In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-21-00244-CV ________________________
ANTONY MCGREGOR DEY, APPELLANT
V.
SEILEVEL PARTNERS, LP, APPELLEE
On Appeal from the 53rd District Court Travis County, Texas Trial Court No. D-1-GN-21-002722; Honorable Amy Clark Meachum, Presiding
March 23, 2022
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Antony McGregor Dey, was employed by Appellee, Seilevel Partners,
LP and was terminated on January 27, 2021. At the time of his termination, Dey
accepted a severance package from Seilevel in exchange for certain post-employment
promises contained in an Agreement and General Release. After his termination, Dey
engaged in conduct in violation of that agreement which resulted in the underlying suit being filed by Seilevel for breach of contract, breach of fiduciary duty, and violations of
the Texas Uniform Trade Secrets Act. 1 The same day suit was filed, Dey and Seilevel
approved entry of an Agreed Temporary Restraining Order. Critical to this appeal, the
temporary restraining order enjoined Dey from “accessing, using, or disclosing any
Seilevel Information for any purpose,” and it further enjoined him from “directly or
indirectly soliciting or contacting [seven named] Seilevel customers . . . .” Following a
period of discovery, Seilevel filed its amended petition seeking temporary injunctive
relief. After notice and hearing, the trial court granted a temporary injunction enjoining
Dey from continuing to use trade secrets as well as confidential and proprietary
information. The temporary injunction resulted in this accelerated appeal. 2 Dey presents
nine issues challenging the trial court’s Order Granting Temporary Injunction as follows:
1. The trial court abused its discretion in ordering direct access to Dey’s personal laptop for forensic examination.
2. Does the Texas Supreme Court’s decision in In re Weekley, 295 S.W.3d 309, 321 (Tex. 2009), 3 which limited direct access to a litigant’s electronic devices, apply to a direct access order in a temporary injunction?
3. Even though In re Weekley did not address injunctions, should the same principles apply to injunctions?
4. Did the trial court abuse its discretion in entering a temporary injunction ordering direct access to Dey’s personal laptop?
1 TEX. CIV. PRAC. & REM. CODE ANN. §§ 134A.001 - .008. The Legislature enacted TUTSA in 2013 to protect misappropriation of trade secrets. Section 134A.006(a) provides in part that “a court shall preserve the secrecy of an alleged trade secret by reasonable means. There is a presumption in favor of granting protective orders to preserve the secrecy of trade secrets.” § 134A.006(a). 2 Originally appealed to the Third Court of Appeals, sitting in Austin, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3. 3 The Supreme Court set forth the proper procedure for searching another party’s electronic storage devices under appropriate discovery rules. In re Weekley, 295 S.W.3d at 322.
2 5. Does the temporary injunction violate the specificity requirements of Rule 683 of the Texas Rules of Civil Procedure?
6. Did the trial court abuse its discretion in issuing a temporary injunction that was ambiguous on the non-solicitation portion of the injunction?
7. Did the trial court abuse its discretion in enjoining Dey’s use of Seilevel’s confidential information where there was no evidence of any imminent threat of his using such information?
8. Did the trial court abuse its discretion by including a restriction on solicitation of customers when there was no evidence of any imminent threat of Dey causing Seilevel to lose any active customers?
9. Did the trial court abuse its discretion in issuing the temporary injunction when Seilevel failed to meet the requirements of likelihood of success on the merits and irreparable injury?
Distilled to their essence, Dey’s issues are a complaint that the trial court abused its
discretion in issuing its Order Granting Temporary Injunction. We modify the temporary
injunction and affirm the order of injunction as modified.
BACKGROUND
Seilevel is in the business of providing ecommerce and marketing information to
business customers, which includes Fortune 1000 companies. In June 2018, Dey was
hired as Seilevel’s Ecommerce Practice Manager. His employment required an
agreement to the conditions of an Employee Innovation Assignment, Nondisclosure,
Noncompete, and Nonsolicitation Agreement.
