COMMONWEALTH OFKENTpC
COURT OF APPEALS
CASE NO.2016-CA-71
PHOMA'

ET AL

PÊLLÁN

Appea.l frorn -Pike Circuit Co
Civil Action No 07-CI-1303

OSTON GLOBE LIFE SCIENCE
.-EDIA,'LLC:b/BIA.STAT,ET

RiEF:ORAPPELL

Daniel E. Danford
TITES & HARISON,-PLLC
50 West Main Street, Suite 2300
Lexìngton, KY 40507-1758
Telephone: 859)226-2292

e an
ree
STITES &
ISOWP
400;West Market Street, Stme-1.800
Lóuisville, .Y 40202-3359

Trevor W. Wells
MILLER. WELLS PLLC
•
300 E. Main Street, Suit 36
Lexington.'XentuckY-40507
Telephone:
-0077
-,

Pamela T. May
PAM MAYILAWFIR.M,'P.S C.
P.O. Box 143
Piki1fe,'l(.r entublcy 41502
Telephone: 606)432-0400

502)681.,,0634.

on appeal'was not withdrawn andtha, n October
was senthyVnited-Parcel'Servide,--.to Jon L. Fleisehaker
Suite 2500,
d Jeremy S.I<OgerS;Dinsmore& Shohl LLP, 101 S
:Louisville, KY 40202; Andrew Beshear, Mitchel Denharn-.andS, Travis Mayo, Office of
the'AttorfieY:Qeneial, 700 Capital Avenue, 14it611 3;Fra4fott;Jc-Y'.40601;:'C:.- David
plinstone,-.LeeAnne'Applegate, and Wesley W.Duke, Office of.the'Attothe 'genera
1024 _CapitO1CenterDlive, Suite 200,,Frankfort, KY1,40601;.DonaldI,, Sniith Jr
Firm,J31 Main Street.,-'Third Floor.'1p.iisyijje:,-KY- 41501; Tyler
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Graves I.,I,P,1437-Main:Street;,Suite 200,P.O..B .x11239, Pikeville, KY 41502;ai1d
Hon. Steven'D.:C6in s;.Pike. Circuit Court, 146"Mai s trcet,- Pikeville, KY .4150.
hereby certify

NOT

 INTRODUCTION
This is an appeal of the Pike Circuit Court's Order that would unseal all sealed
documents in the record at the request of an intervenor, the Boston Globe. (5/11/16
Order, attached as Appx. 1 (the "Order")) This Court should reverse as a matter of law
because the court's ruling is contrary to established Kentucky Supreme Court precedent,
which dictates that documents such as the sealed documents here—that were neither
admitted into evidence nor relied upon in an adjudication of litigants' substantive
rights—are notjudicial documents and should remain sealed because they "lie entirely
beyond" the reach of the common law presumption of access. Courier-Journal, Inc. v.
McDonald-Burkman,298 S.W.3d 846, 849-50(Ky. 2009), quoting U.S. v. Amodeo,71
F.3d 1044, 1048(2nd Cir. 1995).

STATEMENT CONCERNING ORAL ARGUMENT
Purdue requests oral argument in this case. Oral argument will assist this Court in
applying the Kentucky Supreme Court's opinions in Roman Catholic Diocese of
Lexington v. Noble, 92 S.W.3d 724(Ky. 2002), and Courier-Journal, Inc. v. McDonaldBurkman, 298 S.W.3d 846(Ky. 2009), which held that documents that were neither
admitted into evidence nor relied upon in an adjudication of litigants' substantive rights
are not judicial documents and, thus, are not subject to a common law right of public
access. Oral argument will also allow a full exposition of the trial court's errors in failing
to properly apply Kentucky Supreme Court precedent in this case.

 STATEMENT OF POINTS AND AUTHORITIES
INTRODUCTION
STATEMENT CONCERNING ORAL ARGUMENT
STATEMENT OF POINTS AND AUTHORITIES

ii

STATEMENT OF THE CASE

1

1.

2.

3.

4.

5.

