Protecting Confidential Information & Trade Secrets During a Lawsuit: Injunctive Relief

In my blog article “Confidential Information” vs. “Trade Secrets,” I provided a general overview of what confidential information and trade secrets are. Let’s pretend, however, that despite your efforts and filing a lawsuit, your valuable information is at risk because an employee took it with them when they quit. What can you do to protect further damage to your business or, at the very least, protect your business from being damaged during the lawsuit?

First, be aware that if there is such a risk out there that something needs to be done as soon as possible, you should not sit around while the situation could get worse. Take action and proceed with requesting the court to issue an immediate temporary restraining order (TRO) and preliminary injunction. Later on, you can ask to make that injunction a permanent one to continue protecting your business in the future. If the individual does not follow the order, you can then ask the court that the individual be punished for being in contempt of court.

Injunctive relief can be in the form of the court ordering another person or business to do something or to stop doing something. In our pretend situation where an employee has taken valuable information, a court can order that the former employee immediately stop using and return all confidential information and/or trade secrets.

Injunctions can come in three forms: TRO; preliminary injunction, and permanent injunction. A TRO is short-term protection until the court can look closer at the injury and other factors and issue something stricter. It can last up to ten days and can be done without notice.

A preliminary injunction is also a temporary order—but, it requires a court proceeding and (usually) notice to the other party. The court will (generally) look to the following factors and weigh them to determine whether to issue a preliminary injunction: (1) the threat of irreparable harm to plaintiffs; (2) the state of the balance between this harm and the injury that granting the temporary restraining order will inflict on defendants; (3) the probability of plaintiff’s success on the merits; and (4) the public interest. For a permanent injunction, the plaintiff must show actual success before the other factors (essentially the same as above) are considered.

Injunctive relief is considered an extraordinary remedy and can become very complicated. If your confidential information and/or trade secrets are threatened or if you need help with a dispute or are thinking of filing a lawsuit, contact the trial attorneys at the Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices. We are here to help.