Dey was terminated on January 27, 2021, and the parties entered into an
Agreement and General Release, a severance agreement. Dey’s post-employment
obligations included a provision that he “ha[d] not divulged any proprietary or confidential
information of Seilevel and [would] continue to maintain the confidentiality of such
information” (Paragraph 5) and his affirmation that he “ha[d] returned all of Seilevel’s
3 property, documents, and/or any confidential information in [his] possession or control,
including audio pen and recordings, laptop, and other material issued to [him]”
(Paragraph 6). Regarding the laptop, a Macbook Pro, Seilevel allowed Dey to keep it as
an act of good will on the condition and belief that he would remove all of Seilevel’s
information. 4
After Dey’s termination, Seilevel discovered it was unable to gain access to
certain accounts because Dey had created them under a personal Google account and
not under Seilevel’s workspace. Lisa Hill, vice president of technology strategy and
Dey’s former direct manager, contacted Dey to obtain the password which he provided
but it was incorrect. After he provided the correct password, she was still unable to gain
access because Dey had set up a two-factor authentication. Dey met with Hill on March
3, 2021, to transfer the two-factor authentication to her cell phone; however, that also
failed to provide Hill with access because the two-factor authentication had been
transferred to an application that only Dey could access. After months of back-and-forth
and Hill being denied access, she finally gained control of the accounts on May 27. In
doing so, she discovered that Dey had been accessing Seilevel’s confidential
information, downloading files, and contacting Seilevel customers, all in violation of his
severance agreement. 5 She described his activities as “nefarious.”
4 During discovery, Dey claimed he had wiped the laptop in March and sold it to a random individual in a van through Facebook Marketplace, but at his deposition in July, he testified that he had sold a different laptop and had given the Macbook Pro to his wife to use. 5 Contrary to Hill’s testimony, Dey denied accessing confidential information. He claimed he was merely denying authorization for attempts to log in because he was unaware of who was trying to access the account.
4 Seilevel filed suit against Dey on June 11, 2021, and that same day the trial court
granted an agreed temporary restraining order. Several months later, on August 24,
2021, the trial court held a hearing on the request for a temporary injunction. The four
who testified were Hill, Joy Beatty, vice president of operations, Matt Danner, an expert
in digital forensics, and Dey.
In addition to Hill’s testimony regarding regaining access to Seilevel’s accounts,
Beatty testified on the harm caused to Seilevel by Dey’s conduct (to be discussed below).
Danner testified he was consulted by Seilevel to review its Google account and a
password storing software program to isolate a particular user’s access for the period
beginning in January through May 2021. His examination identified an IP address that
was used exclusively by Dey during the relevant timeframe. Danner, however, could not
determine with certainty if Dey’s log-ins were simply rejections of Hill’s attempts to log
into the account. He determined that two bulk downloads (eleven items) occurred shortly
after midnight on February 1, 2021. 6
Danner further testified that the best way to determine the specifics of the bulk
downloads would be to examine the device responsible for them. He was not asked to
examine a device because Seilevel did not have access to it. He explained that if Dey
wiped the particular device, “it would be extremely difficult and probably impossible” to
determine which individual documents were downloaded.
6 Dey admitted to downloading Seilevel documents in February 2021 but disputed doing so in May 2021. The expert did not make a finding that Dey downloaded (as opposed to merely accessing) any Seilevel documents after March 3.
5 Danner also examined a marketing services account. He discovered the same
log-in records as the Google account occurred on February 20, 2021. He determined
the log-ins were associated with an Apple Macintosh computer which could have been
the Macbook Pro Dey kept. The expert’s examination indicated that Dey continued to
access Seilevel documents after he was terminated. During cross-examination,
Danner’s testimony showed that it was possible for Dey to be logged into his devices
after his termination without actually accessing any of Seilevel’s documents.
The final witness to testify at the hearing was Dey. He did not deny that he
downloaded and provided Texas Supplements, a Seilevel customer, its website design
which he had created in 2019. He also provided Texas Supplements with other
confidential information on Seilevel’s resource costs for one of its contractors which was
less than the amount actually charged to the customer (known in the business as an
upcharge). According to Beatty, the amount of the upcharge and its cost margins are
trade secrets.
Dey testified he purchased a new laptop in March 2021 and completed a factory
reset of the Macbook Pro he received from Seilevel so that his wife could use it as her
business computer. He admitted that even after he purchased a new laptop, he moved
fifteen Seilevel documents to that device which he claimed have since been returned.
He conceded that his conduct in doing so was “very purposeful” because he was building
a portfolio to find employment. Specifically, he sought to work for Texas Supplements
and attempted to discuss it with Seilevel’s CEO, who did not respond to his request.
6 Dey admitted that after his termination he contacted several other Seilevel
customers. In his deposition, he claimed he did so in anticipation of a temporary
restraining order which would have prevented him from otherwise contacting Seilevel
customers. He also testified he “firmly believed [he] did not have a noncompete”
because he felt certain he had negotiated out of it when he was first employed. However,
when asked if he “agreed to a version of the noncompete agreement that had an altered
Paragraph 12,” he answered, “[y]es.” 7 He did claim, however that the online signature
was not provided by him.
