This post may ruffle some feathers, but I’ll get right to the point: Texas judges are granting too many TROs in civil litigation, and they’re not doing enough to police the requirements for an ex parte TRO, i.e. a Temporary Restraining Order granted without anyone present for the responding party.
Admittedly, I base this on anecdotal evidence from my own practice, but I don’t think my experience is unusual.
And to clear away one potential objection right off the bat, let me stress that I am not talking about TROs addressing domestic violence. If there was ever an appropriate case for an ex parte TRO, that’s it.
No, I’m talking about TROs in other kinds of civil litigation. You don’t get a lot of TROs in personal injury lawsuits (usually the accident has already happened), so mainly I’m talking about business litigation, and especially departing employee litigation, my specialty.
Ex parte TROs in business disputes should be rare, but it seems like some judges grant them almost routinely, and that’s a problem.
To illustrate why, let me give you two examples drawn from my own practice. I’ve changed the names to protect the guilty.
“We have a conference scheduled”
In Case 1, Dawn Davis was a sales person employed by Paula Payne Windows. Dawn gave notice she was leaving to start her own company, Real Cheap Windows. A few months after Dawn left, Paula Payne Windows checked Dawn’s laptop and discovered that she had copied all her work files on to a portable hard drive the day before leaving.
Paula Payne Windows hires litigator Mike Church to file a lawsuit against Dawn. Dawn didn’t have a non-compete, so Church sues her in federal court, alleging misappropriation of trade secrets under the federal Defend Trade Secrets Act (DTSA).
The Complaint includes a claim for a TRO ordering Dawn to turn over her laptop and any electronic storage devices to Church for review by a forensic expert.
Church schedules a hearing with the U.S. District Court judge on the request for a TRO. The day before the hearing, Church’s associate sends the following email to Dawn Davis:
Dear Ms. Davis,
We have filed the attached Complaint against you in the U.S. District Court. We have a conference scheduled with the judge tomorrow morning at 10:00 am.
Not knowing what to do, Dawn starts looking for a lawyer, but she doesn’t reply to the email or show up at the hearing the next morning.
At the hearing, the seasoned federal judge asks Church “did you give notice to the Defendant of this hearing?” “Yes, Your Honor, we gave notice to Ms. Davis by email yesterday, but she hasn’t responded.”
“Ok,” the judge says, “let me take a look at what you’ve alleged in the Complaint.”
You can probably guess what the judge does next: sign the TRO drafted by the plaintiff’s lawyers.
The TRO orders Dawn Davis to do the following within seven days:
Return to plaintiff’s counsel all computers, cell phones, and electronic storage devices issued by Paula Payne Windows
Turn over to plaintiff’s forensic expert the portable hard drive that Davis used to copy files from her Paula Payne Windows laptop
Turn over to plaintiff’s forensic expert “all computers, servers, and electronic storage devices utilized by Dawn Davis to perform her job duties at Real Cheap Windows.”
That’s a pretty invasive order. It’s the electronic equivalent of ordering Real Cheap Windows let the plaintiff’s lawyers and their forensic expert come into Real Cheap’s office to search their file cabinets.
We can debate whether that level of relief is warranted, but we can probably all agree on one basic point: if Dawn Davis’s lawyer had been present at the hearing to argue against the relief sought by Paula Payne Windows, there’s a good chance the order would have been a lot narrower, or maybe not granted at all.
But the TRO granted by the federal district court doesn’t say anything about whether Dawn Davis was given notice, or why it was necessary to enter the order ex parte.
That seems problematic. But let’s come back to that.
Next let’s consider Case 2, which is also based on a true story.
“You have 21 minutes”
In Case 2, there’s no evidence that Dawn Davis copied any files before leaving Paula Payne Windows. But there is an allegation that while working for Paula Payne Windows, Dawn diverted a handful of customers to her own business she was secretly running on the side. After leaving and starting up Real Cheap Windows, Dawn continues selling windows to those customers.
As in Case 1, Dawn doesn’t have a non-compete, so Paula Payne Windows sues her for breach of fiduciary duty and misappropriation of trade secrets. And as in Case 1, Paula Payne Windows asks for a TRO.
But in Case 2, the plaintiff files suit in state court in Harris County, Texas. That means that the request for a TRO is heard by the “ancillary judge.” Under the local rules of the Harris County District Courts, every two weeks a different civil district court judge serves as the ancillary judge and hears all TRO applications. (There are other counties with similar procedures, e.g. Travis County has a posted “duty judge”).
In this case, Paula Payne’s counsel schedules an 11:00 am hearing with the ancillary judge. At 10:39 am, he has his legal assistant send the following email to Dawn Davis:
Dear Ms. Davis,
We represent Paula Payne Windows, LLC. Please find attached (1) Plaintiff’s Original Petition and Application for Injunctive Relief and (2) proposed Temporary Restraining Order.
We will be seeking a temporary restraining order this morning at the courthouse.
Dawn wonders whether she should go to the hearing, but she’s not even sure where or when the hearing is happening. So she waits.
