In order to demonstrate to and convince a court that the situation at hand warrants emergency relief, the employer should seek a TRO and/or preliminary injunction promptly. By seeking injunctive relief promptly, the court would be put on notice that in the absence of injunctive relief, the movant would suffer irreparable harm. Importantly, in order for the full range of the potential tortious conduct and/or breaches to be understood, the employer should also include an expedited discovery request alongside the TRO or preliminary injunction application.
As a continuation of our discussion, we have switched gears to focus on the “Inevitable Disclosure Doctrine” in this training note.
The Inevitable Disclosure Doctrine in Seeking Injunctive Relief
At times, employees are exposed to or receive confidential information from their employers in the course of employment. Based on the prior position and role of an employee, the employer may find it necessary to prevent such an employee from using competitively valuable information even if they did not “misappropriate” it while departing, such as by way of sending it to their email accounts and/or downloading documents or files into an external hard drive or USB. In many jurisdictions, upon fearing that an employee may disclose confidential information (although there is no proof that the employee ever “took” it) after accepting employment with a competitor, employers are permitted to seek injunctive relief against such former employees by asserting the inevitable disclosure doctrine.
When deciding the outcomes of such cases, courts may consider issues such as (1) the nature of the industry and its trade, (2) the degree to which the trade secrets in question would provide the new employer with competitive value, (3) the degree to which the employee’s new position is similar to the former one (such that this employee has to utilize the former employer’s trade secrets in order to fulfill the responsibilities of their new job), and (4) the degree of competitiveness between the new employer (direct competitor) and the employee’s former employer.
However, the inevitable disclosure doctrine is not applicable in some jurisdictions, such as Maryland, and is definitely not applied by most courts. Nonetheless, based on the applicable law and particular circumstances, employers may have a variety of options and multiple grounds for obtaining injunctive relief against former employees who have, even without the evidence of a “smoking gun,” breached non-compete or non-disclosure agreements or are likely to use trade secrets or confidential information they were exposed to in their former employment.
In the next blog post titled “Factors Determining the Success of Obtaining Injunctive Relief” and Part XVII of this series, we will shift our focus to review factors that determine whether an employer would obtain injunctive relief or not after bringing a claim for trade secret misappropriation and/or breach of a restrictive covenant.
In the meantime, stay tuned for more legal guidance, training, and education. In the meantime, if you have any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.