As readers of our previous posts may recall, in November 2008, Judge Kenneth Karas of the Southern District of New York granted IBM’s motion to preliminarily enjoin one of its former high-level employees, Mark D. Papermaster, from working for Apple. Finding that “it is likely that Mr. Papermaster inevitably will draw upon his experience and expertise … he gained from his many years at IBM,” Judge Karas reaffirmed the viability of the “inevitable disclosure” doctrine. Int’l Business Machines Corp. v. Papermaster, No. 08-CV-9078 (KMK), 2008 WL 4974508, at *9 (S.D.N.Y. Nov. 21, 2008).

On November 20, 2008, Mr. Papermaster appealed to the Second Circuit from Judge Karas’s preliminary injunction and also moved immediately for an expedited appeal. On December 8, 2008, Second Circuit Judge Debra Ann Livingston denied Mr. Papermaster’s motion for expedited appeal without prejudice, subject to renewal should the February 24, 2009 trial of the merits of the matter be delayed, or upon subsequent application after the scheduled trial.

Under the current briefing schedule, Mr. Papermaster’s brief to the Second Circuit is due on January 26, 2009 and IBM’s appellee’s brief is due on February 25, 2009. Oral argument on the appeal may be heard as early as the week of April 20, 2009. Stay tuned for an analysis of Mr. Papermaster’s brief in a post to follow.