The painstaking process of gathering and reviewing documents in connection with litigation discovery used to be a task relegated to (and dreaded by) young associates and paralegals at our. nation’s law firms. With the advent of electronic discovery, however, firms have shifted this task to third-party providers, who in turn have developed clever strategies for cultivating customers, which they guard jealously. Business apparently is booming—and so too are providers’ efforts to protect what they believe is their proprietary information regarding customer contracts, strategies, and the like. .
Before the Court is the motion by Plaintiffs Documeht Technologies, Inc. (“Document Technologies”), Epiq Systems,' Inc. (“Epiq Systems”), and Epiq eDiscovery Solutions, Inc. (“Epiq Solutions”) (collectively, “DTI”) for a preliminary injunction against their former employees, Steve West, John Parker, Seth Kreger, and Mark Hosford (collectively, the “Individual Defendants”) and a competitor of DTI, defendant LDiscovery, LLC (“LDiscov-ery”). In brief, plaintiffs allege that the Individual Defendants conspired with LDiscovery to misappropriate their trade secrets and solicit their customers in violation of the Individual Defendants’ employment 'agreements and state and federal law. The Court held a three-day evidentia-ry hearing on whether plaintiffs’ were entitled to injunctive relief and, on the basis of the Court’s assessment of the evidence presented at that hearing (including its assessment of the witnesses’ démeanor and credibility), denied plaintiffs’ motion by bottom-line Order dated June 16, 2017. This Opinion explains the reasons for that ruling.
The pertinent facts, as found by the Court for purposes of this motion, are as follows:
Plaintiff DTI employs nearly 7,000 employees and is a global provider of elec
The Individual Defendants were high level sales personnel at Epiq at the time of the acquisition and were responsible for bringing in new clients and maintaining existing client relationships. Id. at 497:18-499:10. As. a condition of their employment, the Individual Defendants signed agreements with Epiq (the “Epiq Employment Agreements”) containing numerous restrictive covenants, including a one-year non-competition agreement, a one-year prohibition on soliciting the company’s clients, a one-year prohibition on soliciting the company’s, employees, a broad nondisclosure provision, and a covenant to return 'the company’s confidential information upon termination of employment. See PX 018; PX 037; PX 063; PX 064. The agreements further set forth that “all disputes relating to all aspects of the employer/employee relationship” shall be settled by arbitration, but establish a limited exception for the signatories “to obtain an injunction from a court of competent jurisdiction restraining [a] breach or threatened breach ,.. of any [covenant] of this agreement.” Id, Although these covenants remained in place following DTl’s acquisition, the Individual Defendants have at all times been at-will employees. Id.; Tr. 153:2-154:4.
The Individual Defendants were dissatisfied with their employment even prior to DTl’s acquisition. In their view, Epiq had made several operational and managerial errors that had cost these salesman both clients and personal revenue, in particular by underinvesting in document review centers in Washington, D.C; and Canada. Tr. 14 6:12-149:13. The Individual Defendants accordingly began looking for new employment in 2014, and jointly attended a meeting with one potential employer, Consilio, early that same year. Id at 146:9-149:23, 151:1-155:25, 195:9-18, 196:18-197:22, 260:2-262:14, 262:18-264:3, 265:11-266:8, 290:17-293:1.
The Individual Defendants’ concerns grew upon learning of DTI’s proposed acquisition. They viewed DTI as a “low cost” provider that would harm their reputation and their relationship with their clients, and accordingly stepped up their efforts in mid-2015 to find new employment. Id at 151:1-155:25. Then, in January 2016, defendant Kreger received a communication from a recruiter about an employment opportunity at defendant LDiscovery. Id at 112:15-117:7. Defendant Kreger communicated this opportunity to the rest of the Individual Defendants and, in May 2016, the Individual Defendants met with representatives from LDiscovery in Washington, D.C. to discuss a potential transition. Id. In preparation for the meeting, the Individual Defendants informed LDiscov-ery of the amount of sales revenue they generated for Epiq from 2011 to 2Ó16, id, at 393:20-394:4; PX 003, and notified LDiscovery at the meeting that they would require document review centers in Canada and Washington, D.C. if they were to join the company. Id. at 114:23-117:19. The Individual Defendants afterwards retained counsel to represent them in further negotiations, and thereby communicated extensively with LDiscovery about the terms of their potential transition during the remainder of the year. Id. at 200:23-202:17.
