Immunocompromised Atty Gets IP Trial Moved To Sept.

By Andrew Karpan
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Law360 (March 17, 2021, 7:50 PM EDT) -- A New York federal judge agreed on Tuesday to push the trial date set for software company Medidata Solutions Inc.'s trade secrets case against Veeva Systems by four months, after Veeva's lead lawyer on the case said he is immunocompromised but does not yet qualify to get the vaccine.

U.S. District Judge Lorna Schofield signed off on an order setting Sept. 20 as the new trial date for a jury to hear Medidata's case that cloud-computing company Veeva poached a handful of well-placed Medidata execs who took proprietary software used in drug-testing trials with them to their new job.

Last month, Judge Schofield told both companies that a trial in the case could suddenly begin taking place within 24-hours notice starting on May 3, citing the few courtrooms in the Southern District of New York set up for safe pandemic-era trials.

But Khari J. Tillery, a partner at Keker Van Nest & Peters LLP who is representing Veeva, told Judge Schofield that a kidney transplant left him immunocompromised and, according to the Mayo Clinic, susceptible to "an unusually high mortality rate" if he caught COVID-19: between 20% and 28%. In comparison, the mortality rate among the general population is 1% to 5%.

During the relatively few in-person trials that have taken place over the past year, COVID outbreaks have not been unheard of. In another case in the Southern District of New York — in U.S. District Judge Jed S. Rakoff's court — at least two jurors have been dismissed this month due to COVID-19 concerns. Last November, at least 15 people involved in an Eastern District of Texas breach of contract trial tested positive for the coronavirus, including at least two Beck Redden LLP attorneys.

"Given the unique and significant risk to my health were I to contract COVID-19, as well as my role as lead counsel in this matter, Veeva respectfully requests a modest continuance of the trial date from May 3 to an available date in Fall 2021," Tillery wrote Judge Schofield on March 1, adding at the time that he was not among the groups eligible to receive a vaccination.

Medidata declined to join Veeva's request to push the trial date but did not take a position opposing it. Medidata requested only that the pretrial schedule should not be delayed. "[T]his case has been pending for over four years, it is important that the parties remain prepared to bring this case to trial as soon as conditions permit," said a response filed the same day as Veeva's motion.

Medidata filed suit in early 2017, claiming that five former execs at the company made suspicious moves on their way out the door after Veeva promised them that it "will defend you against attempts to enforce your existing noncompete," according to the initial complaint.

In 2018, the judge found that Medidata properly pled that its clinical trial management software can be a trade secret under the Defend Trade Secrets Act. The case hit the Second Circuit later that year, with an appellate panel rejecting an effort from Veeva to compel arbitration in the case.

In a ruling last month, Judge Schofield determined some of Medidata's claims were preempted under California law, finding that state's law to be applicable to the contracts its former employees signed with the Bay Area-based Veeva. However, she allowed two counts relating to 10 classes of trade secrets to survive.

Representatives from both parties did not respond to a request for comment.

Medidata is represented by Claudia Ray of Kirkland & Ellis LLP.

Veeva is represented by Khari J. Tillery of Keker Van Nest & Peters LLP.

The case is Medidata Solutions Inc. v. Veeva Systems Inc. et al., case number 1:17-cv-00589, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Braden Campbell, Katie Buehler, Pete Brush and Cara Salvatore. Editing by Jay Jackson Jr.

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