After considering the testimony and evidence presented at the hearing, the trial
court ruled it was granting Seilevel a temporary injunction. The trial court’s ruling was
memorialized in its Order Granting Temporary Injunction. That order recites that it is
“highly probable that [Dey] will continue to disclose or use Seilevel’s confidential and
proprietary information and trade secrets while working for current or former Seilevel
customers . . . .” The order further recites that Seilevel “has shown a probable right to
relief on its claims for breach of fiduciary duty, violations of the Texas Uniform Trade
Secrets Act, and breach of contract.” The order continues that absent an injunction,
Seilevel will suffer irreparable injury that cannot be measured in money damages.
Finally, the order grants three forms of relief: (1) it imposes a restriction on Dey’s access,
use, or disclosure of confidential or proprietary information; (2) it restricts Dey from using
any confidential information to solicit, contact, or communicate with seven named
customers of Seilevel, and (3) it requires that, within ten days, Dey deliver the Macbook
7 Paragraph 12 of Seilevel’s Employee Innovation Assignment, Nondisclosure, Noncompete, and Nonsolicitation Agreement is a covenant not to compete for one year following termination.
7 Pro laptop he received from Seilevel to a forensic examiner, to be mutually agreed on by
the parties, for the purpose of conducting certain forensic analysis.
More specifically, the relief granted in the Order Granting Temporary Injunction
recites as follows:
1. Dey, directly or indirectly, individually or as a member of any business organization, along with his agents, servants, consultants, contractors, employees, and any person or entity in concert or participation with him, is enjoined from accessing, using, or disclosing any of Seilevel’s confidential or proprietary information or any information Dey obtained from or created for Seilevel for any purpose; and
2. Dey, directly or indirectly, individually or as a member of any business organization, along with his agents, servants, consultants, contractors, employees, and any person or entity in concert or participation with him, is enjoined from directly or indirectly using any Seilevel confidential information to solicit or contacting or communicating with current Seilevel customers Texas Supplements, Beacon Roofing, Fluitek, Herbalogic, Dell, Streakwave, or JL Marine regarding marketing or ecommerce.
These restrictions are reasonably and narrowly tailored to protect Seilevel’s confidential and proprietary business information and intellectual property and the related goodwill.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, within 10 days of entry of this Temporary Injunction, Dey must produce the Macbook Pro laptop Seilevel provided Dey to a forensic examiner the parties select. The forensic examiner shall review the laptop in accordance with a forensic protocol agreed to by the parties or ordered by the Court, which shall include determining (1) if the laptop produced by Dey is the laptop Seilevel provided him, (2) if and when the laptop was wiped by Dey, and (3) if any Silevel confidential and proprietary business information and intellectual property remains on the laptop.
The temporary injunction was signed on September 13, 2021. Dey filed his notice of
appeal the next day, before the parties ever attempted to agree to a forensic examiner or
the necessary protocols, as contemplated by the temporary injunction order.
8 APPLICABLE LAW
Temporary injunctions are an extraordinary remedy and do not issue as a matter
of right. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Walling v. Metcalfe,
863 S.W.2d 56, 57 (Tex. 1993) (per curiam). The purpose of a temporary injunction is
to preserve the status quo pending a trial on the merits. Butnaru, 84 S.W.3d at 204.
While preservation of the status quo may be the purpose of a temporary injunction, it
cannot serve as the basis for its issuance. Crestview, Ltd. v. Foremost Ins. Co., 621
S.W.2d 816, 827-28 (Tex. App.—Austin 1981, writ ref’d n.r.e.). To obtain a temporary
injunction, an applicant is not required to establish that it will prevail upon a final trial on
the merits, but it must plead and prove (1) a cause of action against the opposing party,
(2) probable right to the relief sought, and (3) probable imminent and irreparable injury
in the interim. Butnaru, 84 S.W.3d at 204; Taylor Hous. Auth. v. Shorts, 549 S.W.3d
865, 877-78 (Tex. App.—Austin 2018, no pet.).
Rule 683 of the Texas Rules of Civil Procedure provides that an order granting an
injunction shall set forth the reasons for its issuance. The terms of the injunction “shall
be specific; shall describe in reasonable detail and not by reference to the complaint or
other document, the act or acts sought to be restrained; and is binding only upon the
parties to the action, their officers, agents, servants, employees, and attorney, and upon
those persons in the active concert or participation with them who receive actual notice
of the order by personal service or otherwise.” TEX. R. CIV. P. 683; DHJB Dev., LLC v.
