The Provisional and Emergency Relief Toolkit

Litigation > Provisional Remedies | Published 28 March 2026 - Updated 21 July 2026 | UpLaw - uplaw.us

Every emergency application is answered before any doctrine is reached, by one question: what harm will occur before trial that money cannot fix? If the client's answer is a number, no amount of briefing will save the motion. If the answer cannot be expressed as a number, you have about seventy-two hours to build the record — because delay is read as an admission that the harm was tolerable all along.

Keywords: Rule 65, Winter, irreparable harm, mandatory injunction, status quo ante, ex parte, security, Rule 65(d), contempt, collateral bar, Grupo Mexicano, Rule 64 attachment, receivership, lis pendens, § 1292(a)(1)

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How to read this toolkit

This is a resource map, not a treatise. It walks twelve pillars of provisional relief practice. Under each you get the governing doctrine in plain terms, the anchor authority, the trap that catches people, and the UpLaw documents that develop it.

Four ground rules first.

One: the motion is about harm and timing, not the merits. Practitioners write compressed summary judgment briefs and lose. Courts deny these motions on irreparable harm far more often than on likelihood of success.

Two: draft the order before the brief. If you cannot describe the prohibited conduct in Rule 65(d)-compliant detail without cross-referencing a pleading, you do not yet know what you are asking for.

Three: the bond is a damages cap. A wrongfully enjoined party recovers up to the bond amount and generally no further. That makes the bond hearing a substantive proceeding, and defense counsel who treat it as a formality have surrendered the client's only recovery.

Four: an injunction is not always the right tool. Attachment, replevin, receivership, lis pendens, deposit into court, and expedited discovery each solve problems an injunction cannot — and Grupo Mexicano forecloses the one clients ask for most.

Start here for the doctrinal treatment: Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide. For the narrative introduction: The Extraordinary Remedy. For the build sequence: Moving for a Temporary Restraining Order or Preliminary Injunction: A Practical Checklist.

Our running matters. Alderwood Analytics, Inc. (fictional) seeking to restrain former employee Sam Prieto (fictional) and competitor Vantage Metrics LLC (fictional). Kestrel Foods, Inc. (fictional) facing a supply cutoff that would shut its production line. Sable Manufacturing (fictional) trying to stop a judgment debtor from moving assets.

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Pillar 1 — The threshold question

Doctrine. Equity acts only where the legal remedy is inadequate. That maxim is the ancestor of the irreparable harm requirement and it disposes of most applications.

Anchor. Sampson v. Murray, 415 U.S. 61, 90 (1974): loss of income, damage to reputation, and difficulty obtaining other employment do not, standing alone, constitute irreparable injury.

Trap. Clients describe harm in dollars because that is how they think. Counsel's job in the first hour is to find the component that cannot be reduced to dollars — a secret that cannot be un-disclosed, a market position that cannot be reconstructed, a business that will not survive to collect.

Trap, second order. Delay. A six-week gap between discovery and filing reads as an admission that the harm is tolerable, regardless of why the gap existed. If delay was unavoidable, explain it in the opening brief, not in reply.

Go deeper: The Extraordinary Remedy · Evaluating a Civil Case: Turning Instinct into a Repeatable Method

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Pillar 2 — The four factors

Doctrine. Likelihood of success; likelihood of irreparable harm; the balance of equities; and the public interest.

Anchors. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 22 (2008) (rejecting "possibility" of harm as too lenient); eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (no categorical rules; four factors for permanent injunctions); Nken v. Holder, 556 U.S. 418, 435 (2009) (equities and public interest merge where the government is a party).

Trap. Assuming a presumption of irreparable harm. eBay eliminated categorical entitlement, and courts extended that reasoning across IP. Congress restored a rebuttable presumption only in trademark, through the Trademark Modernization Act of 2020, at 15 U.S.C. § 1116(a). Patent and copyright have none.

Trap, second order. Circuit variation. Sliding-scale circuits allow a stronger showing on one factor to offset a weaker showing on another — Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011); Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010) — but the scale slides on the merits, not on harm. Winter's likely-harm requirement survives everywhere.

Go deeper: Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide · Trademark Infringement and Related Rights: The Enforcement Landscape

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Pillar 3 — Prohibitory, mandatory, and the status quo

Doctrine. Prohibitory relief preserves the status quo by forbidding action; mandatory relief alters it by compelling action. Most circuits apply a heightened standard to the latter.

