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Bioconvergence LLC v. Attariwala

United States District Court, S.D. Indiana, Indianapolis Division

December 18, 2019

BIOCONVERGENCE LLC d/b/a SINGOTA SOLUTIONS, Plaintiff,
v.
JASPREET ATTARIWALA, SIMRANJIT JOHNNY SINGH a/k/a SIMRANJIT J. ATTARIWALA a/k/a SIM J. SINGH, Defendants. JASPREET ATTARIWALA, Counter Claimant,
v.
BIOCONVERGENCE LLC, Counter Defendant.

          ORDER GRANTING PLANTIFF'S MOTION FOR FURTHER PRELIMINARY INJUNCTION [DKT. 84]

          SARAH EVANS BARKER, JUDGE

         This cause is before the Court on Plaintiff's Motion for Further Preliminary Injunction [Dkt. 84] filed on October 10, 2019. With that motion, Plaintiff BioConvergence LLC d/b/a Singota Solutions (“Singota”) seeks an order supplementing an existing preliminary injunction entered by the Monroe Circuit Court I (Indiana) on March 4, 2019. Singota specifically requests an order enjoining Defendant Jaspreet Attariwala from working for her current employer and Singota's direct competitor, Emergent BioSolutions, Inc. (“Emergent”), as well as any other competitor based on alleged violations of the Indiana Uniform Trade Secrets Act. This matter was heard on two occasions by this court, on November 21, 2019, and December 4, 2019.

         For the reasons detailed in this entry, Plaintiff's motion is GRANTED.

         Background

         The facts giving rise to this litigation are both prolix and labyrinthine; thankfully, they are largely undisputed by the parties.

         I. The Parties

         Singota is a limited liability corporation based in Bloomington, Indiana. [Am. Compl. ¶ 17]. It operates as a contract development and manufacturing organization, sometimes referred to as a “CMO” or “CDMO, ” offering services for clients in pharmaceutical, animal health, and medical device industries. [Id. at ¶ 18]. Singota's services relate to sterile products that must be administered by injection, and Singota focuses its sterile-product capacity on primarily servicing clients with early-to-mid and late-stage research and development as well as commercial products that require small-scale capacity equipment [Id. at ¶ 19]. In serving its clients, Singota maintains highly confidential information with respect to its clients' products and is thus required to enter into client-specific confidentiality and disclosure agreements with strict terms governing Singota's storage, protection, and return of its clients' confidential product information. [Id. at ¶¶ 23-24].

         Ms. Attariwala was first employed as a Senior Business Development Manager for Singota in September 2015. [Id. ¶ 27]. In this role, she was responsible for promoting Singota's business and generating new client projects. As a Senior Business Development Manager, she maintained access to Singota's confidential and proprietary information as well as Singota's clients' confidential and proprietary information. [Id. at ¶ 33].

         As a condition of her employment with Singota, Ms. Attariwala executed an employment agreement in 2015 at the outset of her employment. [Id. at ¶ 27]. The employment agreement contained two restrictive covenants relevant to this litigation: a covenant not to solicit certain Singota clients and prospective clients, and a covenant not to use, disclose, or misappropriate Singota's confidential information. The nondisclosure provision specifically provides:

Employee (i) shall use Confidential Information solely in connection with Employee's employment with the Company; (ii) shall not directly or indirectly disclose, use or exploit any Confidential Information for Employee's own benefit or the benefit of any other person or entity, other than the Company, both during and after Employee's employment with the Company or as required by law; and (iii) shall hold Confidential Information in trust and confidence, and use all reasonable means to assure that it is not directly or indirectly disclosed to or copied by unauthorized persons or used in an unauthorized manner, both during and after Employee's employment with the Company.

[Am. Compl., Exh. A]. The agreement defines confidential information as:

[A]ny proprietary, confidential, or company-sensitive information and materials which are the property of or relate to the Company or business of the Company. Confidential Information shall include without limitation all information and materials created by, provided to, or otherwise disclosed to Employee in connection with Employee's employment with the Company (excepting only information and materials already known by the general public), including without limitation (i) trade secrets, (ii) the names and addresses of the Company's past, present or prospective contributors, beneficiaries or business contacts, and all information relating to such contributors, beneficiaries, or business contacts, regardless of whether such information was supplied or produced by the Company or such contributors, beneficiaries, or business contacts; and (iii) information concerning the Company's affiliates, financing sources, profits, revenues, financial condition, fund raising activity, and investment activity, business strategies, and software used by the Company and associated layouts, templates, processes, documentation, databases, designs and techniques.

