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noting that under Texas law, “[i]f a nondisclosure covenant has the practical effect of prohibiting the former employee from using, in competition with the former employer, the general knowledge, skill, and experience acquired in former employment, then it is more properly characterized as a noncompetition [clause].”
Summary of this case from Orthofix, Inc. v. HunterOpinion
Civil Action No. 3:04-CV-0330-N.
February 8, 2005
MEMORANDUM OPINION, ORDER, AND INJUNCTION
Before the Court is Plaintiff Oxford Global Resources, Inc.'s ("Oxford Global") motion for preliminary injunction, filed on June 10, 2004. Oxford Global asks the Court to enjoin four of its former employees from engaging in activities that are alleged to violate their employment agreements with Oxford. Because the former employees do not deny that they are violating these agreements, and because Oxford meets its burden to establish probable enforceability and other injunction requirements with respect to some but not all of the covenants at issue, the motion is granted in part and denied in part.
The Court will address Plaintiff's simultaneously filed Motion for Expedited Discovery in a separate order.
I. BACKGROUND
Plaintiff Oxford Global Resources, Inc. ("Oxford") provides technical staffing services. Oxford's employees maintain relationships with companies that regularly require the services of information technology professionals ("Clients") for discrete projects or time periods, and with computer service professionals ("Contractors") who offer services to such companies. Oxford claims that its goodwill, contact lists, and familiarity with the organizational structure of its Clients allow it to efficiently to match Clients with Contractors. Toward this end, Oxford invests substantial resources in computer databases and written materials containing information about Clients and Contractors, and in training its personnel to utilize this information. Oxford claims in addition to possess confidential methods for conducting practically every aspect of its business, and to invest substantial resources in training its personnel to implement these methods. Oxford requires its employees to accede to noncompetition, nonsolicitation, and nondisclosure covenants in connection with their employment agreements.
Defendants Michelle Weekley-Cessnun, Frederick J. Obert, Bryce Shields, and Jared Fannin (the "Former Employees") were formerly employed in Oxford's Euless, Texas office, but are currently employed by Defendant Management Alliance Group of Independent Consultants ("MAGIC") in Dallas, Texas. Oxford claims that the Former Employees have been blatantly violating their noncompetition, nonsolicitation, and nondisclosure covenants, and that MAGIC tortiously enticed them to do so. The Defendants do not deny that in their capacity as MAGIC employees, they are directly competing with Oxford for the business of Clients and Contractors they formerly serviced as Oxford employees. They do argue, however, that the covenants are unenforceable.
In the motion presently under consideration, Oxford seeks a preliminary injunction against each of the Former Employees. The relief sought varies among the four Former Employees in accordance with the wording in their respective contracts, but the essence of the relief sought is the same for each of them. Oxford asks the Court to enjoin Weekley-Cessnun, Obert, Shields, and Fannin from:
Obert's nondisclosure, nonsolicitation, and noncompetition covenants are contained in his employment agreement (the "Incorporated Agreement"). Fannin and Shields' nondisclosure, nonsolicitation, and noncompetition covenants are contained in agreements entitled "Confidentiality, Non-Solicitation and Non-Competition Agreement" (the "Separate Agreement"). Oxford Originally employed Weekley-Cessnun under the terms of a contract identical to that of Obert. Upon promotion to a new position, however, she later entered into a "Confidentiality, Non-Solicitation and Non-Competition Agreement" with wording substantially identical to that of Fannin and Shields. For purposes of the present motion, the only difference between the wording of Fannin and Shields' agreements and that of Weekley-Cessnun is that Weekley-Cessnun's agreement includes additional consideration as discussed infra, note 8.
1. Disclosing or utilizing Oxford's confidential and proprietary information.
2. For 12 months from the date of the injunction, calling on contractors whom they came to know through their employment at Oxford.
3. For 12 months from the date of the injunction, soliciting or providing services to any client company they came to know through their employment at Oxford.
