United States District Court, S.D. Ohio, Western Division
ORDER RESOLVING PLAINTIFF'S MOTION FOR A
PRELIMINARY INJUNCTION AND EXPEDITED DISCOVERY (DOC. 2) AND
DEFENDANT'S MOTION FOR PREDISCOVERY IDENTIFICATION OF
TRADE SECRETS (DOC. 13)
TIMOTHY S. BLACK UNITED STATES DISTRICT JUDGE
civil action is before the Court on Plaintiff's motion
for a preliminary injunction and expedited discovery (Doc.
2), Defendants' motion for prediscovery identification of
trade secrets (Doc. 13), and the parties' responsive
memoranda (Docs. 9, 16, 18, 20, 22, and 24).
A&P Technology, Inc. (“A&P”) is a
corporation with a principal place of business in Cincinnati,
Ohio, that specializes in the production of precision braided
textiles. (Doc. 2, at 3). These textiles are used by
Plaintiff's client corporations for use in various
applications and have been utilized in the aerospace,
military, and energy markets, among others. (Id.).
Plaintiff relies upon proprietary technology in the
production of its textiles, including custom braiding
equipment that Plaintiff has designed and built over many
Phillip Lariviere was employed by Plaintiff as an Application
Engineer for eight years prior to his termination on April
27, 2015. (Id.; Doc. 9, at 3). During his time
working for Plaintiff, Lariviere was given access to, and
training concerning, Plaintiff's confidential information
including its braiding processes. (Doc. 2-1, at
7).Lariviere was exposed not only to technical
information regarding braid manufacturing, but also to market
knowledge of Plaintiff's products, sales strategies, and
pricing models. (Doc. 2, at 8).
Lariviere was employed with A&P, he executed agreements
stating that he would agree to keep A&P's
confidential information secret both during and after his
employment, and that he would only use A&P's
confidential information as authorized by the company. (Docs.
2-3, 2-4). Upon Lariviere's termination, he executed a
release reaffirming his commitment to protect A&P's
confidential information in the future, despite his
separation from the company. (Doc. 2-5, at 3). In addition to
his commitment to protect A&P's confidential
information, Lariviere's agreement with A&P also
included the following “covenant not to compete”:
In the event the Employee's employment with the Company
terminates for any reason, either voluntarily or
involuntarily, the Employee hereby agrees that, for a period
of two (2) years after the termination of employment, the
Employee will not directly or indirectly, alone or with
others, engage in or have any interest in any person, firm,
corporation or business (whether as a shareholder, principal.
partner, employee, trustee, officer, director, agent,
security holder, creditor. agent security holder, creditor,
independent contractor, landlord, consultant or otherwise)
that engages in the braiding industry, or otherwise competes
with the operations of [A&P], including but not
necessarily limited to, braiding for reinforcement in
composites, inflatable structures, safety-related devices,
human and animal health-related devices, thermal electrical
or mechanical insulators or conductors.
(Doc. 2-4, at 3).
his termination, in June 2015 Lariviere began working for
non-party General Electric Aviation (“GE”) in
Cincinnati, where he had worked prior to joining A&P.
(Doc. 9, at 3). However, based on a desire to move, Lariviere
continued to search for new employment through a third party
recruiter. (Id.). Plaintiff ultimately accepted an
offer to work for Defendant Highland Industries, Inc.
(“Highland”) in Statesville, North Carolina as a
Senior Project Engineer. (Id. at 3-4; Doc. 1, at
12). Lariviere's noncompete agreement had expired before
he began working with Highland on May 15, 2017. (Doc. 9, at
“is primarily in the business of curing and finishing
composite structures based on customer specifications, using
multiple processing methodologies including braiding,
overbraiding, filament winding, lamination, and press
molding.” (Doc. 9, at 4). Highland is affiliated with
A&P's largest competitor, non-party company
Eurocarbon. (Doc. 1, at 11). In the past, Highland and
A&P have bid against each other for the same third party
contracts. (Id. at 11-12). Accordingly, Highland is
a competitor to A&P.
filed the complaint in this case on August 11, 2017. (Doc.
1). A&P is claiming that Lariviere is in breach of his
contract to protect A&P's confidential information by
working for a direct competitor in the braiding industry. The
complaint accordingly raises claims of breach of contract
against Lariviere, tortious interference with contractual
relationships against Highland, and tortious interference
with business relationships, misappropriation of trade
secrets, and unjust enrichment against both defendants.
(Id. at 15-25). A&P seeks injunctive relief
against both defendants preventing them from continuing to
work together. (Id.).
The motions before the Court
same day the complaint was filed, A&P filed a motion for
preliminary injunction and expedited discovery. (Doc.
The motion argues that a preliminary injunction enjoining
Lariviere from working in his current role at Highland is
necessary because of the risk the status quo poses to
A&P's carefully guarded confidential information.
(See generally id.). In addition, the motion
requests that Defendants be enjoined from soliciting any of
A&P's customers and that Defendants also be required
to provide a full and independent accounting and
relinquishing of all of A&P's confidential
information and/or documents in their possession.
(Id. at 24-25). Defendants oppose this motion.
October 11, 2017, Defendants filed a motion for prediscovery
identification of trade secrets. (Doc. 13). That motion
requests that the Court order Plaintiff to “provide
Defendants' counsel-after the entry of an appropriate
protective order but before discovery begins-a detailed list
with narrative descriptions, for each Defendant, of each
trade secret that A&P claims the Defendants have: (1)
misappropriated; and (2) threatened misappropriation.”
(Id. at 10). Plaintiff opposes this motion.
Plaintiff's motion for preliminary injunction and
expedited discovery and Defendant's motion for
prediscovery identification of trade secrets are fully
briefed and ripe for review. The Court shall address each in
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
Standard of review
Rule of Civil Procedure 65(a)-(b) permits a party to seek
injunctive relief when the party believes that it will suffer
immediate and irreparable injury, loss, or damage.
Nevertheless, an “injunction is an extraordinary remedy
which should be granted only if the movant carries his or her
burden of proving that the circumstances clearly demand
it.” Overstreet v. Lexington-Fayette Urban County
Gov't, 305 F.3d 566, 573 (6th Cir. 2002).
determining whether to grant injunctive relief, this Court
must weigh four factors: (1) whether the moving party has
shown a strong likelihood of success on the merits; (2)
whether the moving party will suffer irreparable harm if the
injunction is not issued; (3) whether the issuance of the
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuing the
injunction. NE. Ohio Coal. For Homeless &
Serv. Emp. Int'l Union, Local 1199 v. Blackwell, 467
F.3d 999, 1099 (6th Cir. 2006). These four considerations are
factors to be balanced, not prerequisites that must be met.
McPherson v. Michigan High Sch. Athletic Ass'n,
Inc., 119 F.3d 453, 459 (6th Cir. 1997). “Although
no one factor is controlling, a finding that there is simply
no likelihood of success on the merits is usually
fatal.” Gonzales v. Nat'l Bd. of Med.
Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000).
Preliminary Injunction Factors
Likelihood of success on the merits
first factor to consider is “whether the plaintiff has
demonstrated a strong likelihood of success on the
merits.” Certified Restoration Dry Cleaning Network
v. Tenke Corp., 511 F.3d 535, 543 (6th Cir. 2007). While
a party is not required to prove its entire case to establish
success on ...