concurring in part and dissenting in part:
I concur in the decision of the majority to reverse the portion of the order for the preliminary injunction which prohibits Wittel from soliciting former customers of Colson and which requires Wittel take affirmative action other than turning over certain documents. I dissent from the decision of the majority to reverse the portion of that order requiring Wittel to turn over certain documents to the clerk of the court.
I agree that under Revcor, Inc. and Fleming Sales Co., absent a valid restrictive covenant, a former salesperson cannot be properly restricted from soliciting customers or former customers of a former employer where the names of those customers have been committed to the memory of the salesperson and their names have not been obtained by fraud. This was the situation in regard to the customers Wittel was soliciting here.
I disagree with the majority in regard to their contention that information or customers’ names must have been kept secret from the former employee for them to be trade secrets as to him. The ILG Industries, Inc. opinion does not indicate the drawings involved there were kept secret from the former employee and obtained by him through stealth. The authoritative quotation from the Restatement of Torts does not make such a requirement (Restatement of Torts §757, comment b, at 6 (1939)). (ILG Industries, Inc., 49 Ill. 2d at 93, 273 N.E.2d at 396.) Section 396 of the Restatement (Second) of Agency limits the authority given a former employee to make use of secret customer information obtained from a former employer to that committed to memory and gives no indication that information which cannot be divulged is limited to that which has been kept secret from the employee.
The Revcor, Inc. opinion is more specific in indicating that customer information need not be kept secret from a former employee in order for an injunction to lie without a restrictive covenant. The opinion indicates that, under “proper circumstances,” salespersons may be enjoined from soliciting customers of a former employer if a restrictive covenant exists, a list of the customers has “fraudulently or surreptitiously [been] copied or removed” from that employer “or if the names of actual or potential customers are confidential, not subject to memory, [and] are not publicly listed or otherwise readily obtainable.” (Emphasis added.) Revcor, Inc., 85 Ill. App. 2d at 357, 228 N.E.2d at 746.
Here, Wittel was aware of a substantial amount of customer information which had been acquired at great expense to Colson. Substantial effort had been made by Colson to keep this information confidential. Contrary to Colson’s direction, Wittel had placed a list of customers with whom he had worked and prospective customers on Wittel’s personal computer. He had also placed some letters he had written to customers on that computer and, apparently, he had taken this information with him. In Fleming Sales Co., apparently no customer lists were taken. Depriving Wittel of these lists would not require him to figuratively “perform a prefrontal lobotomy on himself” (Fleming Sales Co., 611 E Supp. at 514), as long as he is permitted to use information he has committed to memory. I conclude the circuit court was well within its discretion in requiring Wittel to deliver all copies containing the foregoing information to the circuit clerk.
Preliminary relief beyond the requirement that Wittel turn over certain documents to the circuit clerk is hard to justify. Much of the customer information available to Wittel had been committed to memory. This was particularly true in regard to the former customers Wit-tel had solicited. Determining whether subsequent solicitation by Wit-tel of other former Colson customers would result from Wittel’s memory or former notes would be very difficult, if not impossible, to determine. Accordingly, I agree that except in regard to the documents held by Wittel no other preliminary injunctive relief should have been granted.