4. For 12 months from the date of the injunction, persuading or inducing any current or recent Oxford employees to leave Oxford.
The Former Employees object to the imposition of these conditions.
II. PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion. Harris County v. CarMax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999). The movant must establish that (1) it has a substantial likelihood of prevailing on the merits; (2) there is a substantial threat that it will suffer irreparable injury if the preliminary injunction is denied; (3) the potential injury to the movant outweighs the potential injury posed by the injunction to the party proposed to be enjoined; (4) granting the preliminary injunction will not disserve the public interest. Guy Carpenter Co. v. Provenzale, 334 F.3d 459, 464 (5th Cir. 2003).
III. OXFORD IS ENTITLED TO A LIMITED INJUNCTION ENFORCING NONDISCLOSURE AGAINST EACH OF THE FORMER EMPLOYEES
Both the Incorporated Agreement signed by Obert and Weekley-Cussnun, and the Separate Agreement signed by Weekley-Cessnun, Fannin, and Shields, contain clauses prohibiting disclosure, use, copying, and removal of Oxford's trade secrets and confidential information. Oxford now seeks nondisclosure injunctions corresponding to these provisions. The Former Employees do not dispute Oxford's contention that they agreed to these conditions, and that proper consideration was called for and delivered in the form of disclosure of the confidential information.
Paragraph 4 of the Incorporated Agreement non-exclusively defines confidential information to include "candidate lists, candidate resumes, customer lists, customer job orders and related information, employee lists, personnel records, proposals, marketing strategies, policies and procedures, training an[d] operating materials, business and operating methods, and financial information." The Separate Agreement contains comparable wording.
Nondisclosure agreements are generally not considered to be restraints of trade under Texas law. See Provenzale, 334 F.3d at 663. Accordingly, they are not subject to the stringent requirements that Texas law places upon noncompetition agreements. The distinction, however, depends upon the exact requirements of the covenant. If a nondisclosure covenants has the practical effect of "prohibit[ing] the former employee from using, in competition with the former employer, the general knowledge, skill, and experience acquired in former employment," then it is more properly characterized as a noncompetition agreement. ZEP Manufacturing Co. v. Harthcock, 824 S.W.2d 654, 663 (Tex.App.-Houston [1st Dist.] 1988, no writ) (emphasis in original).
As an initial matter, the Court concludes that on the basis of the nondisclosure covenants, Oxford is not entitled to an injunction prohibiting the Former Employees from using or disclosing contact information or other confidential information to the extent it is committed to memory. In the employment context presently under consideration, the Court considers the network of acquaintances one comes to know through employment to be an aspect of the "general knowledge . . . and experience acquired in former employment" that one could utilize in competition with one's former employer. An agreement prohibiting a former employee in this field from disclosing his acquaintances would therefore be a noncompetition agreement in disguise, and would be unenforceable as such. Some of the other categories of confidential information — for example, financial information — might present different problems, but the present motion does not accuse the Former Employees of disclosing anything other than information related to Clients and Contractors. Accordingly, Oxford is not entitled to an injunction with respect to disclosure of information committed to memory.
Oxford's motion is not clear as to whether they construe the nondisclosure clauses in this manner. Similarly, the facts asserted by Oxford are inconsistent as to the importance of tangible customer lists in conducting Oxford's day-to-day business. The declaration of Lina Gallotto indicates that "it is not uncommon for Recruiters to know by memory the names and significant details of most, if not all, of the Oxford's [sic] Contractors with whom they are working, which can be in the hundreds." The declaration of Eddie Windebank, however, insinuates that Defendant Weekley-Cessnun took a written list of Contractors and their significant personal data with her when she left Oxford, and asserts that Defendant Fannin tried to do the same.
Such a noncompetition covenant would not be ancillary to or a part of an otherwise unenforceable agreement. Cf. Part IV.B., infra.
