With more than 200 Zofran lawsuits consolidated in Boston, and more being filed every day, the Parties involved have begun preparing for the discovery phase of litigation. In discovery, information will be demanded, information will be produced and Plaintiff’s legal strategies will begin to take shape.
Last week, we reported on a protective order, negotiated by GlaxoSmithKline and Plaintiffs, that would keep some documents produced during discovery confidential. This is common practice in many litigations, especially ones in which a large pharmaceutical company’s internal archives are likely to be opened. Information that could be considered a “trade secret” is often withheld from public exposure, under the theory that a revelation would damage a company’s advantage in the market.
GSK Seeks “Unilateral” Right To Redact Information From Documents
But at the time of the proposal’s submission, GlaxoSmithKline and Plaintiffs had highlighted several remaining points of contention. Keeping “trade secrets” from the public is fine with both Parties, but GlaxoSmithKline also seeks the right to redact what it considers “highly confidential” information from the documents produced for Plaintiffs to inspect. In a new Memorandum, filed with the Court on March 11, 2016, Plaintiffs argue that GlaxoSmithKline should not be granted that right.
Of primary importance to Plaintiffs is that GlaxoSmithKline would be able to “unilaterally decide what non-privileged information is so ‘irrelevant’ or ‘highly confidential’ that GSK may withhold it from production to plaintiffs.” In short, GlaxoSmithKline would be allowed to censor sensitive information, which may be entirely relevant to the case at hand, at its own discretion.
We Have Right To “Discover The Full Truth Of The Facts,” Plaintiffs Argue
Citing precedents set in prior cases, Plaintiffs note that one of GlaxoSmithKline’s proposed concerns, “relevance”, doesn’t seem to be a suitable justification for redacting documents. Nor have prior courts looked on redaction lightly for practical purposes. Take this example from Medtronic Sofamor Danek, Inc. v. Michelson, No. 01-2373-GV, 2002 WL 33003691 (W.D. Tenn. Jan. 30, 2002):
“The Court does not welcome unilateral editing of documents by the producing party. Even when implemented with restraint and in good faith, the practice frequently gives rise to suspicion that relevant material harmful to the producing party has been obscured. It also tends to make documents confusing and difficult to use.”
Looking toward other cases, Plaintiffs argue that redacting “highly confidential” information would be inappropriate as well, especially when a protective order preventing that confidential information from reaching the public is already in place. In a 1979 decision, the US Supreme Court held that “there is no absolute privilege for trade secrets and similar confidential information.” Perhaps clearest, though, was the opinion of the US District Court of Massachusetts, where Zofran lawsuits have been consolidated, in a 1983 decision*:
“Although a defendant may have a legitimate interest in protecting its trade secrets, ‘that interest must yield to the right of the plaintiff to discover the full truth of the facts involved in the issues of the case…[where] the issues cannot be fairly adjudicated unless this information is available.'”
The protective order is enough, Plaintiffs say, and no additional (and exceptional) rights need be afforded to the Defendant. To learn more about the ongoing Zofran MDL, visit http://zofran.monheit.com/lawsuits/zofran-mdl-boston-2657/.
*Kleinerman v. U.S. Postal Serv., 100 F.R.D. 66, 69 (D. Mass. 1983).