Opinion filed April 29, 2010
In The
Eleventh Court of Appeals
__________
No. 11-10-00034-CV
__________
IN RE RAY B. SMITH
Original Habeas Corpus and Mandamus Proceeding
OPINION
Relator, Ray B. Smith, Ph.D., brings this original habeas corpus proceeding and,
alternatively, mandamus proceeding complaining of the trial court‘s finding him in contempt for
violating a permanent injunction. Because the trial court‘s final order and judgment of contempt
lacks evidentiary support, we conditionally grant mandamus relief.
Introduction
In 2007, Dr. Smith published a book entitled Cranial Electrotherapy Stimulation, Its
First Fifty Years, Plus Three: A Monograph (the 2007 book). Cranial Electrotherapy
Stimulation (CES) is used for treatment of anxiety, depression, insomnia, and other conditions.
Dr. Smith‘s 2007 book contained his meta-analyses of studies that had been performed to
determine the effectiveness of CES in treating various conditions. ―Meta-analysis‖ is defined as
―a quantitative statistical analysis of several separate but similar experiments or studies in order
to test the pooled data for statistical significance.‖ MERRIAM-WEBSTER‘S COLLEGIATE
DICTIONARY 779 (11th ed. 2004). Dr. Smith explained in his 2007 book that ―[m]eta-analysis is
a way of combining the results of many separate studies to see the effectiveness of a treatment.‖
Dr. Smith is a former Director of Science at Electromedical Products International, Inc.
(EPII). EPII researches, develops, and markets CES technology. EPII asserted that Dr. Smith‘s
publication of his 2007 book violated a permanent injunction that it had obtained against Dr.
Smith in 2003. Therefore, EPII filed a motion to enforce the permanent injunction and to hold
Dr. Smith in contempt for violating the permanent injunction. Following a hearing on EPII‘s
motion, the trial court found that Dr. Smith had violated the terms of the permanent injunction
and entered its final order and judgment of contempt against him. In this original proceeding,
Dr. Smith challenges the trial court‘s final order and judgment of contempt.
The 2003 Suit and Judgment
Dr. Smith began his employment with EPII in 1998. At that time, Dr. Smith and EPII
entered into a Non-Disclosure/Non-Circumvention Agreement. The agreement contained a
―Restrictive Covenant‖ in which Dr. Smith agreed that, during or after the term of his
employment, he would not, among other things, ―disclose, disseminate, publish, or use . . .
[EPII‘s] Confidential Information, . . . except as may be required in the proper discharge of [his]
duties pursuant to [his] employment.‖ As defined in the agreement, the term ―Confidential
Information‖ included information ―disclosed to [Dr. Smith] or known by [Dr. Smith] as a
consequence of or through [his] employment by EPII which information is not generally known
in the industry in which EPII is or may become engaged.‖ The agreement provided that, upon
the termination of Dr. Smith‘s employment, (1) Dr. Smith would return all confidential
information and customer lists to EPII, (2) EPII would be entitled to injunctive relief against
Dr. Smith if he breached the restrictive covenant, and (3) Dr. Smith would not enter into or
engage in any business in competition with EPII for a period of three years from the date of his
termination.
Dr. Smith‘s employment duties included writing items for publication on behalf of EPII.
At EPII‘s request, Smith began writing a manuscript that was entitled Cranial Electrotherapy
Comes of Age. Before the manuscript was completed, EPII discovered facts leading it to
conclude that Dr. Smith had breached the Non-Disclosure/Non-Circumvention Agreement.
Therefore, EPII terminated Dr. Smith‘s employment.