The situation is different with respect to tangible documents or computer files produced by Oxford or created through or copied from its databases or other materials. Such tangible or virtual documents do not constitute general knowledge and experience. To the contrary, the fact that a Former Employee took the steps necessary to remove such a file or document from Oxford's premises would support Oxford's characterization of its confidential information, including Client and Customer lists, as proprietary and difficult to duplicate. As such, the nondisclosure clauses as applied to such documents would not constitute noncompetition covenants, and would not be subject to the stringent requirements placed on such covenants.
This in turn supports Oxford's additional contention that these lists constitute trade secrets. Texas courts consider customer lists to constitute trade secrets when (1) an employer has taken substantial steps to maintain confidentiality of the lists; (2) the departing employee contractually acknowledges the confidentiality of the lists; and (3) the content of the lists is not readily ascertainable. Provenzale, 334 F.3d at 468. The former two requirements are clearly met in this case, and the willingness of departing employees to risk confrontation and litigation by removing customer list documents from Oxford's premises would suggest that the information on those lists was not readily ascertainable by other means.
Under normal principles of the law of contracts, the Court considers it substantially likely that Oxford could prevail on claims against the Former Employees, based on violations of the nondisclosure agreements' prohibitions against copying, removing, or disclosing Oxford's confidential documents. Such documents clearly fall under the relevant contractual definitions of confidential information, and each of the agreements is structured so that access to such confidential information serves as consideration for confidentiality. Moreover, the Former Employees' response to the present motion does not dispute Oxford's contention that several of them removed or attempted to remove paper or computer documents containing Oxford's confidential information. Instead, it takes the position that the nondisclosure covenants are unenforceable.
The other prerequisites for a preliminary injunction are also met. There is a substantial likelihood that Oxford would suffer irreparable injury through the Former Employees' disclosure or continued utilization of any confidential documents under their control, because loss of confidential information is a harm that is difficult to verify and to quantify. See American Express Financial Advisors v. Scott, 955 F. Supp. 688, 693 (N.D. Tex. 1996). Additionally, The balance of potential harms favors injunction. If the Former Employees do not have Oxford's documents under their control, then they will not be harmed by the injunction. Conversely, if the Former Employees do have such documents, and if they — contrary to the Court's expectation — ultimately prevail in establishing that they are within their rights to use and disclose them, nothing in the parties' factual representations suggests that they will be more than minimally harmed by the loss of their use for the duration of this case. It appears likely that Oxford, on the other hand, would be harmed on an ongoing basis by illegitimate use of such documents through gradual integration of their data into MAGIC's information systems and through potential loss of customers who might otherwise not have been solicited by the Former Employees. Finally, the Former Employees have presented no arguments as to why such an injunction would disserve the public interest, and the Court is aware of none.
IV. OXFORD IS ENTITLED TO AN INJUNCTION ENFORCING THE NONSOLICITATION COVENANTS AGAINST OBERT, BUT NOT TO ANY OTHER RELIEF UNDER THE NONSOLICITATION AND NONINDUCEMENT CLAUSESProvisions restricting solicitation of former employees and customers restrain trade and constitute covenants not to compete. See Miller Paper v. Roberts Paper Co., 901 S.W.2d 593, 599) (Tex.App.-Amarillo 1995, no writ). TEX. BUS. COM. CODE § 15.50 governs the enforcability of such covenants. As interpreted by the Texas Supreme Court in Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642, 647 (Tex. 1994), section 15.50 makes covenants not to compete enforceable when (1) there is an otherwise enforceable agreement between the parties; (2) the noncompetition covenant is ancillary to or a part of the otherwise enforceable agreement at the time the agreement is made; and (3) the noncompetition covenant contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee. See Light, 883 S.W.2d at 644. In addition, the following elements must be satisfied in order for a noncompetion covenant to be "ancillary to or a part of the otherwise enforceable agreement:" (1) The consideration given by the employer in the otherwise enforceable agreement must give rise to the employer's interest in restraining the employee from competing; (2) The noncompetition covenant must be designed to enforce the employee's consideration in the otherwise enforceable agreement. Id. at 647.
