Nacif et al v. Athira Pharma Inc et al, No. 2:2021cv00861 - Document 104 (W.D. Wash. 2022)

Court Description: ORDER granting Parties' 103 [Proposed] Stipulated Protective Order. Signed by Judge Thomas S. Zilly. (SS)

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Nacif et al v. Athira Pharma Inc et al Doc. 104 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 1 of 11 1 THE HONORABLE THOMAS S. ZILLY 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 ANTONIO BACHAALANI NACIF and 11 WIES RAFI, individually and on behalf of 12 all others similarly situated, Plaintiffs, 13 14 v. 15 ATHIRA PHARMA, INC.; and LEEN 16 KAWAS, Ph.D., Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) C21-861 TSZ STIPULATED PROTECTIVE ORDER 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 Dockets.Justia.com Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 2 of 11 1 1. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, proprietary, or private 3 information for which special protection may be warranted. Accordingly, the parties hereby stipulate 4 to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge 5 that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all 6 disclosures or responses to discovery, the protection it affords from public disclosure and use extends 7 only to the limited information or items that are entitled to confidential treatment under the applicable 8 legal principles, and it does not presumptively entitle parties to file confidential material under seal. 9 2. 10 “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things: 11 (a) information prohibited from disclosure by statute; (b) information that reveals trade secrets, 12 including without limitation non-public information concerning the research and development of 13 Athira Pharma, Inc.’s (“Athira’s”) drug candidates, including but not limited to Dihexa (fosgo AM) 14 and ATH-1017 (fosgonimeton); (c) research, technical, commercial or financial information that the 15 party has maintained as confidential, including but not limited to non-public information concerning 16 any of Athira’s licensing or commercial agreements, or patents granted to or licensed to Athira, non17 public information concerning Athira’s plan to commercialize any of its drug candidates, including 18 but not limited to Dihexa (fosgo AM) and ATH-1017 (fosgonimeton), and including but not limited 19 to predicted sales volumes, revenue or income figures, marketing campaigns, or other considerations 20 relevant to commercialization; and personal financial information such as trading records; (d) non21 public information related to Athira’s audits and internal investigations; (e) medical information 22 concerning any individual; (f) personal identity information, including but not limited to dates of 23 birth, social security numbers, tax identification numbers, names of minor children, passports or 24 drivers license numbers, and financial account numbers; (g) income tax returns (including attached 25 schedules and forms), W-2 forms and 1099 forms; or (h) personnel or employment records or portions 26 thereof that reveal private information. Information or documents that are available to the public may 27 not be designated as Confidential. 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 1 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 3 of 11 1 3. SCOPE 2 The protections conferred by this agreement cover not only confidential material (as defined 3 above), but also (1) any information copied or extracted from confidential material; (2) all copies, 4 excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations, 5 or presentations by parties or their counsel that might reveal confidential material. 6 However, the protections conferred by this agreement do not cover information that is in the 7 public domain or becomes part of the public domain through trial or otherwise. 8 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 9 4.1 Basic Principles. A receiving party may use confidential material that is disclosed or 10 produced by another party or by a non-party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 12 categories of persons and under the conditions described in this agreement. Confidential material 13 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 14 that access is limited to the persons authorized under this agreement. 15 4.2 Disclosure of Confidential Material. Unless otherwise ordered by the court or 16 permitted in writing by the designating party, a receiving party may disclose any confidential material 17 only to: 18 (a) the receiving party’s counsel of record in this action, as well as employees of counsel 19 to whom it is reasonably necessary to disclose the information for this litigation; 20 (b) the officers, directors, and employees (including in-house counsel) of the receiving 21 party to whom disclosure is reasonably necessary for this litigation; 22 (c) experts and consultants to whom disclosure is reasonably necessary for this litigation 23 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court, court personnel, and court reporters and their staff; 25 (e) copy or imaging services retained by counsel to assist in the duplication of confidential 26 material, provided that counsel for the party retaining the copy or imaging service instructs the service 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 2 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 4 of 11 1 not to disclose any confidential material to third parties and to immediately return all originals and 2 copies of any confidential material; 3 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 4 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 5 unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed 6 deposition testimony or exhibits to depositions that reveal confidential material must be separately 7 bound by the court reporter and may not be disclosed to anyone except as permitted under this 8 agreement; 9 (g) the author or recipient of a document containing the information or a custodian or other 10 person who otherwise possessed or knew the information. 