In re National Prescription Opiate Litigation
Not available (2023)
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Rule of Law:
Under Federal Rule of Civil Procedure 26(c), a party seeking a protective order over discovery materials must demonstrate 'good cause' with a particular and specific demonstration of fact, which is not met by stereotyped or conclusory statements of harm, especially when weighed against a significant public interest in disclosure.
Facts:
- A massive multidistrict litigation (MDL) was initiated by approximately 1,300 public entities, including cities and counties, against manufacturers, distributors, and retailers of prescription opioid drugs to recover costs associated with the opioid crisis.
- The Drug Enforcement Administration (DEA) maintains the Automation of Reports and Consolidated Orders System (ARCOS) database, which tracks the flow of controlled substances from their point of manufacture to the retail level.
- The data in the ARCOS database is provided by drug manufacturers and distributors as required by law and contains transactional details such as supplier, buyer, drug code, and total dosage units.
- In the course of the MDL, the plaintiff public entities obtained extensive ARCOS data from the DEA covering the period of 2006 through 2014.
- HD Media Company, LLC (HDM) and The W.P. Company, LLC (d/b/a the Washington Post), two news organizations, filed state public records requests with several plaintiff counties to gain access to the ARCOS data they had received.
- Previously, HDM had obtained some ARCOS data in a separate litigation, and its subsequent reporting on the opioid crisis won a Pulitzer Prize and prompted a U.S. House of Representatives committee investigation.
Procedural Posture:
- Public entities sued opioid manufacturers, distributors, and retailers in a multidistrict litigation (MDL) in a federal district court (court of first instance).
- During discovery, the plaintiffs subpoenaed the non-party DEA for its ARCOS data.
- The district court entered a Protective Order restricting the use of ARCOS data to litigation and law enforcement, and barring its public disclosure.
- Over the DEA's objections, the district court ordered the DEA to produce the data to the plaintiffs, finding the DEA had not shown good cause to withhold it.
- HD Media and the Washington Post (Intervenors) filed state public records requests with some of the plaintiff counties.
- The DEA and defendants objected in the district court to the fulfillment of these requests, citing the Protective Order.
- The district court granted HD Media and the Washington Post limited intervenor status to address the public records requests.
- The district court issued an Opinion and Order denying the public records requests, finding that the DEA and defendants had established 'good cause' for the Protective Order to prevent public disclosure.
- Intervenors (appellants) appealed the district court's order to the U.S. Court of Appeals for the Sixth Circuit (intermediate appellate court).
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Issue:
Does a district court abuse its discretion by finding 'good cause' to maintain a protective order that categorically bars public entity plaintiffs from disclosing DEA ARCOS data in response to state public records requests, where the asserted law enforcement and competitive harms are speculative and the public interest in understanding a national health crisis is substantial?
Opinions:
Majority - Judge Clay
Yes, the district court abused its discretion by maintaining the protective order. To establish 'good cause' under Rule 26(c), the DEA and the defendant drug companies were required to make a particular and specific showing of harm, but their assertions of competitive injury and interference with law enforcement were speculative and conclusory. The court noted its own initial findings that the data was too old to cause competitive harm or meaningfully interfere with law enforcement, and characterized the district court's later acceptance of these same arguments as a 'complete about-face.' Weighing the interests, the court found that the substantial public interest in understanding the opioid epidemic, as evidenced by the impact of prior reporting on similar data, far outweighed the vague and attenuated harms asserted by the DEA and defendants. The protective order was overly broad, and less restrictive means, such as redacting information related to specific, ongoing investigations, were not properly considered.
Dissenting in part - Judge Guy, Jr.
No, the district court did not abuse its discretion in maintaining the protective order. The majority incorrectly views the district court's reasoning as an 'about-face'; rather, the court correctly applied different standards and balanced different interests when considering disclosure to parties in litigation versus disclosure to the public at large. The risk of harm from public dissemination is far greater than from disclosure to litigants under a protective order. The district court properly managed the complex litigation by allowing plaintiffs access to necessary discovery while protecting the legitimate, though not absolute, law enforcement and commercial interests of the DEA and defendants for the time being. The news organizations are non-parties attempting to leverage the plaintiffs' broad discovery rights and have other avenues, such as FOIA requests, to seek the information.
Analysis:
This decision significantly strengthens the position of the press and the public in accessing discovery materials in litigation of high public concern. It clarifies that the 'good cause' standard for protective orders requires concrete, specific evidence of harm, which will be difficult for parties to meet when the information sought is critical to understanding a national crisis. The ruling curtails a district court's discretion to maintain broad secrecy over discovery, particularly when its own prior findings contradict the basis for that secrecy. This precedent will likely encourage more challenges to protective orders in mass tort and public health litigation, pushing courts toward greater transparency.
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