The parties' dispute over choice of law is controlled by DeSantis v. Wackenhut, 793 S.W.2d 670 (Tex. 1990), where the Texas Supreme Court held that a Texas resident's ability to conduct business within the State of Texas is a matter of such overriding importance as to subject a noncompetition agreement to Texas law despite the choice of law provision to the contrary. Oxford makes no attempt to distinguish DeSantis.
A. Oxford is Not Entitled to an Injunction Based on the Nonsolitation Clauses in the Separate Agreement
Oxford is not substantially likely to prevail in enforcing the nonsolicitation clause in the Separate Agreement signed by Weekley-Cessnun, Fannin, and Shields, because that nonsolicitation covenant was not ancillary to or a part of the otherwise enforceable agreement at the time the agreement was made. The preliminary inquiry under Light is whether there exists some otherwise enforceable agreement between the parties. Here, as the Court has already determined, Oxford is substantially likely to prevail in establishing that it has enforceable nondisclosure agreements with each of the Former Employees. However, due to differences in wording between the nondisclosure agreements in the Separate Agreement and the Incorporated Agreement, the former cannot support a covenant to compete.
"When illusory promises are all that support a purported bilateral contract, there is no contract." Light, 883 S.W.2d at 645. The Separate Agreement contains only illusory promises from Oxford. It obligates the employee signatory not to compete with Oxford, and indicates that the consideration for these obligation consists of (1) continued at will employment and (2) "[the] Company's disclosure of such Confidential information to Employee as is necessary for the performance of Employee's duties." Each of Oxford's promises is illusory because each "fails to bind the promisor who always retains the option of discontinuing employment in lieu of performance." Id. The Separate agreement can therefore form the basis for a valid nondisclosure agreement as a unilateral contract only — as an offer by the employee to keep confidential such information as the employer elects to disclose. See id. at 645 n. 6. Such a contract does not bind each of the parties at the time they enter into the noncompetition agreement, and therefore cannot constitute the "otherwise enforceable agreement at the time the agreement is made" that is necessary to support a covenant not to compete. Id. See also Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877 (Tex.App.-Dallas 2003, no pet.) ("If the underlying promise is illusory at the time the covenant is agreed to, the covenant is unenforceable even if the underlying promise later becomes enforceable as a unilateral contract.") (emphasis in original). Accordingly, Oxford is unlikely to prevail in enforcing nonsolicitation covenants contained in these agreements, and is not entitled to an injunction to that effect.
The Separate Agreement signed by Weekley-Cessnun additionally indicates that a grant of stock options constitutes consideration for her noncompetition covenants. An agreement based on such consideration is not ancillary to noncompetition covenants, because stock options do not give rise to an employer's interest in restraining competition or solicitation.
B. Oxford is Entitled to an Injunction against Obert only, Based on the Nonsolicitation Clauses in the Incorporated Agreement
In contrast to its conclusion with respect to the Separate Agreement, the Court concludes that the nonsolicitation clauses in the Incorporated Agreement are, upon ultimate determination, substantially likely to be held enforceable. In addition, the Court concludes that the prerequisites are met for a preliminary injunction, against Obert only, on the basis of this agreement.As a preliminary matter, the Court cannot conclude that Oxford is substantially likely to prevail in establishing that the Incorporated Agreement applies to Weekley-Cessnun, who signed such an agreement in 1998. Paragraph 6 prohibits solicitation for 12 months "[f]ollowing the termination of [Weekley-Cessnun's] employment under this Agreement" (emphasis added). In 2001, in connection with a promotion, Weekley-Cessnun entered into the second agreement, whose nonsolicitation covenants this Court has already determined are not likely to be enforceable. That agreement, according to paragraph 5.2, "constitutes the entire understanding and agreement of Employee and [Oxford] with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous agreements. . . ." It appears from these provisions that the nonsolicitation covenants of the Incorporated Agreement do not presently bind Weekley-Cessnun, and Oxford has offered no alternative interpretation of the agreements. Accordingly, the Incorporated Agreement does not provide a basis for a preliminary injunction against Weekley-Cessnun.