2
On February 7, 2003, EPII filed suit against Dr. Smith for breach of the agreement. In its
petition, EPII requested the trial court to enjoin Dr. Smith from ―disclosing, publishing, and/or
using [its] confidential information and trade secrets‖ and from ―competing with EPII or
participating in business in a similar capacity to EPII‘s business for a period of three years from
the date of the termination of [Dr.] Smith‘s employment.‖
Following a bench trial, the trial court concluded that Dr. Smith had breached the
agreement. On August 11, 2003, the trial court entered a judgment in EPII‘s favor. In the
judgment, the trial court found that, unless permanently enjoined, ―[Dr. Smith] intends to directly
or indirectly participate in business in a similar capacity to EPII‘s business in violation of the
non-competition provisions of his Non-Disclosure/Non-Circumvention Agreement‖ and
―[Dr. Smith] intends to disclose, disseminate, publish, or use or permit the use, of [EPII‘s]
business information in violation of the Non-Disclosure/Non-Circumvention Agreement.‖
Therefore, the trial court granted injunctive relief in EPII‘s favor and ordered the following:
[T]hat [Dr. Smith] . . . desist and refrain from directly or indirectly entering into
or engaging in any business in competition with [EPII] . . . through January 31,
2006.1
....
. . . THAT [Dr. Smith] . . . desist and refrain from . . . disclosing,
disseminating, lecturing upon, publishing, using or permitting the disclosure,
dissemination, publishing or use of any and all information disclosed to [him] or
known by [him] as a consequence or through his employment by [EPII] which
information is not generally known in the industry in which [EPII] is engaged or
may become engaged. . . .2
1
The trial court stated:
For purposes of this order ―business in competition with [EPII]‖ shall include, but not be limited to,
the research, development, inventing, manufacturing, constructing, promoting, accounting, merchandising,
advertising, selling, leasing, contracting and general business techniques as they relate to Cranial
Electrotherapy Stimulation (―CES‖) devices, Transcutaneous Electrical Nerve Stimulation (―TENS‖) devices,
wound healing devices, and the research, data recovery, analysis, drafting and publication of written materials
related to CES, TENS and wound healing.
2
The trial court stated that ―information‖ included, but was not limited to:
[I]nformation relating to research, development, programming, techniques of application, inventions,
manufacturing, operations, construction, promotion, purchasing, accounting, marketing, merchandising,
advertising, selling, renting, leasing, negotiating, contracting, recording; information identifying or tending to
identify any or all of [EPII‘s] customers, clients, employees or insured of customers; recordings, scripts,
concepts, ideas, advertising, promotional material, copy, logos, techniques, methods, plans, whether or not
copyrightable or patentable; discoveries, concepts, ideas, processes, methods, formulas, designs, techniques
and improvements thereof.
3
. . . [T]hat [Dr. Smith] . . . return any and all copies . . . of all unpublished
manuscripts, monologues, articles, books and studies, whether in draft or final
form, that were written on the subject of CES, TENS, and/or wound healing while
an employee of [EPII] or thereafter, including, but not limited to, all copies of
―Cranial Electrotherapy Comes of Age.‖ The Court finds that all manuscripts,
monologues, articles, books and studies written by [Dr. Smith] on the subject of
CES, TENS and/or wound healing during or after his employment with [EPII] are
the property of [EPII] and [Dr. Smith] may not disclose, disseminate, lecture
upon, publish, use or permit the disclosure, dissemination, publication or use of
any of the materials listed above.
In addition to granting injunctive relief, the trial court awarded attorney‘s fees to EPII. The trial
court entered findings of fact and conclusions of law in support of its judgment. In one finding
of fact, the trial court stated that, under the Non-Disclosure/Non-Circumvention Agreement, ―in
exchange for EPII providing Smith with confidential business information, Smith agreed not to
disclose such confidential business information during or after his employment with EPII.‖
Dr. Smith appealed the trial court‘s 2003 judgment to this court. In a single point of
error, Dr. Smith contended that the trial court lacked subject-matter jurisdiction over EPII‘s
claims because the claims were copyright claims that fell within the exclusive jurisdiction of the
federal courts. We disagreed with Dr. Smith, and we affirmed the trial court‘s judgment. See
Smith v. Electromedical Prods. Int’l, Inc., No. 11-03-00386-CV, 2005 WL 1983550 (Tex.
App.—Eastland Aug. 18, 2005, no pet.) (mem. op.).