11 4.3 Filing Confidential Material. Before filing confidential material or discussing or 12 referencing such material in court filings, the filing party shall confer with the designating party, in 13 accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will remove 14 the confidential designation, whether the document can be redacted, or whether a motion to seal or 15 stipulation and proposed order is warranted. During the meet and confer process, the designating party 16 must identify the basis for sealing the specific confidential information at issue, and the filing party 17 shall include this basis in its motion to seal, along with any objection to sealing the information at 18 issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards that will 19 be applied when a party seeks permission from the court to file material under seal. A party who seeks 20 to maintain the confidentiality of its information must satisfy the requirements of Local Civil 21 Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. Failure to satisfy this requirement 22 will result in the motion to seal being denied, in accordance with the strong presumption of public 23 access to the Court’s files. 24 5. DESIGNATING PROTECTED MATERIAL 25 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or 26 non-party that designates information or items for protection under this agreement must take care to 27 limit any such designation to specific material that qualifies under the appropriate standards. The 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 3 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 5 of 11 1 designating party must designate for protection only those parts of material, documents, items, or oral 2 or written communications that qualify, so that other portions of the material, documents, items, or 3 communications for which protection is not warranted are not swept unjustifiably within the ambit of 4 this agreement. 5 If it comes to a designating party’s attention that information or items that it designated for 6 protection do not qualify for protection, the designating party must promptly notify all other parties 7 that it is withdrawing the mistaken designation. 8 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement 9 (see, e.g., second sentence of section 5.2(b) below), or as otherwise stipulated or ordered, confidential 10 material must be clearly so designated before or when the material is disclosed or produced. 11 (a) Information in documentary form: (e.g., paper or electronic documents and 12 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the 13 designating party must affix the word “CONFIDENTIAL” to each page that contains confidential 14 material. If only a portion or portions of the material on a page qualifies for protection, the producing 15 party should clearly identify the protected portion(s) (e.g., by making appropriate markings in the 16 margins). 17 (b) Testimony given in deposition or in other pretrial proceedings: the parties and 18 any participating non-parties must identify on the record, during the deposition or other pretrial 19 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 20 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 21 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 22 exhibits thereto, as confidential. If a party or non-party desires to protect confidential material at trial, 23 the issue should be addressed during the pre-trial conference. 24 (c) Other tangible items: the producing party must affix in a prominent place on 25 the exterior of the container or containers in which the information or item is stored the word 26 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the 27 producing party, to the extent practicable, shall identify the protected portion(s). 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 4 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 6 of 11 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the designating party’s right 3 to secure protection under this agreement for such material. Upon timely correction of a designation, 4 the receiving party must make reasonable efforts to ensure that the material is treated in accordance 5 with the provisions of this agreement. 6 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 7 6.1 Timing of Challenges. Any party or non-party may challenge a designation of material 8 as confidential at any time. The challenging party must identify the challenged material(s) by Bates 9 number. Unless a prompt challenge to a designating party’s designation of material as confidential is 10 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 11 disruption or delay of the litigation, a party does not waive its right to challenge a designation of 12 material as confidential by electing not to mount a challenge promptly after the original designation 13 is disclosed. 14 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 15 regarding confidential designations without court involvement. Any motion regarding confidential 16 designations or for a protective order must include a certification, in the motion or in a declaration or 17 affidavit, that the movant has engaged in a good faith meet and confer conference with other affected 18 parties in an effort to resolve the dispute without court action, and that they have identified the 19 material(s) at issue by Bates number. The certification must list the date, manner, and participants to 20 the conference. A good faith effort to confer requires a face-to-face meeting or a telephone 21 conference. 22 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 23 intervention, the designating party may file and serve a motion to retain confidentiality under Local 24 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of persuasion 25 in any such motion shall be on the designating party. All parties shall continue to maintain the material 26 in question as confidential until the court rules on the challenge. 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 5 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 7 of 11 1 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 2 LITIGATION 3 If a party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 5 must: 6 (a) promptly notify the designating party in writing and include a copy of the 7 subpoena or court order; 8 (b) promptly notify in writing the party who caused the subpoena or order to issue 9 in the other litigation that some or all of the material covered by the subpoena or order is subject to 10 this agreement. Such notification shall include a copy of this agreement; and 11 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 12 designating party whose confidential material may be affected. 