Exactly Which Trade Secrets Am I Enjoined From Using?


If there is one thing that non-compete and trade secret plaintiffs and defendants can agree upon, it is that injunctions need to be clear. If an injunction is going to preclude someone from doing something, it is best if they know exactly what they can and cannot do.

In federal court, this requirement comes directly from Federal Rule of Civil Procedure 65(d), which states that every injunction must, among other things, state its terms specifically and “describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.”

This means it is not sufficient for a court to merely enjoin a defendant from using or disclosing, for example, the “trade secrets described in the plaintiff’s complaint.” Nor would it be sufficient to preclude a defendant from “using ‘confidential information’ as that term is defined in defendant’s employment agreement.” This does not mean that a court needs to specifically list each and every discrete piece of information that is the subject of the order. Rather, it simply means that a party required to comply with an injunction must be able to determine from the words of the injunction what he can and cannot do, or what he is required to do.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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