The Current Proceedings
Following Dr. Smith‘s publication of his 2007 book, EPII filed its motion to enforce the
permanent injunction and for contempt. In its motion, EPII alleged that Smith had violated the
permanent injunction (1) by publishing his 2007 book and (2) by failing to return to EPII all
copies of EPII‘s 2003 unpublished manuscript, Cranial Electrotherapy Comes of Age (the 2003
manuscript). The trial court held an evidentiary hearing on EPII‘s motion. Daniel Kirsch, Ph.D.
(the chairman of EPII) and Dr. Smith testified. Following the hearing, the trial court entered its
final order and judgment of contempt.
As set forth above, the trial court included three areas of injunctive relief in the 2003
permanent injunction. First, the trial court enjoined Dr. Smith from competing with EPII
through January 31, 2006. Second, the trial court enjoined Dr. Smith from disclosing or using
information he learned through his employment with EPII that was ―not generally known in the
industry.‖ Third, the trial court required Dr. Smith to return all copies of the listed materials,
4
including the 2003 manuscript, and the trial court found that all such materials were EPII‘s
property and prohibited Dr. Smith from disclosing or using the materials.
In finding Dr. Smith in contempt, the trial court relied on the third area of injunctive
relief in the 2003 permanent injunction. Specifically, the trial court stated in the contempt order
that the permanent injunction contained the following provision:
ORDERED, that [Dr. Smith] be and hereby is commanded to return any and
all copies, whether currently held in paper or electronic or disk format, of all
unpublished manuscripts, monologues, articles, books, and studies, whether in
draft or final form, that were written on the subject of CES, TENS and/or wound
healing while an employee of [EPII] or thereafter, including, but not limited to, all
copies of ―Cranial Electrotherapy Comes of Age.‖ The Court finds that all
manuscripts, monologues, articles, books, and studies written by [Dr. Smith] on
the subject of CES, TENS and/or wound healing during or after his employment
with [EPII] are the property of [EPII] and [Dr. Smith] may not disclose,
disseminate, lecture upon, publish, use or permit the disclosure, dissemination,
publication, or use of any of the materials listed above.
The trial court found that ―Dr. Smith‘s 2007 book entitled Cranial Electrotherapy Stimulation,
Its First Fifty Years, Plus Three: A Monograph (‗Smith‘s 2007 Book‘) is more than substantially
the same as the contents of Plaintiff EPII‘s 2003 Manuscript, which is EPII‘s property.‖ Based
on this finding, the trial court concluded that Dr. Smith had knowingly violated the permanent
injunction ―(i) [by] materially using EPII‘s 2003 Manuscript in the publication of Dr. Smith‘s
2007 Book, and (ii) by failing to return to EPII all copies and/or notes of his work on EPII‘s
2003 Manuscript.‖ Therefore, the trial court granted EPII‘s motion to enforce the permanent
injunction and for contempt. The trial court stated that ―Defendant Dr. Smith is found in
contempt of this Court‘s August 11, 2003 permanent injunction prohibiting his publication of the
information within EPII‘s 2003 Manuscript, and further requiring his return to [EPII] of all
copies and drafts of EPII‘s 2003 Manuscript.‖
Based on its finding that Dr. Smith was in contempt, the trial court set forth the following
remedies in its final order and judgment of contempt:
(1) Dr. Smith is hereby found in contempt and ordered to be incarcerated in the
Palo Pinto county jail for 180 days.
(2) Within 30 days of the signing of this Order, Dr. Smith, at his sole expense,
shall recall all copies of Dr. Smith‘s 2007 Book that have been printed, sold, or
otherwise distributed, either directly by himself, or through any employer, and/or
through any third parties pursuant to his direction or control, expressly including,
5
but not limited to, amazon.com and barnesandnoble.com; and shall thereafter
produce all recovered books to Plaintiff‘s counsel within 30 days of Dr. Smith‘s
receipt. Dr. Smith shall fully and concurrently reimburse all purchasers and/or
distributors of same, including purchase price, shipping costs, and all other
reasonable expenses.