The Parties Negotiate, and the Trial Court Enters, a Protective
Order

1

CR 26.03

1

Purdue Produces Voluminous Documents in Reliance on the
Protective Order

2

Documents are Filed Under Seal in Accord with the Protective
Order

3

The Sackler Deposition

3

Routine Discovery Motions and Exhibits

3

Summary Judgment Exhibits

4

Months After the Case is Settled, the Boston Globe Seeks to
Intervene

4

The Trial Court Grants the Boston Globe's Motion

5

OAG 92-16

5

99-ORD-109

5
6

ARGUMENT
I.

SUMMARY OF THE ARGUMENT

6

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002)

6

Nixon v. Warner Communications, 435 U.S. 589(1978)

6

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)

7

ii

 II.

US v. Amodeo, 71 F.3d 1044(2nd Cir. 1995)

7

THE KENTUCKY SUPREME COURT'S MODEL FOCUSES ON ADJUDICATION
OF LITIGANTS' SUBSTANTIVE RIGHTS AS THE TOUCHSTONE FOR
WEIGHING PUBLIC ACCESS

7

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002).... 7-10
Nixon v. Warner Communications, 435 U.S. 589(1978)
U.S. v. Amodeo, 71 F.3d 1044(2nd Cir. 1995)

7
7-10

United States v. Amodeo,44 F.3d 141 (2nd Cir. 1995)

8

Newsday LLC News 12 Networks LLC v. County ofNassau,
730 F.3d 156(2nd Cir. 2013)

8

Ky. Const. § 109

8

Herndon v. Herndon, 139 S.W.3d 822(Ky. 2004)

8

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)
U.S. v. Noriega, 752 F. Supp. 1037(S.D. Fla. 1990)

9-10
9

These Sealed Documents are not Subject to a Common Law
Presumption of Access

10

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002)

10

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)

10

A.

10

1. The Sackler Deposition

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)... 10-11
U.S. v. Amodeo,71 F.3d 1044(2nd Cir. 1995)

11

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002)

11

Seattle Times Co. v. Rhinehart, 467 U.S. 20(1984)

11

Boston Herald, Inc. v. Connolly, 321 F.3d 174(1st Cir. 2003)

11

iii

 2. Routine Discovery Motions and Exhibits
Bernstein v. Bernstein Litowitz Berger & Grossman LLP,814 F.3d 132
(2nd Cir. 2016)

11

F.T.C. v. Abbvie Products, 713 F.3d 54(11th Cir. 2013)

11

Chicago Tribune Co. v. The Washington Post Co., 263 F.3d 1304
(11th Cir. 2001)

12

Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir 1986)

12

Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d 157 (3rd Cir. 1993)

12

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)

12

1. Unexamined Summary Judgment Documents

12

City ofGreenville, Ill. v. Syngenta Crop Protection, LLC,764 F.3d 695
(7th Cir. 2014)

12

The Sealed Documents Here do not Belong on the Sliding Scale

13

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724
(Ky. 2002)

13

U.S. v. Amodeo, 71 F.3d 1044(2nd Cir. 1995)

13

B.

III.

11

THE TRIAL COURT MISAPPLIED THE NOBLE/MCDONALD-BURKMAN
MODEL

13

Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433(Ky. App. 2014)

13

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002)

13

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)... 13-14
U.S. v. Amodeo, 71 F.3d 1044(2nd Cir. 1995)
A.

The Trial Court Additionally Erred by Misapplying Fiorella

Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433(Ky. App. 2014)

iv

14
14
14-16

 1.

The Fiorella settlement involved expenditure of public funds
Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433
(Ky. App. 2014)
The Society ofProf Journalists v. Briggs, 675 F. Supp. 1308
(D. Utah 1987)

16

16-18

16

Richard Marcus, Myth and Reality in Protective Order Litigation,
17
69 Cornell L. Rev. 1 (1983)
Central Kentucky News-Journal v. George, 306 S.W.3d 41
(Ky. 2010)
2.

3.

Iv.

17

The Fiorella deposition apparently was part of a granted summary
18
judgment motion
Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433
(Ky. App. 2014)

18

Fiorella alternatively presumed the trial court approved
the settlement in reliance on the deposition.