On January 4, 2017, the Individual Defendants signed employment agreements with LDiscovery whereby they agreed to
On January 5, 2017, the Individual Defendants sent identical letters to DTI (drafted by counsel) resigning from the company, but offering to stay on for two weeks in order to assist with the transition. Tr. 126:13-127:19; PX 181. The Individual Defendants did not inform DTI that they had signed employment agreements with LDiscovery, and DTI did not accept their offer to assist in the transition. The next day, on January 6, 2017, a DTI representative contacted the Individual Defendants and requested that they return any property containing DTI’s confidential information, pursuant to their Epiq Employment Agreements.
The Individual Defendants partially complied. Although the Individual Defendants returned their laptops and mobile devices,
Several weeks later, around January 31, 2017, defendant Kreger contacted a DTI employee for a list of invoices paid by his clients in December 2016. See PX 240, 241; Tr, 397:23-399:19,- 437:19-440:2. This was
Three days later, on February 2, 2017, defendant West circulated an email to the other Individual Defendants titled “Four Horseman 2018 Game Plan.” PX 088. According to the correspondence, the Individual Defendants planned to meet in April 2017 to discuss them sales strategy at LDiscovery. In order to prepare for the meeting, defendant West circulated a spreadsheet so that each Individual Defendant could input the names of his clients at Epiq, the client contact information, and the revenue those clients generated for 2016. Id.; Tr. at 380:24-384:16.
The Individual Defendants never met, however, and the spreadsheet was never completed. This was because in March 2017, DTI sent a cease-and-desist letter to the Individual Defendants demanding, among other things, that they cease all communications with DTI employees and customers “in any manner competitive with DTI” and immediately return all materials relating to the company. See PTX 159. After discussing the matter, the Individual Defendants decided to postpone the meeting indefinitely. Tr. 251:6-24. One month later, in April 2017, DTI filed three lawsuits in federal court: the instant action in the Southern District of New York against defendants West, Kreger, and Parker (the “SDNY Action”), an action in the Northern District of Illinois against defendant Hosford (the “Illinois Action”), and an action in the Eastern District of Virginia against LDiscovery (the “Virginia Action”). See SDNY Compl. ¶¶ 84, 91, 132; Illinois Action Compl. ¶¶ 61, 78, 114; Virginia Action Compl., 17-cv-3733, No. 1, ¶¶46, 95, 98,187.
The Court held an initial pretrial conference in the SDNY Action on April 12, 2017, during which counsel for all the defendants agreed to a common discovery plan applicable to all the actions. Two days later, on April 14, 2017, the Individual Defendants in the SDNY Action moved to transfer the case to the Eastern District of Virginia, and on April 25, 2017, the Court issued an Opinion and Order denying the motion. On May 1 and May 10, 2017, the courts presiding over the Virginia and Illinois Actions issued orders transferring their cases to this District, and the Court consolidated the actions by Order dated May 19, 2017. As noted, the Court subsequently held a three-day evidentiary hearing on DTI’s motion for a preliminary injunction from May 30 to June 1, 2017, after which counsel submitted written opening and rebuttal summations.
A preliminary injunction is an “extraordinary and drastic remedy, one
The Court begins with DTI’s claims for injunctive relief against LDis-covery and, in particular, the claim that LDiscovery tortiously interfered with DTI’s relationships with existing and prospective customers. Under New York law, tortious interference with existing customer relations consists of five elements: “(1) the existence of a valid contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional inducement of the thirdparty’s breach of contract without justification; .(4) actual breach of the contract; and (5) damages to plaintiff.” American Bldg. Maintenance Co. of New York v. Acme Property Servs., Inc.,
DTI contends here that LDiscov-ery intentionally induced the Individual Defendants to breach the restrictive covenants in their employment agreements by indemnifying them against claims- that would foreseeably be brought by DTI and by agreeing to pay them a collective $5.1 million during their Sabbatical Year. The Court, however, is unpersuaded that LDiscovery has done anything improper by entering into these agreements with the Individual Defendants, let alone that the Individual Defendants have breached the applicable terms of their agreements with DTI.
