(Reuters) - In the past few weeks, pharmaceutical company defendants in two gigantic cases – sprawling multidistrict litigation accusing drugmakers and wholesalers of spurring the opioid crisis and an MDL in which 45 state attorneys general have accused generic pharmaceutical manufacturers of fixing the prices of at least 15, and as many as 330, drugs – have sought gag orders to block state attorneys general and private lawyers from talking about their cases outside of court.
Last month, Mylan counsel from Wilson Sonsini Goodrich & Rosati and lawyers from a bevy of other firms representing different generic-drug makers filed a motion claiming that an assistant state AG from Connecticut and Louisiana’s state AG gave media interviews in which they discussed ongoing investigations that could vastly expand the size of the case. The drug companies contended that the Connecticut and Louisiana officials had violated ethical standards and breached a duty under Connecticut law to maintain the confidentiality of information they obtained in the course of discovery. They asked U.S. District Judge Cynthia Rufe of Philadelphia to slap a speech-restricting order not just on the two AGs whom they accused of improper disclosures but on all of the AGs in the case, as well as private plaintiffs’ lawyers.
Last week, history repeated itself. As my Reuters colleague Nate Raymond reported, defense lawyers for opioid makers and distributors filed a motion asking U.S. District Judge Dan Polster of Cleveland to block plaintiffs’ lawyers in their case, including state AGs, from speaking publicly about the scope of the case and the evidence that has emerged. (That motion was prompted by a “60 Minutes” report on the litigation in which, among other things, Ohio AG and now governor-elect Mike DeWine called government data on opioid prescription rates “shocking.”)
Like their counterparts in the price-fixing case, the opioid defendants contend that DeWine and his fellow plaintiffs’ lawyers breached ethics rules against disclosing confidential evidence and improperly inflaming public opinion. They similarly want the judge to impose a sweeping gag order that would bar lawyers in the case from making any statements about the strength of their case, the defendants’ conduct or any discovery produced in the litigation.
You can certainly understand why defendants want to stop plaintiffs from talking about these cases. Based on the public filings in both cases, they’re facing many billions of dollars in exposure. But as the state AGs in the generics price-fixing case pointed out in their brief opposing the gag order motion, it is presumptively unconstitutional to restrain lawyers from making any public comments about their cases. Sure, judges routinely approve protective orders on sensitive documents. Occasionally, judges will order lawyers on both sides not to talk during high-profile trials.
But a wholesale, unilateral gag order to preclude elected officials from commenting on litigation they’re involved in?
Judge Rufe was having none of it in the generics price-fixing case. Last Friday, as Raymond reported, the judge summarily rejected the defendants’ motion in a one-page order. The judge said a gag order would not be appropriate when no trial is imminent and there does not appear to be a substantial likelihood that comments by plaintiffs’ lawyers would prejudice the case. She also said she saw no reason to admonish the AGs and private plaintiffs’ lawyers to comply with ethics rules and her orders. (Judge Rufe did leave open the possibility of a sanction for violation of a protective order shielding the unredacted version of the latest amended complaint in the case but defendants have not determined who allegedly leaked the document to a Business Insider reporter.)
The judge’s order suggests that she agreed with the state AGs’ argument that, contrary to defendants’ assertions, they’ve only told reporters what they’ve been saying in court filings and open hearings – and none of their disclosures improperly revealed confidential discovery. “The states understand that the defendants do not want the public to learn the full extent of their unlawful conduct and the allegations made by the states,” their brief said. “But that does not justify imposing a gag order on public officials; particularly where certain officials have an obligation under their state’s law to inform the public about the status of their ongoing investigations and cases.”
Ohio AG DeWine and his colleagues in the opioids litigation haven’t yet responded to the defense motion for a gag order, but it’s a good bet their arguments will parallel those in the generics price-fixing case. They’re accused, for instance, of violating a protective order governing prescription and distribution data obtained from the U.S. government. But the defendants’ own motion conceded that the disclosures related to that data “were at a high level of generality.” Even in the quotations defendants cited, plaintiffs’ lawyers and state AGs explicitly cited Judge Polster’s discovery strictures to explain why they couldn’t say more about the evidence they’ve obtained – not a helpful fact for the drug companies seeking sanctions and gag orders.
I’ve long complained about overly broad confidentiality agreements that allow corporations to shield potentially damning documents out of the public eye. Here’s hoping that Judge Polster in the opioids case, like Judge Rufe in the generics price-fixing litigation, refuses to gag public officials and private lawyers from telling the public about their cases.