In re Nat'l Prescription Opiate Litig.

325 F. Supp. 3d 833
CourtDistrict Court, N.D. Ohio
DecidedJuly 26, 2018
DocketMDL No. 2804; Case No. 17-md-2804
StatusPublished
Cited by1 cases

This text of 325 F. Supp. 3d 833 (In re Nat'l Prescription Opiate Litig.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nat'l Prescription Opiate Litig., 325 F. Supp. 3d 833 (N.D. Ohio 2018).

Opinion

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 *835United 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, 7173 (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, 98 S.Ct. 1306, 55 L.Ed.2d 570 (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, 98 S.Ct. 1306. "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, 474-75 (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 *836public'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.

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Cite This Page — Counsel Stack

Bluebook (online)
325 F. Supp. 3d 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-natl-prescription-opiate-litig-ohnd-2018.