Graham, No. 03-18-00343-CV, 2018 Tex. App. LEXIS 9295, at *6 (Tex. App.—Austin
2018, pet. dism’d) (mem. op.).
9 The requirements of Rule 683 are mandatory. InterFirst Bank San Felipe, N.A. v.
Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986). An order that does not comply with
the requirements of Rule 683 “is subject to being declared void and dissolved.” Helix
Energy Solutions Grp., Inc. v. Howard, 452 S.W.3d 40, 44 (Tex. App.—Houston [14th
Dist.] Nov 13, 2014, no pet.) (quoting InterFirst Bank San Felipe, 715 S.W.2d at 641).
STANDARD OF REVIEW
The decision whether to grant or deny a request for a temporary injunction is
committed to the sound discretion of the trial court. Abbott v. Anti-Defamation League
Austin, Southwest, & Texoma Regions, 610 S.W.3d 911, 916 (Tex. 2020) (citing Walling,
863 S.W.2d at 58). When an appellate court reviews the granting of a temporary
injunction, it may reverse the trial court’s decision only when that court has clearly
abused its discretion. Crestview, Ltd., 621 S.W.2d at 828. A trial court does not abuse
its discretion when its decision is founded on the resolution of a fundamental fact issue
based on conflicting evidence. See General Tire, Inc. v. Kepple, 970 S.W.2d 520, 526
(Tex. 1998). See also Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011) (noting
that “to find an abuse of discretion [when factual matters are in dispute], the reviewing
court must conclude the facts and circumstances of the case extinguish any discretion
in the matter”).
Appellate review is strictly limited to determining whether there has been a clear
abuse of discretion by the trial court in granting the application for a temporary injunction,
and a reviewing court does not address the merits of the underlying case. Brooks v.
Expo Chem. Co., 576 S.W.2d 369, 370 (Tex. 1979) (stating that because “the effect of a
premature review of the merits is to deny the opposing party the right to trial by a jury . . .
10 it will not be assumed that the evidence taken at a preliminary hearing on temporary
injunction will be the same as the evidence developed at a trial on the merits”). In making
this determination, a reviewing court may not substitute our judgment for that of the trial
court unless its decision was so arbitrary that it exceeded the bounds of reasonableness.
See Butnaru, 84 S.W.3d at 204.
ANALYSIS
IRREPARABLE AND IMMINENT HARM
By his issues, Dey does not challenge whether Seilevel plead a cause of action
against him or Seilevel’s probable right of recovery. Rather, he vehemently challenges
whether there is sufficient evidence to show irreparable and imminent injury.
Initially, we note that when a party possesses trade secrets and is in a position to
use them, harm to the trade secret owner may be presumed. IAC, Ltd. v. Bell Helicopter
Textron, Inc., 160 S.W.3d 191, 201 (Tex. App.—Fort Worth 2005, no pet.). It is
undisputed that information accessed by Dey contained Seilevel’s trade secrets. In
March 2021, presumably from the confidential information shared by Dey, Texas
Supplements, a Seilevel customer, informed Seilevel that it was cutting its budget for
marketing services by one-half after Dey had offered to train its employees. Several
months later, on May 26, 2021, Texas Supplements terminated its ecommerce and
marketing services with Seilevel and hired Dey as its Chief Marketing Officer beginning
June 1. However, Dey was terminated that same day without explanation.
Joy Beatty, Seilevel’s vice president of operations, testified that after Dey’s
termination from Seilevel, he accessed customer prospect lists, cost structures, internal
11 job descriptions, and its business operating model—all confidential information. She
testified that Dey’s sharing of Seilevel’s cost structure with its customers cast it in an
unfavorable light and was “one of the more harmful pieces” shared with customers.
Dey’s access to internal job descriptions allowed him to demonstrate to customers that
he could recreate a team to deliver services without Seilevel. In Beatty’s own words,
Dey’s conduct made Seilevel “look bad.” According to Beatty, Texas Supplements
produced $2 million of revenue annually and Dey’s sharing of confidential information
resulted in Texas Supplements eventually terminating all of Seilevel’s services.