[Id.] The non-solicitation provision states:

During Employee's employment with the Company and for a period of twelve (12) months (which shall be extended by the length of any period during which Employee is in violation of this section) immediately following the termination of Employee's employment for any reason, Employee (on Employee's own behalf or that of any other person or entity) shall not directly or indirectly sell or otherwise provide or solicit the sale or provision of any product or service that competes directly or indirectly with any business of the Company to any customer or prospective customer or prospective customer as to which, during the 12 months immediately preceding the date of termination, Employee (i) engaged in any solicitation, sales activity, or other direct contact (in person, in writing, by telephone or electronically) on behalf of the Company; (ii) performed any duties or services on behalf of the Company; and/or (iii) received any Confidential Information.
[Id.].

         II. Ms. Attariwala's Departure from Singota and Commencement of Employment with Emergent

         In October 2018, Ms. Attariwala undertook negotiations with Emergent, a direct competitor of Singota, regarding her potential employment with that company. [Dkt. 85, Exh. A.] She ultimately accepted an offer from Emergent as a Senior Manager on December 11, 2018 and submitted her resignation to Singota on December 19, 2018. [Dkt. 85, at 7, 8]. She officially departed Singota later that month[1] and commenced her employment with Emergent on February 11, 2019. [Id. at 9, 13].

         Following Ms. Attariwala's departure, Singota began to suspect that Ms. Attariwala had breached the restrictive covenants of her employment agreement. [Id. at 10]. In late-December 2018, a review of Ms. Attariwala's email revealed that she been in contact with Singota's current and prospective clients to inform them of her transition to Emergent. She further notified these clients that she would be in contact with them in January once she settled into her new position. [Id.]. She also shared information about Emergent's aseptic filling capabilities with at least one of these clients. [Id.]

         Upon discovering these communications, Singota issued a cease and desist letter to Ms. Attariwala demanding that she comply with the terms of her employment agreement and that she immediately disclose to them any confidential or proprietary information that she had accessed following her departure. [Id. at 10-11, Exh. A]. Singota requested that Ms. Attariwala provide assurances, under oath, identifying said information and describing any use thereof. [Id.] The parties participated in ongoing discussions in an attempt to informally resolve these disputes, but without avail; Ms. Attariwala denied any improper communications with clients and would not provide Singota with any requested assurances. [Dkt. 85, at 12; Am. Compl. ¶ 42].

         Sometime in February 2019, an analysis of Ms. Attariwala's Singota email data revealed that Ms. Attariwala had, on the same day she had accepted employment with Emergent, forwarded large amounts of Singota's confidential information to her personal email address, including a memorandum discussing Singota's aseptic manufacturing capabilities as well as information about Singota's clients, prospective clients, contact lists, internal processes, technology, and business practices. [Dkt. 85, at 13]. Singota also discovered that Ms. Attariwala, while in negotiations with Emergent, had forwarded a prospective client opportunity, which she had received on behalf of Singota, to her personal email account and to her future supervisor at Emergent. [Id., at 7].

         These discoveries prompted Singota to file suit against Ms. Attariwala in the Monroe Circuit Court I (Indiana) on February 27, 2019, and seek a temporary restraining order and preliminary injunction. [Id. at 14].

         III. State Court Proceedings

         a. State Court Enjoins Ms. Attariwala

         On February 28, 2019, the state court entered a Temporary Restraining Order against Ms. Attariwala:

1) Enjoining Ms. Attariwala from having in her possession, custody, or control and from directly or indirectly using the Company's trade secrets, confidential information, protected information, and other property;
(2) Prohibiting Ms. Attariwala from breaching her Employment Agreement by directly or indirectly communicating with or servicing the Company's clients and prospective clients;
(3) Requiring Ms. Attariwala to return to the Company all confidential information, protected information, and other property that she took or copied from the Company, including from all email accounts, computer hardware or software, and other electronic storage media, and for independent verification of her compliance with these requirements

[Dkt. 85, Exh. D]. The state court contemporaneously issued a preservation order requiring Ms. Attariwala to “preserve all potentially relevant evidence in this case, including expressly electronically stored data in her possession, custody, or control relating to Singota, including emails or data [.]” [Dkt. 4-1, at 86].