Notwithstanding this analysis, the Court rejects the Former Employees' general contention that their noncompetition and nondisclosure agreements are unenforceable because some of them eventually assumed positions with titles other than those indicated on the agreements. The Former Employees direct the Court to no passage of either agreement that would make the relevant covenants inapplicable in the event of a promotion or redesignation of job title.
As applied to Obert, however, the Incorporated Agreement's nondisclosure provisions create an otherwise enforceable agreement between the parties. The agreement provides that "Oxford has provided and will continue to provide [Obert] with access to certain proprietary, trade secret and other confidential information . . .," and imposes nondisclosure obligations on the employee "[i]n consideration of Oxford's having provided and continuing to provide employee with Confidential company information." Disregarding the reference to past consideration, this language creates a bilateral contract. In contrast to the Separate Agreement, Oxford would breach this agreement were it to fire the contracted employee without ever having given him access to confidential information. Moreover, under the Fifth Circuit's interpretation of Texas law, this contemporaneous exchange of promises (to grant access to information and correspondingly not to disclose it) constitutes an otherwise enforceable agreement "at the time the agreement is made." See Olander v. Compass Bank, 3363 F.3d 56, 566 n. 15 (5th Cir. 2004); Provenzale, 363 F.3d at 466.
The nonsolicitation covenants also satisfy Light's conditions for being "ancillary to or a part of" the otherwise enforceable nondisclosure agreement. Indeed, the relationship between these covenants exactly tracks the example in Light: "If an employer gives an employee confidential and proprietary information or trade secrets in exchange for the employee's promise not to disclose them, and the parties enter into a covenant not to compete, the covenant is ancillary to an otherwise enforceable agreement." 883 S.W.2d at 647 n. 14. The consideration given by the employer in the enforceable nondisclosure agreement gives rise to the employer's interest in restraining the employee from competing in a manner that would encourage him to utilize or disclose Oxford's confidential information. Cf. id. Likewise, the nonsolicitation covenant is designed to enforce the employee's consideration — nondisclosure — in that it seeks to prevent a situation where the employee might be tempted to breach the nondisclosure covenant, and where enforcement of that covenant would be difficult. Cf. id.
Although it is a closer issue, the Court additionally concludes that Oxford is substantially likely to establish that the time, geographical area, and scope of activity restrained by this nondisclosure covenant is reasonable and imposes restraints no greater than is necessary to protect the goodwill or other business interest of the promisee. The Texas Supreme Court has explained that "the fundamental legitimate business interest that may be protected by [nonsolicitation] covenants is in preventing employees or departing partners from using the business contacts and rapport established during the relationship of representing the accounting firm to take the firm's customers with him." Peat Marwick Main Co. v. Haass, 818 S.W.2d 381 (Tex. 1991). The limitations in the Incorporated Agreement appear reasonably calculated to protect a comparable interest. The one year time period is the same as that approved for nonsolicitation clauses in American Express Financial Advisors v. Scott, 955 F.Supp. 688, (N.D. Tex. 1996) and in numerous additional cases cited by Oxford. Also as in Scott, the nonsolicitation covenants contain no geographic limitations. They concern themselves only with particular customers, and the Former Employees do not contest Oxford's representation that numerous alternative customers exist. With regard to scope, the Court's only concern stems from the fact that Oxford's customers are also Oxford's product — Oxford "sells" Clients to Contractors and vice versa. The economic issues presented by nonsolicitation covenants in this industry may therefore be distinguishable from those presented in cases such as Peat Marwick. The submissions thus far suggest, however, that if there is any difference, it is that the economic necessity of using limited nonsolicitation covenants to protect and encourage investment and innovation is even greater in such an industry. Accordingly, the Court concludes that there is a substantial likelihood that Oxford can establish the reasonableness and appropriateness of the nonsolicitation covenants, and that it can thereby prevail on the merits of its nonsolicitation claim based on the Incorporated Agreement.
