An ex parte seizure order is the Defend Trade Secrets Act’s most aggressive remedy: a federal court directs law enforcement to take physical possession of property without notice to the person holding it, before that person has said a word in court. It lives at 18 U.S.C. § 1836(b)(2), and the statute itself says it is available “only in extraordinary circumstances.” Courts have taken that phrase seriously, and the remedy is granted far less often than the alarm surrounding its 2016 enactment predicted.
The narrow purpose matters. Seizure exists to prevent the “propagation or dissemination” of a trade secret, not to punish a defendant or to gather evidence. It is a containment tool for the situation where the secret is about to leave the country on a laptop and no paper order will stop it.
An ordinary temporary restraining order under Rule 65 of the Federal Rules of Civil Procedure commands a person to stop doing something. It works because people generally obey court orders, and because disobedience means contempt. The order is a piece of paper backed by a threat.
A § 1836(b)(2) seizure skips the asking entirely. A federal law enforcement officer serves the order and carries out the seizure. Section 1836(b)(2)(E) is explicit about who may take part: the court may allow state or local law enforcement officials to participate, but “may not permit the applicant or any agent of the applicant to participate in the seizure.” There is no exception for the applicant. The only outside participant the statute contemplates is a technical expert who is unaffiliated with the applicant, bound by a court-approved nondisclosure agreement, allowed in at law enforcement’s request and only if the court finds the expert will aid execution and minimize the burden of the seizure.
The whole design assumes a defendant who will not comply. That is precisely what § 1836(b)(2)(A)(ii)(I) requires the court to find: that a Rule 65 order “would be inadequate to achieve the purpose of this paragraph because the party to which the order would be issued would evade, avoid, or otherwise not comply with such an order.” If a TRO would work, seizure is off the table. This single clause explains most denials.
Section 1836(b)(2)(A)(ii) says the court “may not grant” the application unless it finds, from specific facts, all eight of the following:
Read as a set, these are cumulative and unforgiving. An applicant who cannot say where the laptop is fails the sixth. An applicant who has a cooperative former employee fails the first and seventh. The findings must rest on an affidavit or verified complaint, not on argument.
Passing the eight findings is not the end. Section 1836(b)(2)(B) dictates the order’s contents. It must set out findings of fact and conclusions of law, provide for the narrowest seizure necessary, and be executed in a way that minimizes disruption to third parties and, where possible, to the target’s legitimate business.
It must be accompanied by a protective order barring both sides from accessing or copying the seized material until there has been a hearing. It must give the executing officers explicit guidance on the hours of execution and whether force may be used on locked areas. It must set the hearing date. And under § 1836(b)(2)(B)(vi), it must require the applicant to post security adequate to cover damages from a wrongful or excessive seizure.
Then the court, not the applicant, takes custody. Section 1836(b)(2)(D) requires the court to secure the material from physical and electronic access, to keep any storage medium off the network and off the internet without both parties’ consent, to protect the confidentiality of seized material unrelated to the trade secret, and permits appointment of a special master, bound by a court-approved nondisclosure agreement, to separate the trade secret material from everything else. A seizing party who imagined it would get to read the defendant’s hard drive has misread the statute badly.
The order must set a hearing “at the earliest possible time, and not later than 7 days after the order has issued,” unless the affected parties consent to a different date. Anyone harmed by the order can move to dissolve or modify it at any point, on notice to the applicant.
At that hearing the burden sits where it belongs. Under § 1836(b)(2)(F)(ii), the applicant has the burden of proving the facts supporting the findings that justified the order. The ex parte posture bought the applicant surprise, not a presumption. If the applicant cannot carry that burden on the record, the order is dissolved or modified, and the wrongful seizure exposure in the next section comes into view.
Section 1836(b)(2)(G) creates a cause of action for anyone who “suffers damage by reason of a wrongful or excessive seizure,” running against the applicant. The relief tracks section 34(d)(11) of the Trademark Act of 1946, codified at 15 U.S.C. § 1116(d)(11), which allows recovery of lost profits, cost of materials, loss of good will, punitive damages where the seizure was sought in bad faith, and a reasonable attorney’s fee unless the court finds extenuating circumstances.