Later that day, plaintiff’s counsel emails Dawn a signed TRO that orders her to turn over the following to plaintiff’s forensic expert within five days:
- All USB drives or other external devices she connected to her company laptop at Paula Payne Windows
- All personal computers she used while employed at Paula Payne Windows
- The passwords for all personal email accounts that received emails from her Paula Payne Windows email account
The TRO doesn’t say anything about whether Dawn Davis was given notice. And it doesn’t state any specific factual basis for why it was necessary to grant the TRO without notice, or why the threatened injury to Paula Payne Windows is irreparable.
Dawn looks for a lawyer with experience in this type of case and signs an engagement agreement with one—one week after the deadline in the TRO.
So what went wrong in these cases?
Let’s start with the “notice” given to the defendant. In the federal court case, the notice of the hearing was vague at best. “We have a conference scheduled with the judge tomorrow morning at 10:00 am” is a far cry from “there is a hearing scheduled at 10:00 am on our request for a temporary restraining order, and if you do not appear the court may grant a temporary restraining order against you without notice.”
And one has to wonder: was the vagueness deliberate? I hate to sound cynical, but is it possible that maybe, just maybe, the plaintiff’s lawyer in Case 1 worded the email that way hoping that Dawn would not understand what was being heard and would not find a lawyer to show up?
Similarly, in case 2 you have to wonder about the “notice” emailed to Davis 21 minutes before the hearing. Did the plaintiff’s lawyer suddenly wake up that morning and say “I think I’ll go get a TRO against Dawn Davis today!”
Or is it more likely the lawyer deliberately waited until the last minute to email Davis, counting on the fact that Davis would not have time to get a lawyer to show up at the TRO hearing?
Keep in mind, it’s very possible the client’s attitude is “get me that TRO or I’ll find someone who can.”
But let’s not put all the blame on the plaintiff’s lawyer. He’s trying to get the best result for his client that he can within the rules of the system, whatever those are.
Would it be reasonable to expect the judge to police those rules?
Some obvious questions
At the hearings in both cases, there are some obvious questions the judge could have asked:
Did you give the defendant notice you were seeking a TRO at this hearing?
How and when did you give the defendant notice?
May I see the email you sent Ms. Davis?
May I see the response from Ms. Davis, if any?
Do you know if Ms. Davis has a lawyer?
Why is this an emergency?
Is something catastrophic going to happen in the next two or three days if I give Ms. Davis a little more time to find a lawyer and respond?
Did the judge ask these questions?
We don’t know. We weren’t there. That’s part of the problem.
But it seems unlikely. I mean, if the judge had asked to see the email notice plaintiff’s counsel sent the defendant, the judge would have seen that Dawn Davis didn’t receive adequate notice at all.
The judge then could have taken any number of actions to ensure Davis got notice, such as postponing the hearing a few days and requiring plaintiff to provide a more specific written notice.
Believe it or not, there are actually some rules about this. I’ll focus on the state court rules because they’re more specific.
Would you believe there are rules?
Rule 680 of the Texas Rules of Civil Procedure states: “No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon.”
So there you have it. You can get an ex parte TRO in Texas state court, but you must have your client verify (i.e. swear) to specific facts showing the plaintiff will suffer immediate and irreparable injury if the court waits for notice to be served on the defendant before holding a hearing.
This is not some obscure rule. Any lawyer who seeks a TRO in Texas state court should be familiar with it.
And yet . . .
Based on 25+ years of Texas litigation practice, I can tell you some judges are strict about enforcing the requirements for ex parte TROs, but many are not. And that’s a problem.
For one thing, in a business dispute it is very rare that something is going to happen in the next two or three days that is going to cause some major, truly irreparable injury.
Unless the Plaintiff is alleging that kind of threat, in my humble opinion a judge’s routine response to a request for an ex parte TRO should be “what will the harm be if instead of hearing your request today ex parte, I order Defendant to appear in my courtroom three days from now for a contested TRO hearing?”
A modest proposal
In that spirit, I propose Texas judges adopt the Wolfe Standing Order on Ex Parte TROs:
In any hearing on an ex parte Temporary Restraining Order (other than a domestic violence case or other case involving an imminent threat of harassment or physical violence), the judge will inquire of Plaintiff’s (or Applicant’s) counsel:
- Have you previously communicated with any lawyer for Defendant regarding this dispute, and if not, do you know if Defendant has a lawyer?
- How and when did you give Defendant or his lawyer notice you are seeking a TRO at this hearing?
- If you did not give notice, why not?
- Did the notice of this hearing state the date, time, and specific courtroom?
- Did the notice expressly inform Defendant “a Temporary Restraining Order may be entered against you if you do not appear”?
- If you gave notice by email (or other written form), may I see it?
- If Defendant replied to the email, may I see the reply?
- If instead of granting your proposed TRO, I order Defendant to appear for a contested TRO hearing in three days, what irreparable harm is going to happen to your client in the next three days?
That’s it. Just eight questions. I think these questions will do a lot to prevent potential abuse of ex parte TROs.
If you don’t like these questions, then I would ask, what’s the harm in asking? I can’t see how it causes the Plaintiff any unwarranted prejudice to ask these basic questions. And if judges make this a regular thing, the Plaintiff’s lawyer shouldn’t be surprised.
Frankly, judges should already be asking these questions.
Let’s make it so.
Zach Wolfe (firstname.lastname@example.org) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (zachwolfelaw.com). Thomson Reuters named him a Texas Super Lawyer® for Business Litigation in 2020, 2021, and 2022.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.