Checklist · Litigation

Moving for a Temporary Restraining Order or Preliminary Injunction: A Practical Checklist

18 U.S.C. § 1836

Type: Checklist
Jurisdiction: National
Date: 2025-07-19
Topic: Litigation

A seventy-two-hour build sequence for emergency injunctive relief, written so it can be worked from the first client call. Phases one through four are the triage that determines whether to file at all: the irreparable harm question that decides most motions, evidence preservation and forensic imaging before anything is deleted, selection of the claim and the precise relief sought, and the screen for statutory bars that forbid the requested order regardless of the merits. Phases five through nine build the filing package: the declarations that carry the motion, the proposed order drafted first in Rule 65(d)-compliant language, the ex parte versus noticed decision and the certification it requires, the local rules and standing orders that govern emergency applications, and the assembled package. Phases ten through fourteen cover the filing and hearing: notice to the adverse party, the security bond and why its amount is a substantive fight, expedited discovery, hearing preparation including when live testimony is required, and post-order service and compliance monitoring. Phases fifteen through eighteen cover enforcement by contempt, the defense-side opposition sequence, interlocutory appeal and stay, and the endgame including consolidation with trial and recovery on the bond.

Moving for a Temporary Restraining Order or Preliminary Injunction: A Practical Checklist

Litigation > Provisional Remedies | Published 19 July 2025 - Updated 16 June 2026 | UpLaw - uplaw.us

Ask one question before anything else: what harm will occur before trial that money cannot fix? If the client's answer is a number, the motion will probably fail. If the answer is something that cannot be expressed as a number, you have a case — and roughly seventy-two hours to build it, because delay is read as an admission that the harm is tolerable.

Keywords: irreparable harm, Rule 65(b) certification, ex parte notice, proposed order, Rule 65(d), security bond, expedited discovery, hearing preparation, contempt, opposition, § 1292(a)(1)

Work this in order. Phases 1–15 are movant side; Phase 16 is the opposition sequence; Phases 17–18 apply to both. The doctrinal treatment is in Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide. The narrative overview is The Extraordinary Remedy.

Our running example. Alderwood Analytics, Inc. (fictional) learned Thursday that former employee Sam Prieto (fictional) joined competitor Vantage Metrics LLC (fictional) on Tuesday and has contacted four of Alderwood's largest customers quoting confidential pricing.

Phase 1 — The first hour: the harm question

[ ] Ask the client: what happens between now and trial that a damages award cannot fix?
[ ] Test whether the harm is calculable. Lost revenue from identified customers usually is.
[ ] Identify harm in a category courts accept: trade secret disclosure, loss of goodwill or market position of unmeasurable extent, destruction of the business, loss of a unique asset, constitutional injury, irreversible environmental or health harm, or an insolvent defendant.
[ ] Establish imminence — what happens in the next days or weeks, not months.
[ ] Determine when the client learned of the conduct, and reconstruct the timeline in writing.
[ ] If there has been delay, identify the explanation and whether it is credible.
[ ] Make the go/no-go decision now, and record the reasoning.

Why it matters, and the traps. Most motions fail on irreparable harm, not on the merits. Sampson v. Murray, 415 U.S. 61, 90 (1974): loss of income, reputational damage, and difficulty finding other employment do not, standing alone, constitute irreparable injury.

Delay kills motions. A six-week gap between discovery and filing will be read as an admission that the harm is tolerable, regardless of why the gap existed. If you are going to move, move — and if you cannot move for a week, explain that week in the opening brief rather than in reply.

Phase 2 — Preserve and image, immediately

[ ] Issue a litigation hold to the client covering all relevant systems and custodians.
[ ] Forensically image the departing employee's laptop, phone, and any company device, using a qualified examiner and a documented chain of custody.
[ ] Preserve access logs, download logs, VPN records, email, and cloud storage activity — these expire on retention schedules.
[ ] Preserve badge access and physical security records.
[ ] Preserve customer communications and any evidence of contact by the departing employee.
[ ] Identify what was actually taken — files, volumes, dates, and destinations.
[ ] Send a preservation demand to the adverse party and the new employer.
[ ] Do not access the employee's personal accounts or devices without authorization; the counterclaim exposure under computer access and privacy statutes is real.

