This post may ruffle some feathers, but I\u2019ll get right to the point: Texas judges are granting too many TROs in civil litigation, and they\u2019re 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.<\/p>\n
Admittedly, I base this on anecdotal evidence from my own practice, but I don\u2019t think my experience is unusual.<\/p>\n
And to clear away one potential objection right off the bat, let me stress that I am not<\/em> talking about TROs addressing domestic violence. If there was ever an appropriate case for an ex parte TRO, that\u2019s it.<\/p>\n No, I\u2019m talking about TROs in other kinds of civil litigation. You don\u2019t get a lot of TROs in personal injury lawsuits (usually the accident has already happened), so mainly I\u2019m talking about business litigation, and especially departing employee litigation, my specialty.<\/p>\n Ex parte TROs in business disputes should be rare, but it seems like some judges grant them almost routinely, and that\u2019s a problem.<\/p>\n To illustrate why, let me give you two examples drawn from my own practice. I\u2019ve changed the names to protect the guilty.<\/p>\n 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\u2019s laptop and discovered that she had copied all her work files on to a portable hard drive the day before leaving.<\/p>\n Paula Payne Windows hires litigator Mike Church to file a lawsuit against Dawn. Dawn didn\u2019t have a non-compete, so Church sues her in federal court, alleging misappropriation of trade secrets under the federal Defend Trade Secrets Act (DTSA).<\/p>\n 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.<\/p>\n Church schedules a hearing with the U.S. District Court judge on the request for a TRO. The day before the hearing, Church\u2019s associate sends the following email to Dawn Davis:<\/p>\n Dear Ms. Davis, <\/em><\/p>\n 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.<\/em><\/p>\n Not knowing what to do, Dawn starts looking for a lawyer, but she doesn\u2019t reply to the email or show up at the hearing the next morning.<\/p>\n At the hearing, the seasoned federal judge asks Church \u201cdid you give notice to the Defendant of this hearing?\u201d \u201cYes, Your Honor, we gave notice to Ms. Davis by email yesterday, but she hasn\u2019t responded.\u201d<\/p>\n \u201cOk,\u201d the judge says, \u201clet me take a look at what you\u2019ve alleged in the Complaint.\u201d<\/p>\n You can probably guess what the judge does next: sign the TRO drafted by the plaintiff\u2019s lawyers.<\/p>\n The TRO orders Dawn Davis to do the following within seven days:<\/p>\n Return to plaintiff\u2019s counsel all computers, cell phones, and electronic storage devices issued by Paula Payne Windows<\/em><\/p>\n Turn over to plaintiff\u2019s forensic expert the portable hard drive that Davis used to copy files from her Paula Payne Windows laptop <\/em>\u00a0<\/em><\/p>\n Turn over to plaintiff\u2019s forensic expert \u201call computers, servers, and electronic storage devices utilized by Dawn Davis to perform her job duties at Real Cheap Windows.\u201d <\/em><\/p>\n That\u2019s a pretty invasive order. It\u2019s the electronic equivalent of ordering Real Cheap Windows let the plaintiff\u2019s lawyers and their forensic expert come into Real Cheap\u2019s office to search their file cabinets.<\/p>\n We can debate whether that level of relief is warranted, but we can probably all agree on one basic point: if Dawn Davis\u2019s lawyer had been present at the hearing to argue against the relief sought by Paula Payne Windows, there\u2019s a good chance the order would have been a lot narrower, or maybe not granted at all.<\/p>\n But the TRO granted by the federal district court doesn\u2019t say anything about whether Dawn Davis was given notice, or why it was necessary to enter the order ex parte.<\/p>\n That seems problematic. But let\u2019s come back to that.<\/p>\n Next let\u2019s consider Case 2, which is also based on a true story.<\/p>\n In Case 2, there\u2019s 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.<\/p>\n As in Case 1, Dawn doesn\u2019t 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.<\/p>\n 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 \u201cancillary judge.\u201d 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 \u201cduty judge\u201d).<\/p>\n In this case, Paula Payne\u2019s 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:<\/p>\n Dear Ms. Davis, <\/em>\u00a0<\/em><\/p>\n We represent Paula Payne Windows, LLC. Please find attached (1) Plaintiff\u2019s Original Petition and Application for Injunctive Relief and (2) proposed Temporary Restraining Order.<\/em><\/p>\n We will be seeking a temporary restraining order this morning at the courthouse. <\/em><\/p>\n Dawn wonders whether she should go to the hearing, but she\u2019s not even sure where or when the hearing is happening. So she waits.<\/p>\n Later that day, plaintiff\u2019s counsel emails Dawn a signed TRO that orders her to turn over the following to plaintiff\u2019s forensic expert within five days:<\/p>\n The TRO doesn\u2019t say anything about whether Dawn Davis was given notice. And it doesn\u2019t 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.<\/p>\n Dawn looks for a lawyer with experience in this type of case and signs an engagement agreement with one\u2014one week after the deadline in the TRO.<\/p>\n So what went wrong in these cases?