## Facts

- Delphine Software International (Delphine) developed motorcycle-racing video games, including *Moto Racer 1* and *Moto Racer 2*.
- Electronic Arts, Inc. (EA) entered a publication agreement with Delphine under which EA published and distributed *Moto Racer 1* and *Moto Racer 2*.
- Because Delphine shared certain confidential information during the parties’ relationship, the publication agreement contained a confidentiality provision barring EA from using or disclosing Delphine’s confidential information.
- Delphine claimed it disclosed protectable confidential information and trade secrets during performance of the agreement, including source code and software-development techniques.
- In January 1999, Delphine learned EA had begun working on another motorcycle-racing game, *Supercross 2000* (Supercross).
- By June 1999, Supercross was in the final stages of development, and Delphine sued EA in federal court in New York.
- Delphine alleged that, in developing Supercross, EA improperly used Delphine’s confidential information and trade secrets (including Delphine’s source code and development techniques).
- Delphine sought a temporary restraining order (TRO) to prevent EA from using Delphine’s alleged trade secrets and from releasing products based on those trade secrets.
- EA disputed the accusations and asserted that Supercross was programmed differently and functioned differently from Delphine’s games.
- EA also claimed Supercross was developed by a separate company without material assistance from any EA employee who had access to Delphine’s alleged trade secrets.
- EA further argued that emergency relief was unnecessary because EA did not plan to release Supercross until October 1999.

## Issues

1. Whether Delphine was entitled to a TRO barring EA from using Delphine’s alleged trade secrets or releasing Supercross, based on Delphine’s allegations of trade-secret misappropriation and breach of the publication agreement’s confidentiality provision.

## Decision

- The court denied Delphine’s motion for a TRO.
- The court concluded that, on the record presented at the TRO stage, Delphine had not made a sufficient showing to justify emergency relief preventing EA from releasing Supercross or using Delphine’s alleged trade secrets.

## Legal Principles

- A TRO is an extraordinary remedy and requires a strong showing of (1) irreparable harm absent immediate relief and (2) the required merits showing (typically likelihood of success, or sufficiently serious questions plus a balance of hardships favoring the movant).
- In trade-secret and confidentiality disputes involving software, a movant must do more than point to a prior confidential relationship and a competing product; the movant must present concrete support for a claim that the defendant used the identified protected information.
- Evidence that a challenged product was developed with different code, different operation, and by personnel or a separate developer without access to the claimed secrets weighs against emergency injunctive relief on a limited record.
- When a product release is not imminent and there is time for further litigation steps, a court may find that the claimed harm is not so immediate as to require a TRO.

## Conclusion

The court denied Delphine’s request for a TRO because Delphine’s preliminary showing did not justify emergency relief to stop EA’s planned release of *Supercross 2000* or otherwise restrict EA’s conduct based on the asserted trade-secret and confidentiality theories, particularly given EA’s contrary evidence and the timing of the anticipated release.


Delphine Software International v. Electronic Arts, Inc., No. Civ. 4454 AG AS, 1999 WL 627413 (1999)