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COMMONWEALTH OF KENTUCKY
PIKE CIRCUIT COURT
DIVISION NO. II
ACTION NO. 07-CI-01303
COMMONWEALTH OF KENTUCKY

PLAINTIFF

BOSTON GLOBE LIFE SCIENCES
MEDIA, L.L.C., d/b/a STAT
V.

INTERVENING PLAINTIFF
ORDER

PURDUE PHARMA, L.P., ET AL

DEFENDANTS

*******************
This cause came before the Court on a Motion to Intervene filed by Boston Globe Life
Sciences Media, L.L.C. (hereinafter, "STAT"), and, if STAT is allowed to intervene, a Motion to
Unseal the discovery sealed pursuant to the Agreed Qualified Protective Order entered on
December 4, 2013. The Court conducted a hearing on May 6, 2016, with the proceedings
recorded on CD No. 35-2-2016-VR-21-A-l.

No one objected to STAT's intervention, and

STAT's Motion to Intervene is GRANTED.
As to the Motion to Unseal, STAT asserts both a First Amendment and a common law
right to access these documents. As to the First Amendment right to access, "[t]he determination
of whether a particular document is entitled to a First Amendment right of access is made using a
two-pronged inquiry that asks (1) whether the document is one which has been historically open
to inspection by the press and public, and (2) 'whether public access plays a significant positive
role in the functioning of the particular process in question.'

[citations omitted]" Roman

Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724, 733 (Ky. 2002). In Courier-Journal,

Inc. v. McDonald-Burkman, 298 S.W.3d 846, 848-849 (Ky. 2009), the Kentucky Supreme Court
found no First Amendment right of access to Pre-Trial discovery materials in a criminal matter
under either prong of the Noble test, and this Court sees no reason to deviate from that wellreasoned approach in this civil case.

 The harder question lies with the common law right to access. When a Court enters a
protective order, like the December 4, 2013, Order in this Action, the test for whether the public
has a right to access discovery sealed pursuant to the Protective Order was adopted in Noble &
McDonald-Burkman, supra, from the Second Circuit case of.U.S. v. Amodeo, 71 F.3d 1044 (2°d

Cir. 1995). The Court quotes from Fiorella v. Paxton Media Group, L.L.C., 424 S.W.3d 433
(Ky.App. 2014), regarding the test for common law right to access Pre-Trial discovery materials:
In Amodeo, the Second Circuit stated that "the weight to be given the presumption
of access" to documents placed under seal by the court is determined by where a
particular document falls along "a continuum from matters that directly affect an
adjudication to matters that come within a court's purview solely to insure their
irrelevance." Amodeo, 71 F.3d at 1049. Another Second Circuit case, Lugosch
v. Pyramid Co. of Onondaga, explaining Amodeo's principles in the context of
discovery, stated that "the weight of the presumption" favoring public availability
of discovery used to support motions, such as motions for summary judgment, "is
of the highest[.]" Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2°d
Cir. 2006) ....
In addition to reasoning that materials relied upon in deciding motions carries the
greatest weight in presuming public access, Lugosch also made clear that this
presumption, no matter how weighty, may be overcome by "competing
considerations" including but not limited to "the privacy interests of those resisting
disclosure," id. at 120 (quoting Amodeo, 71 F.3d at 1049-50), and the need "to
preserve higher values.'~ Id. (quoting In re New York Times Co., 828 F.2d 110,
116 (2°d Cir. 1987) (internal quotation marks omitted)).
This balancing act is referred to as the "sliding scale." Noble, 92 S. W.3d at 732.
Reiterating then, we have on one end of the scale "documents and records that play
an important role in determining the litigants' substantive rights[,]" to which access
may be denied only for very compelling reasons. Id On the other end of the scale
are "documents and records that play only a minor or negligible role in adjudicating
the rights of the litigants ...." Id. Significantly less compelling reasons may
justify their exclusion from public view. Id.
Typically, the public's inspection of discovery materials that are neither used at trial
nor in support of a pretrial motion does not meaningfully enable the public to act
as a check on the exercise of judicial authority. McDonald-Burkman, 298 S.W.3d
at 850; Noble, 92 S. W.3d at 732. Such materials are more likely to "come within
a court's purview solely to insure their irrelevance[,]" Amodeo, 71 F.3d at 1049, in
which case a protective order may be appropriate, in the court's discretion, to keep
the public from examining them ....
Fiorella at 440-41.

