The Call We Usually Get on a Friday Afternoon
A version of this call comes in every few weeks, often late in the day. A company has just pieced together that the salesperson who resigned on Monday spent his last week in the building quietly emailing himself the customer file, the current pricing sheets, and three years of deal notes. By the time anyone thinks to look, he has already started Monday at a competitor across town. The person on the phone is rattled, and the question is always some version of the same one: he took everything, is there any way to stop him before he uses it?
Usually there is. Trade secret theft is one of the worst things that can happen to a business, and it is also one of the few situations where Texas courts will move within hours rather than months. We can often get a temporary restraining order the same day you call. In that first week the TRO is frequently the only thing that matters, because once your information is in a competitor’s hands, no amount of money later puts it back.
That is really the whole reason injunctive relief fits these cases so well. A customer list, once handed to a competitor, has been handed over. Pricing that took years to refine is useful to the other side the moment they see it. A court can award you damages down the road, but damages do not un-ring the bell, and judges know it. So the order we go after is forward-looking: stop the former employee from using or disclosing what he took, freeze the devices and accounts the material lives on, and in the right case require him to give it back or delete it.
What Actually Counts as a Trade Secret
The legal test is less mysterious than it sounds. Information is a trade secret if it has real economic value because it is not generally known, and if the business has taken reasonable steps to keep it secret. Both halves matter. The classic examples are customer lists and contact data that go beyond what anyone could pull off the internet, pricing and margin and cost information your competitors would love to see, proprietary formulas and processes and methods built up over years, software code and technical documentation, and business strategy like unreleased product plans or expansion targets.
The piece companies trip over is the second half of the test. The information has to have actually been treated as confidential. If it was passed around freely with no protection, or it is sitting somewhere public, it is much harder to claim now. But information that genuinely drives your competitive advantage and was kept under reasonable lock and key is exactly what the statute was written to protect.
Misappropriation, the legal word for the theft, means acquiring or using that information through improper means, or disclosing it without permission. In practice it looks like taking the customer database on the way out, forwarding proprietary files to a personal account, copying source code before resigning, walking pricing over to a new employer, or using confidential client information to solicit the clients you used to serve. One point surprises people: Texas law does not make you wait until the information has already been used. The credible threat that the former employee has it and is about to use it is enough to support an emergency TRO. You do not have to let the damage happen first.
And you do not need a non-compete to bring the claim. A trade secret case stands entirely on its own. Even if you never signed a non-compete with this person, or the one you signed has problems, the trade secret claim is still available. The two work differently: a non-compete restricts where someone can work, while a trade secret claim restricts what they are allowed to use. We often pursue both at once, but the trade secret claim does not depend on the non-compete.
Move Before the Evidence Disappears
One of the most valuable things an emergency order does in these cases has nothing to do with stopping competition. It preserves proof. When someone downloads data, forwards files, or copies information to a personal device or cloud account, the forensic trail of what was taken and when is sitting there, for now. It can also be wiped, overwritten, or reformatted in an afternoon. A TRO with a preservation order locks the devices and accounts in their current state, forbids deletion or alteration, and can require the former employee to sit for a forensic examination. We ask for that preservation language as a matter of course.
If you think this has happened to you, a few things are worth doing right away, even while you are dialing our number. Get your IT people pulling access logs, email logs, and download records for the departed employee’s account, and figure out what that person could reach in the first place. Write down what you actually know: the dates, what was done, how you found out, what you believe walked out the door. Do not tip the employee off or let on that anyone is looking. Then call us. The difference between “we think he took something” and “the logs show that on the 14th he moved these specific files to an external drive” is the difference between a thin affidavit and one a judge will sign that afternoon.
Frequently Asked Questions About Trade Secret Injunctions
What if we do not have a confidentiality agreement?
Texas law protects trade secrets regardless of whether the employee signed a confidentiality agreement. A written agreement is helpful because it puts the employee on clear notice of their obligations, but misappropriation of actual trade secrets is actionable under Texas law even without one.
How do we prove the information is actually a trade secret?
The key factors are that the information has real economic value from not being generally known, and that you took reasonable steps to keep it secret. Reasonable steps include password protection, access restrictions, confidentiality policies, marking files as confidential, and limiting who has access. Perfect secrecy is not required. Reasonable precautions are.
What if the employee says they did not take anything?
The affidavit we prepare does not need to prove that the misappropriation has already caused harm, only that it occurred or is threatened. IT forensic evidence (download logs, access records, email forwarding records) often establishes what happened without relying on what the employee says.
Can we get an injunction against the new employer too?
In some cases, yes. If the new employer knew the employee was bringing misappropriated information, or is actively using it, they may be joined in the lawsuit and subject to injunctive relief as well. This depends on the specific facts.
Do we have to wait until the employee uses our information?
No. Texas law does not make you wait until the information has already been used. A credible threat that the former employee has your trade secrets and is about to use or disclose them is enough to support an emergency TRO. The order we seek is forward-looking: it stops the former employee from using or disclosing what was taken, and in the right case requires them to return or delete it. You do not have to let the damage happen first.
Can a TRO help us preserve the forensic evidence before it disappears?
Yes, and it is a major reason to move quickly. When someone downloads data, forwards files, or copies information to a personal device or cloud account, the forensic trail of what was taken and when can be wiped, overwritten, or reformatted quickly. A TRO with a preservation order locks the relevant devices and accounts in their current state, forbids deletion or alteration, and can require the former employee to sit for a forensic examination. We ask for that preservation language as a matter of course.
What should we do right away if we think an employee took our trade secrets?
Get your IT people pulling access logs, email logs, and download records for the departed employee's account, and determine what that person could reach in the first place. Write down what you know: the dates, what was done, how you found out, and what you believe left the company. Do not tip the employee off that anyone is looking. Then call us. The difference between thinking something was taken and showing the logs that prove specific files moved to an external drive on a specific date is the difference between a thin affidavit and one a judge will sign that afternoon.