Theravance Biopharma US, Inc. et al v. Lee

Filing 44

ORDER AS MODIFIED GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION by Judge Vince Chhabria granting 19 Motion for Preliminary Injunction.(tlS, COURT STAFF) (Filed on 10/31/2017)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Claude M. Stern (Bar No. 96737)
2
[e-mail]
Evette D. Pennypacker (Bar No. 203515)
3
[e-mail]
555 Twin Dolphin Drive, Suite 560
4 Redwood Shores, California 94065-2139
Telephone:
[phone]
5 Facsimile:
[phone]
6 Attorneys for Plaintiffs Theravance Biopharma
US, Inc., Theravance Biopharma R&D IP, LLC,
7 and Theravance Biopharma Antibiotics IP, LLC
8
9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 THERAVANCE BIOPHARMA US, INC., a
Delaware corporation, THERAVANCE
13 BIOPHARMA R&D IP, LLC, a Delaware
limited liability company, THERAVANCE
14 BIOPHARMA ANTIBIOTICS IP, LLC, a
Delaware limited liability company,
15
Plaintiffs,
16
vs.
17
JUNNING LEE, an individual,
18
19

Defendant.

CASE NO. 3:17-cv-05044
[PROPOSED] ORDER AS MODIFIED
GRANTING PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
Date:
Time:
Judge:

October 26, 2017
10:00 a.m.
The Honorable Vince Chhabria

Action filed: August 30, 2017
Trial Date: None Set

20
21

Upon consideration of Plaintiffs’ Motion for Preliminary Injunction, and all briefing,

22 evidence, and argument submitted in support and opposition thereof, the Court hereby finds that
23 (1) Plaintiffs Theravance Biopharma US, Inc., Theravance Biopharma R&D IP, LLC, and
24 Theravance Biopharma Antibiotics IP, LLC (collectively, “Theravance”) are likely to succeed on
25 the merits of their claims against Defendant Junning Lee for trade secret misappropriation, breach
26 of contract, and breach of fiduciary duty and duty of loyalty; (2) Theravance is likely to suffer
27 irreparable harm absent equitable relief; (3) the balance of equities tips in Theravance’s favor; and
28 (4) it is in the public interest to issue a preliminary injunction.
02104-00002/9568845.1

Case No. 3:17-cv-05044
[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

THEREFORE, IT IS HEREBY ORDERED that Plaintiffs’ Motion is GRANTED, and

2 during the pendency of the trial of this action, or until otherwise Ordered by this Court:
3

A.

Defendant Junning Lee and, all persons acting under, in concert with or for him, or

4 anyone who receives actual notice of this Order, whether or not in the United States, are hereby
5 restrained and enjoined from each and all of the following:
6

1. Any and all use, disclosure, providing third parties access to, transferring, copying,

7

duplication, reproduction, publication, distribution, broadcasting or marketing of

8

any version of Theravance Confidential Information, including, but not limited to:

9

(a) documents and materials from proprietary and ongoing Theravance projects

10

(including research and development weekly reports, research project updates,

11

project management reports, clinical and non-clinical test data, manufacturing

12

information, chemistry processes, lab notebooks, regulatory reports, and other

13

highly sensitive information); (b) corporate documents (such as board books,

14

company forms, development leadership team materials, and due diligence

15

documents); (c) documents and materials from various Theravance departments,

16

(including biometrics, finance, human resources, medical affairs, legal, patent, and

17

quality, in addition to tech ops); and (5) user training documents and materials.

18

Confidential Information includes, but is not limited to, trade secrets and other

19

proprietary information from all confidential and non-public Theravance products

20

and projects.