19

Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433
(Ky. App. 2014)

19-21

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d
846(Ky. 2009)

20

U.S. v. Amodeo,71 F.3d 1044(2nd Cir. 1995)

20

U.S. v. Amodeo,44 F.3d 141 (2nd Cir. 1995)

20

City ofGreenville, Ill. v. Syngenta Crop Protection, LLC,
764 F.3d 695 (7th Cir. 2014)

21

Seattle Times Co. v. Rhinehart, 467 U.S. 20(1984)

21

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d
724(Ky. 2002)

21

IN THE ALTERNATIVE,IF ANY SEALED DOCUMENTS FIT ON THE SLIDING
SCALE,THE PROTECTIVE ORDER PROVIDES A SUFFICIENT
"COUNTERVAILING REASON"

21

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846(Ky. 2009)

22

 U.S. v. Amodeo, 71 F.3d 1044(2nd Cir. 1995)

22-23

Roman Catholic Diocese ofLexington v. Noble, 92 S.W.3d 724(Ky. 2002)

22

In re Reporters Comm.for Freedom ofthe Press, 773 F.2d 1324
(D.C. Cir. 1985)

22

City ofGreenville, Ill. v. Syngenta Crop Protection, LLC,764 F.3d 695
(7th Cir. 2014)

22,24

Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir 1986)

23

The Courier-Journal and Louisville Times Co. v. Marshall, 828 F.2d 361
(6th Cir. 1987)

23

CR 26.03.

23

Seattle Times Co. v. Rhinehart, 467 U.S. 20(1984)

23

Richard Marcus, Myth and Reality in Protective Order Litigation,
69 Cornell L. Rev. 1 (1983)

23

Flagg v. City ofDetroit, 268 F.R.D. 279(E.D. Mich. 2010)

23-24

United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424(10th Cir. 1990)

24

Martindell v. Intl Tel. & Tel. Corp., 594 F.2d 291 (2nd Cir. 1979)

24

Chicago Tribune Co. v. The Washington Post Co., 263 F.3d 1304
(11th Cir. 2001)

24

In re Alexander Grant & Co., 820 F.2d 352(11th Cir. 1987)

24

Edwards v. Hickman, 237 S.W.3d 183(Ky. 2007)

24

Kentucky Farm Bureau Mut. Ins. Co. v. Hopper, 2002-SC-774,
2003 Ky. Unpub. LEXIS 71 (Ky. 2003)

24
25

CONCLUSION

vi

 STATEMENT OF THE CASE
This appeal concerns confidential discovery documents that were sealed in the
record pursuant to a Protective Order entered by the Pike Circuit Court for good cause.
Months after the case settled, the Boston Globe sought access to the sealed documents
even though the documents played no role in any adjudication ofthe litigants' substantive
rights. The trial court ignored governing Kentucky Supreme Court precedent and
improperly granted the Boston Globe's motion.
1.

The parties negotiate, and the trial court enters, a protective order.
The underlying case was filed in 2007 by the Commonwealth and Pike County,

alleging that the marketing and promotion of OxyContin® caused "excessive Medicaid
spending on OxyContin and required monies to be spent addressing addiction and abuse
and combating crime allegedly attributable to OxyContin abuse and diversion. (R. 1.)
Purdue removed the case to federal court, where it was included in multidistrict antitrust
litigation, before being remanded in 2013. Pike County subsequently settled its claims.
In late 2013, the remaining parties began discovery. The sheer magnitude of the
claims made it evident that discovery would be far-reaching, with massive production of
documents. Indeed, Purdue alone produced over 17 million pages of documents. To
avoid costly discovery disputes while also "protect[ing] the confidentiality of documents
... produced during discovery in these proceedings," the trial court entered an Agreed
Qualified Protective Order, expressly finding that "the parties have shown good cause"
for a protective order "pursuant to CR 26.03." (R. 1478, Protective Order at p.1, attached
as Appx. 2.) The Protective Order allowed the parties to designate confidential
documents, depositions, and exhibits, and required sealing of court filings containing or
attaching such materials. (Id., ¶ 5, 7(j), 19.)

1

 2.

