Page 37 - November 2019 BarJournal

BUSINESS LITAGATION FEATURE

and 2) obligated Plaintiffs to immediately The arguments asserted by the media, the crux of the media’s appeal was that the pro-
notify the DEA and Defendants of any pub- DEA, and the Defendants mirror the argu- tective order was issued without first estab-
lic record requests (FOIA) they receive who ments the parties made in response to the lishing a finding of good cause as required
reserved the right to file objections. initial subpoena. Defendants and the DEA under Fed. R. Civ. P. 26(c)(1). The Sixth Cir-
After entering this protective order and argued, respectively, that the ARCOS data was cuit agreed and remanded the Order, ruling
over the objections of the DEA, the Court confidential business information that was that the Court did not make a good cause
directed the DEA to comply with Plaintiffs’ crucial to law enforcement efforts. The media finding on the issue of disclosing ARCOS
subpoena by producing ARCOS data per- argued that the risk of harm to Defendants and data to the media before entering its protec-
taining to Ohio, West Virginia, Illinois, Ala- the DEA was speculative and that the public tive order.
bama, Michigan, and Florida for the period had a compelling interest in receiving an ac- The Sixth Circuit held “[b]ecause the is-
of 2006 through 2014. The DEA was sub- curate story of a national emergency. Judge sue of public disclosure of the ARCOS data
sequently ordered to expand production to Polster agreed with the DEA and the Defen- was never squarely raised before the District
include data for all 50 states. dants, holding that the media’s public record Court, the Court never had occasion to find
Once ARCOS data was produced, HD Me- requests must be denied on the basis that the that Defendants or the DEA had made a par-
dia Co. filed a state FOIA request with one requests were barred by the Court’s Protective ticular and specific demonstration of fact”
of the Plaintiffs, the Cabell County Com- Order for which the Defendants and DEA had justifying the protective order’s permanent
mission, seeking production of the ARCOS demonstrated good cause under Fed. R. Civ. blanket ban on such disclosure. The Court
data. The Washington Post filed similar state P. 26(c)(1). The Court expressly stated that its found that: 1) the media has a substantial in-
FOIA requests with Summit and Cuyahoga holding extended to bar disclosure under fu- terest in disclosure of the ARCOS data while
counties in Ohio. These Plaintiffs notified ture FOIA requests. the DEA and Defendants have a lesser inter-
the Court, Defendants, and the DEA of the In an appeal to the Sixth Circuit Court of est in avoiding potential harms that could
requests and the DEA and Defendants filed Appeals, the media argued that the District be avoided by narrower means; 2) the media
objections. HD Media Co. and The Wash- Court erred by 1) denying the media’s public presented substantial evidence of the signifi-
ington Post were granted limited intervenor record requests for the ARCOS data; and 2) cant public interest in the ARCOS data while
status for purposes of briefing the issues pre- permitting the DEA to file documents which Defendants and the DEA’s asserted interests
sented by the FOIA Request. contained the ARCOS data under seal. The only apply to the potential for future harm;

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NOVEMBER 2019 CLEVELAND METROPOLITAN BAR JOURNAL | 37