(3) Within 30 days of the signing of this Order, Dr. Smith shall issue written
instruction to Fisher Wallace Laboratories, in a form to be approved by Plaintiff‘s
counsel, directing Fisher Wallace Laboratories to remove Dr. Smith‘s 2007 Book
from Fisher Wallace‘s website, and to return to Dr. Smith all copies of Dr.
Smith‘s 2007 Book, which Dr. Smith shall forward to Plaintiff‘s counsel within
30 days of Dr. Smith‘s receipt of same.
(4) Within 30 days of the signing of this Order, Dr. Smith shall issue written
apologies, in forms acceptable to the Court, to both this Court, for violating the
Court‘s lawful orders, and to Plaintiff, for Dr. Smith‘s prohibited use of Plaintiff‘s
proprietary information.
(5) Within 30 days of the signing of this Order, Dr. Smith shall return, and
seek any and all non-parties to return, any and all manuscripts, monologues,
articles, books and studies that were written by Dr. Smith on the subject of CES,
TENS, and/or wound healing while an employee of Plaintiff, or based upon
information acquired during such employment, and/or his work with same,
pursuant to this Court‘s Final Judgment, dated August 11, 2003.
(6) Within 30 days of the signing of this Order, Dr. Smith shall provide an
accounting of all compensation and other consideration received by and/or
promised to Dr. Smith arising from the sale of his 2007 Book, and/or the writing
of same as an employee, agent, or contractor for himself or others. Within 60
days of delivery to Plaintiff of Dr. Smith‘s accounting, Plaintiff may make
application to this Court for disgorgement and/or other relief regarding same.
The trial court suspended Dr. Smith‘s jail sentence specified in item 1, ―contingent upon [Dr.
Smith‘s] full and timely performance of the instruction items 2 through 6 above, failing which he
shall present himself to this Court for incarceration under item 1 above and coercive confinement
thereafter until the contempt is purged.‖3 The trial court awarded EPII $52,000 for attorney‘s
fees plus conditional attorney‘s fees in the event of an appeal.
3
In the contempt order, the trial court punishes Dr. Smith for past violations – as found by the trial court – of the provision in
the 2003 injunction prohibiting Dr. Smith from using or publishing EPII‘s materials. Therefore, the trial court‘s contempt order,
at least in part, is in the nature of a criminal contempt order. Ex parte Jones, 36 S.W.3d 139, 142 (Tex. App.—Houston [1st
Dist.] 2000, pet. ref‘d); Ex parte Busby, 921 S.W.2d 389, 391 (Tex. App.—Austin 1996, pet. ref‘d). However, the issue of
whether the trial court‘s order is a criminal contempt order, a civil contempt order, or a hybrid contempt order has no bearing on
the outcome of this original proceeding.
6
Jurisdiction to Review the Trial Court’s Contempt Order
A court of appeals lacks jurisdiction to review a contempt order by direct appeal. Tex.
Animal Health Comm’n v. Nunley, 647 S.W.2d 951, 952 (Tex. 1983); Tracy v. Tracy, 219
S.W.3d 527, 530 (Tex. App.—Dallas 2007, no pet.). Contempt orders that involve imprisonment
may be reviewed via a petition for writ of habeas corpus; contempt orders that do not involve
confinement may be reviewed via a petition for writ of mandamus. In re Long, 984 S.W.2d 623,
625 (Tex. 1999); Tracy, 219 S.W.3d at 530; Adams v. Bell, 94 S.W.3d 759, 762 (Tex. App.—
Eastland 2002, no pet.). In this case, the trial court suspended its order of confinement. Because
Dr. Smith has not been confined, his only possible relief is a writ of mandamus. See In re Long,
984 S.W.2d at 625; see also In re Zenergy, Inc., 968 S.W.2d 1, 12 (Tex. App.—Corpus Christi
1997, orig. proceeding) (A suspended contempt order may be reviewed by habeas corpus ―when
and if [the trial court] enforces the judgment.‖).
