January 2, 2014
IN RE: INCRETIN-BASED THERAPIES PRODUCTS LIABILITY LITIGATION
ORDER ON DISCOVERY DISPUTE REGARDING PROTECTIVE ORDER (ECF NO. 227)
MITCHELL D. DEMBIN, Magistrate Judge.
On December 19, 2013, the parties filed a Joint Submission Regarding Protective Order (ECF No. 227). Specifically, Plaintiffs seek modifications to the Protective Order issued by the Court on June 3, 2013, in one of the early filed cases in this Multi-District Litigation. Scott v. Merck & Co., Inc., et al., 12cv2549, ECF No. 32.
At the outset, the Court must address the point of view expressed by Plaintiffs that the Protective Order issued in the Scott case does not apply generally to the cases in this MDL. ( See ECF No. 227 at 2, fn 1). By its very terms, the Protective Order applies to the following cases:
The term "Litigation" shall refer to all proceedings in any state or federal court in the United States in which a plaintiff represented by Watts Guerra LLP, Napoli, Bern, Ripka, Shkolnik LLP, Wagstaff & Cartmell LLP, TorHoerman Law LLC, or other counsel of record ("Plaintiff") in similar litigation that includes any of Amylin Pharmaceuticals, LLC, Eli Lilly and Company, and/or Merck Sharp & Dohme Corp. and alleges injuries caused by a diabetes medication manufactured or marketed by Amylin Pharmaceuticals, LLC, Eli Lilly and Company, and/or Merck Sharp & Dohme Corp. (collectively, "Defendants").
Scott v. Merck & Co., Inc., et al., 12cv2549, ECF No. 32 at ¶1b. The signatories to the Protective Order include all three of the attorneys appointed by the Court as co-lead counsel in the MDL, also was signed by an attorney named as a member of the Plaintiffs' Steering Committee and was signed by counsel for Defendants Merck, Amylin and Eli Lilly. It should be noted that the Protective Order was negotiated by counsel and submitted jointly to the Court for endorsement. For the very same counsel for Plaintiffs to claim now that the Protective Order does not apply in the MDL is disingenuous. The Court shall now make clear what should have been obvious: The Protective Order issued in Scott and filed at ECF No. 32 in 12cv2549 applies to all cases filed in or related to this MDL.
Regarding the merits of the dispute, Plaintiffs express concern regarding the use of materials designated confidential with non-party witnesses who may refuse to sign the agreed upon endorsement regarding confidentiality. ( See 12cv2549 ECF No. 32 ¶9). Plaintiffs request that the Court modify the Protective Order to remove the requirement of endorsement and instead inform the witness that an Order of this Court precludes further dissemination. Defendants challenge whether such a notice provides the Court with jurisdiction over the witness and serves as a consent.
The Court agrees with Defendants. The requirement of an endorsement is standard in Protective Orders for third-party witnesses. Individual disputes can be brought before the Court.
Next, the Protective Order requires each party to give fourteen days notice of the intent to use confidential information of a Defendant at the deposition of a customer or a competitor of the producing Defendant. ( See 12cv2549 ECF No. 32 ¶5(d). Plaintiff claims this presents an onerous burden and may disclose attorney work product.
This provision was negotiated by these very Plaintiffs and is not uncommon in multi-party litigation. Defendants are competitors and have the right to protect their sensitive information from each other. The notice provision allows them to assess the risks involved with each disclosure and seek Court intervention if necessary. The Court finds that this provision should remain as negotiated.
Finally, Plaintiffs assert that one of the subsections involving declassification of documents may be interpreted to improperly shift the burden to the party challenging confidentiality. ( See 12cv2549 ECF No. 32 ¶8). Specifically, Plaintiffs assert that ¶8(c) may shift the burden to the party challenging confidentiality. In context, however, the burden remains where it should. The section requires the party claiming confidentiality to support that claim in writing to the challenger. The challenger may then bring the matter to the Court. The burden of proving the need for confidentiality remains on the producing party.
Plaintiffs' Motion to Modify the Protective Order, as presented in the instant Joint Submission is DENIED. The Protective Order issued in Scott v. Merck & Co., Inc., et al., 12cv2549 at ECF No. 32 applies to every case filed in or related to the instant MDL.
IT IS SO ORDERED.