During Beatty’s cross-examination at the hearing on the temporary injunction,
Dey’s counsel suggested that Dey did not pose a threat of imminent harm. Although
Beatty agreed there was no imminent threat regarding businesses Seilevel had already
lost or businesses which had not threatened to terminate Seilevel’s services, Seilevel
was “still dealing with the harm caused prior to the [temporary restraining order].” She
testified that Dey’s conduct had damaged Seilevel’s goodwill and relationships with its
customers.
Seilevel’s counsel asked Beatty about the potential harm of Dey’s sharing
confidential information. She answered that if he provided it to competitors, they could
undercut pricing because the work, strategy, and analysis had already been done by
Seilevel. She explained that she could not fully calculate the harm caused by Dey
because she did not know how his conduct would impact the future given that Dey did
not believe he had done anything wrong in accessing confidential information after his
termination. See Taylor Hous. Auth., 549 S.W.3d at 878 (“An ‘irreparable’ injury refers
to one that is incapable of being compensated adequately in damages or for which
12 damages cannot be measured by any certain pecuniary standard.”). Beatty further
testified that the temporary restraining order notwithstanding, she could not predict the
future impact of Dey’s conduct.
Dey testified that he wiped the Macbook Pro before suit was filed and no longer
had access to Seilevel’s confidential information. He also testified that because Texas
Supplements and another customer had terminated their business with Seilevel prior to
the hearing on the temporary injunction, Seilevel could not prove he posed an imminent
threat of harm to its business relationships. The trial court, however, was free to
disbelieve Dey’s testimony given that he had previously said that he sold the Macbook
Pro to an individual in a van only to later claim he gave it to his wife. Beatty’s testimony
provided sufficient evidence from which the trial court could conclude that Dey’s access
to confidential information and his use of that information caused irreparable and
imminent harm to Seilevel.
Dey may have also inadvertently provided evidence that his conduct caused injury
to Seilevel. During questioning from his counsel on whether he anticipated litigation due
to his conduct, Dey expressed his belief that a lawsuit would ruin Seilevel’s reputation
with Texas Supplements. He also insinuated that arrogance on the part of Seilevel’s
CEO, with Dey’s potentially working for Texas Supplements, caused Texas Supplements
to terminate Seilevel’s services. Based on the testimony, the trial court did not have to
believe that Dey no longer had access to the information contained in the files he
admitted to downloading and the court could have made a reasonable inference that
such information had the potential to cause irreparable and imminent harm to Seilevel.
13 NONDISCLOSURE AND NONSOLICITATION RESTRICTIONS AND RULE 683
Dey asserts the nondisclosure restriction’s use of the terms “confidential or
proprietary information,” which are not defined, fails to conform to the specificity
requirements of Rule 683. Similarly, he maintains that the term “Seilevel confidential
information” in the nonsolicitation restriction is too vague, undefined, and ambiguous to
be enforceable and, therefore, violates Rule 683. We disagree.
An injunction must be as definite, clear, and precise as possible, and when
practicable it should inform the defendant of the acts he is restrained from doing. San
Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697, 702
(1956). But the injunction must be stated in terms which are sufficiently broad enough
to prevent repetition of the evil sought to be stopped. Id. In that regard, an injunction
need not specifically identify every act that might constitute the prohibited action. Id.
Dey complains of the language “confidential and proprietary information” and
“Seilevel confidential information” as not being sufficiently specific to comply with the
requirements of Rule 683. We disagree.
The language in the temporary injunction is almost verbatim from the language in
the temporary restraining order to which Dey agreed. He did not complain in the trial
court that the temporary restraining order was vague or ambiguous leaving him uncertain
of what conduct was being prohibited. Neither did he complain in the trial court that
certain terms in the temporary injunction were vague or ambiguous. His failure to
complain in the trial court results in procedural default of his contentions on appeal. TEX.
R. APP. P. 33.1(a). Even so, during his sworn testimony, he admitted to accessing and
14 downloading confidential and proprietary information without any clarification needed as
to what type of information Seilevel considered confidential or proprietary. As such, we
conclude the language of which he complains is neither vague nor ambiguous.
DIRECT ACCESS ORDER
Dey contends that Seilevel failed to plead for direct access to the Macbook Pro in
its original request for a temporary injunction or in its amended pleading. He asserts the
untimely request for direct access during the hearing was extremely intrusive and caused
him unfair surprise and prejudice.
An injunction that exceeds a pleading is an abuse of discretion. Webb v.
Glenbrook Owners Ass’n, 298 S.W.3d 374, 391 (Tex. App.—Dallas 2009, no pet.).