Standard of Review
Mandamus is an extraordinary remedy that is available to correct a clear abuse of
discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal.
Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A trial court abuses its discretion by
entering a contempt judgment that is not supported by evidence, and such a judgment is void. In
re Long, 984 S.W.2d at 626-27 (The trial court abused its discretion in entering a contempt
order; the contempt order was void because there was no evidence of contempt.); Deramus v.
Thornton, 333 S.W.2d 824, 830 (Tex. 1960) (―A judgment of contempt without support in the
evidence is void, and the Court is without jurisdiction to order punishment in the absence of
some evidence of contemptuous disobedience.‖).
Issues Presented
Dr. Smith presents four issues for review. In his first issue, he asserts that the trial
court‘s final order and judgment of contempt is void because it lacks evidentiary support. In his
second issue, he asserts that the trial court abused its discretion by expanding the scope of the
injunctive relief awarded in the 2003 judgment so as to preclude his use of nonconfidential
information. In his third issue, he contends that, if we conclude that the trial court‘s
interpretation of the 2003 judgment was reasonable, the 2003 judgment is ambiguous and
susceptible to more than one interpretation. In his fourth issue, he contends that the trial court
abused its discretion in ordering remedies other than confinement or a fine.
7
The Evidence
EPII introduced a copy of Dr. Smith‘s 2007 book and a copy of its 2003 manuscript into
evidence. Both works contain Dr. Smith‘s meta-analyses of studies performed to determine the
effectiveness of CES in treating various conditions. In his 2007 book, Dr. Smith meta-analyzed
many of the CES studies that he meta-analyzed in EPII‘s 2003 manuscript.
Dr. Smith‘s 2007 book contains meta-analyses summarizing CES studies of the following
syndromes: (1) insomnia; (2) depression; (3) anxiety; (4) cognitive dysfunction; and (5) drug
abstinence. Dr. Smith meta-analyzed a total of fifty-seven CES studies in his 2007 book. Many
of the fifty-seven studies fell into more than one of the five areas listed above. For example,
Dr. Smith analyzed one study as being a sleep study, a depression study, and an anxiety study.
Dr. Smith‘s 2007 book contains tables identifying the CES studies that he meta-analyzed
in each of the above areas. The tables show, among other things, the study design for each study
(double blind, single blind, crossover, or open clinical) and the number of subjects involved in
each study. The tables also reference each study by number so that the authors of the various
studies may be identified from a reference list in the book. The tables also show that Dr. Smith
meta-analyzed the following CES studies: (1) 18 sleep studies involving 648 patients that had
been completed over the past 43 years; (2) 18 depression studies involving 853 patients that had
been completed over the past 36 years; (3) 38 anxiety studies involving 1,495 patients that had
been completed over the past 36 years; (4) 13 cognitive function studies involving 648 patients
that had been completed over the past 31 years; and (5) 15 drug abstinence syndrome studies
involving 535 patients.4 Based on his five meta-analyses, Dr. Smith concluded (1) that the
overall effectiveness of CES for treating sleep disorder conditions was 62% improvement;
(2) that the overall effectiveness of CES for treating depression was 47% improvement; (3) that
the overall effectiveness of CES for treating anxiety was 58% improvement; (4) that the overall
effectiveness of CES for treating cognitive dysfunction was 44% improvement; and (5) that the
overall effectiveness of CES for treating drug abstinence syndrome was 60% improvement.
EPII‘s 2003 manuscript contains meta-analyses by Dr. Smith of anxiety studies,
depression studies, addiction studies, sleep studies, and cognitive function studies. EPII‘s
manuscript also includes tables identifying the studies that Dr. Smith meta-analyzed. The tables
4
The table entitled ―Studies of the Drug Abstinence Syndrome with CES‖ does not indicate the time period during which the
studies were completed. However, the reference numbers in the table indicate that the earliest study was published in 1967.