Turning to the facts of this Action, after some discovery was taken, including Dr. Sackler's
deposition, and dispositive Motions were filed, with Exhibits attached, this Action was settled.

 The Kentucky Supreme Court has stated, "that when a settlement agreement involves the
expenditure of public funds, it 'weigh[ s] in favor of requiring the record to be open to public
inspection."'

Fiorella at 441 [quoting Courier-Journal and Louisville Times Co. v. Peers, 747

S. W.2d 125, 130 (Ky. 1988)]. Although the payment from the Purdue Pharma Defendants is from
private funds, the payment is made to the Commonwealth of Kentucky, and the Court sees no
difference in payment from public funds to a private individual and payment from private funds to
the public treasury. The public interest in.accessing the materials used to make the decision to
settle is more than minimal. Fiorella at 441.
Also, this Action "was settled after this deposition (and other discovery) was taken and,
therefore, there is the possibility that the discovery was a factor both in the decision to settle and
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in the court s decision to accept the parties decision to dispense with the case based on the
settlement. Even the mere possibility that the court considered the infonnation for which the
implementation ... of a protective order is sought militates in favor of public access." Id
However, this does not end the Court's analysis. "[E]ven if a common law right of access
to discovery material exists, the trial court still has 'supervisory power over its own records and
files,' and deference must be given to the trial court 1s determination after consideration of 'the
relevant facts and circumstances of the particular case."'

McDonald-Burkman at 850 [quoting

Nixon v. Warner Communications, Inc., 435 U.S. 589 at 598-99, 98 S.Ct. 1306, 55 L.Ed.2d 570
(1978)]. The Court must consider "the privacy interests of those resisting disclosure," Lugosch,
435 F.3d at 120 (quoting Amodeo, 71 F.3d at 1049-50), and the need "to preserve higher values."
id

[quoting in re New York Times Co., 828 F.2d 110 at 116 (internal quotation marks omitted)].

The Court has considered the arguments of the Purdue Pharma Defendants' counsel but believes
that their arguments do not overcome the public's common law right of access these documents.
Specifically, any privacy interests will be protected by having the Clerk of this Court redact any
personal information contained in the sealed discovery materials. Moreover, the Court sees no
higher value than the public (via the media) having access to these discovery materials so that the
public can see the facts for themselves.

 ~·

For the foregoing reasons, IT IS HEREBY ORDERED that STAT's Motion to Unseal the
discovery sealed pursuant to the Agreed Qualified Protective Order entered on December 4, 2013,
is GRANTED, and the discovery, including the deposition of Dr. Richard Saclder, shall be
UNSEALED thirty-two (32) days from today's date. Before copies are made for any media outlet
or the public at large, the Clerk of this Court shall make redactions of any personal information
(addresses, Social Security numbers, telephone numbers, etc.) contained in (a) qr. Sackler's
deposition and (b) any discovery and Motions sealed pursuant to the Protective Order.
However, if an Action is filed with a higher Court within the appropriate deadline, any
unsealing of the discovery sbJ!l be STAYED, pending a final r
ENTERED this ~day

of May, 2016.

CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the foregoing Order was this day mailed to:
Hon. Jeremy Rogers
101 South Fifth Street, Suite 2500
Louisville, KY 40202

Hon. Pamela May
P .0. Box 1439
Pikeville, KY 41502

Hon. Donald Smith, Jr.
P.O. Box 339
Pikeville, KY 41502

Hon. Bayard Collier
P .0. Box 1139
Pikeville, KY 41502

Hon. Trevor Wells
300 East Main Street, Suite 360
Lexington, KY 40507
This is the

,//ft,day of_~......,__.,.~------·'

2016.
ANNA PINSON SPEARS, CLERK
PIKE CIRCUIT COURT

BY:

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