Anchor. The status quo is the last peaceable, uncontested status preceding the controversy — not the situation at filing.

Trap. Failing to notice that half the requested relief is mandatory. Ordering Sam Prieto not to use Alderwood's pricing model is prohibitory. Ordering him to return files, submit devices for imaging, and send corrective notices is mandatory, and each of those needs a stronger showing.

Trap, second order. Failing to structure the proposed order so the prohibitory core can be granted alone. Courts sign orders they can sign easily; an all-or-nothing order invites an all-nothing outcome.

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

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Pillar 4 — The TRO and ex parte relief

Doctrine. A restraining order may issue without notice only on specific facts in an affidavit or verified complaint showing immediate irreparable injury before the adverse party can be heard, plus an attorney certification of notice efforts. It expires in 14 days, extendable once.

Anchors. Fed. R. Civ. P. 65(b); Carroll v. President & Commissioners of Princess Anne, 393 U.S. 175, 180 (1968); Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local No. 70, 415 U.S. 423, 439 (1974).

Trap. Assuming ex parte relief is available because the defendant would object. It is available where notice is impossible or would defeat the relief — evidence destruction, irreversible disclosure, an absent defendant. "The defendant would fight it" is not a reason.

Trap, second order. Give notice if you can. Even an email stating that an application will be filed and when converts the application to a noticed one and improves the reception dramatically. Document every attempt regardless.

Trap, third order. The 14-day limit. A TRO continued beyond the rule's limits without consent becomes a preliminary injunction — appealable, and subject to the preliminary injunction requirements. Granny Goose, 415 U.S. at 439.

Go deeper: Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide

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Pillar 5 — The preliminary injunction hearing

Doctrine. No preliminary injunction may issue without notice. Rules of evidence are applied flexibly; affidavits and hearsay are routinely received. The court may consolidate the hearing with trial on the merits.

Anchors. Fed. R. Civ. P. 65(a)(1)–(2); Fed. R. Civ. P. 52(a)(2) (findings required).

Trap. Relying on paper where credibility is genuinely disputed. A court asked to resolve a swearing contest on affidavits will frequently deny relief rather than credit one over the other. Plan for live testimony in any case where the defendant's position is a denial rather than a legal argument.

Trap, second order. Consolidation without notice. Rule 65(a)(2) is powerful — it converts a provisional fight into a resolution — but the court must give clear and unambiguous notice. A party that thought it was arguing a motion and finds it has tried its case has a genuine appellate issue.

Trap, third order. Not submitting proposed findings. Courts frequently adopt them, and findings are what the court of appeals reviews.

Go deeper: Federal Civil Trial Practice: From Final Pretrial Conference to Verdict · The Federal Rules of Evidence: A Comprehensive Guide

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Pillar 6 — Security

Doctrine. The court may issue a TRO or preliminary injunction "only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained." Fed. R. Civ. P. 65(c).

Anchor. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n.14 (1983) (recovery generally limited to the bond).

Trap. The bond is a cap. Most circuits limit a wrongfully enjoined party's recovery to the bond amount absent bad faith or an independent tort. Defense counsel who do not litigate the amount with evidence of actual exposure have given up the client's only remedy.

Trap, second order. Assuming the bond can be waived. The text reads as mandatory; most circuits find discretion to set nominal security in public interest cases or where harm to the defendant is negligible, but a few treat security as effectively required. Confirm the circuit before promising a client a bond-free order.

Trap, third order. Not arranging the surety in advance. An order that cannot take effect until the bond is posted is worth nothing on the afternoon it issues.

Go deeper: Insurance Coverage Law: A Comprehensive Guide for Policyholders · The Litigation Damages Toolkit: Valuing and Proving Money Awards

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Pillar 7 — Rule 65(d): the order itself

Doctrine. Every injunction must state the reasons it issued, state its terms specifically, and describe in reasonable detail — not by referring to the complaint or another document — the acts restrained or required. It binds parties, their officers, agents, servants, employees, and attorneys, and other persons in active concert or participation with them who receive actual notice.

Anchor. Fed. R. Civ. P. 65(d)(1)–(2).

Trap. Orders that recite a legal standard. "Defendant shall not misappropriate Plaintiff's trade secrets" is unenforceable and will not support contempt. "Defendant shall not contact the twenty-two customers on Exhibit A or use the pricing model at Exhibit B" is enforceable.

