In the fire drill of moving for temporary injunctive relief, either to stop a competitor or former employee from unfairly competing, from diverting your client’s customers, or from misappropriating trade secrets, practitioners often forget that this is just the first stage of the litigation. Soon they will be back before the court for the preliminary injunction hearing where they will need evidence to establish that their client is entitled to continued injunctive relief.
To best prepare for the preliminary injunction hearing with persuasive evidence, it will be helpful to conduct limited, expedited discovery in advance of the hearing. To increase the likelihood that your motion will be granted and useful, consider these points:
- Move for expedited early discovery. As the request for a temporary restraining order is filed, consider also filing your motion for expedited discovery at the same time. The court may even hear the request for expedited discovery at the same time as the temporary restraining order and you will then be ready to launch into that next stage immediately after the hearing. Because the temporary restraining order generally only stays in place for a short time until the preliminary injunction hearing, there may not be a lot of time to serve and take discovery, so the earlier the better.
- Identify the exact discovery being requested. Judges may be more likely to grant expedited discovery if they can see that what you are requesting is limited and relates to the specific issues to be addressed at the preliminary injunction hearing. Consider stating the topics to be addressed or even attach the actual discovery requests you would like answered. Moreover, in crafting a proposed order, identify the precise number of document requests and interrogatories permitted by each party on an expedited basis, to prevent opposing counsel from serving an onerous number of requests.
- Include specific dates and deadlines in the proposed order. It is helpful if you control when document requests and interrogatories (if they are really needed) are served, when responses need to be filed, and how quickly depositions must take place. If you set out a specific timeline in the proposed order, it is more likely that you will have the documents produced quickly and with enough time to take any depositions.
- Make discovery mutual. Judges may be more likely to grant discovery if they do not feel that the plaintiff is overreaching. Including the option for the defendants to serve an equal number of document requests and take the same number of depositions will help convey that you are not attempting to take unfair advantage in discovery.
- Send opposing counsel a proposed confidentiality stipulation. Trade secrets and other confidential information are often at stake in these cases. It is likely that the parties will need a confidentiality stipulation in place before certain documents can be exchanged. Prepare a proposed stipulation as early as possible so that opposing counsel does not use that as an excuse to hold up producing documents when you are likely to already be under a tight timeframe.
Susan Guerette is a partner in the Philadelphia, Pennsylvania, office of Fisher Phillips LLP.
Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).