MEMORANDUM AND RECOMMENDATION

FRANCES H. STACY, Magistrate Judge.

Before the Magistrate Judge upon referral from the District Judge is Plaintiff Compass Bank's Motion to Compel Return of Trade Secret Materials, and Verified Application for a Preliminary Injunction (Document No. 60). Substantial briefing and evidence has been submitted in connection with that motion, and the parties offered their oral argument at a hearing held on November 8, 2018. Having considered the motion, the parties' extensive briefing and evidence,1 the parties' argument, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that Plaintiff's Motion to Compel Return of Trade Secret Materials (Document No. 60) be GRANTED, and that Plaintiff's Application for a Preliminary Injunction (Document No. 60) be DENIED.2

I. Background and Procedural History

This suit was filed by Plaintiff Compass Bank in May 2017 against one of its former employees, Karen W. Dixon. Compass Bank alleged, essentially, that Dixon left her job at Compass Bank in January 2017, and went to work for SunTrust in a similar position, taking with her Compass Bank's trade secret information and encouraging Compass Bank's customers to take their business to Sun Trust. In November 2017, Compass Bank filed an Amended Complaint against Dixon based on the same general allegations that Dixon "wrongfully and deliberately accessed, converted and used Compass's confidential, proprietary and trade-secret information to try and sever Compass's long-standing profitable relationships with its customers." In January, 2018, Compass Bank added SunTrust Banks, Inc. d/b/a SunTrust Bank, as well as three additional, former Compass Bank employees, as Defendants (Caroline B. Mitchell, Gloria B. Ryan, and Gwynne K. Shackelford). A little over two months later, Compass Bank filed its Motion to Compel Return of Trade Secret Materials, and Verified Application for a Preliminary Injunction (Document No. 60).

In the Motion to Compel Return of Trade Secret Materials (Document No. 60), Compass Bank seeks an Order requiring Defendants to immediately return and destroy the trade secret and confidential information the Individual Defendants took from Compass Bank prior to, and upon, their resignation from Compass Bank. Compass Bank doesn't specifically identify the information it seeks to have returned, but only generally describes it as "all client lists as well as all documents and data that contain non-public information about Compass or its clients, customers, employees or business." As for Compass Bank's Application for Preliminary Injunction, Compass Bank seeks an Order enjoining Defendants from:

Application for Preliminary Injunction (Document No. 60) at 35. Compass Bank bases its request for injunctive relief on three of its claims: for breach of contract, for tortious interference, and for misappropriation of trade secrets.

II. Standard for Injunctive Relief

To obtain a preliminary injunction, the movant must establish: "(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018) (citing Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) and quoting Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006)). "A preliminary injunction is an extraordinary remedy. It should only be granted if the movant has clearly carried the burden of persuasion on all four [] prerequisites." Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). "As a result, `[t]he decision to grant a preliminary injunction is to be treated as the exception rather than the rule. Karaha Bros. Co., L.L.C. v. Perusahaan Pertambangan Minyak Das Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003).

III. Discussion

A. Motion to Compel Return of Trade Secret Materials

Compass Bank argues for the return of its confidential and trade secret client information that the Individual Defendants took when they resigned, and then used to the benefit of Defendant SunTrust. While Compass Bank does not, as argued by Defendants, specifically identify any document, other than a "Client List," that it wants returned, Compass Bank has made a compelling argument that the information contained on that "Client List," regardless of who compiled or created it, belongs to Compass Bank as its confidential information and/or trade secret information.3

Client information can constitute trade secret information. See Alliantgroup, L.P. v. Feingold, 803 F.Supp.2d 610, 625 (S.D. Tex. 2011)("Under Texas law, customer lists may be protected as trade secrets."); see also TEX. Civ. PRAC. & REM. CODE ANN. § 134A.002 ("Trade secret' means all forms and types of information, including business, scientific, technical, economic, or engineering information, and any formula, design, prototype, pattern, plan, compilation, program device, program, code, device, method, technique, process, procedure, financial data, or list of actual or potential customers or suppliers, whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if: (A) the owner of the trade secret has taken reasonable measures under the circumstances to keep the information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information."). Mark Montgomery, Houston Market CEO at Compass Bank, states in his Declaration that Compass Bank's client information is confidential and proprietary and that Compass Bank has "taken all necessary precautions to prevent unauthorized access to confidential and proprietary information." (Document No. 61-2 at 3). Those precautions include, as it specifically relates to the Individual Defendants, provisions in the Employment Agreements each of the Individual Defendants had with Compass Bank.4 The Employment Agreements set forth in great detail the type of information Compass Bank considered "Protectable" and the restrictions on the Individual Defendants' use of such "Protectable Information."5 While Defendants argue that Compass Bank has not identified the trade secret and/or confidential information it wants returned and that the "Client List" is not, and should not be considered, either confidential or trade secret information, Defendants have put forth no reason why the Client List, to the extent it can be considered "Protectable Information" within the meaning of the Individual Defendants' Employment Agreements, should not be returned to Compass Bank. Given that the "Client List" contains information that falls within the scope of the "Protectable Information" provision of each of the Individual Defendants' Employment Agreements, and given that Defendants have offered no reason why that "Client List" should not be returned, the Magistrate Judge concludes that the "Client List" should be returned to Compass Bank at this time. TEX. CIV. PRAC. & REM. CODE ANN. § 134A.003 (c) ("In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order."). As for any other information and/or documents, because nothing has been specifically identified by Compass, all that Compass Bank is currently entitled to is the return of the "Client List."