Purdue produces voluminous documents in reliance on the Protective Order.
The Protective Order allowed the Commonwealth to obtain all the information it

desired without encountering defendants' valid objections to production of confidential
information. Without it, Purdue would not have voluntarily produced confidential
materials and witnesses for deposition, and this would have guaranteed significant motion
practice. For example,Purdue agreed to the deposition of Dr. Richard Sackler, a Purdue
board member, instead of refusing and litigating the propriety of a subpoena in Dr.
Sackler's home state. The tangible benefits of the Protective Order in this case—a
streamlined discovery process, an expansive amount of discovery for the Commonwealth,
and a small number of discovery battles—illustrate why protective orders are so
enormously important in complex litigation. In reliance on the Protective Order, Purdue
produced millions of pages of documents, many of which were designated confidential.
The relatively few documents filed under seal in this case fall into five categories:
(1) Confidential marketing strategies, such as a co-promotion agreement between
Purdue and Abbott, descriptions of proposed promotional materials, training
manuals and instructions for sales representatives; internal emails reflecting
high-level marketing strategies, call notes, documents about the market
positioning of OxyContin, and information regarding sales representatives who
were marketing OxyContin.
(2) Confidential business information and trade secrets such as minutes of highlevel business strategy meetings, minutes of research and development
meetings, and documents concerning internal analyses of clinical trials.
(3) Documents from the New Drug Application for OxyContin reflecting trade
secrets, including non-public information about the chemical composition of
OxyContin, non-public internal reports of clinical trials that were submitted to
the FDA for approval purposes, and correspondence with the FDA.
(4) Deposition testimony discussing confidential strategies and personnel actions.
(5) Confidential settlement communications from an earlier criminal case alleging
misbranding of OxyContin.
(5/6/16 at 2:52:30-53:53.) These categories of information are routinely subject to
protective orders and were properly designated as confidential. See Appx. 2 at ¶ 5; CR
2

 26.03(1)(g); KRS 365.880(4); KRE 408.
3.

Documents are filed under seal in accord with the Protective Order.
The following documents were filed under seal pursuant to the Protective Order:
The Sackler Deposition: Dr. Sackler was deposed on August 25, 2015. Without

waiting for the draft transcript to be finalized, and without any notice to the parties, the
court reporter filed it under seal on September 22, 2015. Purdue did not even know it had
been filed until the Boston Globe moved to intervene.1 (5/6/16 at 2:45:55-46:14.)
Dr. Sackler's transcript played no role in any judicial decision in this case. It was
not an exhibit to any motion, was not referenced in any ofthe dispositive motions filed
by the parties, and was not presented to the trial court as having any relevance to the
Agreed Judgment. The Agreed Judgment papers were emailed to Judge Harris (sitting by
designation) mid-day during his Christmas vacation. He reviewed them in his Knott
Circuit office and signed the Agreed Judgment the next morning.
Routine Discovery Motions and Exhibits: The bulk of the sealed documents are
simple motions to compel with attached exhibits. Only one was actually decided by the
court on the merits, a discovery motion concerning documents Purdue had produced in
earlier litigation. (6/24/15 Mtn to Compel(in brown folder).) Purdue produced the
documents following the court's order, and the issue had no further impact on the case.
(R. 1802.) Another motion to compel was held in abeyance and was never heard or
decided. (12/16/14 Mtn to Compel(in brown folder); R. 1654.) The remaining motions
were never ruled upon, most were not even fully briefed, and none were argued. (8/12/15

The Commonwealth earlier took the deposition of another Purdue witness, but that different
court reporter did not file the deposition. Nor was it filed by the parties.
3