8
show, among other things, the authors of the studies and the number of patients treated in the
studies. In the tables, the studies that Dr. Smith meta-analyzed are listed by author. In contrast,
in the tables in Dr. Smith‘s 2007 book, the studies are grouped by study design: ―Double Blind,‖
―Single Blind,‖ ―Crossover,‖ or ―Open Clinical.‖
Dr. Kirsch testified that meta-analysis is a mathematical means of combining a number of
studies to basically reaffirm the results. He said that Dr. Smith drafted EPII‘s 2003 manuscript.
Dr. Kirsch also said that he had compared EPII‘s 2003 manuscript with Dr. Smith‘s 2007 book.
He said that EPII‘s 2003 manuscript and Dr. Smith‘s 2007 book contain meta-analyses of the
same CES data and that the meta-analyses in the two works are ―virtually the same.‖ He also
said that the charts (tables) in the two works are ―virtually identical.‖ Dr. Kirsch testified that
some studies that are included in EPII‘s 2003 manuscript are omitted from Dr. Smith‘s 2007
book. Dr. Kirsch also testified that, to his knowledge, Dr. Smith had not returned any copies of
the 2003 manuscript. During cross-examination, Dr. Kirsch acknowledged that there are
differences in Dr. Smith‘s 2007 book and EPII‘s 2003 manuscript.
Dr. Smith‘s counsel asked Dr. Kirsch a number of questions about whether EPII contended
that Dr. Smith had published EPII‘s confidential or proprietary information in his 2007 book.
EPII‘s attorney stated that ―[w]e‘re not alleging that anything that has been published is
confidential; and if that‘s what -- if that‘s the gist of what we‘re getting at, we‘ll concede that.‖
Dr. Smith testified that he did not have any copies of EPII‘s 2003 manuscript. Dr. Smith
testified that most of the CES studies that are included in the 2003 manuscript are also included
in his 2007 book. However, he said that the meta-analyses in the 2003 manuscript are not
similar to the meta-analyses in his 2007 book. Dr. Smith testified that he completely redid the
meta-analyses for the 2007 book. He said that he had not seen the 2003 manuscript in the past
five years. The following exchange then took place:
[EPII‘S COUNSEL]: You had the -- just so happened to use the identical
109 studies in 2007 as the same 109 studies that you used in 2003. You just came
upon those studies, right?
[DR. SMITH]: No.
In meta-analysis, you go through all the studies that are published and you
take out the ones that can be meta-analyzed and you get as many of those you can
find and you meta-analyze those. And I did that in the 2003 manuscript. I did it
again for my book.
9
[EPII‘S COUNSEL]: So is it your testimony that the 2007 book is a
complete do-over? You had nothing at all about the 2003 manuscript. You didn‘t
rely upon it. You didn‘t copy it. You didn‘t even have it. You didn‘t have any
analysis or any access to it all and you just --
[DR. SMITH]: That‘s correct. That is correct.
[EPII‘S COUNSEL]: -- for the purposes of drafting your 2007 book?
[DR. SMITH]: That‘s correct.
Dr. Smith testified that he learned how to perform meta-analysis in 1964 as part of his
Ph.D. program. He said that he started studying CES in 1972. He testified that, in 1985, he
performed a meta-analysis of forty-four CES studies in connection with writing a chapter in the
book, Neural Stimulation. He also testified that, before working for EPII, he meta-analyzed
fifty-two of the fifty-seven CES studies in his 2007 book. He said that the other five studies in
his book were published while he was employed with EPII. Dr. Smith also said that all of the
studies contained in the 2007 book were available to the public.
Dr. Smith testified that, with respect to his 2007 book, he did separate meta-analyses on
the double-blind studies, the single-blind studies, and the open clinical studies. He testified that,
in his 2007 book, he wrote about a new and previously unpublished theory as to why CES works.
Dr. Smith believed that about 400 copies of his 2007 book had been sold.