<\/p>\n Let\u2019s start with the \u201cnotice\u201d given to the defendant. In the federal court case, the notice of the hearing was vague at best. \u201cWe have a conference scheduled with the judge tomorrow morning at 10:00 am\u201d is a far cry from \u201cthere 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.\u201d<\/p>\n And one has to wonder: was the vagueness deliberate? I hate to sound cynical, but is it possible that maybe, just maybe, the plaintiff\u2019s 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?<\/p>\n Similarly, in case 2 you have to wonder about the \u201cnotice\u201d emailed to Davis 21 minutes before the hearing. Did the plaintiff\u2019s lawyer suddenly wake up that morning and say \u201cI think I\u2019ll go get a TRO against Dawn Davis today!\u201d<\/p>\n 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?<\/p>\n Keep in mind, it\u2019s very possible the client\u2019s attitude is \u201cget me that TRO or I\u2019ll find someone who can.\u201d<\/p>\n But let\u2019s not put all the blame on the plaintiff\u2019s lawyer. He\u2019s trying to get the best result for his client that he can within the rules of the system, whatever those are.<\/p>\n Would it be reasonable to expect the judge to police those rules?<\/p>\n At the hearings in both cases, there are some obvious questions the judge could have asked:<\/p>\n Did you give the defendant notice you were seeking a TRO at this hearing?<\/em><\/p>\n How and when did you give the defendant notice?<\/em>\u00a0<\/em><\/p>\n May I see the email you sent Ms. Davis?<\/em>\u00a0<\/em><\/p>\n May I see the response from Ms. Davis, if any?<\/em>\u00a0<\/em><\/p>\n Do you know if Ms. Davis has a lawyer?<\/em>\u00a0<\/em><\/p>\n Why is this an emergency?<\/em>\u00a0<\/em><\/p>\n 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?<\/em><\/p>\n Did the judge ask these questions?<\/p>\n We don\u2019t know. We weren\u2019t there. That\u2019s part of the problem.<\/p>\n But it seems unlikely. I mean, if the judge had asked to see the email notice plaintiff\u2019s counsel sent the defendant, the judge would have seen that Dawn Davis didn\u2019t receive adequate notice at all.<\/p>\n 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.<\/p>\n Believe it or not, there are actually some rules about this. I\u2019ll focus on the state court rules because they\u2019re more specific.<\/p>\n Rule 680<\/a> of the Texas Rules of Civil Procedure states: \u201cNo 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.\u201d<\/p>\n 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<\/em> facts showing the plaintiff will suffer immediate<\/em> and irreparable<\/em> injury if the court waits for notice to be served on the defendant before holding a hearing.<\/p>\n This is not some obscure rule. Any lawyer who seeks a TRO in Texas state court should be familiar with it.<\/p>\n And yet . . .<\/p>\n 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\u2019s a problem.<\/p>\n 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.<\/p>\n Unless the Plaintiff is alleging that kind of threat, in my humble opinion a judge\u2019s routine response to a request for an ex parte TRO should be \u201cwhat 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?\u201d<\/p>\n In that spirit, I propose Texas judges adopt the Wolfe Standing Order on Ex Parte TROs<\/a>:<\/p>\n 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\u2019s (or Applicant\u2019s) counsel: <\/em><\/p>\n That\u2019s it. Just eight questions. I think these questions will do a lot to prevent potential abuse of ex parte TROs.<\/p>\n If you don\u2019t like these questions, then I would ask, what\u2019s the harm in asking? I can\u2019t see how it causes the Plaintiff any unwarranted prejudice to ask these basic questions. And if judges make this a regular thing, the Plaintiff\u2019s lawyer shouldn\u2019t be surprised.<\/p>\n Frankly, judges should already be asking these questions.<\/p>\n Let\u2019s make it so.<\/p>\n ______________________<\/p>\n Zach Wolfe (<\/em>zach@zachwolfelaw.com<\/em><\/a>)<\/em>\u00a0<\/em>is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm (<\/em>zachwolfelaw.com<\/em><\/a>). Thomson Reuters has named him a Texas Super Lawyer\u00ae for Business Litigation every year since 2020.<\/em><\/p>\n These are his opinions, not the opinions of his firm or clients, so don\u2019t cite part of this post against him in an actual case. Every case is different, so don\u2019t rely on this post as legal advice for your case.<\/em><\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":" This post may ruffle some feathers, but I\u2019ll get right to the point: Texas judges are granting too many TROs in civil litigation, and they\u2019re 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 […]<\/p>\n","protected":false},"author":1,"featured_media":106758,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[97],"tags":[12815,48672,2562,48673],"dealstore":[],"offerexpiration":[],"class_list":["post-106757","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal","tag-judges","tag-parte","tag-police","tag-tros"],"yoast_head":"\n\u201cWe have a conference scheduled\u201d<\/h3>\n
\u201cYou have 21 minutes\u201d<\/h3>\n
\n
Deliberate vagueness?<\/h3>\n
Some obvious questions<\/h3>\n
Would you believe there are rules?<\/h3>\n
A modest proposal<\/h3>\n
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