 Mtn to Compel; 12/2/15 and 12/3/15 Mtn and Am. Mtn to Compel(in brown folders).)
These routine discovery motions bore no relationship to the Agreed Judgment.
Summary Judgment Exhibits: In April 2014, the Commonwealth moved for
partial summary judgment, arguing that it was entitled to judgment as a matter of law
because of requests for admission that the court had earlier deemed admitted. (R. 1525;
R. 560.) In over 400 pages of combined briefing (excluding exhibits), Purdue's response
attached only one sealed exhibit, and the Commonwealth's sealed reply attached a
handful of confidential exhibits listed in footnotes 10 and 16 to the reply. (6/2/14 Purdue
Resp., Exh. 42; 7/29/14 Comm. Reply at 40 n.10 and 49 n.16 (both in brown folders).)
Purdue sought relief under CR 36.02 from the trial court's initial order deeming
the requests admitted. After the trial court denied that relief(R. 1362), Purdue sought a
writ. The trial court then held the partial summary judgment motion in abeyance because
"scheduling this matter for hearing at this time would be unwise until the appeal from the
Writ Action is final." (R. 1650.)
When the case settled in December 2015,the writ petition was still pending in the
Kentucky Supreme Court(which had heard oral arguments in March 2015), and the
partial summary judgment motion was still in abeyance. (R. 2001 at 2.) The motion was
never heard or decided. Nor was it supplemented with any reference to the Sackler
deposition. Dr. Sackler's deposition played no role in the stayed partial summary
judgment motion.2
4.

Months after the case is settled, the Boston Globe seeks to intervene.
The Protective Order and maintaining confidentiality of the parties' confidential

The same is true for Purdue's December 2015 motions for summary judgment, none of which
were fully briefed, heard or decided, and none of which even mentioned the Sackler deposition.

2

4

 information were so vital that, when the case settled in December 2015,they were made a
material part ofthe Settlement Agreement. (R. 2044.) Besides specifying that the
Protective Order remained in full force, the Settlement Agreement also required that the
parties not disclose confidential documents. (Id.,11121-23.)
Months later, the Boston Globe sent the Commonwealth an open records request
for Dr. Sackler's deposition transcript, which the Attorney General properly denied.3
Then,in March 2016, the Boston Globe moved to intervene and unseal. While only
specifically identifying Dr. Sackler's deposition, the Boston Globe's motion also sought
to unseal an "unknown number" of other sealed documents. (3/16/16 Mtn to Intervene
and Unseal at 1 (in brown folder).) The Boston Globe mistakenly argued that the Sackler
deposition:(1) was "a basis for the Court's exercise ofjudicial power in the numerous
summary judgment motions pending before the Court" at the time ofthe settlement; and
(2)"played an additional and significant role in the Court's exercise ofjudicial power in
this case." (Id. at 10-11). In fact, the Sackler deposition was never mentioned in any
summary judgment motion and played no role in any exercise ofjudicial power.
Purdue did not oppose limited intervention, but did vigorously oppose the request
to unseal Dr. Sackler's deposition and the other documents because they were not
involved in any adjudication of the litigants' substantive rights and thus were not subject
to the common law right of access. (R. 2070.)
5.

The trial court grants the Boston Globe's motion

At a May 6, 2016 hearing on the motion to intervene, the Pike Circuit Court
allowed oral argument, but neither asked questions nor requested additional information.
iation under the
The Protective Order specifically forbids the production of confidential
of protective
type
(this
09
99-ORD-1
92-16;
Open Records Act. (Exh.2,1133.) See also OAG
Act).
Records
Open
the
of
n
order "removes a document within its terms from the applicatio

3

5

 A week later, the court ruled that the common law right of access applies to all ofthe
sealed documents in this case and, subject to appeal, requires them to be unsealed.
(Appx. 1; 5/13/2016 Agreed Order, attached at Appx. 3.) Purdue timely appealed the
trial court's ruling. (R. 2112.)

ARGUMENT
I.

Summary of the Argument
In 2013, finding the parties "had shown good cause," the trial court entered an

agreed Protective Order. The Protective Order recognized the need for confidentiality
and protected the parties from forfeiting the privacy oftheir confidential information
simply because they were parties to a lawsuit. The Protective Order allowed the parties
to conduct depositions and exchange more than 17,000,000 pages of documents without
significant disputes over production or any motions challenging confidentiality. This
process was fundamentally based on reliance on the Protective Order, and without this
confidence, the process would have been materially more contentious, prolonged and
expensive for the parties and the trial court.
Months after the case was closed, the Boston Globe sought to reopen it in an
attempt primarily to unseal the Sackler deposition. Unbeknownst to the parties, the court
reporter had filed that deposition(under seal pursuant to the Protective Order). It was
never admitted into evidence, and never relied on in any adjudication by the Court.
Kentucky and federal law uphold a common law right of access to "judicial
documents" to enable monitoring of courts, not the parties. Roman Catholic Diocese of
Lexington v. Noble, 92 S.W.3d 724, 731 (Ky. 2002), quoting Nixon v. Warner
Communications, 435 U.S. 589, 597(1978). Only documents necessary to monitor the
courts—documents that play some role in a trial court's adjudication of litigants'