Trap, second order. Assuming the order binds the world. The "active concert" clause reaches a new employer, an affiliate, or a contractor assisting in violation — with actual notice. It does not reach a stranger who independently does something similar. Serve everyone you intend to bind and document it, because notice is an element of contempt.

Trap, third order. Letting the court draft. Submit a proposed order in the language you want. Courts frequently sign what they are given, and the order governs for the next year — the brief does not.

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

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Pillar 8 — Contempt and the duty to obey

Doctrine. Civil contempt is remedial — coercive fines or confinement, plus compensatory damages — proved by clear and convincing evidence, with an impossibility defense. Criminal contempt is punitive, requires willfulness and proof beyond a reasonable doubt, and carries criminal procedural protections.

Anchors. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994); Fed. R. Crim. P. 42; Walker v. City of Birmingham, 388 U.S. 307 (1967); United States v. United Mine Workers of America, 330 U.S. 258, 293 (1947).

Trap. The collateral bar rule. A party must obey an injunction while challenging it and may not defend a contempt proceeding by arguing the order was wrong. The narrow "transparently invalid" exception, In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), is a thin reed and should not be counseled.

Trap, second order. Seeking a large unconditional fine and finding you have brought a criminal proceeding. Bagwell sorts the categories; read it before framing the sanction.

Go deeper: Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide · Legal Ethics and Professional Responsibility: A Comprehensive Guide to the Model Rules

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Pillar 9 — The bars

Doctrine. Several statutes and doctrines forbid injunctive relief regardless of the four factors.

Anchors. Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) (no asset freeze in a damages action absent a claimed lien or equitable interest); Norris-LaGuardia Act, 29 U.S.C. §§ 101–115, with the Boys Markets exception, 398 U.S. 235 (1970); Tax Anti-Injunction Act, 26 U.S.C. § 7421; Anti-Injunction Act, 28 U.S.C. § 2283; PLRA, 18 U.S.C. § 3626; Near v. Minnesota, 283 U.S. 697 (1931) (prior restraints); Ex parte Young, 209 U.S. 123 (1908), and its limits.

Trap. Grupo Mexicano is the one clients ask for and lawyers forget. A federal court cannot enjoin a defendant from moving assets in a pure damages case. The workaround is at the pleading stage: a claim asserting an equitable interest in specific property — constructive trust, equitable lien, fraudulent transfer — escapes the rule. Sable Manufacturing's asset-freeze request against its judgment debtor has to be built that way or through state attachment under Rule 64.

Trap, second order. Abstention. Younger, Pullman, Burford, and Colorado River each foreclose relief in circumstances that look nothing like each other. Screen for all four when a parallel state proceeding exists.

Go deeper: Winning Is Not Collecting: The Long Game of Judgment Enforcement · Section 1983 Litigation: A Comprehensive Guide to Constitutional Tort Claims · Labor Relations Under the NLRA: A Comprehensive Guide

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Pillar 10 — Prejudgment seizure

Doctrine. Federal Rule of Civil Procedure 64 borrows state law for every remedy that provides for seizing a person or property to secure satisfaction of a potential judgment — attachment, garnishment, replevin, sequestration, and their state analogues.

Anchors. Fed. R. Civ. P. 64; state attachment and replevin statutes; the due process line from Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), through Fuentes v. Shevin, 407 U.S. 67 (1972), Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975), and Connecticut v. Doehr, 501 U.S. 1 (1991), which together require judicial participation, a factual showing, security, and a prompt post-seizure hearing.

Trap. State attachment statutes are narrow, bond-heavy, and ground-specific — typically requiring a nonresident defendant, fraud, concealment, or removal of assets. Read the statute before promising a client a freeze; most commercial disputes do not qualify.

Trap, second order. The wrongful attachment exposure. Attaching a defendant's operating account and being wrong is a tort in many states, and the bond is the floor rather than the ceiling of exposure.

Trap, third order. The Defend Trade Secrets Act ex parte seizure provision, 18 U.S.C. § 1836(b)(2), is available only in extraordinary circumstances, carries detailed statutory requirements including a specific findings list and a hearing within seven days, and creates a damages action for wrongful seizure. It is powerful, rarely granted, and dangerous to request casually.

Go deeper: Trade Secret Litigation Under the DTSA: A Comprehensive Guide · Enforcing a Money Judgment: A Comprehensive Guide

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Pillar 11 — The property remedies

Doctrine. A cluster of remedies that reach property directly rather than through an order to a person.