B. Application for Preliminary Injunction

Compass Bank also seeks injunctive relief based on its claim against the Individual Defendants (Karen W. Dixon, Caroline B. Mitchell, Gloria B. Ryan and Gwynne K. Shackelford) for breach of contract; its claim against SunTrust for tortious interference, and its claim(s) against all Defendants for misappropriation of trade secrets. All of those claims arise from Compass Bank's allegations that the Individual Defendants breached their Employment Agreements with Compass Bank when they resigned and went to work for SunTrust, taking with them confidential and trade secret information about Compass Bank's clients, which they then used to contact Compass Bank's clients and solicit their business on behalf of SunTrust. The relevant non-solicitation provisions in the Individual Defendants' Employment Agreements state as follows:

Employment Agreements (Document Nos. 61-10, 61-11, 61-12, and 61-13). In addition, in connection with each of the Individual Defendants' receipt of a cash long term incentive award, each Individual Defendant signed a "Cash Incentive Award Agreement." (Document Nos. 61-14, 61-15, 61-16 and 61-17). Those "Cash Incentive Award Agreements" all contained a "Restrictive Covenant Agreement" and the following "Non-Solicitation of Customers" provision:

(Document No. 61-11 at 14). Based primarily on the terms of the Individual Defendants' Employment Agreements and the "Restrictive Covenant Agreement" in the Individual Defendants' "Cash Incentive Award Agreements," as well the evidence Compass Bank has adduced that many of its customers, including a majority of those on the "Client List," are now customers of SunTrust, where the Individual Defendants all now work, Compass Bank seeks the injunctive relief described above.

Defendants, in response to Compass Bank's request for injunctive relief, make four main arguments. First, Defendants maintain that the Employment Agreements are not enforceable by Compass Bank because Compass Bank was not identified in the Employment Agreements as the Individual Defendants'"Employer." Second, Defendants argue that the 12 month operable term for the non-solicitation provisions in the Employment Agreements has expired, and any argument by Compass Bank that the operable term should be extended by the "Extension of Restrictive Covenants" provision in the Employment Agreements disregards the controlling law in Texas on what is a reasonable length and scope of an enforceable restrictive covenant. Third, Defendants maintain that the evidence in the record shows that the Individual Defendants did not "solicit" Compass Bank's customers. Fourth and finally, Defendants contend that Compass Bank waited too long to seek injunctive relief. The first three arguments relate, in the injunction context, to whether Compass Bank has established "a substantial likelihood of prevailing on the merits." The fourth argument, in contrast, relates to whether Compass Bank has shown, or can show, "a substantial threat that irreparable injury will result in the absence of the injunction." Because an injunction is available only if all four elements are shown, and because the Magistrate Judge is convinced that Compass Bank has not carried its burden of clearly showing, from this point in time forward, a "substantial threat that irreparable injury will result in the absence of the injunction," the focus herein will be on the irreparable injury element.6

A showing of a "substantial threat of irreparable injury" is at least two-fold. First, the threat of injury must be substantial — meaning, it must be imminent or urgent, and not speculative. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) ("the threat must be actual and imminent, not conjectural or hypothetical"); Google, Inc. v. Hood, 822 F.3d 212, 228 (5th Cir. 2016) (injury must be imminent and non-speculative). Second, the injury must be irreparable — meaning, it must be an injury "for which compensatory damages are unsuitable." Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992); see also Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011) ("In general, a harm is irreparable where there is no adequate remedy at law, such as monetary damages."); G&G Closed Circuit Events, LLC v. 1) GCF enterprises LLC, No. EP-15-CV-00111-KC, 2015 WL 7313427, at *5 (W.D. Tex. Nov. 19, 2015) ("An irreparable injury is defined as one which "cannot be undone through monetary remedies.").

