Page 36 - November 2019 BarJournal

FEATUREBUSINESS LITAGATION

BUFFING A DENT IN THE ARMOR

MITIGATING THE RISK OF A COLLATERAL ATTACK

TO A STIPULATED PROTECTIVE ORDER USING THE

OPIOID MDL AS A CASE STUDY

BY JAMES L. MCCRYSTAL, JR. & DEREK HARTMAN

In 1932, Justice Brandeis famously said: man, woman, and child each year. From grown exponentially to incorporate some
“Publicity is justly commended as a remedy 2010 to 2018, Ohio’s rate of accidental opi- 2,000 public entities including cities, coun-
for social and industrial diseases. Sunlight is oid overdoses per 100,000 rose from 9 to ties, and Native American tribes.
said to be the best of disinfectants; electric 27. Meanwhile, the rate of accidental opioid In the MDL, Plaintiffs argued disclosure
light the most efficient policeman.” Innova- overdoses in Cuyahoga County alone tripled of the ARCOS database would: 1) allow
tions in technology and social media have from 10 to 31. the parties to identify and add previously
forged an ever-increasing infatuation with In recognition of the growing plague, unknown entities involved in the manu-
information that must be balanced against various local and state governments initi- facturing and distribution of opioids and
the inalienable right to privacy. The ten- ated lawsuits in jurisdictions throughout to identify and remove improperly named
sion between these competing interests has the United States asserting various claims Defendants; 2) allow litigation to proceed
prompted some of the most important issues against opioid manufacturers. These cases based on meaningful, objective data, not
being litigated in the world today. Here, in continue to be prosecuted and litigated to conjecture or speculation; and 3) provide
Cleveland, those very concerns are being this day with a focus on how to allocate re- invaluable, highly-specific information re-
raised in the Opioid MDL presided over by sponsibility amongst the various entities in- garding historic patterns of opioid sales. The
Judge Daniel Polster of the Northern Dis- volved. DEA opposed production of the ARCOS
trict of Ohio. One potential tool to allocate responsibil- database arguing disclosure would: 1) re-
This article focuses on the use and ef- ity among the opioid manufacturers came to veal investigatory records compiled for law
fectiveness of protective orders in light of a light in a case presided over by Chief Judge enforcement purposes and would interfere
recent decision by the Sixth Circuit Court Edmond Sargus, Jr. of the Southern District with enforcement proceedings; 2) violate the
of Appeals vacating Judge Polster’s order of Ohio known as City of Cincinnati v. Am- DOJ’s policy which prohibits the release of
denying The Washington Post and HD Me- erisourceBergen Drug Corporation. In the information related to ongoing matters; and
dia Co. access to data contained in the Drug fall of 2017, the City of Cincinnati notified 3) cause Defendants substantial competi-
Enforcement Administration’s (DEA) Auto- the Court that it intended on seeking pro- tive harm by revealing details regarding the
mation of Reports and Consolidated Orders duction of the ARCOS database from the scope and breadth of each manufacturer’s
1
System (ARCOS) database. This article be- DEA through a subpoena, which the DEA and distributor’s market share. Judge Pol-
gins with a brief background of the current and Defendants opposed. Judge Sargus ad- ster ordered the parties to meet and confer
opioid epidemic that is ravaging Ohio and vised counsel he wanted to “tee up” the on the appropriate scope of disclosure and
the rest of the nation. ARCOS disclosure issue for the judge who the terms of a stipulated protective order.
With sales spiking from $48 million in would be chosen to preside over the MDL. Following a hearing, Judge Polster issued
1996 to nearly $1.1 billion in 2000, OxyCon- He authorized Plaintiffs to serve a subpoena a protective order intended to prevent the
tin was a manufacturer’s dream, but due to on the DEA to produce the ARCOS data- DEA’s production of the ARCOS database
reports of overdoses and criminal activity, it base; however, he stayed production until from being publicly disclosed. In this pro-
was also growing a reputation as a drug of the issue had been fully briefed by the DEA tective order, the Court ordered that disclo-
addiction. Despite its reputation, pills con- and other interested parties. sure of the ARCOS database remain confi-
tinued to flood the market, as illustrated in a In December 2017, the United States Ju- dential and its use be limited to litigation or
recent article published by The Plain Dealer. dicial Panel on Multidistrict Litigation cre- state and local law enforcement purposes.
Using ARCOS data, The Plain Dealer re- ated an MDL in the Northern District of This protective order contained two key pro-
ported that from 2006 to 2012, 3.4 billion Ohio that was assigned to Judge Polster. The visions that 1) authorized the parties to file
opioid pills were distributed in Ohio alone. City of Cincinnati and 63 other actions were pleadings, motions, or other documents un-
That equates to roughly 50 pills for every originally transferred to the MDL, which has der seal or with the ARCOS data redacted;
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