21

2. Destroying, concealing, disposing, deleting, removing or altering any and all

22

documentation of any kind, whether paper or electronic (including but not limited

23

to computer files, emails, hard drives, disk drives, USB drives, zip drives, cloud-

24

based storage accounts), data, drafts or other things or materials:

25

a) obtained from or belonging to Theravance, or containing or derived from

26

Theravance Confidential Information, including but not limited to modified

27

versions of Theravance documentation or data;

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02104-00002/9568845.1

Case No. 3:17-cv-05044
-2[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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b) relating in any way to Theravance or Theravance Confidential Information,

2

including any use, disclosure, possession and/or transfer of Theravance

3

Confidential Information, including but not limited to modified versions of,

4

copies of and/or references thereto;

5

c) relating in any way to the creation, copying, duplication, development,

6

production, distribution, publication and/or broadcast of any version of

7

Theravance Confidential Information or any derivative, copy, or

8

reproduction thereof; and/or

9

d) relating in any way to instructions, requests, directives, or agreements with

10

or by any third party concerning the use or disclosure of Theravance

11

Confidential Information, specifically but not limited to instructions,

12

requests, directives or agreements made by and between Lee and any new

13

or potential employer and/or partner.

14

B.

Defendant Lee shall, within 48 hours of the issuance of this Order, identify to

15 Theravance’s counsel of record, in writing and under oath, the identity and last-known contact
16 information, including the title, email address, physical address, telephone number, employer and
17 other identifying information in Lee's possession, custody or control, of the individuals, groups,
18 companies, governmental entities, or other persons or entities, if any, to whom Lee and, as
19 applicable, his agents and all of those acting in active concert or participation with him, have
20 disclosed, transferred, published, distributed, broadcasted, or marketed any Theravance
21 Confidential Information.
22

C.

Defendant Lee and his agents and all of those acting in active concert or

23 participation with him shall, within 48 hours of the issuance of this Order, make the following
24 items in their possession, custody, or control (and not previously returned to Theravance’s counsel
25 of record) available to Theravance’s counsel of record for full-disk forensic imaging and data
26 preservation by Theravance, for Theravance’s counsel’s review on an Attorney’s Eyes Only basis:
27

1. Any computer (laptop and/or desktop) and every form of media, including but not

28

limited to electronic storage devices, external hard drives, zip drives, memory

02104-00002/9568845.1

Case No. 3:17-cv-05044
-3[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

sticks, jump drives, USB/flashdrive devices, CDs, DVDs, floppy disks, email

2

accounts or other cloud storage services, Blackberries, other PDAs, cell phones,

3

and/or tablets with text messaging or electronic mail capabilities, including logon

4

credentials necessary to access such media, which contain or have ever contained

5

Theravance Confidential Information, whether original or derivative, and/or any

6

copies and/or references thereto, including any mirror images of any media,

7

whether or not previously sent by Lee to Theravance and/or its counsel; specific

8

devices include, but are not limited to: Lenovo X1 Carbon laptop, Lenovo X250

9

laptop, Lenovo X230 laptop, Lenovo Yoga laptop, iPad Pro 9.7” 256 Gb, iPad 2,

10

iPhone 7 128 Gb, iPhone 6s 128 Gb, any “family computers” used at any time to

11

access Theravance correspondence or materials, and the following flash drives

12

and/or external media devices:

13

•

Generic Flash Disk USB Device with serial number 371E7E36;

14

•

Generic Flash Disk USB Device with serial number 7E7E66F6;

15

•

Generic Flash Disk USB Device with serial number F627A265;

16

•

Generic

•

19
20

USB

Device

with

serial

number

Generic

Flash

HS-CF

USB

Device

with

serial

number

26020128B005;
•

21
22

Disk

CCBB1206121156220168487511;

17
18

Flash

Generic USB Flash Disk USB Device with serial number
00ED375829089F70;

•

23

HGST HTS 725050A7E630 USB Device with serial number
4F655A741326;

24

•

HP v125w USB Device with serial number AA0C105400064475;

25

•

iXpand

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27
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02104-00002/9568845.1

Flash

Drive

USB

Device

with

serial

number

058FA5DF2DCC1;
•

JetFlash Transcend 64GB USB Device with serial number
12WVXPHCZJL9LXHN;

