Ex Parte TRO's: Courts Don't Like Them

Every now and then, non-compete and trade secret plaintiffs conclude that the need for relief is so urgent that a temporary restraining order is not enough. Instead, they decide that relief must be granted by the court before notice and an opportunity to be heard is provided to the defendant. This practice, which is legally known as seeking relief ex parte, is permitted by courts, but subject to a specific showing of need that is discussed in greater detail below. A recent decision by the United States District Court for the Northern District of Texas illustrates that courts are loathe to grant ex parte injunctions.

To be clear, non-compete and trade secret cases are emergency driven. From a plaintiff's perspective, the defendant's wrongful conduct threatens irreparable harm. To prevent such harm, plaintiffs seek injunctive relief by way of (1) a temporary restraining order ("TRO"), and/or (2) a preliminary injunction. A TRO is simply an expedited, temporary form of preliminary injunctive relief. By seeking a TRO, a plaintiff is essentially telling the court that its need for relief is emergent. As the Florida Supreme Court once stated, "relief delayed is relief denied." Capraro v. Lanier Business Products, Inc., 466 So.2d 212, 212 (Fla. 1985).

A case recently filed and decided illustrates that plaintiff must think carefully before seeking ex parte relief. In Digital Generation, Inc. v. Steven Boring, the plaintiff sought an ex parte TRO against its former employee, Steven Boring. According to Digital Generation, Mr. Boring had breached, or was about to breach, a non-solicitation and confidentiality agreement. To support its claim, Digital Generation stated that Mr. Boring joined a competitor and visited a third party who provides a large volume of services to one of Digital Generation's clients. Digital Generation also stated that prior to leaving, Mr. Boring asked for permission to access a folder on his laptop computer to retrieve personal information, and it was subsequently discovered that the same folder contained alleged confidential information.

The court discussed the difference between a TRO and a preliminary injunction. A TRO is "simply a highly accelerated and temporary form of preliminary injunctive relief." The purpose of a TRO is to preserve the status quo and prevent irreparable harm "so long as is necessary to hold a hearing, and no longer." The court noted that a TRO may be granted on an ex parte basis, but only if the...