Dr. Smith’s Challenges to Trial Court’s Contempt Findings
In his first issue, Dr. Smith argues that no evidence supports the trial court‘s conclusion
that he violated the 2003 permanent injunction. The trial court found that the contents of the
2007 book and the contents of the 2003 manuscript are ―more than substantially the same.‖
Dr. Smith asserts that, based on this finding, the trial court impermissibly presumed, without
evidentiary support, that he used the 2003 manuscript when writing his 2007 book and that he
failed to return to EPII all copies of the 2003 manuscript. Dr. Smith asserts that the trial court‘s
final judgment and order of contempt is void because it lacks evidentiary support.
In arguing that the evidence supports the trial court‘s final order and judgment of
contempt, EPII asserts that ―[Dr.] Smith‘s 2007 Book is nearly identical to EPII‘s 2003
Manuscript.‖ A side-by-side comparison of Dr. Smith‘s 2007 book with EPII‘s 2003 manuscript
shows that, while the works contain similarities, they are different in many respects. Some of the
10
similarities are (1) that Dr. Smith‘s 2007 book and EPII‘s 2003 manuscript both contain meta-
analyses of CES studies, (2) that the 2007 book includes most of the CES studies that are
included in EPII‘s 2003 manuscript, and (3) that, based on his meta-analyses, Dr. Smith reached
similar conclusions as to the effectiveness of CES treatment in the 2007 book and the 2003
manuscript. However, viewing all the evidence in the record, the similarities in the works do not
support the conclusion that Dr. Smith used EPII‘s 2003 manuscript in publishing his 2007 book.
Dr. Smith testified that he did not have a copy of EPII‘s 2003 manuscript when writing
his 2007 book. He testified that he performed new meta-analyses for his 2007 book. Dr. Smith
explained the process for performing meta-analysis. He said that all published studies are
examined for the purpose of identifying which of the studies contain sufficient data for meta-
analysis. Once those studies are identified, they are meta-analyzed. Dr. Smith said that he
followed this process in EPII‘s 2003 manuscript and that he ―did it again‖ for his 2007 book.
The studies that contained sufficient data for meta-analysis in 2003 would still have been
available in 2007. Therefore, one would expect the studies that are included in EPII‘s 2003
manuscript to also be included in Dr. Smith‘s 2007 book.
EPII did not present evidence that Dr. Smith published any information in his 2007 book
that necessarily came from his use of its 2003 manuscript. The evidence showed that the CES
studies contained in the 2007 book were not confidential information belonging to EPII. Instead,
the studies were public information, and they were readily available from sources other than
EPII‘s 2003 manuscript. The evidence showed that Dr. Smith had knowledge of available CES
studies. Dr. Smith testified that, before his employment with EPII, he meta-analyzed fifty-two of
the fifty-seven studies that are included in his 2007 book. The fact that Dr. Smith‘s 2007 book
includes most of the CES studies that are included in EPII‘s 2003 manuscript is no evidence that
Dr. Smith used EPII‘s 2003 manuscript when writing his 2007 book.
Dr. Kirsch testified that meta-analysis is a mathematical means of combining a number of
studies to basically reaffirm the results. Because Dr. Smith‘s 2007 book includes most of the
studies that are included in the 2003 manuscript, one would expect the results of his meta-
analyses to be similar, if not the same, in both works. Thus, the fact that Dr. Smith‘s meta-
analyses yielded similar conclusions in the 2007 book and the 2003 manuscript is no evidence
that he used the 2003 manuscript in writing his 2007 book.
11
There is no evidence that Dr. Smith used EPII‘s 2003 manuscript in publishing his 2007
book or that he failed to return to EPII all copies of the 2003 manuscript. Therefore, no evidence
supports the trial court‘s conclusions that Dr. Smith knowingly violated the 2003 permanent
injunction ―(i) [by] materially using EPII‘s 2003 Manuscript in the publication of Dr. Smith‘s