Why it matters, and the traps. The forensic record is the motion. "We believe he took our customer list" loses. "The forensic examination shows 1,847 files copied to a USB device at 11:47 p.m. on his last day, including the file at Exhibit B" wins.

Preservation also protects against the reverse. If the client wiped the employee's laptop before imaging it, the motion is compromised and a spoliation counter-narrative is available. Image before IT reassigns the machine.

See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist and When a Breach Hits Your Crown Jewels: A Trade Secret Incident Response Checklist.

Phase 3 — Choose the claim and the exact relief

[ ] Identify the claim that best supports relief: trade secret misappropriation under the Defend Trade Secrets Act, 18 U.S.C. § 1836, and state law; breach of a restrictive covenant; breach of a confidentiality agreement; breach of fiduciary duty; tortious interference; or unfair competition.
[ ] Confirm every element of at least one claim can be shown on the available record.
[ ] Identify the likely affirmative defense and whether it defeats likelihood of success — an unenforceable covenant, a limitations problem, an arbitration clause, lack of standing.
[ ] Write out the specific conduct to be prohibited, in operational terms.
[ ] Separate prohibitory relief (stop using, stop contacting) from mandatory relief (return files, submit devices, send a corrective notice).
[ ] Confirm the status quo ante — the last peaceable, uncontested status before the controversy — so the relief can be characterized correctly.
[ ] Narrow the request as far as it can be narrowed without losing the protection. Narrowing wins motions.

Why it matters, and the traps. Mandatory relief draws a heightened standard in most circuits. Structure the request so a court willing to grant only the prohibitory core can do so without redrafting your order.

For a restrictive covenant claim, confirm enforceability under the governing state's law before filing — the covenant's enforceability is the likelihood-of-success analysis, and several states will not enforce non-competes at all. See The Future of Non-Competes: FTC Rulemaking and the State Law Patchwork.

Phase 4 — Screen for bars

[ ] Asset freeze? Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), forbids enjoining asset transfers in a pure damages action. Plead an equitable interest in specific property if that is the goal.
[ ] Labor dispute? Norris-LaGuardia Act, 29 U.S.C. §§ 101–115.
[ ] Federal taxes? 26 U.S.C. § 7421.
[ ] Enjoining a state proceeding? Anti-Injunction Act, 28 U.S.C. § 2283, and the abstention doctrines.
[ ] Prison conditions? 18 U.S.C. § 3626.
[ ] Speech? Prior restraints bear a heavy presumption of unconstitutionality.
[ ] Sovereign immunity — the United States, states, and tribes.
[ ] Personal services — equity will not compel performance of a personal service contract.
[ ] Confirm subject matter jurisdiction and personal jurisdiction over every party to be bound.

Phase 5 — Build the declarations

[ ] Client declaration: the business, what the confidential information is and why it has value, the security measures protecting it, the employee's access and agreements, and the harm.
[ ] Forensic examiner declaration: what was copied, when, to what, and what the artifacts show.
[ ] Customer or third-party declaration where obtainable — the most persuasive evidence and the hardest to get.
[ ] Counsel declaration for the Rule 65(b) notice certification if proceeding ex parte.
[ ] Attach exhibits: the agreements, the specific protected material (under seal), the forensic report, and the communications.
[ ] Make every declaration specific and personal — first-hand knowledge, dates, documents. Declarations built from "on information and belief" are worth nothing at a hearing.
[ ] State the irreparable harm in operational rather than financial terms.
[ ] Verify the complaint if proceeding ex parte or if state practice requires it.
[ ] File confidential exhibits under seal, with the motion to seal the local rules require.

