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Click here for the full text of this decision FACTS: This is an interlocutory appeal from the trial court’s grant of a temporary injunction. The appellant, Jeff Fox, individually and doing business as Freshwater Fish Inc., appeals from the trial court’s order enjoining him and his agents, servants, employees, attorneys and all those acting on his behalf from 1. altering, destroying, or using information contained in a rolodex and computer that he removed from appellee Tropical Warehouses Inc.’s premises; and 2. selling tropical freshwater fish within Texas to Wal-Mart or Petco. HOLDING: Affirmed as modified. A trade secret is “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” In Re: Bass, 113 S.W.3d 735 (Tex. 2003). The supreme court has identified six nonexclusive relevant criteria a court should consider in determining whether information is entitled to trade secret protection: 1. the extent to which the information is known outside the holder’s business; 2. the extent to which it is known by employees and others involved in the holder’s business; 3. the extent of the measures taken by the holder to guard the secrecy of the information; 4. the value of the information to the holder and its competitors; 5. the amount of effort or money expended by the holder in developing the information; and 6. the ease or difficulty with which the information could be properly acquired or duplicated by others. Information generally known and readily available is not protectable, but the fact that information is discoverable by lawful means does not deprive its owner of protection from one acquiring it by unfair means. Gonzales v. Zamora, 791 S.W.2d 258 (Tex. App. � Corpus Christi 1990, no writ). Even in the absence of an enforceable nondisclosure agreement, a former employee may not use confidential information or trade secrets the employee learned in the course of his employment for his own advantage and to the detriment of his employer. Rugen v. Interactive Bus. Sys. Inc., 864 S.W.2d 548 (Tex. App. � Dallas 1993, no writ). When deciding whether to grant or deny a request for a temporary injunction, the trial court does not decide whether the information sought to be protected is a trade secret; rather it determines whether the applicant has established that the information is entitled to trade secret protection until a trial on the merits. Ctr. for Econ. Justice v. Am. Ins. Ass’n, 39 S.W.3d 337 (Tex. App. � Austin 2001, no pet.). That an order is issued granting trade secret protection does not mean the protected information is a trade secret. The evidence shows that Fox has access to and possession of TWI’s pricing information, customer lists, sales and payroll data, and other information regarding TWI’s relationship with Wal-Mart and Petco. The evidence further shows that TWI did not intend to share this information outside of the business, that it took steps to limit the number of employees with access to the information, and that this type of information is not generally shared within the industry. This information is important to TWI’s business because 1. a competitor with knowledge of TWI’s prices could use that information to undercut the prices TWI charges to Wal-Mart, its largest, and for all practical purposes sole, current customer; and 2. TWI cannot update its sales and payroll reports without access to the prior versions on Fox’s computer. Thus, applying the relevant criteria and the appropriate standard of review, the court holds that the trial court did not abuse its discretion in determining that TWI’s price lists, customer lists and the information contained in the reports introduced into evidence as exhibit 20 are entitled to trade secret protection until trial. Fox contends that even if this information is entitled to trade secret protection, TWI has not proven that he is using the information to gain a competitive advantage over TWI. However, TWI is not required to prove that Fox is actually using the information; it need only prove that he is in possession of the information and is in a position to use it. Not only was Fox privy to this information while employed with TWI, the evidence shows that he has access to the information via the computer and rolodex he removed from TWI’s premises. Because TWI’s evidence of injury with respect to Freshwater Fish’s sales to Petco is merely speculative, the court holds that the trial court abused its discretion in finding that TWI would suffer a probable, imminent, irreparable injury if Fox and Freshwater Fish were not temporarily enjoined from selling tropical freshwater fish to Petco in Texas. OPINION: Livingston, J.

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