The other prerequisites for preliminary injunction are also met. There is a substantial likelihood that Oxford would suffer irreparable injury through the Former Employees' violation of valid nonsolicitation clauses. See Scott, 155 F. Supp. at 693 ("In Texas, injury resulting from the breach of non-compete covenants is the epitome of irreparable injury"); TEX. BUS. COM. CODE § 15.51 (expressly providing for injunctions as a remedy for the violation of noncompetition covenants). With respect to balance of potential harms, if Obert continues to violate valid nonsolicitation covenants, he will injure Oxford on an ongoing basis in ways that are difficult to verify, quantify, and rectify. Conversely, if Obert is incorrectly enjoined from soliciting his prior customers, he will still have the opportunity to expand his customer portfolio by soliciting business from a broad range of alternative customers. In such circumstances, the balance of harms favors protection of the employer. Scott, 955 F.Supp. at 693; Ruscitto v. Merrill Lynch, Pierce, Fenner Smith, 777 F.Supp. 1349, 1354 (N.D. Tex. 1991). Finally, the public interest is not disserved by the imposition of an injunction in circumstances such as this. See 955 F. Supp. at 693-94; 777 F. Supp. at 1354.
Oxford is therefore entitled to a preliminary injunction against Obert, in accordance with the terms of the nonsolicitation covenant in the Incorporated Agreement. Although the covenant by its own terms only runs 12 months from Obert's January 30, 2004 departure from Oxford, the injunction shall run for 12 months from the date of this Order, or until the final disposition of this case if earlier. This is in accordance with paragraph 6 of the Incorporated Agreement, which tolls the 12 month nonsolicitation period for any period when Obert is in violation of a noncompetition covenant, and with the Court's equitable power to extend a contractual expiration date to compensate for its own delay in addressing a motion for preliminary injunction. See Provenzale, 334 F.3d at 464.
C. Oxford is Not Entitled to a Noninducement Injunction Based on Either Agreement
Both the Incorporated Agreement and the Separate Agreement contain covenants prohibiting the Former Employees from inducing other Oxford Employees to leave their employment. The noninducement clause in the Separate Agreement is likely to be unenforceable for the reason already discussed: the otherwise enforceable nondisclosure agreement on which it rests is a unilateral contract that does not constitute an "otherwise enforceable agreement at the time the agreement is made." See Part IV.A., supra. Oxford is therefore not entitled to a noninducement injunction against Fannin, Shields, or Weekley-Cessnun. The remaining question is whether Oxford is entitled to an injunction against Obert. Paragraph 6 of his contract — the Incorporated Agreement — provides that "during the period of employment and up until one year after the termination of employment, [the employee] will not induce or attempt to induce any other employee of Oxford to leave Oxford's employ for the purpose of entering employment with a competing business."
Only the Separate Agreement applies to Weekley-Cessnun. See Part IV.B., supra.
Oxford has not shown that it is substantially likely to prevail on the merits on the basis of this provision. As an initial matter, the noninducement agreement does not satisfy Light's requirement for being ancillary to or a part of an otherwise enforceable agreement. Those requirements are (1) that the consideration given by the employer in the otherwise enforceable agreement give rise to the employer's interest in restraining the employee from competing; and (2) that the noncompetition covenant be designed to enforce the employee's consideration in the otherwise enforceable agreement. Id. at 647. Oxford does not explain how its delivery of confidential information to Obert gives rise to an interest in preventing him from inducing other Oxford employees to leave. Oxford likewise does not explain how a prohibition on raiding Oxford's other employees "enforces" Obert's obligation not to disclose information already in his possession. While a company could conceivably view noninducement contracts as reciprocally reinforcing the nondisclosure covenants of similarly situated employees governed by identical contracts, the noninducement covenant at issue is not tailored to that purpose, and Oxford does not explain how the agreement as written can satisfy the requirements of Light.