As previously noted, the Individual Defendants forfeit their right to indemnification should a court find that they have “éngaged' in the disputed conduct that forms the basis of [DTI’s] claim,” e.g., PX 006; PX 042, so the Individual Defendants’ agreements with LDiscovery can hardly be read as an inducement to commit such breaches. Moreover, it makes perfect sense for LDiscovery to compensate the Individual Defendants during the Sabbatical Period for their year of lost income as a way of inducing them tp join the company. Tr. 395:8-19.. Indeed, LDiscovery set forth a rational business case for these payments during the evidentiary hearing, see Tr. 356:3-12, and there is thus no basis for the Court to infer that the signing bonuses are in return for any alleged wrongdoing. The Court accordingly finds that DTI has failed to show a likelihood of success on the merits for its claims for tortious interference against LDiscovery,
DTI similarly fails to show a likelihood of success on the merits for its misappropriation claim's;. The' requirements for showing a misappropriation of a trade secret are similar under state and federal law. Under New York law, a party must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used
(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Bancorp Servs., LLC v. Am. Gen. Life Ins. Co., No. 14-CV-9687 (VEC),
Plaintiffs ignore these elements altogether. Instead, DTI contends that the Individual Defendants have disclosed “confidential information” to LDiscovery concerning DTI’s “business development efforts and strategies” by requesting, as part of their employment negotiations, that LDiscovery open document review centers in Washington, D.C. and Canada. See Plaintiffs’ Posb-Hearing Brief in Support of Their Motion for Preliminary Injunction (“Pis.’ Summation”) at 3, ECF.No. 60. Putting aside for a moment that Epiq’s website publicly states that it operates in these regions,
For the foregoing reasons, the Court concluded that plaintiffs had failed to show a likelihood of success on the merits on any of their claims against LDiscovery, and accordingly denied their motion for a preliminary injunction against LDiscovery in its Order dated June 16, 2017.
The Court next turns to DTI’s claims against the Individual Defendants. DTI’s principal contention is that the Individual Defendants have breached or are threatening to breach their non-disclosure covenants by improperly copying and re
First, contrary to the allegations in DTI’s preliminary injunction motion, defendant West did not “mass copy” documents from his company laptop to a thumb drive.prior to his resignation. See ÉCF No. 7 at 10. Rather, in September 20Í6, DTI sent West a thumb drive containing information recovered from his broken company computer. Tr. 165:9-172:16; DX 166, 167, 173, 174. West then transferred the information to his new company laptop, placed the thumb drive into a desk drawer in his home office, and forgot it was there until he read the allegations in DTI’s complaint. Tr. 171:8-174:2; DX 176. West subsequently contacted counsel and placed the thumb drive in an envelope, where it sat until the parties’ agreed-upon third-party forensic consultant retrieved it. Tr. 1.08:23-109:23,174:6-175:21,181:3-9; DX 236. The ensuing forensic analysis confirms West’s account and shows that West did not.'access the thumb drive between October 3, 2016 (when he initially copied the files onto his new laptop) and April 5, 2017 (the morning after he was served with the complaint in this action). See DX 215 at 6-7; DX 216 at 3-6; PX 244 at 2; Tr. 470:1-473:20; Tr. 483:13-485:20.
Second, defendant Hosford testified that although he does not have a specific recollection of his missing thumb drive, he likely transferred DTI’s materials onto the device in. preparation for a client meeting and left the drive with the client, which was consistent with his past practice. See Tr. 255:5-9. The forensic analysis presented at the evidentiary hearing confirms that the thumb drive was never subsequently inserted into any of the defendants’ computers, see DX 143-48, DX 196-197; Tr. 470:4-21, and there is no evidence that Hosford was aware that the defendants’ devices would log the drive’s serial number upon use and therefore kept it hidden.
Third, defendant Kreger did not improperly obtain DTI’s invoice list for December 2016. There is no dispute that DTI voluntarily forwarded the spreadsheet to Kre-gér nearly a month after his resignation, knowing that’he was.no longer an employee. There is also no dispute that DTI regularly sends such lists to its sales personnel so that they can verify the accuracy of their commissions checks, and .that this was Kreger’s stated purpose in requesting the’ information; Moreover, the transmittal email from DTI contained no instructions requiring Kreger to delete the spreadsheet upon the completion of. his review,, and DTI fails to identify any provision of Kre-ger’s employment agreement that mandates that he do so.