2007 Book, and (ii) by failing to return to EPII all copies and/or notes of his work on EPII‘s
2003 Manuscript.‖ Dr. Smith‘s first issue is sustained.
In his second issue, Dr. Smith asserts that, in its final order and judgment of contempt,
the trial court improperly expanded the scope of the permanent injunction in the 2003 judgment
so as to preclude his use of nonconfidential information. The trial court made a distinction
between ―information‖ and ―materials‖ in the 2003 judgment. In one injunctive provision, the
trial court prohibited Dr. Smith from publishing or using information learned by him through his
employment with EPII that was ―not generally known in the industry.‖ Under the terms of this
provision, EPII‘s confidential information was protected from disclosure. On the other hand,
Dr. Smith was free to publish or use information that was generally known in the industry. In
another injunctive provision, the trial court prohibited Dr. Smith from publishing or using certain
materials, including EPII‘s 2003 manuscript, which the trial court found belonged to EPII. In its
final order and judgment of contempt, the trial court interpreted this ―materials‖ provision to
prohibit Dr. Smith not only from publishing or using the materials but also from publishing or
using the information contained in the materials. Thus, the trial court found Dr. Smith ―in
contempt of this Court‘s August 11, 2003 permanent injunction prohibiting his publication of the
information within EPII‘s 2003 Manuscript.‖
EPII does not contend that Dr. Smith published any of its confidential information in his
2007 book. However, as the trial court concluded, EPII argues that the injunctive provision
prohibiting Dr. Smith from publishing or using ―materials‖ precludes his publication or use of
information within those materials, whether or not the information is confidential. EPII states
that the permanent injunction ―clearly prohibited [Dr.] Smith‘s publication or use of the
information within EPII‘s 2003 Manuscript.‖
We disagree with EPII‘s argument for a number of reasons. First, EPII did not seek to
protect nonconfidential information in the 2003 suit. Such a request would have been improper
because an injunction that grants protection to information that is not confidential or proprietary
is impermissibly overbroad. Sw. Research Inst. v. Keraplast Techs., Ltd., 103 S.W.3d 478, 482
12
(Tex. App.—San Antonio 2003, no pet.). Second, we look to the clear language in the 2003
judgment. The trial court stated that ―[Dr. Smith] may not . . . publish [or] use . . . any of the
materials listed above.‖ The trial court did not state that Dr. Smith could not publish or use
information that was in those materials. Third, EPII‘s argument ignores the distinction between
―information‖ and ―materials‖ in the 2003 judgment. If the ―materials‖ provision is interpreted
to include a prohibition against publishing or using nonconfidential information, it conflicts with
the ―information‖ provision in the judgment, which allows Dr. Smith to publish or use
information that is generally known in the industry. Fourth, EPII‘s interpretation of the
―materials‖ provision is unreasonable because it results in the protection of nonconfidential
information and, therefore, makes the provision impermissibly overbroad. Id.
The trial court‘s 2003 judgment is unambiguous. One reasonable interpretation of the
judgment exists. The judgment prohibited Dr. Smith from publishing or using information
learned through his employment with EPII that was not generally known in the industry. The
judgment also prohibited Dr. Smith from publishing or using certain materials, including EPII‘s
2003 manuscript. However, the judgment did not prohibit him from publishing or using the
information contained in those materials, as long as that information was generally known in the
industry. There was no evidence that Dr. Smith published any of EPII‘s confidential information
in his 2007 book. Therefore, the trial court improperly concluded that Dr. Smith violated the
2003 judgment by ―his publication of the information within EPII‘s 2003 Manuscript.‖
Dr. Smith‘s second issue is sustained.
The trial court abused its discretion in finding Dr. Smith in contempt of the 2003
judgment. Therefore, Dr. Smith is entitled to mandamus relief. Based on our rulings on
Dr. Smith‘s first two issues, we need not address his third and fourth issues.
We conditionally grant Dr. Smith‘s petition for writ of mandamus. The trial court is
directed to vacate its October 16, 2009 ―Final Order and Judgment of Contempt.‖ With respect
to the relief granted in this opinion, the writ of mandamus will issue only if the trial court fails to
act by May 19, 2010.
April 29, 2010 TERRY McCALL
Panel consists of: Wright, C.J., JUSTICE
McCall, J., and Strange, J.
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