COMMONWEALTH OF KENTUCKY PIKE CIRCUIT COURT DIVISION NO. II ACTION NO. 07-CI-01303 COMMONWEALTH OF KENTUCKY BOSTON GLOBE LIFE SCIENCES MEDIA, L.L.C., d/b/a STAT INTERVENING PLAINTIFF V. ORDER PURDUE PHARMA, L.P., ET AL DEFENDANTS This cause came before the Court on a Motion to Intervene ?led by Boston Globe Life PLAINTIFF Sciences l?vledia, L.L.C. (hereinafter, 1 and, 1t :5 1A'l' IS allowed to intervene, a Motion to Unseal the discovery sealed pursuant to the Agreed Quali?ed Protective Order entered on December 4, 2013. The Court conducted a hearing on May 6, 2016, with the proceedings recorded on CD No. No one objected to intervention, and 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, 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 signi?cant positive role in the functioning of the particular process in question.? [citations omitted]? Roman Catholic Diocese of Lexington v. Noble, 92 724, 733 (Ky. 2002). In Courier-Journal, Inc. v. McDonald?Burkman, 298 846, 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 well~ reasoned 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 US. v. Amodeo, 71 F.3d 1044 (2nd Cir. 1995). The Court quotes from Fiorella v. Perrier: Media Group, L.L.C., 424 433 (Ky.App. 2014), regarding the test for common law right to access Pro-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, Lugoseh 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 iudument "?is ?i-lnn Ar ?13, u. Lugusch v. Pyramid L0. 0] Onondaga, 435 F.3d 110, 123 Cir. 2006). . . . In addition to reasoning that materials relied upon in deciding motions carries the greatest weight in presuming public access, Lagosch also made clear that this presumption, no matter how weighty, may be overcome by ?competing considerations? including but not limited to ?the privacy interests ofthose resisting disclosure,? id at 120 (quoting Amodeo, 7] 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 Cir. 1987) (internal quotation marks omitted?.- This balancing act is referred to as the ?sliding scale.? Noble, .92 at 732. Reiteratng then, we have on one end of the scale ?documents and records that play an important role in determining the litigants' substantive to which access may be denied only for very compelling reasons. 1d. 0n the other end of the scale are ?documents and records that play only a minor or negligible role in adj udicating the rights of the Id. Signi?cantly less compelling reasons may justify their exclusion from public view. Id. '1?ypically, 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 udicial authority. 298 at 850; Noble, 92 at 732. Such materials are more likely to ?come within a court's purview solely to insure their 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. . . . Fiorelia at 4404]. "Farming to the facts of this Action, after some discovery was taken, including Dr. Sackler?s . deposition, and dispositive Motions were ?led, 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 ?weighlisj in favor of requiring the record to be open to public inspection.? Fiorella at 441 [quoting Courier?Journal and Louisville Times Co. v. Peers, 747 125, 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. ?forella 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 - .. . . . . .- u. a r" ewr ecasease on settlement. Even the mere possibility that the court considered the information for which the implementation. . .ofa protective order is sought militates in favor of public access.? 1d. However, this does not end the Court?s analysis. if a common law right of access to discO'very material exists, the trial court still has ?supervisory power over its own records and files,? and deference must be given to the trial court's determination after consideration of ?the relevant facts and circumstanCes of the particular case.? McDonald-Burkman at 850 [quoting Nixon v. Warner Communications, Inc, 435 US. 589 at 598-99, 98 1306, 55 L.Ed.2d 570 I (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.? 1d. [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. Speci?cally, 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 Motion to Unseal the discovery sealed pursuant to the Agreed Quali?ed Protective Order entered on December 4, 2013, is GRANTED, and the discovery, including the deposition of Dr. Richard Sackler, 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 Dr. Sackler?s deposition and any discovery and Motions sealed pursuant to the Protective Order. However, if an Action is ?led with a higher Court Within the appropriate deadline, any unsealing of the discovery sh 1 be STAYED-pending a ?naliresolution of that Action. p! ENTERED this if eBay 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 Hon. Pamela May 101 South Fifth Street, suite 2500 RC. Box 1439 Louisville, KY 40202 Pikeville, KY 41502 - Hon. Donald Smith, Jr. Hon. Bayard Collier PO. Box 339 PO. Box 1139 Pikeville, KY 41502 Pikeville, KY 41502 Hon. Trevor Wells 300 East Main Street, Suite 360 Lexington, KY 40507 This is the ??day of mtg?, ,2016. ANNA PINSON SPEARS, CLERK PIKE CIRCUIT COURT BY: m/Q DTC.