Here, Compass Bank argues that a former employee's access to, and the ability to use, trade secret information constitutes per se irreparable injury, for which injunctive relief is warranted. While some courts have presumed irreparable injury in trade secret cases such as this, see Am. Exp. Fin. Advisors, Inc. v. Scott, 955 F.Supp. 688, 693 (N.D. Tex. 1996) ("In Texas, injury resulting from the breach of non-compete covenants is the epitome of irreparable injury."), that presumption is rebuttable. Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236 (Tex. App.-Houston [1st Dist.] 2003) ("proof that a highly trained employee is continuing to breach a noncompetition covenant gives rise to a rebuttable presumption that the applicant is suffering irreparable injury"); TRAVELHOST, Inc. v. Figg, No. 3:11-CV-0455-D, 2011 WL 6009096, at *3 (N.D. Tex. Nov. 22, 2011) (presumption, even if it applies, is rebuttable). And here, on this record, if there is harm or injury attributable to the Individual Defendants' alleged breaches of their Employment Agreements or Defendants' use of Compass Bank's confidential and/or trade secret information about its clients/customers, that harm or injury, or at least much of it, has already occurred. In the Declaration he filed with the Application for Preliminary Injunction, Mark Montgomery stated that as of the date of his Declaration (March 14, 2018), "over 20 clients have moved accounts from Compass to SunTrust with assets, loans and other products valued at over $250 million" and that "the most recent client that moved business to SunTrust occurred in February 2018." (Document No. 61-2 at 4). While a supplemental submission shows that Compass Bank lost another client to SunTrust in September 2018, that client was not on the Client List, and that client's Declaration shows that Compass Bank's loss of his business had nothing to do with the Individual Defendants. (Document No. 130-23).7 Thus, the evidence in the record is that Compass Bank has lost business and clients to SunTrust, but there is no evidence that there is any imminent, non-speculative threat of additional business losses that could be attributed to the Individual Defendants' alleged breaches of their Employment Agreements or Defendants' use of Compass Bank's confidential and/or trade secret information. Simply put, the harm and injury from the alleged misconduct of Defendants has already occurred, and any threat of additional harm is unsupported, not quantified and speculative. Moreover, as pointed out by Defendants, Compass Bank's injury as of the date it filed its Application for Preliminary Injunction in March 2018 has been quantified, see Mark Montgomery Declaration (Document No. 61-2 at 4) ("As of the date of this Declaration, over 20 clients have moved accounts from Compass to SunTrust with assets, loans and other products valued at over $250 million."), evidencing, in some respect, that the harm is generally susceptible to money damages calculations. Though complicated, and not necessarily precise, there is nothing in the record to show that damages cannot be calculated or that money damages would be insufficient to compensate Compass Bank for any additional harm or injury from this point forward. For those reasons, the Magistrate Judge concludes that Plaintiff Compass Bank has not met its burden of showing that it will, from this point in time forward, suffer irreparable injury if an injunction is not entered. Although each side may assume that this determination is predicated solely on Compass Bank's delay in seeking injunctive relief, it is not.

As argued by Defendants, and not disputed by Compass Bank, undue delay in seeking injunctive relief may demonstrate that injury is not imminent, and relief is not urgent. Gonannies, Inc. v. Goupair.Com, Inc., 464 F.Supp.2d 603, 609 (N.D. Tex. 2006). But undue delay means unreasonable and unexplained delay, Daily Instruments Corp. v. Heidt, 998 F.Supp.2d 553, 570 (S.D. Tex. 2014) ("delay will not negate a finding of irreparable harm where the plaintiff has a good explanation"), and here the delay has been explained, and creditably so. Defendants have, in the undersigned's view, "dragged their feet" during discovery, leaving Compass Bank with months' long assurances that documents would be produced and hampering Compass Bank's ability to file a fully supported Application for Preliminary Injunction. Compass Bank filed this case against Dixon in May 2017, four months after Dixon resigned. Compass Bank then sought expedited discovery from Dixon, and SunTrust, which was then a non-party. Upon gaining production from SunTrust in November 2017, Compass Bank added SunTrust and the other Individual Defendants to this case, and two months thereafter, filed its Application for Preliminary Injunction. Consideration of that Application was then delayed while Defendants resisted Compass Bank's additional discovery efforts. The delay in seeking injunctive relief has sufficiently, and reasonably, been explained, and such delay does not, in and of itself, warrant the denial of the injunctive relief sought. Instead, it is the delay and the attendant harm that has already occurred which makes injunctive relief inappropriate at this time. While none of that is Compass Bank's fault, Compass Bank has not convinced the undersigned that it faces a substantial threat of additional injury that could be prevented if an injunction were issued. Accordingly, the Magistrate Judge will recommend that Compass Bank's Application for Injunctive Relief be DENIED.

IV. Conclusion and Recommendation

Based on the foregoing, and the conclusion that Plaintiff Compass Bank is entitled to return of the Client List, which contains "Protectable Information" within the meaning of the Individual Defendants' Employment Agreements, but that Plaintiff Compass Bank has not clearly carried the burden of showing, or persuading the Court, that there is a substantial threat that irreparable injury will result in the absence of an injunction, the Magistrate Judge RECOMMENDS that Plaintiff Compass Bank's Motion to Compel Return of Trade Secret Materials be GRANTED and that Plaintiff Compass Bank's Verified Application for a Preliminary Injunction (Document No. 60) be DENIED.

The Clerk shall file this instrument and provide a copy to all counsel and unrepresented parties of record. Within fourteen (14) days after being served with a copy, any party may file written objections pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. Cw. P. 72(b), and General Order 80-5, S.D. Texas. Failure to file objections within such period shall bar an aggrieved party from attacking factual findings on appeal. Thomas v. Arn, 474 U.S. 140 (1985); Ware v. King, 694 F.2d 89 (5th Cir. 1982), cert. denied, 461 U.S. 930 (1983); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). Moreover, absent plain error, failure to file objections within the fourteen day period bars an aggrieved party from attacking conclusions of law on appeal. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1429 (5th Cir. 1996). The original of any written objections shall be filed with the United States District Clerk.