A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied

In Kafeel v. Apple, Inc., 2026 WL 892016 (N.D. Cal. Apr. 1, 2026), the court denied a request for a preservation order.  The decision, properly, in my opinion, does not apply the preliminary injunction standard to a motion for a preservation order.

Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent spoliation.”  The pro se plaintiff sought to enjoin “Apple from deleting his e-books and requiring it to prove preservation.”  His motion was denied.

While it would not likely have changed the outcome on these facts, in this blog, I suggest that other parties seeking a protective order should not do so by means of a motion for preliminary injunction or motion for a temporary restraining order.

THE TRO AND PRELIMINARY INJUNCTION STANDARD

“The standard for issuing a temporary restraining order and preliminary injunction under Federal Rule of Civil Procedure 65 is the same.” Isiev v. StantaCruz, 2026 WL 891760, at *2 (C.D. Cal. Apr. 1, 2026).

A TRO may issue only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition….”  Fed.R.Civ.P. 65(b)(1).

A TRO and preliminary injunction  involve “substantially identical analysis….” Isiev, 2026 WL 891760, at *2.  Generally, there must be a showing of “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the public interest favors an injunction.” Id.

“The movant must “clearly establish” all four elements.”  Jackson v. Jones, __ F.Supp.3d ___, 2026 WL 561148, at *2 (N.D. Ga. Feb. 27, 2026).

“A TRO or preliminary injunction under Federal Rule of Civil Procedure 65 is an “extraordinary remed[y]” that should be granted ‘only sparingly and in limited circumstances.’” Wood v. Bank of Am. N.A. et al., 2026 WL 893043, at *1 (W.D. Va. Apr. 1, 2026).

THE STANDARDS GOVERNING PRESERVATION ORDERS

There are at least three different tests applicable to preservation requests:

Some courts apply the four-prong preliminary injunction test.  That requires showing a likelihood of success on the merits.  Some courts have found that inapplicable to a request for a preservation order.

Others apply a different, three-prong test. Requests for a Preservation Order (Mar. 7, 2022).  Under the three-prong test, the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence. Id. (citation omitted).

A third test is whether the party seeking preservation can demonstrate both that an order is necessary and unduly burdensome. Id.

KAFEEL APPLIED A CORRECT STANDARD

Instead of the four-factor standard implicitly requested by Mr. Kafeel, the Kafeel court applied a proper—and different—standard for a preservation order,

The Kafeel court wrote that the motion “revolves solely around preservation.”  It set out the principles governing such a motion:

[P]arties already have a duty to preserve relevant evidence in anticipated and pending litigation….  As an order demanding compliance with this preexisting duty is strong medicine that should be dispensed with restraint, courts first require “a significant concern that potentially relevant evidence will be destroyed causing harm to the opposing party.” [citations omitted].

Here, Mr. Kafeel did not meet the burden of production:

Kafeel submits limited evidence that his e-books face likely deletion. First, he points to a settlement agreement requiring Apple to “confirm permanent deletion of individual Siri audio recordings.” … But this case involves e-books, not Siri. Second, he points to a provision of the eBook Distribution Agreement providing that after termination of the Agreement, “Publisher Materials in Apple’s possession or control shall be promptly destroyed.” … However, Apple confirmed that it is complying with its preservation duties in this lawsuit “notwithstanding any contractual right to delete materials.” … Apple’s preservation duties in this lawsuit would clearly prohibit deletion of Kafeel’s e-books, so there is no reason to believe they are subject to imminent deletion.

A BETTER MOUSETRAP?

It is not unusual for parties seeking a preservation order to request immediate injunctive relief.  E.g., Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022)(request for TRO denied).

However, parties seeking a protective order may wish to suggest theories that do not impose a burden higher than is necessary.  In my view, the standard applied to motions for TRO’s and preliminary injunctions is higher than the standards applied to motions for preservation orders.

While, on these facts, it would not likely have made a difference, I suggest that the Kafeel plaintiff shouldered a heavier burden than necessary by seeking a preliminary injunction.

Under every standard, a party moving for a protective order bears a significant burden: “Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”  Id., quoting Gambino v. Hershberger, 2017 WL 2493443, at *3 (D. Md. June. 8, 2017), aff’d, 700 Fed.Appx. 272 (4^th Cir. 2017);  Failed Request for a Preservation Order (Jul. 13, 2022).