Receivership. Fed. R. Civ. P. 66 and state analogues. A court officer takes control of property or a business with powers set by the appointing order. Expensive, disfavored, effective — and the motion frequently produces the settlement.

Lis pendens. A recorded notice that litigation affecting title to real property is pending, clouding title against a bona fide purchaser. Created by state statute. Misuse exposes the filer to slander of title and, in several states, statutory penalties and expungement with fees. File only where the action genuinely affects title.

Deposit into court. Fed. R. Civ. P. 67 permits deposit of a disputed sum, which stops interest and removes the dissipation risk.

Replevin and claim and delivery. Recovery of specific personal property, under Rule 64.

Constructive trust and equitable lien. Remedial devices that also serve as the pleading route around Grupo Mexicano, because they assert an equitable interest in identified property. Restatement (Third) of Restitution and Unjust Enrichment §§ 55, 56.

Anti-suit injunctions. An order restraining a party from prosecuting a parallel foreign proceeding. Circuits divide between a liberal approach focused on vexatiousness and a conservative approach requiring a threat to jurisdiction or an important public policy, with comity as the organizing concern.

Trap. Reaching for an injunction when a lis pendens or a deposit into court solves the problem with no bond, no hearing, and no four-factor showing. Match the remedy to the problem.

Go deeper: Enforcing a Money Judgment: A Comprehensive Guide · Litigating IP Across Borders: A Roadmap and Resource Library for International Disputes

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Pillar 12 — Appeal, stay, and scope

Doctrine. Orders granting, continuing, modifying, refusing, or dissolving injunctions are immediately appealable. A stay pending appeal applies the same factors. And the permissible scope of relief — how far beyond the parties an order may reach — has recently narrowed.

Anchors. 28 U.S.C. § 1292(a)(1); Fed. R. Civ. P. 62; Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 434 (2009); Trump v. CASA, Inc., 606 U.S. 831 (2025).

Trap. Assuming a TRO is appealable. It generally is not — unless it exceeds Rule 65(b)'s limits without consent or functions as a preliminary injunction with serious consequences reviewable only by immediate appeal.

Trap, second order. Scope. In Trump v. CASA, the Supreme Court held that universal injunctions likely exceed the equitable authority Congress conferred on federal courts, directing that relief be limited to what is necessary to give complete relief to the plaintiffs before the court. In litigation challenging government policy, that pushes practitioners toward Rule 23(b)(2) class certification and toward statutory vacatur under the APA as the vehicles for broader relief. Outside that context, the older constraint still governs: no broader than necessary to remedy the proven violation.

Trap, third order. Not moving first in the district court for a stay. Federal Rule of Appellate Procedure 8 requires it ordinarily, and skipping it costs days you do not have.

Go deeper: Federal Civil Appeals: A Comprehensive Guide · Taking a Civil Appeal: A Practical Checklist · Class Action Litigation: A Comprehensive Guide to Rule 23 · Challenging Agency Action Under the APA: A Practical Checklist

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The authority shelf

The standard

• Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)
• eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)
• Nken v. Holder, 556 U.S. 418 (2009)
• Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987)
• Sampson v. Murray, 415 U.S. 61 (1974)
• Elrod v. Burns, 427 U.S. 347 (1976)
• Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)
• Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010)

Procedure

• Fed. R. Civ. P. 65 (injunctions), 64 (seizure under state law), 66 (receivers), 67 (deposit), 52(a)(2) (findings), 62 (stay)
• Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local No. 70, 415 U.S. 423 (1974)
• Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968)
• W.R. Grace & Co. v. Local Union 759, 461 U.S. 757 (1983)

Enforcement

• Walker v. City of Birmingham, 388 U.S. 307 (1967)
• United States v. United Mine Workers, 330 U.S. 258 (1947)
• International Union, UMW v. Bagwell, 512 U.S. 821 (1994)
• In re Providence Journal Co., 820 F.2d 1342 (1st Cir. 1986)

Bars and scope

• Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999)
• Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970)
• Near v. Minnesota, 283 U.S. 697 (1931)
• Ex parte Young, 209 U.S. 123 (1908)
• Trump v. CASA, Inc., 606 U.S. 831 (2025)
• 18 U.S.C. § 3626; 26 U.S.C. § 7421; 28 U.S.C. § 2283; 29 U.S.C. §§ 101–115

Prejudgment seizure due process

• Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)
• Fuentes v. Shevin, 407 U.S. 67 (1972)
• Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)
• North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975)
• Connecticut v. Doehr, 501 U.S. 1 (1991)