Case No. 3:17-cv-05044
-4[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

•

2
3

25FURAHC6M87EX7R;
•

4
5

•

•

•

•

•

•

•

•

•

•

28
02104-00002/9568845.1

PNY

Lovely

Attache

USB

Device

with

serial

number

USB

Device

with

serial

number

AA04012700007609;
•

26
27

Kingston DataTraveler 3.0 USB Device with serial number
60A44C3FAC2DAF7030000C12;

24
25

Kingston DataTraveler 3.0 USB Device with serial number
08606E6B6580B051E832C83D;

22
23

Kingston DataTraveler 3.0 USB Device with serial number
60A44C4138F0F071B98B011F;

20
21

Kingston DataTraveler 3.0 USB Device with serial number
60A44C4138F0B071098B002A;

18
19

Kingston DataTraveler 3.0 USB Device with serial number
60A44C41388DF071B9860185;

16
17

Kingston DataTraveler 3.0 USB Device with serial number
08606E6D41E2B021283D3223;

14
15

Kingston DataTraveler 3.0 USB Device with serial number
08606E6B6896F051981E048B;

12
13

Kingston DataTraveler 3.0 USB Device with serial number
002618887702F070584BBDFD;

10
11

Kingston DataTraveler 2.0 USB Device with serial number
50E549C202101010A9AB9FCB;

8
9

Kingston DataTraveler 2.0 USB Device with serial number
00241D8CE51BBE80492C910F;

6
7

JetFlash Transcend 64GB USB Device with serial number

SanDisk

Cruzer

Edge

20051738200F30431997;
•

SanDisk

Cruzer

USB

Device

with

serial

number

4C530001080728109360;

Case No. 3:17-cv-05044
-5[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

•

2
3

•

•

Device

with

serial

number

SanDisk

Cruzer

Device

with

serial

number

Device

with

serial

number

Device

USB

SanDisk

Cruzer

USB

with

serial

number

20035001801D52F1B5F4;
•

8
9

USB

20060775031D52F02715;

6
7

Cruzer

4C530001190728104410;

4
5

SanDisk

SanDisk

Cruzer

USB

20052243711D52F02ABB;
•

10

SanDisk

Ultra

Backup

USB

Device

with

serial

number

08769307D092A3D4;

11

•

Seagate BUP Slim SL USB Device with serial number NA7ZAP0A;

12

•

Seagate Expansion USB Device with serial number NA427KES;

13

•

Seagate

14
15

•

•

•

•

serial

number

Seagate Portable USB Device that includes the following serial

Seagate Ultra Slim MT USB Device with serial number

USB2.0

Flash

Disk

USB

Device

with

serial

number

WD My Passport 0740 USB Device with serial number
5758423145413146444B5431;

•

24
25

with

RJKGFJ8095006719;

22
23

Device

NA952EDR;

20
21

USB

numbers: “2GHWXA1H”;

18
19

Go

2GE16VW2;

16
17

FreeAgent

CBM

Flash

Disk

USB

Device

with

serial

number

serial

number

111453004D111004;
•

26

Chipsbnk

UDisk

USB

Device

with

130601152606224;

27

•

Generic Flash Disk USB Device with serial number 2A65388A;

28

•

Generic Flash Disk USB Device with serial number 04A40057;

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Case No. 3:17-cv-05044
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1

•

Generic Flash Disk USB Device with serial number 97AB2DB6;

2

•

Maxtor OneTouch USB Device that includes the following serial

3
4

numbers: “2HA26E38”;
•

5

SCSIDISK SCSI_DISK_1234 USB Device with serial number
120830204111;

6

•

Seagate Ultra Slim MT USB Device with serial number NA952E69;

7

•

TOSHIBA TransMemory USB Device with serial number

8
9

7427EAB34F8FCE21C3A122EB;
•

10
11

B7A1A77C;
•

12
13

•

18
19
20

WD

Elements

1042

USB

Device

with

serial

number

575850314541324A4B573038;
•

16
17

Verbatim STORE N GO USB Device with serial number
04774B000000091C;

14
15

Verbatim STORE N GO USB Device with serial number

WD My Passport 0741 USB Device with serial number
575833314139335; and

•

any other flash drives or external media used to store or transfer
Theravance Confidential Information.