Notice who bears this. Not the marshals, and not the court. The applicant who asked for the order. Combine that with the mandatory security bond and the seven-day burden, and the risk profile of a seizure application is unlike anything else in trade secret practice. A party that guesses wrong about possession, or that overreaches on scope, can end up funding its adversary’s case.
The reported record is thin and mostly negative. Mission Capital Advisors LLC v. Romaka (S.D.N.Y. 2016) is generally described as the first granted seizure, and the facts were extreme: the defendant had evaded personal service repeatedly and failed to appear for a preliminary injunction hearing. That is the profile the statute contemplates, a person who has already demonstrated that orders do not reach him.
Contrast OOO Brunswick Rail Management v. Sultanov (N.D. Cal. 2017), where the court denied seizure and instead used Rule 65 to require the defendant to deliver his devices to the court without accessing or modifying them, and Magnesita Refractories Co. v. Mishra (N.D. Ind. 2017), where the court used a Rule 65 TRO to order the defendant to turn over his laptop for safekeeping by the Clerk of Court rather than invoke the DTSA seizure machinery, and later refused to dissolve that order. Both reach the same conclusion by the same route: the first statutory finding failed, so nothing else mattered.
The practical lesson is that the seizure provision functions less as a remedy applicants win and more as a boundary the statute draws. Most parties facing a genuine emergency get a TRO with an expedited preservation and turnover component, which accomplishes the containment without the bond, the marshals, or the wrongful seizure exposure.
What is a DTSA ex parte seizure order? It is an order under 18 U.S.C. § 1836(b)(2) directing federal law enforcement to seize property necessary to prevent the propagation or dissemination of a trade secret, issued without notice to the target and before that person has any chance to respond. The statute permits it only in extraordinary circumstances, and only when a Rule 65 temporary restraining order would be inadequate because the target would evade or disobey it.
What are the requirements for a DTSA seizure order? Section 1836(b)(2)(A)(ii) lists eight findings the court must make from specific facts: that Rule 65 relief would be inadequate; that immediate and irreparable injury will occur; that the balance of harms favors the applicant and substantially outweighs harm to third parties; that the applicant is likely to show the information is a trade secret and was misappropriated by improper means; that the target actually possesses the trade secret and the property; that the application describes the matter and location with reasonable particularity; that the target would destroy, move, or hide the material if given notice; and that the applicant has not publicized the request.
How often do courts grant DTSA seizure orders? Very rarely. In the years since the DTSA was enacted in May 2016, only a handful of reported grants exist, and courts have repeatedly denied applications on the ground that a Rule 65 order would work just as well. Mission Capital Advisors v. Romaka is generally described as the first grant. Brunswick Rail Management v. Sultanov and Magnesita Refractories v. Mishra both denied seizure and used Rule 65 instead.
What happens if a seizure order is wrongful? Section 1836(b)(2)(G) gives anyone damaged by a wrongful or excessive seizure a cause of action against the applicant, with the same relief available under section 34(d)(11) of the Trademark Act, codified at 15 U.S.C. § 1116(d)(11). That can include lost profits, cost of materials, loss of good will, punitive damages where the seizure was sought in bad faith, and attorney’s fees. The court also requires the applicant to post security before the seizure happens.
Going further: What to do about trade secret misappropriation, step by step .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
A DTSA seizure applicant stumbles at the threshold: the customer list was never shown to be a trade secret, so proof of copying alone could not carry it.
A Utah federal court granted a rare DTSA ex parte seizure, persuaded by defendants who deleted data, used false identities, and would evade an ordinary order.
Weeks after the Defend Trade Secrets Act became law, a California court granted one of its first restraining orders against a departing employee, and nobody reached for the statute's dramatic ex parte seizure remedy.
An early decision construing the Defend Trade Secrets Act's ex parte civil seizure remedy denies the order as unnecessary, modeling the preservation-and-TRO path most courts now follow.
A Utah court granted a DTSA ex parte seizure where the defendants had supplied false information, hidden and moved files, and possessed the technical skill to defeat an ordinary injunction, a rare case clearing the statute's high bar.
An Indiana court held that a Rule 65 temporary restraining order can authorize the seizure of a defendant's laptop to preserve trade-secret evidence, sidestepping the DTSA's stringent ex parte seizure provision entirely.
The earliest civil seizure order under the Defend Trade Secrets Act issued only after a temporary restraining order failed, modeling seizure as the remedy of last resort rather than first resort.