Statutory injunctions

• 15 U.S.C. § 1116(a) (Lanham Act, with the Trademark Modernization Act presumption)
• 18 U.S.C. § 1836 (DTSA, including ex parte seizure)
• 17 U.S.C. § 502 (copyright); 35 U.S.C. § 283 (patent)

Secondary sources

• 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §§ 2941–2965
• Doug Rendleman & Caprice Roberts, Remedies: Cases and Materials
• Restatement (Third) of Restitution and Unjust Enrichment §§ 55–56 (constructive trust, equitable lien)

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Appendix A — The seventy-two-hour build

Hours 0–4. The harm question and the go/no-go. Reconstruct the timeline of discovery in writing, because delay will be the first attack.

Hours 4–12. Litigation hold. Forensic imaging of every relevant device before IT reassigns anything. Preservation demand to the adverse party. Collect access logs, download logs, VPN records, and badge data before retention cycles expire.

Hours 12–24. Select the claim and the exact relief. Confirm every element can be shown on the available record. Screen the statutory bars. Separate prohibitory from mandatory relief.

Hours 24–40. Declarations: client, forensic examiner, and — if obtainable — a third-party witness. Every declaration first-hand, specific, and dated. Exhibits assembled and the confidential ones prepared for sealing.

Hours 40–48. Draft the proposed order. Rule 65(d)-compliant: reasons, specific terms, conduct described in detail, exhibits attached rather than cross-referenced, persons bound identified.

Hours 48–60. Brief, organized by the four factors and leading with irreparable harm. Proposed findings. Motion for expedited discovery, narrow and scheduled. Motion to seal.

Hours 60–66. Local rules, standing order, and a call to the courtroom deputy. Determine the emergency presentment procedure, chambers copy requirement, and any telephonic notice certification.

Hours 66–72. Notice to the adverse party, documented. Surety arranged so the bond can be posted the same day. File.

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Appendix B — Remedy selection

Match the problem to the tool before drafting anything.

The problem	The remedy	Why
Defendant will disclose or use secret information	Preliminary injunction	Disclosure is irreparable; the strongest category
Defendant will move money before judgment	Not an injunction — Rule 64 attachment, or plead an equitable interest	Grupo Mexicano
Defendant will sell or encumber disputed real property	Lis pendens	No bond, no hearing, no four-factor showing
Disputed funds risk dissipation and the amount is fixed	Rule 67 deposit into court	Stops interest and removes the risk
Defendant possesses specific property the plaintiff owns	Replevin under Rule 64	Returns the thing rather than restraining a person
A business is being looted while litigation proceeds	Receivership under Rule 66	Control of the enterprise; the motion often settles the case
Parallel foreign proceeding is vexatious	Anti-suit injunction	Comity-constrained; check the circuit's approach
The facts are not yet known but the evidence is disappearing	Expedited discovery plus a preservation order	Faster, cheaper, and no bond
Government policy harms the plaintiff and many others	Party-specific injunction plus Rule 23(b)(2) class or APA vacatur	Trump v. CASA limits universal relief
Trade secret in imminent danger of dissipation abroad	DTSA § 1836(b)(2) ex parte seizure	Extraordinary circumstances only; wrongful seizure damages apply

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Related Documents

Guides

• Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide
• Trade Secret Litigation Under the DTSA: A Comprehensive Guide
• Enforcing a Money Judgment: A Comprehensive Guide to Discovery, Liens, Levy, and Fraudulent Transfer
• Federal Civil Appeals: A Comprehensive Guide
• Class Action Litigation: A Comprehensive Guide to Rule 23

Articles

• The Extraordinary Remedy: What It Really Takes to Get an Injunction Before Trial
• Winning Is Not Collecting: The Long Game of Judgment Enforcement
• Trademark Infringement and Related Rights: The Enforcement Landscape

Checklists

• Moving for a Temporary Restraining Order or Preliminary Injunction: A Practical Checklist
• When a Breach Hits Your Crown Jewels: A Trade Secret Incident Response Checklist
• Protecting Trade Secrets When Employees Leave: A Practical Checklist
• Issuing a Litigation Hold and Preserving ESI: A Practical Checklist

Toolkits

• The Civil Pretrial Toolkit: From Pleadings to Summary Judgment
• The Trade Secret Litigation Toolkit
• The Judgment Enforcement and Creditor Remedies Toolkit
• The Litigation Damages Toolkit: Valuing and Proving Money Awards