         The state court conducted preliminary injunction hearings on March 1, 2019 and March 4, 2019. Following these hearings, the state court entered a stipulated preliminary injunction requiring Ms. Attariwala and all those acting in concert with her to:

• avoid directly or indirectly disclosing, using, or exploiting Singota's “Confidential Information” and to hold such Confidential Information in trust and confidence until it could be returned to Singota;
• turn over all documents, data, devices, storage media, and other property belonging to Singota;
• avoid directly or indirectly destroying, erasing, or otherwise making unavailable any such documents, data, devices, storage media, etc.
• within twenty-four (24) hours, make all computers, hard drives, storage media, email and cloud accounts, cell phones, and other devices available to Singota's forensic expert, Ms. Rebecca Green;
• not attempt to reconstitute, recover, or in any way restore any of the Confidential Information returned to Singota pursuant to the preliminary injunction;
• and comply with all other restrictive covenants in her employment agreement.

[Dkt. 85, Exh. F]. The state court simultaneously issued an Order for Inspection of Computers and Electronic Information Storage Devices (the “Inspection Order) detailing specific protocols to ensure that Ms. Attariwala produce for inspection all accounts and devices that could contain Singota information. [Dkt. 85, Exh. G]. The Inspection Order, in conjunction with the preliminary injunction, ordered Ms. Attariwala, and all those acting in concert with her, to produce for inspection all computers, hard drives, electronic storage devices, email or cloud accounts, phones, and tablets used to store electronic information within her possession, custody, or control. [Id.]. Ms. Attariwala, and all those acting in concert with her, were also ordered to produce all documents, data and materials which contained confidential information; all documents, products, notes, or materials connected with or arising out Ms. Attariwala's employment with Singota; any computer, software, phone, or other device provided by the company; and any security devices related to Singota. [Id.]

         Ms. Attariwala was to produce the specified accounts and devices with 24 hours following the issuance of the injunction and to immediately cease accessing any account or device that contained Singota's confidential information. She was explicitly ordered not to access any storage location where Singota's information may be contained until Ms. Green's examination of the particular location was completed. Finally, the Inspection Order detailed terms and conditions by which Ms. Green was to inspect the accounts and devices. [Id.].

         At the conclusion of the preliminary injunction hearings, the state court further determined that Ms. Attariwala should bear the costs of Ms. Green's forensic work anticipated in the stipulated preliminary injunction and the Inspection Order. The state court memorialized this decision in a written order dated March 18, 2019 (the “Expenses Order”). [Dkt. 85, Exh. H].

         b. Ms. Green's March 2019 Inspections

         Following the entry of the state court's stipulated preliminary injunction and Inspection Order, Ms. Attariwala produced several accounts and devices, [2] including her personal computer, iPhone, and iPad, and her husband's MacBook computer. [Dkt. 85, at 17-19; Exh. B, ¶ 215]. At that time, Singota, while it did not yet know the full extent of the documents taken and potentially shared by Ms. Attariwala, Singota believed that Ms. Attariwala's purported production of all accounts and devices in her possession would enable Ms. Green to efficiently complete her inspection and remove any risk of misappropriation of Singota's confidential information and trade secrets.

         However, as Ms. Green commenced her inspections in March 2019, she soon realized that the scope of the required inspection was exponentially greater than the parties had contemplated when they entered into their stipulated preliminary injunction. [Dkt. 85, Exh. B at 16]. Ms. Green's initial review of Mr. Attariwala's MacBook, for example, produced more than 10, 000 “hits” for the search terms “Singota, BioConvergence, and BioC, ” and Ms. Attariwala's iPhone produced over 3000 hits. Ms. Green also discovered fourteen email and cloud accounts with over three million emails that could potentially contain Singota's confidential information. These accounts, once uncovered by Ms. Green, led to the discovery that Ms. Attariwala had emailed Singota documents to accounts that were never disclosed and connected various accounts and devices to those devices containing Singota's confidential information [Id. at 16-21]. Ms. Green also discovered the transmittal of Singota data through email accounts that Ms. Attariwala had represented as not containing any confidential information of Singota's.

         Ms. Green further determined that Ms. Attariwala had backed up her iPhone to an undisclosed iCloud account on the same day the stipulated preliminary injunction was entered and had accessed at least one email account likely containing Singota data at the same time Ms. Green was conducting her analysis, all in contravention of the state court orders. Ms. Attariwala admitted deleting an unknown number of ...


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