10-5 INJUNCTIVE RELIEF AND CIVIL SEIZURE

• Jurisdiction: United States

10-5 Injunctive Relief and Civil Seizure

With one exception (discussed below), the DTSA is more limited than TUTSA with respect to the availability of injunctive relief. Under both statutes, a trial court may enjoin an actual or threatened misappropriation,¹⁸ but the federal statute does not allow an injunction that prevents an employee from entering into an employment rela-tionship.¹⁹ The DTSA also prohibits any injunction that places conditions on a defendant's employment that are not based on evidence of threatened misappropriation as opposed to "merely on the information the person knows."²⁰ Finally, an injunction under the DTSA must not conflict with "applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business."²¹

The one exception to the more limited scope of available relief is that, under the DTSA, the plaintiff can seek an ex parte seizure of its misappropriated trade secret information by federal law enforcement authorities at the beginning of the lawsuit "in extraordinary circumstances."²² This order can issue, and the seizure allowed, only if it is "necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action."²³

A detailed procedure for obtaining the trade secret information is outlined in the statute and must be followed precisely.²⁴ For instance, the application for ex parte seizure must be based on an affidavit or verified complaint, and it must describe "with reasonable particularity the matter to be seized and . . . identif[y] the location where the matter is to be seized."²⁵ The application must also establish that the person against whom seizure is sought "would destroy, move, hide or otherwise make such matter inaccessible to the court" if the plaintiff were to provide notice to the defen-dant.²⁶ Any order by the trial court under this provision must set forth findings of fact and conclusions of law, and it must "provide for the narrowest seizure of property necessary" to carry out its purpose.²⁷ In the order, the trial court must set forth detailed guidance to law enforcement about how to execute the seizure.²⁸ It must also provide a date for notice and a hearing no later than seven days after the order's issuance.²⁹ Other detailed provisions in this same section set forth additional procedural hurdles for obtaining this ex parte seizure of the trade secrets at the beginning of a lawsuit.³⁰ It is important to note, however, that a person whose...