Additionally, Oxford present no arguments or authority concerning the reasonableness and necessity of imposing these obligations on top of the other noncompetition covenants, and likewise none concerning likelihood of irreparable injury, balance of harms, and disservice of public interest as they specifically relate to the noninducement covenant. Because of the relatively attenuated connection between the act of inducement and the legitimate interests Oxford seeks to protect, its arguments with respect to nondisclosure and nonsolicitation are insufficient to meet Oxford's burden of demonstrating that it is entitled to preliminary relief with respect to noninducement. See Provenzale, 334 F.3d 459 ("A preliminary injunction is an extraordinary remedy which courts grant only if the movant has clearly carried the burden as to all four elements."). Accordingly, Oxford is not entitled to a preliminary injunction with respect to inducement.
V. CONCLUSION AND INJUNCTION
Oxford is entitled to limited nondisclosure injunctions against Obert, Weekley-Cessnun, Fannin, and Shields. Oxford is entitled to a nonsolicitation injunction against Obert only. Oxford is not entitled to noninducement injunctions against any of the Defendants. Accordingly, the Court hereby ORDERS and ENJOINS as follows, conditioned upon delivery of $5,000 security in conformity with Federal Rule of Civil Procedure 65(c).
A.
In accordance with the applicable provisions of the Confidentiality, Non-Solicitation and Non-Competition Agreement, referenced in the present Order as the "Separate Agreement," Weekley-Cessnun, Fannin, and Shields shall refrain from possessing or using any tangible or electronic documents containing confidential or proprietary information of Oxford, or which were copied or derived from tangible or electronic documents containing confidential or proprietary information of Oxford, and shall refrain from furnishing, disclosing, divulging, or making accessible the contents of such documents to any party outside of Oxford. For purposes of this paragraph, confidential or proprietary information of Oxford shall be defined as specified in paragraph 1.3 of the Separate Agreement, and shall accordingly extend without limitation to Oxford's employee lists, to candidate and contractor lists as well as resumes and related information, and to information on Oxford's customers and prospective customers, including their identity, special needs, job orders, preferences, transaction histories, contacts, characteristics, agreements and prices. In the event that Oxford, Weekley-Cessnun, Fannin, or Shields possesses documents covered by this injunction, they shall not destroy such documents but shall turn them over to counsel for Oxford, to be made available to opposing counsel as required in the ordinary course of discovery.
B.
In accordance with the applicable provisions of his "Employment Agreement," referenced in the present Order as the "Incorporated Agreement," Obert shall refrain from using, copying, removing, or disclosing the contents of any tangible or electronic documents containing confidential or proprietary information of Oxford, or which were copied or derived from tangible or electronic documents containing confidential or proprietary information of Oxford. For purposes of this paragraph, confidential or proprietary information of Oxford shall be defined as specified in paragraph 4.a. of the Incorporated Agreement, and shall accordingly extend without limitation to Oxford's candidates lists, candidate resumes, customer lists, employee lists, and customer job orders and related information. In the event that Oxford or Obert possesses documents covered by this injunction, they shall not destroy such documents but shall turn them over to counsel for Oxford, to be made available to opposing counsel as required in the ordinary course of discovery.C.
In accordance with paragraph 6 of the Incorporated Agreement, Obert shall refrain, for a period of twelve (12) months from the date of this Order and Injunction, from calling on any temporary employee candidate or corporate customer with whom Obert directly or indirectly worked or in any way communicated during the 12 month period prior to cessation of his employment at Oxford.