Why Trade Secret Injunctions Are Getting Vacated: Proving Irreparable Harm and Writing the Forensic Protocol

Benjamin Herbert, Partner | Procopio, Cory, Hargreaves & Savitch LLP

Benjamin Herbert is a partner in the Irvine office of Procopio, Cory, Hargreaves & Savitch LLP, where his litigation practice centers on trade secret misappropriation and patent infringement disputes. He has represented a Houston-based compounding pharmacy in a trade secret misappropriation action against its former employees, represented a low-carbon energy solutions company in a trade secret misappropriation action, and served on trial teams that secured $750 million and $850 million jury verdicts in cases combining trade secret misappropriation with copyright infringement and related torts. He is a member of the Sedona Conference Working Group 12 on trade secrets.

• Education & Credentials

Mr. Herbert earned his J.D., summa cum laude, from the Sandra Day O’Connor College of Law at Arizona State University in 2010 and holds a B.A. in Molecular, Cellular, and Developmental Biology from the University of Colorado (2004). He is admitted to practice in California.

• Recognition & Leadership

He is listed as a Notable practitioner in the WIPR USA Trade Secrets Rankings for 2024–2025, named to the IAM Strategy 300 Global Leaders for 2025–2026 and WIPR Leaders for 2026, and was recognized in Best Lawyers: Ones to Watch for Patent Law and Litigation-Patent in 2024.

• Professional Involvement

Mr. Herbert is a member of the Sedona Conference Working Group 12 (Trade Secrets) and the American Intellectual Property Law Association. His writing on trade secret practice includes “California’s Ban on Non-Competes Is Reshaping Competition Through Trade Secret Litigation” (Procopio, 2026), “Funding of Trade Secret Litigation” (AIPLA, 2024), and “At five: DTSA has shown its staying power” (Managing Intellectual Property, 2021). His speaking engagements include “Employee Departures: Digital Forensics, Noncompete Bans, & IP Protection” (UnitedLex, 2024), “What Actually Happens in Trade Secret Litigation” (Tangibly, 2024), and a December 2025 myLawCLE panel on transforming AI technology into legally defensible trade secrets and winning when those secrets are stolen.

• Experience

Mr. Herbert’s trade secret trial work includes the $750 million verdict for a digital mobile radio manufacturer and the $850 million verdict for a health insurance plan management software provider, each combining trade secret misappropriation with copyright and tort claims. He also helped secure a $30 million jury verdict for a predictive online customer service technology provider on patent infringement and trade secret misappropriation claims. In all, he was a key member of three trial teams that secured more than $1.5 billion in jury verdicts over two years. His broader practice includes leading multi-district patent litigation campaigns and representing medical device and microprocessor companies in patent
actions.

SESSION 1 – Proving Irreparable Harm in a Departing-Employee Trade Secret Injunction |  2:30pm – 3:30pm

This session examines why courts are vacating and denying trade secret preliminary injunctions against departing employees, with a focus on the irreparable harm element. Attorneys will analyze the post-eBay circuit landscape, the evidentiary standards courts are actually applying, and the specific mistakes— delayed filing, quantifiable harm framing, vague trade secret identification—that sink injunction motions. The session addresses whether irreparable harm is still presumed and how the answer changes by circuit, statute, or state law; which categories of harm courts treat as inherently unquantifiable and which framings destroy the motion; how long a plaintiff can wait before delay defeats the urgency showing; how specifically a trade secret must be identified before a court will evaluate harm; and whether the inevitable disclosure doctrine still reliably supports a preliminary injunction under the DTSA. Attendees will leave with a concrete evidentiary checklist and strategic framework for building or defeating an irreparable harm showing from day one.

BREAK | 3:30pm – 3:40pm

SESSION 2 – Drafting the Forensic Examination Protocol and Injunction Terms That Survive Appeal | 3:40pm – 4:40pm

This session examines why trade secret injunctions are vacated on appeal and how to draft forensic examination protocols and injunction terms that withstand scrutiny. Attorneys will learn the Rule 65(d) specificity requirements that courts enforce, the eBay factors that must be independently supported for permanent injunctions, and the technical and procedural elements of a defensible forensic protocol. The session addresses the specific drafting failures that cause injunctions to be vacated under Rule 65(d); how to define trade secrets with enough particularity to survive appellate review without locking in the client’s position; what a forensic examination protocol must include to produce evidence that satisfies courts and amended Rule 702; when an injunction’s scope becomes overbroad and how to narrow it while still protecting the client’s secrets; how the eBay four-factor test applies to permanent injunctions after the Fifth Circuit’s 2025–2026 decisions; and what a monitorship is and when practitioners should propose one as part of permanent injunctive relief. Practitioners will leave with a practical checklist for drafting narrowly tailored injunction language and court-compliant forensic orders, drawn from the Federal Circuit’s 2024 Insulet reversal, the Fifth Circuit’s 2025 2026 guidance, and the Federal Judicial Center’s Trade Secret Case Management Judicial Guide.