For the foregoing reasons, the Court concluded that DTI had failed to show a likelihood of success on the merits for its misappropriation claims because it had not shown that the Individual Defendants intentionally retained DTI’s confidential information to gain an improper advantage in their new employment, and the Court accordingly denied that prong of plaintiffs’ motion in its Order of June 16, 2017.
The Court next turns to DTI’s contention that the Individual Defendants have violated the terms of their non-competition covenants. The provisions set forth in relevant part that the Individual Defendants for 12 months after termination will not “compete against [Epiq] ..., or engage in employment with or provide independent contractor or consulting services for any ... entity which ... compete[s] against [Epiq].” See PX 018; PX 037; PX 063; PX064; Tr. 42:5-45:10. DTI argues that by executing employment agreements with LDiscovery and engaging in several preparatory activities for their employment in 2018, the Individual Defendants have breached their non-competition covenants warranting the issuance of a preliminary injunction. See, e.g„ PX 042; Tr. 237:21-238:14.
DTI is incorrect as a matter of law. Under applicable New York law, a former employee may prepare to compete during the term of a non-competition provision, because restraining such acts “would have the effect of extending the term of the covenant.” Stork H & E Turbo Blading, Inc. v. Berry, 32 Misc.3d 1208A,
Moreover, the Individual Defendants did not use (or intend to use) DTI’s trade secrets to populate the spreadsheet.
For the foregoing reasons, the Court concluded that DTI had failed to show a likelihood of success on the merits that the Individual Defendants had violated the terms of their non-competition agreements, and accordingly denied this prong of plaintiffs’ motion as part of the Order of June 16, 2017.
The Court next turns to DTI’s contention that the Individual Defendants breached their employee non-solicitation clauses, which state that during their employment and for a 12-month period after termination, the Individual Defendants may not “attempt to hire, solicit, induce, recruit or encourage any other employees or agents of Epiq to terminate their employment ... with Epiq in order to work for any .., entity other than Epiq.” See PX 018; PX 037; PX 063; PX 064. DTI now asserts'that the Individual Defendants breached this provision by jointly searching for new employment, because, by doing so, they became “much more attractive than a lone wolf pitch to employers looking to poach their competitors’ rainmakers.” Plaintiffs’ Rebuttal to Defendants’ Written Summations (“Pis.! Rebuttal”) at 5, EOF No. 65.
This restrictive covenant is, however, unenforceable insofar as it purports to prohibit at-will employees, who have yet to accept an offer of new employment, from “inducing” or even “encouraging” their, coworkers to leave their present employer. In that connection, New York courts apply a.three-part reasonableness test to covenants prohibiting! the recruitment of employees. Kelly v. Evolution Markets, Inc.,
First, although DTI contends that the covenant prevents “the potential harm to a company’s operations arising from the coordinated en masse resignation of several employees,” Pis.’ Rebuttal at 7, this is not a legally cognizable interest for the purposes of a restrictive covenant.
DTI does not contend that the employee non-solicitation covenant is necessary to protect its trade secrets or confidential customer lists.
To be sure, if DTI desires to prevent its employees from coordinating their resignations, it is free to hire them pursuant to term employment agreements. DTI, however, cannot use restrictive covenants to supply itself all the benefits of term agreements while simultaneously retaining the right to lay off its personnel whenever it so desires. This is not a proper purpose for such a restraint on free market competition.
Second, the restrictive covenant imposes an undue hardship on DTI’s employees because it goes far beyond DTI’s stated goal of preventing “en masse” resignations.
Third, the covenant’s restrictions are injurious to the public. There is no dispute here that each of the Individual Defendants had already resolved to leave DTI-Epiq before they began coordinating their job search. See Pis.’ Summation at 27. DTI contends, however, that the restrictive covenant still applies with full force because merely discussing other potential employers constitutes “encouragement” to leave the company. Id.