However, in the absence of special exceptions, pleadings seeking injunctive relief are
construed liberally in favor of the applicant. Henry v. Smith, 226 S.W.3d 226, 243 (Tex.
App.—Fort Worth 2021, pet. filed) (citing Garden Oaks Maint. Org. v. Chang, 542 S.W.3d
117, 139 n.19 (Tex. App.—Houston [14th Dist.] 2017, no pet.)). Seilevel pleaded for Dey
to “turn over all of Seilevel’s materials.” Dey did not specially except to the absence of
an allegation to turn over the Macbook Pro. It is not an unreasonable inference that
some of the information on the Macbook Pro, despite Dey being allowed to keep it, could
have been considered Seilevel’s “materials” despite Dey’s assertion that he wiped it
before suit was filed.
Assuming that Seilevel’s live pleading did not plead for direct access to the
Macbook Pro, the issue was tried by consent. The rule of trial by consent is limited to
those instances where the parties clearly tried an unpleaded issue by consent. White v.
15 Sullins, 917 S.W.2d 158, 160 (Tex. App.—Beaumont 1996, writ denied); TEX. R. CIV. P.
67. Consent may be found only when evidence concerning an unpleaded issue is
developed under circumstances indicating both parties understood the issue was being
contested. Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009).
During Danner’s expert testimony concerning his examination of Dey’s
unauthorized downloads, he testified “[t]he best way to determine [the actual downloads]
would be to look at the device that was – was responsible for the download.” When
questioned on whether he had been asked to examine the Macbook Pro, he explained,
“I just don’t think we have the device or access to it.” Dey did not object to Danner’s
testimony on the necessity of accessing the Macbook Pro for examination.
The temporary injunction anticipates that the parties will agree on a forensic
examiner. It also contemplates that Dey will turn over the Macbook Pro for examination
“in accordance with a forensic protocol agreed to by the parties or ordered by the Court
. . . .” Essentially, the direct access order is nothing more than an order contemplating
the subsequent entry of a clarifying order and preserving the status quo pending entry
of that order. It is limited in scope to a short period of time. Thus, the issue of direct
access to the Macbook Pro is not ripe for review by this court obviating a discussion on
whether the procedure for a forensic examination of digital devices set forth in In re
Weekley should apply to a temporary injunction.
The trial court’s findings in the temporary injunction are not merely conclusory,
however. Given the nature of trade secrets, the trial court found that without the
injunction, Seilevel could potentially suffer imminent injury not measurable in money
16 damages from the information Dey admitted that he had already accessed and
downloaded. In exercising its sound discretion, the trial court was free to disbelieve that
Dey had completely wiped the Macbook Pro and returned all the confidential files and
information he admitted he copied onto his new laptop. The record provides a basis for
the trial court’s order granting Seilevel’s request for a temporary injunction and that
decision is not “so arbitrary as to exceed the bounds of reasonable discretion.” Butnaru,
84 S.W.3d at 211. Having found the trial court did not abuse its discretion, Dey’s issues
are overruled.
MODIFICATION OF TEMPORARY INJUNCTION
Certain provisions of the Order Granting Temporary Injunction are no longer
workable due to the passage of time. Therefore, in order to maintain the status quo, and
to facilitate the entry of further orders as contemplated, the “direct access” provision of
the Order Granting Temporary Injunction is modified as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, on or before the March 28, 2022, Dey must produce the Macbook Pro laptop Seilevel provided Dey to Dey’s legal counsel for safe-keeping until such time as it is released to a forensic examiner in accordance with the orders of this court. During this period of safe-keeping, no one shall have access to the contents of the laptop for any purposes. The parties are ordered to confer and agree upon a forensic examiner. Should the parties be unable to agree upon a forensic examiner by April 15, 2022, that matter shall be presented to the trial court for determination. The forensic examiner shall review the laptop in accordance with a forensic protocol agreed to by the parties, which shall include determining (1) if the laptop produced by Dey is the laptop Seilevel provided him, (2) if and when the laptop was wiped by Dey, and (3) if any Seilevel confidential and proprietary business information and intellectual property remains on the laptop. Should the parties be unable to agree upon a forensic protocol by April 15, 2022, that matter shall be presented to the trial court for determination.
17 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Seilevel shall post bond in the amount of $10,000, by March 28, 2022, to serve as sufficient bond for this Order.
CONCLUSION
As modified, the trial court’s Order Granting Temporary Injunction is affirmed.
Per Curiam