## Facts

- Brent Mower worked for Union Pacific Railroad Company (UP) from 1979 to 1992, ultimately serving as Director of Occupational and Environmental Issues and handling occupational illness claims with frequent interaction with UP’s legal department.
- In 1992, UP asked Mower to resign; the parties executed a Resignation and Consulting Agreement.
- The agreement provided that from November 1992 through December 31, 1995, Mower would not disclose UP confidential/privileged information or other harmful information, communicate with anyone about UP’s business or affairs, or consult with persons asserting claims against UP.
- It was undisputed that Mower complied with the agreement through December 31, 1995.
- In 1997, a former UP employee sued UP under the Federal Employers’ Liability Act in Idaho.
- In 1998, the plaintiff sought to add Mower as a witness; Mower stated he would testify about a 1989 occupational-injury study he conducted and a related position paper presented to UP management.
- UP filed a diversity action in federal court in Oregon seeking to enjoin Mower from disclosing confidential and privileged information.
- The district court entered a permanent injunction broadly prohibiting Mower from disclosing to third parties any confidential information obtained during his UP employment, based on an asserted ongoing duty of confidentiality and privilege theories.
- Mower appealed.

## Issues

1. Whether Oregon law imposed a continuing implied duty of confidentiality after December 31, 1995 despite an agreement expressly limiting Mower’s obligations to that date.
2. Whether UP’s claims of attorney–client privilege, work-product protection, or related privileges justified a broad injunction barring disclosure of information learned during employment.
3. Whether the injunction met requirements for permanent injunctive relief, including evidentiary support and specificity/narrow tailoring.

## Decision

- The Ninth Circuit reversed and vacated the injunction.
- The court held that any implied confidentiality duty under Oregon law was modified and time-limited by the parties’ agreement, which ended on December 31, 1995.
- The court held that UP did not make a sufficiently specific showing that Mower’s proposed testimony would reveal privileged communications or protected work product.
- The injunction was overbroad and insufficiently specific because it barred disclosure of undefined “confidential information” without identifying protected material or limiting relief to demonstrated privileges.

## Legal Principles

- Under Oregon law, implied duties of confidentiality owed by employees may be altered and limited by contract; an express contractual end date can terminate special confidentiality obligations.
- A party seeking to enjoin testimony based on privilege must specifically identify the privileged or protected information at risk and support the claim with more than conclusory assertions.
- Injunctions restricting speech or testimony must be narrowly tailored and describe prohibited conduct with specificity; broad restraints untethered to identified privileged material are improper.
- Concerns about privileged evidence in pending litigation are generally addressed through the procedural and evidentiary mechanisms available in the forum where the testimony is sought.

## Conclusion

The Ninth Circuit vacated a broad injunction against a former UP manager because the parties’ agreement limited any confidentiality duty to a defined period ending in 1995, and UP failed to justify an expansive restraint on testimony with a specific, supported showing of privileged or otherwise protectable information.


Union Pac. R.R. Co. v. Mower, 219 F.3d 1069 (9th Cir. 2000)