This is a bridge too far. In addressing whether a restrictive covenant is injurious to the public, the Court must “take account of any diminution in competition likely to result from slowing down the dissemination of ideas and of any impairment of the function of the market in shifting manpower to areas of greatest productivity.” Restatement (Second) of Contracts § 188 (1981). The employee non-solicitation covenant here, in turn, serves to keep departing employees in the dark about job opportunities beyond DTI. It is under these circumstances that the public interest most strongly supports the free flow of information concerning alternative employment, however, since this effectuates the efficient redistribution of labor and the “harm” to DTI of losing the employee is a forgone conclusion.
The foregoing analysis applies also to DTI’s claims that the Individual Defendants improperly solicited two other DTI employees, Gary Suffir and Myriam Schmell. Since DTI does not contend that either employee possesses any trade secrets or provides “unique” or “extraordinary” services, the non-solicitation clause fails under the first element of the reasonableness test. The evidentiary hearing further unequivocally established that Ms. Schmell was already intending to leave DTI at the time that the Individual Defendants spoke to her about alternative employment (because DTI had informed her that she would be laid off), Tr. 45:17-25, and the non-solicitation clause is therefore additionally unenforceable as to her under the third element of the reasonableness test.
For the foregoing reasons, the Court concluded that DTI had failed to show a likelihood of success on the merits or irreparable harm for the Individual Defendants’ purported breach of the' Epiq Employment Agreements’ employee non-solicitation clauses, and consequently denied these prongs of plaintiffs’ motion in its June 16, 2017 Order.
The Court turns finally to DTI’s claim that the Individual Defendants have breached their client non-solicitation covenants. The Epiq Employment Agreements do not require the Individual Defendants to cease all contact with their clients following their departure from DTI. Rather, they prohibit the Individual Defendants from engaging in activity that would influence ' Epiq’s customers to transfer their business to a competitor.
The remainder of the alleged solicitations, such as a suggestion by defendant Kreger to grab lunch or for' a particular client to call him, are innocuous. See PX 118; PX 243. The Individual Defendants testified that several of their former clients were also personal friends, see Tr. 63:4-9; 245:5-6, and DTI has not introduced any testimony from its clients stating that the Individual Defendants have solicited them for business.
In sum, DTI’s motion for a preliminary injunction fails as to the facts and the law. On the facts, DTI mistakenly portrays what are in actuality innocuous or otherwise legitimate acts by LDiscovery and the Individual Defendants as part of a conjectural (but unsupported) scheme to misappropriate DTI’s trade secrets and improperly compete for its clients and employees. On the law, DTI’s expansive view of its trade secrets and the restrictive covenants in its employment agreements is at odds with New York law and the testimony elicited during Court’s three-day evidentia-ry hearing, and DTI accordingly has failed to show a likelihood of success on the merits or imminent and irreparable harm.
For all the foregoing reasons, the Court denied DTI’s motion for a preliminary injunction in its Order dated June 16, 2017.
Notes
. The latter provision also requires that "there is substantial evidence that Epiq did not file the claim solely in retaliation for Employee’s departure from Epiq” and "substantial evidence that Employee is culpable with respect to the allegations in that claim.” Id, The requirements are redundant, however, because a court’s finding of a defendant’s liability necessarily meets these elements.
. The return of company documents provision states in relevant part that upon departure from the company, the Individual Defendants will "promptly deliver to [Epiq] .. • any and all devices, records, data, notes, ... [or] other documents or property ... developed ... pursuant to [their] employment with [Epiq] that constitute Confidential Information, or otherwise belonging to Epiq.” See, e.g., PX 018,
.While DTI asserts in its complaint that' defendant Kreger failed to return his DTI-issued phone in order "to deprive DTI of the benefit of trade secret, confidential, and proprietary information therein,” see ECF No, 1, ¶¶ ISO-131, defendant Kreger testified that he inadvertently lost the device prior to his resignation, see Tr. 413:25-414:16, and DTI’s post-hearing summation .brief does not raise the issue as a basis for injunctive relief.
. After the Court consolidated the actions but before the evidentiary hearing, the Individual Defendants filed a motion to compel arbitration of all counts not seeking injunctive relief for the breach or threatened breach of the Epiq Employment Agreements. The Court issued a bench order during the hearing granting the Individual Defendants’ motion and, accordingly, this Opinion is limited to DTI's claims against the Individual Defendants for injunctive relief for breach of contract and DTI’s claims for injunctive relief against LDis-covery.