Phase 6 — Draft the proposed order first

[ ] Draft the order before the brief.
[ ] State the reasons the order issued. Rule 65(d)(1)(A).
[ ] State the terms specifically. Rule 65(d)(1)(B).
[ ] Describe the restrained or required acts in reasonable detail, and not by referring to the complaint. Rule 65(d)(1)(C).
[ ] Identify prohibited conduct by exhibit: the specific customers, the specific documents, the specific information.
[ ] Identify the persons bound — parties, their officers, agents, servants, employees, attorneys, and those in active concert or participation. Rule 65(d)(2).
[ ] Include the duration, the bond amount (leave blank or propose a figure), and the hearing date.
[ ] Include a provision for expedited discovery if sought.
[ ] Include a mechanism for the defendant to seek modification on short notice.

Why it matters, and the traps. If you cannot describe the prohibited conduct in reasonable detail without referring to another document, you do not yet know what you are asking for — and the brief will show it.

An order saying "Defendant shall not misappropriate Plaintiff's trade secrets" is unenforceable and will not support contempt. Courts frequently sign what they are given. Give them something enforceable.

Phase 7 — Ex parte or noticed

[ ] Determine whether Rule 65(b)(1) is satisfied: specific facts in an affidavit or verified complaint showing immediate and irreparable injury will result before the adverse party can be heard.
[ ] Prepare the attorney certification of efforts to give notice and the reasons notice should not be required. Rule 65(b)(1)(B).
[ ] Identify the justification: risk of evidence destruction, imminent irreversible disclosure, asset dissipation where an equitable claim exists, or inability to locate the defendant.
[ ] If notice can be given at all, give it — even an email stating that an application will be filed and when. It converts an ex parte application into a noticed one and dramatically improves the reception.
[ ] Document every notice attempt with time, method, and recipient.
[ ] Understand the 14-day life of an ex parte TRO and the extension mechanics. Rule 65(b)(2).
[ ] Note that the adverse party may move to dissolve on two days' notice. Rule 65(b)(4).

Why it matters, and the traps. Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 180 (1968), makes ex parte relief permissible only where notice is impossible or would frustrate the relief sought. "The defendant would object" is not a reason.

Phase 8 — Local rules and the judge

[ ] Read the local rules on emergency applications and TROs.
[ ] Read the assigned judge's standing order or individual practices.
[ ] Determine whether there is an emergency or duty judge or whether presentment is to the assigned judge.
[ ] Determine the chambers copy requirement, the format, and whether courtesy copies must be delivered.
[ ] Determine any telephonic notice requirement to opposing counsel and the certification form.
[ ] Determine page limits and whether they differ for emergency motions.
[ ] Call the courtroom deputy and ask what the judge expects. This single call is worth more than an hour of research.
[ ] Determine the sealing procedure for confidential exhibits.

Why it matters, and the traps. The practical requirements for emergency relief live in local rules, standing orders, and chambers practice — not in the Federal Rules. Filing an emergency motion in the wrong format costs the day you did not have.

Phase 9 — Assemble the package

[ ] Verified complaint or complaint with supporting declarations.
[ ] Motion for TRO and preliminary injunction.
[ ] Memorandum organized by the four Winter factors, leading with irreparable harm.
[ ] Declarations with exhibits.
[ ] Proposed order in Rule 65(d)-compliant form.
[ ] Rule 65(b) certification if proceeding ex parte.
[ ] Proposed findings of fact and conclusions of law.
[ ] Motion to seal confidential exhibits.
[ ] Corporate disclosure statement, civil cover sheet, and summons.
[ ] Proposed briefing schedule and hearing date.
[ ] Motion for expedited discovery with narrow, specific requests.

Phase 10 — Notice and service

[ ] Serve the complaint and summons in the ordinary way.
[ ] Serve the motion papers on the adverse party and any counsel known to represent them.
[ ] For a TRO issued ex parte, serve the order immediately and document service — actual notice is an element of contempt.
[ ] Serve every person the order is intended to bind, including the new employer and any affiliate.
[ ] File proof of service promptly.
[ ] Confirm the order is entered on the docket with the date and hour if issued without notice. Rule 65(b)(2).