2. All documents and things, or other materials containing or derived from
Theravance Confidential Information;

21

3. All documents and things, or other materials including but not limited to records,

22

files, and data, received by Lee and/or, as applicable, his agents and all of those

23

acting in active concert or participation with him, from any company that competes

24

with Theravance or offers products and/or services that compete with Theravance’s

25

products and/or services, from August 20, 2014 through the date of the entry of the

26

preliminary injunction, including but not limited to any and all materials received

27

from Lexen Holdings, Ltd. and any of its affiliates (collectively, “Lexen”).

28
02104-00002/9568845.1

Case No. 3:17-cv-05044
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4. All documents and things, or other materials including but not limited to records,

2

files, and data, received by Lee and/or, as applicable, his agents and all of those

3

acting in active concert or participation with him, from any company that Lee met

4

and/or conferred with regarding Theravance and/or Theravance Confidential

5

Information, from August 20, 2014 through the date of the entry of this Order,

6

including but not limited to any and all materials received from the China FDA,

7

clinical

8

subcontractors, materials suppliers, banking/financial institutions, and/or venture

9

capitalists (VCs) with whom Lee discussed Theravance and/or Theravance

10

research

organizations

(CROs),

manufacturing

contractors

or

Confidential Information, including, but not limited to:

11

•

CDH

12

•

Wuxi Healthcare Ventures

13

•

Yuanming Capital

14

•

Fosun Pharma

15

•

Shenzhen Royal Asset Management Co. Ltd.

16

•

Beijing Sunforest Capital

17

•

AdvanTech Capital

18

•

C-Bridge Capital

19

•

CITIC\Private Equity Funds

20

•

Hill House Capital Management

21

•

Sequoia Capital

22

•

Arch Ventures

23

•

Pingan Venture

24

•

Lapam Capital

25

•

Me Fund Capital

26

•

Sinopharm Capital

27

•

Hengdian Apeoloa

28

•

Biocapital

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Case No. 3:17-cv-05044
-8[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

•

HG Capital

2

•

BioVenture

3

•

ObiMed

4

•

Lilly Asia Venture

5

•

CLI Venture

6

•

EFung Capital

7

•

ORIZA Seed

8

•

Qiming Venture

9

•

Vivo Capital

10

•

Holly High Capital

11

•

GP Capital

12

•

Lyfe Capital

13

•

Apricot Tree Capital

14

•

Joaquin Torres

15

•

Li Li

16

D.

Pursuant to Federal Rule of Civil Procedure 26(d)(1), the parties may commence

17 discovery and any limits on discovery that would be applicable before any Rule 26(f) conference
18 shall be and hereby are waived. Until any other Protective Order is negotiated between the parties,
19 the “Model Protective Order for Litigation Involving Patents, Highly Sensitive Confidential
20 Information and/or Trade Secrets,” included and referenced by the Local Rules for the Northern
21 District of California shall be operative and be deemed by the parties and the Court as being
22 entered in this case upon entry of this Preliminary Injunction.
23

E.

Theravance shall not be required to post a bond for the issuance of this Preliminary

24 Injunction.
25

F.

This Preliminary Injunction is issued without prejudice to Theravance or Lee

26 seeking further additional discovery or other relief as appropriate, including further equitable or
27 legal relief.
28
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Case No. 3:17-cv-05044
-9[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

1

G.

This Preliminary Injunction shall remain in full force and effect through the date on

2 which judgment is entered following the trial of this action.
3

H.

4

IT IS SO ORDERED.

This Preliminary injunction shall become immediately effective upon its entry.

5
DATED: October 31, 2017
6
7

By___________________________________
United States District Judge Vince Chhabria

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Case No. 3:17-cv-05044
-10[PROPOSED] ORDER AS MODIFIED GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION