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In re National Prescription Opiate Litigation

United States District Court, N.D. Ohio, Eastern Division

July 26, 2018



          Dan Aaron Polster United States District Judge.

         In this Multidistrict Litigation (“MDL”), public entities from across the nation have sued manufacturers, distributors and retailers of prescription opiate drugs, alleging they are liable for the costs Plaintiffs have incurred, and will continue to incur, in addressing the opioid public health crisis. To assist the Court and parties in litigating (and hopefully settling) these cases and beginning to abate the crisis, the Court directed the Drug Enforcement Agency (“DEA”) and the Department of Justice (“DOJ”) (collectively, the “United States”) to produce transactional data for all 50 States and several Territories from its Automation of Reports and Consolidated Orders System (“ARCOS”) database.[1] Because the data contains law enforcement-sensitive information and confidential commercial information of the reporting manufacturers, distributors and retailers, the DEA does not release ARCOS data publicly. The DEA has produced the ARCOS data to certain entities and individuals in this MDL at the direction of the Court for this litigation only, Doc ##: 233, 397, 400, and under the safeguards of a Protective Order, Doc #: 167 - an Order that was rigorously negotiated over a significant period of time by the parties in the MDL and the United States.[2] Further, the United States agreed to the disclosure of ARCOS data to State Attorneys General (“State AGs”) “specifically conditioned upon” the DEA and DOJ receiving a list of the State AGs who receive the data, a copy of the Protective Order Acknowledgment Form signed by each State AG who receives the data, notice of any distribution of the data by any State AG to any other authorized individuals, and notice of, and the opportunity to object to, any public records request submitted to any State AG for the data. Doc #: 542 at 1.

         Certain recipients of the ARCOS data - Cuyahoga County, Ohio, Summit County, Ohio, and Cabell County, West Virginia (hereafter, “the Counties”) - have received public records requests from the Washington Post and HD Media (together, “the Media”) asking for copies of the ARCOS data furnished to the Counties in the course of discovery in this MDL. The Court has reviewed the briefs of the entities favoring disclosure of the ARCOS data to the Media. Doc #: 718 (Washington Post); Doc #: 719 (Track One Plaintiffs), Doc #: 725 (HD Media). The Court has also reviewed the briefs of entities objecting to disclosure of this data to the Media. Doc ##: 603, 717[3] (DEA/DOJ); Doc #: 605 (Distributor Defendants); Doc #: 621 (Manufacturing Defendants), Doc #: 665 (Chain Pharmacy, Manufacturing and Distributor Defendants). The Court is now prepared to issue a ruling.

         I. Standard of Review

         In 1983, the U.S. Supreme Court expressly recognized a First Amendment and common law right to inspect and copy judicial records and documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). Nixon preceded a long line of Supreme Court decisions affirming the principle of open access to criminal trial and pretrial proceedings and documents. Even the Nixon Court recognized, however, that the First Amendment right of access to criminal proceedings and documents is not absolute. Id. at 598. “Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Id.; see also Associated Press v. United States District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (prohibiting, e.g., access to grand jury proceeding transcripts and/or anything conflicting with a criminal defendant's Sixth Amendment right to a fair trial).

         Later that year, the Sixth Circuit applied the presumptive right of access to proceedings and documents in criminal cases, articulated in Nixon, to sealed judicial documents in civil cases. In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 474-45 (1983); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (1983). The Sixth Circuit acknowledged, however, that this right is not absolute. Specifically, “trial courts have always been afforded the power to seal their records when the interests of privacy outweigh the public's right to know.” Brown & Williamson, 710 F.2d at 1179, Knoxville News-Sentinel, 723 F.2d at 474. “[T]he decision as to when judicial records should be sealed is left to the sound discretion of the district court, subject to appellate review for abuse.” Knoxville News-Sentinel, 723 F.2d at 474.

         None of these standards of review apply to protective orders issued in the course of discovery in civil cases.[4] Several Federal Rules of Civil Procedure are devoted to this discrete aspect of civil litigation. Rule 26(b)(1) addresses the expansive scope of discovery. It provides:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).[5] Due to the expansive nature of discovery, Rule 26(c)(1) provides that “a court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” arising from a discovery request. The Rule further provides that a protective order may, among other things, forbid requested discovery or disclosure, specify the terms for discovery or disclosure, forbid inquiry into certain matters or limit the scope of discovery or disclosure to certain matters, or require that trade secret or commercial information not be revealed or that it be revealed only in a specified way. See Rule 26(c)(1)(A)-(H).

“Protective orders issued under Rule 26(c) serve the vital function of securing the just, speedy, and inexpensive determination of civil disputes by encouraging full disclosure of all evidence that might conceivably be relevant, ” an objective which “represents the cornerstone of our administration of civil justice.” SEC v. TheStreet Com, 273 F.3d 222, 229 (2d Cir. 2001) (internal quotation marks, alterations, and citations omitted); see also In re Zyprexa Injunction, 474 F.Supp.2d 385, 413 (E.D. N.Y. 2007) (“As civil discovery rules became more expansive over the course of the last century, the role of the courts in protecting producing parties from undue invasions of privacy has correspondingly increased.”).

Flagg ex rel. Bond v. City of Detroit, 268 F.R.D. 279, 291 (E.D. Mich. 2010). “Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), ‘it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c),' in order to regulate the use and disclosure of information that ‘if publicly released could be damaging to reputation and privacy.'” Id. at 292 (quoting Seattle Times Co. v. Rinehart, 467 U.S. 20, 32 (1984)); U.S. v. Aguilar, 515 U.S. 593, 606 (1995) (“[P]rotective orders may be imposed in connection with information acquired through civil discovery without violating the First Amendment.”); In re Carpenter Co., No. 14-0302, 2014 WL 12809636, at *1 (6th Cir. Sep. 29, 2014) (“The district court exercises great discretion over pretrial discovery, which typically occurs outside the public eye.”).

         The Seattle Times Court explained that “an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.” Id. at 33 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 399 (1979)). “[S]uch a protective order prevents a party from disseminating only that information obtained through use of the discovery process.” Id. Additionally, discovery such as “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, . . . and, in general, they are conducted in private as a matter of modern practice.” Seattle Times, 467 U.S. at 33 (quoting Gannett, 443 U.S. at 99). Thus, “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Id. at 33. In the wake of Seattle Times, federal courts have uniformly recognized the more lenient standard governing the restriction of discovery in civil cases. See, e.g., U.S. v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986); Marshall v. Bramer, 828 F.2d 355, 360 (6th Cir. 1987); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310-11 (11th Cir. 2001); Citizens First Nat'l Bank v. Cincinnati Ins. Co., 178 F.3d 943, 944 (7th Cir. 1999); Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002). Moreover, courts have approved protective orders in cases involving matters of great public interest. See, e.g., Seattle Times, 467 U.S. at 31 (upholding prohibition on public dissemination of discovery even where “there certainly is a public interest in knowing about respondents.”); The Courier Journal v. Marshall, 828 F.2d 361, 364 (6th Cir. 1987) (upholding a protective order even where the proceedings were “of intense public concern.”).

         HD Media, which basically challenges the Court's Protective Order via public records requests to the Counties, argues that the ARCOS data “is stale historic information.” Doc #: 725 at 1. HD Media further argues that none of the ARCOS data sought “is entitled to protection under trade secret, privacy or law enforcement exemptions” of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(4) (or the state FOIA analog, for that matter) under Federal Rule of Civil Procedure 26(c). Doc #: 725 at 1. In support, HD Media cites State of West Virginia ex rel. Patrick Morrisey v. AmerisourceBergen Corp., et al, Civil Action No. 12-C-141, and State of West Virginia ex rel. Patrick Morrisey v. Cardinal Health, Civil Action No. 12-C-140 (together, the “West Virginia cases”).[6] Respectively, Doc ##: 725-1, 725-2. Specifically, HD Media contends that detailed West Virginia ARCOS data for 2007-2012 “is currently in the public domain and none of the harm claimed here occurred as a result of its disclosure in 2016.” Id.

         There are numerous legal and factual distinctions between the West Virginia cases and this MDL. First, as previously noted, a protective order prevents a party from disseminating only that information obtained through use of the discovery process. “Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes.” Seattle Times, 467 U.S. at 34 (emphasis added). Second, the decision of the West Virginia court on how to supervise its civil cases does not have any precedential effect on how the undersigned supervises discovery in this MDL. Third, in the West Virginia cases, the Charleston Gazette-Mail asked the court to unseal second amended complaints; here, the Media is asking the Counties to disclose the federal government's entire ARCOS dataset produced within the confines of a protective order in the course of discovery in this MDL. As shown above, the standard of review for challenging a protective order during discovery (a showing of good cause) is much more lenient than the standard of review for unsealing judicial documents (a presumption of public access). Finally, the reason cited by defendants ...

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