Phase 11 — The bond

[ ] Anticipate the security requirement of Rule 65(c) and propose an amount in the motion.
[ ] Model the adverse party's actual exposure if the injunction turns out to be wrongful — lost revenue, compliance costs, business disruption.
[ ] Determine whether the circuit permits waiver or nominal security, and on what showing.
[ ] Arrange the bond with a surety in advance so it can be posted the same day.
[ ] Understand that the bond is generally a cap on the wrongfully enjoined party's recovery, absent bad faith.
[ ] If opposing, litigate the amount — a bond that does not cover actual exposure is the defendant's loss.

Why it matters, and the traps. Defense counsel who treat the bond as a formality surrender the client's only recovery. A ten-day production shutdown is a real number and it is recoverable only up to the bond.

Phase 12 — Expedited discovery

[ ] Request narrow, specific discovery — a handful of document requests, one or two depositions, forensic imaging of specified devices.
[ ] Propose a schedule compressed to the hearing date.
[ ] Ask for a preservation and forensic protocol order covering the defendant's devices, with a neutral examiner if warranted.
[ ] Propose a protective order so confidential material can be exchanged without a fight.
[ ] Do not request full discovery — it will be denied and it signals the matter is not urgent.

See Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls.

Phase 13 — Prepare the hearing

[ ] Determine whether the court will take live testimony — required in most courts where credibility on a dispositive fact is genuinely disputed.
[ ] Prepare witnesses for direct and cross on a compressed record.
[ ] Prepare a demonstrative showing the timeline and the forensic findings.
[ ] Prepare to answer, in one sentence each: what harm, why money cannot fix it, why now, and what exactly the order would prohibit.
[ ] Prepare a fallback order narrower than the primary request.
[ ] Consider whether to propose consolidation with trial under Rule 65(a)(2) — and note the court must give clear notice before doing so.
[ ] Bring the proposed order in editable form.
[ ] Be ready to address the bond amount with evidence.

Phase 14 — After the order

[ ] Serve the order on every person to be bound and document it.
[ ] Post the bond immediately — the order may not take effect until it is posted.
[ ] Calendar the expiration date and the preliminary injunction hearing.
[ ] Monitor compliance and document any violation contemporaneously.
[ ] Preserve evidence of violations, including customer reports and forensic artifacts.
[ ] Confirm the order does not need modification to be workable — an unworkable order invites a motion to dissolve.
[ ] If the TRO will be extended, obtain consent or move for good cause before it expires. Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local No. 70, 415 U.S. 423, 439 (1974).

Phase 15 — Enforcement by contempt

[ ] Confirm the order is valid, specific, and served on the alleged contemnor.
[ ] Document the violation with evidence, by clear and convincing proof.
[ ] Choose civil contempt (coercive or compensatory) or criminal contempt (punitive, requiring willfulness and criminal protections). International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994).
[ ] Move on notice with a proposed order to show cause.
[ ] Quantify compensatory damages caused by the violation and request attorney's fees.
[ ] Advise a client subject to an order that the collateral bar rule requires compliance while challenging it. Walker v. City of Birmingham, 388 U.S. 307 (1967).
[ ] Anticipate the impossibility defense, which requires the defendant to show categorically and in detail why compliance is impossible and that all reasonable steps were taken.

Phase 16 — Opposing an injunction

[ ] Compute the response deadline and demand adequate time — due process requires a fair opportunity to oppose.
[ ] Attack irreparable harm first: the harm is calculable, speculative, or self-inflicted by delay.
[ ] Document the movant's delay and argue laches.
[ ] Attack likelihood of success on the strongest element and on the best affirmative defense.
[ ] Characterize the relief as mandatory and invoke the heightened standard.
[ ] Quantify the harm to the defendant from an injunction with a declaration and a number.
[ ] Argue public interest where third parties, employees, or customers are affected.
[ ] Litigate the bond amount with evidence of actual exposure.
[ ] Propose a narrower alternative order the court can grant instead — this frequently works better than opposing outright.
[ ] Preserve unclean hands and any equitable defense.
[ ] If a TRO issued ex parte, move to dissolve on two days' notice. Rule 65(b)(4).
[ ] Consider whether consolidation with trial favors the defense.

