Trade Secrets

Brunswick Rail v. Sultanov: Why Courts Keep Saying No to DTSA Seizure

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.

February 7, 2026
A laptop and mobile phone sealed in a labeled evidence bag on a desk
Brunswick shows courts preserving devices through ordinary equitable relief rather than marshal-executed seizure. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In OOO Brunswick Rail Management v. Sultanov, No. 5:17-cv-00017-EJD (N.D. Cal. Jan. 6, 2017), Judge Edward J. Davila of the United States District Court for the Northern District of California, San Jose Division, confronted one of the first applications for the most aggressive remedy Congress created when it enacted the Defend Trade Secrets Act of 2016: the ex parte civil seizure order under 18 U.S.C. § 1836(b)(2). Plaintiffs OOO Brunswick Rail Management and Brunswick Rail Group Limited alleged that two former executives, Richard Sultanov and Paul Ostling, had funneled the company’s confidential information to a creditor to undermine Brunswick in debt-restructuring negotiations. Brunswick asked the court to dispatch the U.S. Marshals to seize a company-issued laptop and mobile phone in Sultanov’s possession, and to compel Google and Rackspace to hand physical copies of the defendants’ account data to the court. In an eight-page order (Dkt. No. 15) granting the application in part and denying it in part, Judge Davila refused the seizure—and in doing so produced an early, influential template for how district courts would treat the DTSA’s signature remedy.

At a glance

  • Case: OOO Brunswick Rail Management v. Sultanov, No. 5:17-cv-00017-EJD
  • Court: U.S. District Court for the Northern District of California, San Jose Division
  • Judge: Edward J. Davila
  • Filed: January 6, 2017 (order on ex parte application, Dkt. No. 15)
  • Relief sought: Ex parte DTSA seizure of a laptop and phone; seizure of cloud-account data via Google and Rackspace; preservation order; expedited discovery; TRO; and an order to show cause on a preliminary injunction
  • Holding: DTSA seizure denied as “unnecessary” because the court could protect the evidence through a delivery-to-the-court order and a TRO; preservation order and TRO granted; expedited discovery denied for failure to show good cause
  • Significance: One of the earliest reasoned decisions on § 1836(b)(2), and an enduring illustration of why courts route around seizure to Rule 65 relief

The DTSA, signed into law on May 11, 2016, federalized civil trade-secret claims and—uniquely among intellectual property statutes—armed plaintiffs with the power to ask a court, without notice to the defendant, to order law enforcement to physically seize property. The provision was the most contested feature of the bill. Brunswick arrived barely eight months later and shows a court treating the remedy exactly as its drafters insisted it should be treated: as a last resort, available only when nothing short of it will do.

The DTSA’s extraordinary ex parte seizure remedy

Section 1836(b)(2) authorizes a court, “upon ex parte application but only in extraordinary circumstances,” to “issue an order providing for the seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.” 18 U.S.C. § 1836(b)(2)(A)(i). The remedy is genuinely unusual in American civil practice. It dispenses with the adversary’s right to be heard before the deprivation, and it puts the coercive machinery of the federal government—the U.S. Marshals Service—at a private litigant’s disposal to enter premises and carry off computers, phones, and storage media. Congress understood the constitutional and practical hazards. The statute is studded with safeguards: the applicant must post security; the seizure must be “the narrowest seizure of property necessary”; the seized material is held in the court’s custody, not the plaintiff’s; and the court must hold a post-seizure hearing within seven days at which the applicant bears the burden of justifying the order.

Congress also built in an explicit inadequacy gate. A court may issue a seizure order “only if,” among other findings, “an order issued pursuant to Rule 65 of the Federal Rules of Civil Procedure or another form of equitable relief would be inadequate to achieve the purpose of this paragraph.” § 1836(b)(2)(A)(ii)(I). That clause does the decisive work in Brunswick. It instructs courts to begin not with the question “is seizure warranted?” but with the prior question “would an injunction—or some lesser equitable order—accomplish the same protective goal?” If the answer is yes, the seizure inquiry ends before it begins.

Why Judge Davila found seizure unnecessary

Brunswick made three distinct requests aimed at locking down evidence. The court addressed each.

First, Brunswick sought to compel Google and Rackspace, the nonparty hosts of the defendants’ email accounts, to deliver physical copies of the account data to the court with the Marshals’ assistance. Judge Davila found that “physical copies of the data are unnecessary because Google and Rackspace will be required to preserve the data under their own custody.” The court granted a preservation order instead, applying the familiar three-factor test from Echostar: the threat of evidence destruction, irreparable harm from its loss, and the custodian’s capability to maintain it. Brunswick satisfied all three—there was a real risk that Sultanov and Ostling, or the providers’ routine auto-deletion practices, would erase relevant material, and the nonparty hosts had no obligation to preserve absent a court order. A preservation directive, not a seizure, answered that need.

Second, and centrally, Brunswick invoked the DTSA to seize the company-issued laptop and phone in Sultanov’s hands. Here Judge Davila quoted the statutory standard and then disposed of the request in a single, much-cited sentence: “the Court finds that seizure under the DTSA is unnecessary because the Court will order that Sultanov must deliver these devices to the Court at the time of the hearing scheduled below, and in the meantime, the devices may not be accessed or modified.” That holding is a direct application of the § 1836(b)(2)(A)(ii)(I) inadequacy gate. The court did not weigh the elaborate seizure findings, scrutinize the proposed security, or parse the “extraordinary circumstances” language. It did not need to. A delivery order backed by a TRO—classic Rule 65 relief—would put the very same devices under judicial control without sending armed marshals to a defendant’s door.

