the identity and IP address of "Blueskiesformel." ATI requests that the order further authorize that, in connection with this deposition. Yahoo provide records sufficient to identify "Blueskiesformel."

13.

In the event that the information and documents obtained from Yahoo do not

provide accurate information regarding the identity oftheperson described above. Yahoo may be able to provide the IP address for the source of the message. The IP address can be used to identify another ISP used by the author of the message. ATI respectfully requests thatthis court issue an orderauthorizing ATI, if necessary, to take follow-up depositions of additional ISPsthat have been usedby the individual to post messages on Yahoo for the purpose of perpetuating their

testimony. The subject matter of the oral examination and documents requested from such ISPs shall cover all matters relevant to the identity of the person known as "Blueskiesformel."

27-CV-18-5602

Judicial District Court 4/5/2018 2:27 PM

Hennepin County, MN

Dated: April 5,2018

WESfTHROP & WEINSTINE, P.A. Bv

s/ Annie M. Trimberger

Philip T. Colton (MN #157259) Bradley J. Walz (MN #339891) Annie M. Trimberger (MN #395790) 225 South Sixth Street

Suite 3500

Minneapolis, MN 55402 T: 612-604-6400 F: 612-604-6800

[email protected] [email protected] [email protected] Attorneysfor Petitioner Air T, Inc.

ACKNOWLEDGMENT

The party upon whose behalf this pleading is submitted, by and through the undersigned, hereby acknowledges that sanctions may be imposed for violation of Minn. Stat. § 549.211.

s/ Annie M. Trimberger

Annie M. Trimberger

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