Phase 17 — Appeal and stay

[ ] Confirm appealability under 28 U.S.C. § 1292(a)(1) — orders granting, continuing, modifying, refusing, or dissolving an injunction.
[ ] Note that a TRO is generally not appealable unless it exceeds Rule 65(b)'s limits without consent or functions as a preliminary injunction.
[ ] Move first in the district court for a stay under Rule 62, then in the court of appeals under FRAP 8.
[ ] Apply the Nken factors: likelihood of success on appeal, irreparable injury absent a stay, injury to other parties, and the public interest. Nken v. Holder, 556 U.S. 418, 434 (2009).
[ ] Confirm the record includes findings and conclusions under Rule 52(a)(2) — their absence is itself an appellate issue.
[ ] Move to expedite the appeal where the relief is time-sensitive.

See Taking a Civil Appeal: A Practical Checklist and Federal Civil Appeals: A Comprehensive Guide.

Phase 18 — The endgame

[ ] Consider consolidation with trial under Rule 65(a)(2) to convert the provisional fight into a resolution.
[ ] Consider settlement — the injunction hearing is the single highest-leverage moment in most of these cases, and most resolve within days of it either way.
[ ] If the injunction is dissolved or the movant loses on the merits, move promptly to recover on the bond, with proof of damages proximately caused by the injunction.
[ ] Remember that a preliminary injunction dissolves at final judgment — obtain a permanent injunction if continued relief is needed, under the eBay four-factor test.
[ ] Confirm any permanent injunction satisfies Rule 65(d) in its own right.
[ ] Calendar any termination provisions that apply by statute.

Worked example — Alderwood v. Prieto and Vantage Metrics

Thursday, hour one. The harm question. Lost revenue from four identified customers is calculable — not enough. But the pricing model, once inside Vantage, cannot be retrieved by a damages award, and Alderwood cannot trace which future losses it caused. That is the motion.

Thursday afternoon. Litigation hold issued. Prieto's laptop, which IT had queued for reimaging, is pulled and forensically imaged. Preservation demands sent to Prieto and Vantage.

Friday. Forensic report: 1,847 files copied to a USB device at 11:47 p.m. on Prieto's last day, including the pricing model and a customer list with margin data. Two of the four contacted customers confirm in writing that Prieto quoted specific Alderwood pricing.

Saturday–Sunday. Declarations drafted: the CFO on the information and the security measures protecting it; the forensic examiner on the copying; one customer on the solicitation. Proposed order drafted first, prohibiting use or disclosure of the materials at Exhibits B and C and contact with the twenty-two customers on Exhibit A.

Monday. Notice given by email to Prieto and to Vantage's general counsel that an application will be filed Tuesday morning. That converts the application from ex parte to noticed and takes the Carroll problem off the table.

Tuesday. Filed. TRO entered on the narrower prohibitory relief. Mandatory return-of-files relief deferred to the preliminary injunction hearing. Bond set at $150,000 after Vantage submits a declaration quantifying disruption. Expedited discovery ordered: forensic imaging of Prieto's Vantage-issued devices by a neutral examiner, and his deposition within ten days.

Two weeks later. Preliminary injunction hearing with live testimony from Prieto and the forensic examiner. The case settles on the courthouse steps, as most of them do — which is the point of the exercise.

Moving for a Temporary Restraining Order or Preliminary Injunction: A Practical Checklist

Phase 1 — The first hour: the harm question

Phase 2 — Preserve and image, immediately

Phase 3 — Choose the claim and the exact relief

Phase 4 — Screen for bars

Phase 5 — Build the declarations

Phase 6 — Draft the proposed order first

Phase 7 — Ex parte or noticed

Phase 8 — Local rules and the judge

Phase 9 — Assemble the package

Phase 10 — Notice and service

Phase 11 — The bond

Phase 12 — Expedited discovery

Phase 13 — Prepare the hearing

Phase 14 — After the order

Phase 15 — Enforcement by contempt

Phase 16 — Opposing an injunction

Phase 17 — Appeal and stay

Phase 18 — The endgame

Worked example — Alderwood v. Prieto and Vantage Metrics

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