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Brado v. Vocera Communications, Inc.

United States District Court, N.D. California

July 30, 2014

MICHAEL BRADO, Individually and on Behalf of All Others Similarly Situated, Plaintiff,
v.
VOCERA COMMUNICATIONS, INC., et al., Defendants

For Michael Brado, individually and on behalf of all others similarly situated, Plaintiff: Hal Davis Cunningham, LEAD ATTORNEY, Scott Scott, Attorneys at Law, LLP, San Diego, CA; Amber L. Eck, Zeldes Haeggquist & Eck, LLP, San Diego, CA; David R. Scott, Scott & Scott LLP, Colchester, CT; Joseph Daniel Cohen, Scott Scott LLP, New York, NY; Joseph P. Guglielmo, Scott & Scott LLP, New York, NY; Stephen J. Teti, Scott Scott, Colchester, CT.

For Baltimore County Employees' Retirement System, Lead Plaintiff, Arkansas Teacher Retirement System, Lead Plaintiff, Plaintiffs: Joel H. Bernstein, Michael Walter Stocker, LEAD ATTORNEYS, Joseph A. Fonti, LEAD ATTORNEY, PRO HAC VICE, Labaton Sucharow LLP, New York, NY; Danielle Suzanne Myers, Darren Jay Robbins, Robbins Geller Rudman & Dowd LLP, San Diego, CA; Michael John von Loewenfeldt, Kerr & Wagstaffe LLP, San Francisco, CA; Shawn A. Williams, Robbins Geller Rudman & Dowd LLP, San Francisco, CA.

For Vocera Communications Inc, Robert J. Zollars, Brent D. Lang, Martin J. Silver, William R. Zerella, Brian D. Ascher, John B. Grotting, Jeffrey H. Hillebrand, Howard E. Janzen, John N. McMullen, Hany M. Nada, Donald F. Wood, Defendants: Catherine Duden Kevane, Jennifer Corinne Bretan, Marie Caroline Bafus, Ronnie Solomon, Susan Samuels Muck, Fenwick & West LLP, San Francisco, CA.

For J.P. Morgan Securities LLC, Piper Jaffray & Co, Robert W. Baird & Co. Incorporated, William Blair & Company LLC, Wells Fargo Securities LLC, Leerink Swann LLC, Defendants: Norman J. Blears, LEAD ATTORNEY, Matthew James Dolan, Sidley Austin LLP, Palo Alto, CA; Simona Gurevich Strauss, LEAD ATTORNEY, Simpson Thacher & Bartlett LLP, Palo Alto, CA.

OPINION

Page 1317

EDWARD M. CHEN, United States District Judge.

ORDER GRANTING IN PART LEAD PLAINTIFF'S MOTION TO LIMIT THE SCOPE OF CONFIDENTIALITY AGREEMENTS SIGNED BY FORMER VOCERA EMPLOYEES (Docket No. 73)

I. INTRODUCTION

This action is a consolidation of two securities class actions against Vocera

Page 1318

Communications, Inc. (" Vocera" ), which alleges that Vocera misrepresented its profitability and that plaintiffs consequently suffered losses when Vocera stock prices fell. Lead Plaintiffs (" Plaintiffs" ) are the Baltimore County Employees' Retirement System and Arkansas Teacher Retirement System. Lead Counsel is the New York law firm of Labaton Sucharow LLP (" Labaton" ). A consolidated complaint has yet to be filed.

During Plaintiffs' investigation into the facts, Labaton's investigator interviewed a former Vocera Senior Director of Internal Audit, Finance and Administration (the " Former Employee" ). The Former Employee provided internal Vocera documents and other information relevant to Vocera's alleged wrongdoing. Upon reviewing the documents, the investigator questioned whether some of them might be subject to attorney-client privilege. The documents and the investigator's notes from the interview were sequestered and no attorney at Labaton reviewed them or communicated with the investigator about their contents. The documents are currently held by separate counsel retained by Labaton.

Vocera reviewed the documents and determined that they were internal Vocera documents containing what purports to be confidential and proprietary information. Some may also contain privileged communications. Vocera asserts the Former Employee misappropriated the documents and breached his contractual confidentiality obligations to Vocera by providing them to Labaton's investigator. Vocera seeks return of the documents and to bar their use by Plaintiffs prior to discovery effectively prohibiting Plaintiffs from utilizing them in opposing to any motion to dismiss under the PSLRA.

Pending before the Court is Lead Plaintiff's Motion To Limit The Scope Of Confidentiality Agreements Signed By Former Vocera Employees And For In Camera Review Of Documents (the " Motion" ). Specifically, Plaintiffs request the Court to (1) invalidate Vocera's confidentiality agreements to the extent they restrict employees from voluntarily cooperating with Plaintiffs' investigation of this action; (2) conduct an in camera review to seclude attorney-client privileged documents for return to Vocera; and (3) impose a protective order that would govern the use of any documents containing Vocera trade secrets.

The Court DENIES Plaintiffs' request to invalidate the confidentiality agreements, but GRANTS Plaintiffs permission to use of the documents, subject to claims of privilege and a protective order.

II. FACTUAL & PROCEDURAL BACKGROUND

Vocera asserts that the documents were " misappropriated from Vocera and provided to Labaton in breach of the Former Employee's contractual confidentiality obligations to the Company." Bretan Decl. at ¶ 8 (Docket No. 83). The Former Employee had entered into a Separation Agreement with Vocera. Under the Separation Agreement, the Former Employee confirmed he had returned to Vocera " all property or data of the Company of any type whatsoever" that had been in his possession or control, including documents containing " Proprietary Information." [1] Docket No. 80 (Separation Agreement ¶ ¶ 4-5).

The Separation Agreement also bound the Former ...


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