13 (d) If the designating party timely seeks a protective order, the party served with 14 the subpoena or order shall not produce any information designated in this matter as 15 “CONFIDENTIAL” before a determination by the court or other tribunal where the subpoena or order 16 issued, unless the party has obtained the designating party’s permission. The designating party shall 17 bear the burden and expense of seeking protection of its confidential material in that court. 18 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 19 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 20 material to any person or in any circumstance not authorized under this agreement, the receiving party 21 must immediately (a) notify in writing the designating party of the unauthorized disclosures, (b) use 22 its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the person or 23 persons to whom unauthorized disclosures were made of all the terms of this agreement, and (d) 24 request that such person or persons execute the “Acknowledgment and Agreement to Be Bound” that 25 is attached hereto as Exhibit A. 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 6 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 8 of 11 1 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 2 MATERIAL 3 When a producing party gives notice to receiving parties that certain inadvertently produced 4 material is subject to a claim of privilege or other protection, the obligations of the receiving parties 5 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 6 modify whatever procedure may be established in an e-discovery order or agreement that provides 7 for production without prior privilege review. The parties agree to the entry of a non-waiver order 8 under Fed. R. Evid. 502(d) as set forth herein. 9 10. 10 NON TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, each receiving party 11 must return all confidential material to the producing party, including all copies, extracts and 12 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 13 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 14 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition 15 and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even 16 if such materials contain confidential material. 17 The confidentiality obligations imposed by this agreement shall remain in effect until a 18 designating party agrees otherwise in writing or a court orders otherwise. 19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 20 Dated: December 1, 2022 21 s/ Casey E. Sadler Kara M. Wolke Casey E. Sadler Natalie S. Pang GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 Email: kwolke@glancylaw.com Email: csadler@glancylaw.com Email: npang@glancylaw.com 22 23 24 25 26 27 28 Respectfully submitted, STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 7 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 9 of 11 1 Michael P. Canty Thomas G. Hoffman, Jr. LABATON SUCHAROW LLP 140 Broadway New York, New York 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 Email: mcanty@labaton.com Email: thoffman@labaton.com 2 3 4 5 6 7 Co-Lead Attorneys for Plaintiffs Antonio Bachaalani Nacif and Wies Rafi 8 9 s/ Benjamin T.G. Nivison Benjamin T.G. Nivison, WSBA #39797 ROSSI VUCINOVICH PC 1000 Second Avenue, Suite 1780 Seattle, WA 98104 Telephone: (425) 646-8003 Facsimile: (425) 646-8004 Email: bnivison@rvflegal.com 10 11 12 13 14 Liaison Attorney for Lead Plaintiffs Antonio Bachaalani Nacif and Wies Rafi 15 23 s/ Gregory L. Watts Gregory L. Watts, WSBA #43995 John C. Roberts Jr., WSBA #44945 Tyre L. Tindall, WSBA #56357 WILSON SONSINI GOODRICH & ROSATI, P.C. 701 Fifth Avenue, Suite 5100 Seattle, WA 98104-7036 Telephone: (206) 883-2500 Facsimile: (206) 883-2699 Email: gwatts@wsgr.com Email: jroberts@wsgr.com Email: ttindall@wsgr.com 24 Attorneys for Defendant Athira Pharma, Inc. 16 17 18 19 20 21 22 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 8 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 10 of 11 1 8 s/ Sean C. Knowles Sean C. Knowles, WSBA #39893 Joseph E. Bringman, WSBA #15236 Zachary E. Davison, WSBA #47873 PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: (206) 359-8000 Facsimile: (206) 359-9000 Email: sknowles@perkinscoie.com Email: jbringman@perkinscoie.com Email: zdavison@perkinscoie.com 9 Attorneys for Defendant Dr. Leen Kawas 2 3 4 5 6 7 10 11 12 PURSUANT TO STIPULATION, IT IS SO ORDERED. IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 13 documents in this proceeding shall not, for the purposes of this proceeding or any other federal or 14 state proceeding, constitute a waiver by the producing party of any privilege applicable to those 15 documents, including the attorney-client privilege, attorney work-product protection, or any other 16 privilege or protection recognized by law. 17 18 DATED this 6th day of December, 2022. 19 A 20 21 Thomas S. Zilly United States District Judge 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 9 Case 2:21-cv-00861-TSZ Document 104 Filed 12/06/22 Page 11 of 11 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _______________________ [print or type full name], of _______________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for the 6 Western District of Washington on ___________[date] in the case of Nacif, et al. v. Athira Pharma., 7 Inc., et al., No. 2:21-cv-00861-TSZ. I agree to comply with and to be bound by all the terms of this 8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose 9 me to punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 10 any information or item that is subject to this Stipulated Protective Order to any person or entity 11 except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Western 13 District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even 14 if such enforcement proceedings occur after termination of this action. 15 Date: ________________________ 16 City and State where sworn and signed: _______________________ 17 Printed name: __________________ 18 Signature: _____________________ 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER CASE NO. 2:21-CV-00861-TSZ ROSSI VUCINOVICH, P.C. 1000 SECOND AVENUE, SUITE 1420 SEATTLE, WA 98104 PHONE: 425-646-8003 FAX: 425-646-8004 1

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