Third, the court denied Brunswick’s request for expedited discovery, finding the company had not adequately explained the need for it, while leaving the door open to a properly supported motion. The TRO and order to show cause issued under the standard Winter preliminary-injunction framework.

The architecture of the order is the point. Brunswick walked in seeking the DTSA’s most dramatic remedy and walked out with a preservation order, a TRO, and a compelled-delivery directive that achieved the same evidentiary objective. The court reached the protective result the plaintiff wanted through tools that predate the DTSA entirely.

Strict requirements and the judicial preference for TROs

Brunswick is representative rather than idiosyncratic. The recurring lesson of the DTSA’s first years is that seizure is hard to obtain because the statute is, by design, hard to satisfy—and because in most fact patterns ordinary equitable relief does the job. To win a seizure order a plaintiff must establish a battery of findings under § 1836(b)(2)(A)(ii): that Rule 65 relief would be inadequate; that immediate and irreparable injury will otherwise occur; that the harm to the applicant outweighs the harm to the target; likelihood of success on a misappropriation claim; that the defendant actually possesses the trade secret and the property to be seized; reasonable particularity describing both; that the defendant would destroy, move, or hide the material if given notice; and that the applicant has not publicized the request.

The inadequacy requirement is the gatekeeper, and it is where most applications fail. Where a defendant is identifiable, served, and subject to the court’s jurisdiction, a TRO ordering the defendant not to access, copy, or delete the material—coupled, as in Brunswick, with an order to deliver devices into custody—usually neutralizes the dissemination risk. Seizure becomes genuinely necessary only in the narrow band of cases where notice itself would trigger the harm: an evasive or absconding defendant, a foreign actor outside the court’s practical reach, or a record showing the defendant will defy an injunction. Even the rare granted orders confirm the narrowness. In Mission Capital Advisors LLC v. Romaka, No. 16-cv-5878 (S.D.N.Y. 2016)—frequently described as the first DTSA seizure order—the court initially denied seizure and issued a TRO, turning to seizure only after the defendant evaded personal service five times and failed to appear, and even then authorized seizure of a single contact-list document. That sequence is the mirror image of Brunswick’s reasoning: seizure surfaces only once the ordinary tools demonstrably fail.

Courts also have institutional reasons to prefer TROs. Seizure conscripts the Marshals Service, raises Fourth Amendment and due-process concerns, exposes the applicant to wrongful-seizure damages under § 1836(b)(2)(G), and demands a compressed post-seizure hearing. A TRO carries none of that overhead while preserving the status quo. Faced with a choice between a scalpel that requires extensive justification and a remedy that achieves the same end with less risk, judges have consistently chosen the latter.

Open questions

Brunswick resolves the case in front of it but leaves the harder edges of the seizure remedy untouched. Because the court found seizure unnecessary at the threshold, it never had to define what “extraordinary circumstances” means as a freestanding requirement, or how that phrase interacts with the separate inadequacy and irreparable-harm findings. Nor did it address how a court should handle a defendant who is genuinely beyond the practical reach of an injunction—a cross-border actor, for instance—where a delivery order may be unenforceable. The decision also sidesteps the thornier mechanics that arise once seizure is granted: how the “narrowest seizure” command applies to commingled personal and corporate data on a single device, how seized cloud data is segregated and reviewed, and what showing rebuts the presumption that Rule 65 relief suffices when the defendant has already shown a willingness to disobey court orders. Those questions await cases where the inadequacy gate is actually contested rather than conceded.

Implications

  • Lead with Rule 65, not § 1836(b)(2). Counsel seeking to lock down devices and accounts should presumptively request a TRO, a preservation order, and a compelled-delivery directive; Brunswick shows those tools achieving the plaintiff’s evidentiary goal without the seizure remedy’s burdens.
  • The inadequacy gate is the battleground. To justify seizure, build a concrete record that an injunction will not work—evasion of service, defiance of prior orders, flight risk, or a defendant beyond the court’s reach—rather than asserting generalized fear of deletion.
  • Preservation orders against nonparty hosts are a powerful substitute. Directing providers like Google or Rackspace to preserve data places it beyond the defendant’s control and the providers’ auto-deletion routines without any seizure at all.
  • Support every ancillary request. Brunswick’s expedited-discovery request failed for thin justification; emergency applications should document the specific need for each form of relief, not bundle them.
  • Expect seizure to remain rare. Brunswick and the broader case law signal that courts will continue to treat § 1836(b)(2) as a true last resort, reserved for the cases where notice itself defeats the remedy.

Frequently asked questions

Did the court reject the DTSA seizure remedy as improper? No. Judge Davila did not hold that seizure was unavailable or that Brunswick failed any particular statutory finding on the merits. He held that seizure was “unnecessary” because a delivery order plus a TRO would protect the same devices—a direct application of the statute’s requirement that seizure issue only where Rule 65 or other equitable relief “would be inadequate.”

What relief did Brunswick actually obtain? A preservation order directed at the nonparty email hosts, a temporary restraining order barring access to or modification of the devices and data, an order requiring Sultanov to deliver the laptop and phone to the court at the upcoming hearing, and an order to show cause on a preliminary injunction. The court denied the DTSA seizure and denied expedited discovery for lack of good cause.

When is DTSA seizure actually available? Only “in extraordinary circumstances” and only when an applicant satisfies all of § 1836(b)(2)(A)(ii)‘s findings, including that ordinary equitable relief would be inadequate. In practice that means situations where giving the defendant notice would itself cause the harm—an evasive, absconding, or out-of-reach defendant, as the contrasting history of Mission Capital Advisors v. Romaka illustrates.

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