. See, e.g„ http://www.epiqsystems.com/the-epiq-difference/offices;http://www.. epiqsysterns.com/ediscovery-Canada.
. The definition of Confidential Information excludes “information ... that [is] publicly known and generally available through no wrongful act.”'See PX 01S; PX 037; PX 063; PX064.
. For similar reasons, DTI also failed to show the element of irreparable harm. Defendant West is no longer in possession of the disputed thumb drive, and defendants Kreger and Parker have stated that they are willing to delete the DTI’s invoice spreadsheet upon request. Tr. 439:17-23. As set forth previously, the Court also finds Hosford’s testimony credible that he is no longer in possession of his disputed thumb drive.
. Although several of these decisions involved defendants who prepared to compete while still employed by the former employer, there is no reason why this reasoning is not equally applicable to defendants who are former employees but subject to non-competition covenants. See, e.g., Stork,
. While DTI also argued that defendant Kre-ger logged onto DTI’s customer relationship management program (which contained information about business opportunities and customer preferences) 25 times the day before signing his employment agréement with LDis-coveiy, Kreger testified that he had no recollection of having done so, Tr. at 392:18-25, and DTI .introduced no evidence showing that he actually accessed the system.
. DTI identifies three other spreadsheets, also prepared by the Individual Defendants; but none of these includes DTI's confidential information. The first consists of client business cards Collected by Kreger during his employment at DTI, which DTI returned to him when they mailed him his personal effects after his resignation. Tr. 73:14-74:24. The second consists of names and email addresses of AIG employees that West created from memory and primarily using Linkedln. Id. at 75:19-77:23, 78:19-79:10, 175:22-178:4; DX 151. The third is comprised of contact information sent to West by his father, a senior partner at Weil, Gotshal & Manges LLP, who routinely sent his son information concerning potential clients, hi at 80:9-83:18.
.The Individual Defendants’ general reve- ' nue numbers for 2011 to 2016, which they transmitted to LDiscovery as part of their employment negotiations, are not trade secrets for similar reasons. DTI does not dispute that it is industry practice for e-discovery providers to ask potential sales hires for their past revenue figures and that it would be extraordinarily difficult (if not impossible) for the Individual Defendants to get a sales job with another employer if they were not able to disclose such information. See Tr. 270:17-271:13; PX 310 at 104:7-11, 104:13-19, 105:7-13.
. Unlike the situation here, however, .en masse resignations may support a claim for breach of fiduciary duty where those resignations are part of a coordinated effort to "benefit [the defendants] through destruction of plaintiff’s business.” Duane Jones Co. v. Burke,
. Indeed, it is hard to imagine how this would be true given that the Individual Defendants are subject to non-disclosure provisions. See, e.g., Glob. Telesystems, Inc. v. KPNQwest, N.V.,
. Although the Court does not reach the issue, there is no evidence that this is the case. The mere fact that the Individual Defendants were some of DTI’s top-earners is immaterial. DataType Int’l, Inc. v. Puzia,
,The decision in Estee Lauder Companies Inc. v. Batra,
. Although these statements were made by the Individual Defendants to a DTI employee after they had resigned to the company, the point is that they are examples of the types of conversations that the employee non-solicitation provisions makes improper, regardless of time or circumstance, and that the Individual Defendants no doubt shared in coming to their conclusion to seek alternative employment. See Tr. 148:10-149:23 (testimony by defendant West describing his grievances with Epiq and the fact that he shared his concerns with the other Individual Defendants prior to their deciding to seek new employment).
. The non-solicitation clause states in relevant part that the Individual Defendants for a period of 12 months following termination will not: "(a) solicit, serve or cater to any of Epiq’s customers whom [they] solicited, served or catered to on behalf of Epiq .,.; (b) divert or attempt to divert any of Epiq’s customers ...; or (c) call upon, influence, or attempt to influence any of Epiq’s customers to transfer their business or patronage from Epiq to [them] or to any other ... business entity engaged in a business similar to Epiq’s business.’’ See PX 018; PX 037; PX 063; PX 064.
. Indeed, DTI strategically chose to forgo examining Kreger at the evidentiary’ hearing