Cisco’s General Counsel, Mark Chandler, has taken the unconventional step of writing a blog post criticizing Hewlett-Packard for repeatedly suing former employees who have joined Cisco over the past two years.  This post follows, and apparently details, the recent lawsuit filed by HP filed against its former Chief Technologist, Paul Perez, who joined Cisco on November 14 (for more on the litigation, see my recent post).  HP had sought to enforce a non-compete in Texas after Perez had filed an action in California challenging the enforceability of that same non-compete.

According to Chandler’s post, Perez has prevailed — emphatically — in the two lawsuits thus far.  Chandler reports that Perez’s Texas attorney was able to derail an effort at an ex parte temporary restraining order that was hurriedly scheduled in advance of a pending hearing in the California action on the very same issue.  Cisco’s legal department had reached out to HP to resolve the dispute before the California hearing, advising HP’s legal staff that Cisco had put safeguards in place to protect HP’s trade secrets (as HP had done earlier this year to insulate itself in a dispute with IBM, about which I also recently posted).

Instead of responding to that olive branch, HP apparently sought an “emergency” TRO conference without notice to Perez or Cisco even though the California hearing was scheduled to begin in two hours.  When Perez’s Texas attorney saw HP’s filing online, he appeared before the Texas court unexpectedly to report that “the matter was already in front of a California court, with HP fully represented.”  Chandler noted that “the judge in Texas was not impressed by HP’s effort to get her to act without a hearing,” that “she refused to proceed” on HP’s TRO request, and later that day “the California judge issued an order allowing [Perez] to begin his new career at Cisco.”

This resounding win and resulting post are both getting a fair amount of coverage.  The Wall Street Journal’s Law Blog, the San Francisco Chronicle, the San Jose Business Journal, and technology blogs like All Things Digital have all reported on Chandler’s post.  I have not been able to access either court’s ruling but, given the attention this case is receiving, I will do a post later once I have the opportunity to review them. 

The lesson here is ex parte requests are rarely granted and even more rarely appreciated by courts.  This is especially true when the court learns that the other side has counsel and has expressed an interest in trying to work things out.  In these high profile disputes, this aggressive approach can backfire and result in not only a legal but public relations coup for the other side.