American Bar Association

Intellectual Property Litigation Committee

Trade Secrets Subcommittee

Trade Secret and Non-Compete Project

Guidelines for Preparation

Thank you for contributing to the Trade Secret and Non-Compete Project!

As you know, we are asking each contributor to provide a description of the process for obtaining preliminary relief in a trade secret or non-compete case in the jurisdiction where the contributor regularly practices, and to suggest some “best practices” for obtaining preliminary relief in such cases in that jurisdiction. The questions that follow may provide some helpful guidelines for the preparation of your contribution, however you should include any information that you think will be most useful to practitioners less familiar with the federal and state courts in the jurisdiction.

Your contribution should focus on the process for obtaining preliminary relief; however brief attention to the applicable legal standards in the jurisdiction will be helpful. In lieu of a lengthy discussion of applicable legal standards, citations to treatises, articles or essays concerning legal standards in the jurisdiction are encouraged.

The best practices suggestions will be most helpful if they are not suggestions for obtaining preliminary relief generally, i.e., regardless of the jurisdiction or court. Rather, the most helpful suggestions will relate to a specific jurisdiction or court.

There are no specific guidelines with respect to length of the contribution.

The following questions are intended only as suggestions to consider when preparing the contribution, and they are not intended to be comprehensive.

We expect that answers to the following questions may differ significantly between federal and state courts or even among specific departments within each court. Please make it clear in answering the questions which specific federal, state, or other specific jurisdiction/department to which you are referring so that we can separate out the information for our survey.

Thanks again for participating, and please forward your contributions, and any questions, to any one of the Trade Secrets Subcommittee Cochairs:

LindaK. Stevens
Schiff Hardin, LLP
233 S. Wacker Drive
Suite 6600
Chicago, Illinois 60606
312-258-5667
/ Angie M. Hankins
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY10038
212.806.5580
/ Ronald T. Coleman Jr.
Parker, Hudson, Rainer & Dobbs LLP
1500 Marquis Two Tower
285 Peachtree Center Ave.
Atlanta, GA 30303
(404) 420-1144

Questionnaire

Jurisdiction(s) to be covered: ______

Contributor’s Contact Information

Name: ______

Street Address:______

Phone/fax numbers:______

Email address:______

Date of Submission______

______

Please describe the practices and procedures followed in this jurisdiction for obtaining emergency injunctive relief, answering the following questions:

  1. Will courts hear ex parte motions for temporary restraining orders (TROs) and preliminary injunctions (PIs)? If so, what factors will courts consider when deciding whether to hear ex parte TRO and PI motions?
  2. Do courts distinguish between TROs and PIs?
  3. How often is an evidentiary hearing held with regard to a motion for TRO or PI? (Are such hearings rare/allowed/required?) With what frequency will courts decide TRO and PI motions on affidavits, exhibits and briefs?
  4. Typically, how soon after the filing of a complaint and a motion for a TRO or PI will a hearing or argument be held?
  5. Typically, how soon after the court hears evidence or argument on TRO and PI motions will the court issue a ruling?
  6. Are there special filing requirements for TRO/PI motions, e.g., are TRO and PI motions filed in an emergency session? Is there a business or dedicated section in which trade secret and non-compete cases typically are filed?
  7. What documents typically are filed by a plaintiff requesting a TRO or a PI?
  8. What documents are typically filed by a defendant resisting a TRO or a PI?
  9. Do courts permit discovery or require the parties to exchange discovery prior to hearings on motions for TROs or PIs? What is the procedure for that?
  10. Typically, are plaintiffs required to post a bond if the court issues a TRO or PI? What unique or special procedures or rules does this jurisdiction follow regarding requests for, or the posting of, a bond?
  11. Does the scheduling of hearings or oral argument on TRO and PI motions require consultation with court clerks?
  12. Are there reasons that plaintiffs should prefer state court to federal court in trade secret or non-compete cases where preliminary relief will be sought? Or vice versa?
  13. In federal court, will agreement between the parties to have a Magistrate decide a TRO or PI motion expedite the hearing?
  14. Will the judge who hears the TRO motion also hear the PI motion? Will the same judge keep the case through completion?
  15. Are there any unique rules in this jurisdiction regarding the assignment of judges?
  16. Does this jurisdiction have a mediation program? Does a mediation program affect the process for obtaining a hearing or decision on a TRO or PI?
  17. Will courts enter agreed confidentiality or protective orders before briefs are filed in connection with TRO or PI motions? Are there any unique practices or procedures relating to the entry of protective orders?
  18. Are TRO and PI motions filed directly with the Court or must they be served on the opposition first, after which the moving papers and the opposing parties' papers are filed together?
  19. What is the practice in this jurisdiction regarding contact with chambers? How common is such contact? In what circumstances might contact be made ex parte?
  20. Will courts decide a plaintiff’s pro hac vice motions before defendant’s counsel appears in the case?
  21. How do courts in this jurisdiction receive attorneys who are admitted pro hac vice? Can you offer any tips to such attorneys in order to make their interactions with court personnel go smoothly?
  22. What are the standards that govern motions for TROs? What are the standards that govern motions for PIs?
  23. Has an appellate court decided whether the “inevitable disclosure” doctrine applies in the jurisdiction?
  24. What other special or unique practices or procedures does your jurisdiction follow that an out-of-town lawyer would want or need to know?
  25. What articles, treatises or other resources would you recommend to a lawyer who wishes to learn about the emergency injunctive procedures followed in this jurisdiction?
  26. Any additional information you would like to add.
  27. Your response should state the following at the bottom:

“Caution: This information does not constitute legal advice. It is provided as marketing materials and as a starting point for your own research. This information may become outdated and should not be relied upon without being confirmed and updated by your own research. If you are not admitted to practice in the jurisdiction in which your matter arises, you should seek the assistance or advice of local counsel."