6

 substantive rights—bear a presumption of access. Id. For that subset of filed documents,
known as "judicial documents," Kentucky courts apply a "sliding scale' model(an
approach used in federal courts) to determine how much weight to give the presumption
of access to each judicial document. Id. at 732. Documents such as the sealed
documents here—that were neither admitted into evidence nor relied upon in an
adjudication of litigants' substantive rights—are not "judicial documents" and thus "lie
entirely beyond the presumption's reach." Courier-Journal, Inc. v. McDonald-Burkman,
298 S.W.3d 846, 849-50(Ky. 2009), quoting U.S. v. Amodeo,71 F.3d 1044, 1048 (2nd
Cir. 1995)("Amodeo IF). Such documents are not weighed on the sliding scale, and are
not subject to the common law right of access.
The trial court misapplied this legal framework. The court should have denied the
Boston Globe's motion because none of the sealed documents had any role in
adjudication of litigants' substantive rights, and thus the common law presumption does
not apply. The trial court's Order fails as a matter of law and should be reversed.
II.

The Kentucky Supreme Court's model focuses on adjudication of litigants'
substantive rights as the touchstone for weighing public access.
In 2002, the Kentucky Supreme Court addressed a challenge that required it to

determine the standard that Kentucky courts should use in evaluating and weighing the
common law right of access to judicial documents. Noble, 92 S.W.3d at 731. The Court
recognized that a "general, common-law right" exists to "inspect and copy public records
and documents, including judicial records and documents" in order to monitor the court,
not the parties. Id., quoting Nixon, 435 U.S. at 597. But it observed that there was "no
uniformity among the federal courts" on how to weigh the common law right. Id.
Seeking "a workable standard" amidst differing approaches, Noble adopted the

7

 "thoughtful and well-reasoned opinion" in Amodeo II, which carefully analyzed the
weight to be given to the presumption of access to "judicial documents." Id.
The Kentucky Supreme Court's model rejects a bright-line approach that would
consider all documents filed in the record to be subject to the common law presumption
of access. Noble at 731-32. See also U.S. v. Amodeo,44 F.3d 141, 145 (2nd Cir. 1995)
("Amodeo I"). Because "an abundance of statements and documents generated in federal
litigation actually have little or no bearing on the exercise of Article III judicial power," it
is "unthinkable to provide access to those filed documents. Noble at 732, quoting
Amodeo II at 1048. In other words, such documents are not "judicial documents" subject
to the common law right of access. Id. at 731.
The Amodeo court held that the "item filed must be relevant to the perfoiinance of
the judicial function and useful in the judicial process in order for it to be designated a
judicial document." Amodeo I, 44 F.3d at 145. Accordingly,"judicial documents" are
those that "the district court relied upon ... in assessing the reasonableness of the order,
i.e., in determining the litigants' substantive rights, and in perfoiming its adjudicatory
function." Id. (citation omitted). Thus, the touchstone ofthe "judicial document" inquiry
is whether and, if so, how the document is used by the court in adjudicating litigants'
substantive rights. See, e.g., Newsday LLC News 12 Networks LLC v. County ofNassau,
730 F.3d 156, 166-67(2nd Cir. 2013)(document not entered into evidence or relied on
by the court is not a judicial document).
The rejected bright-line approach fails to recognize that only 'judicial documents"
are potentially subject to public access, and is inconsistent with the "purpose underlying
the presumption," which is to allow the public to monitor the courts as they exercise

8

 powers under Article 111.4 Noble at 731-32, citing Amodeo II, 71 F.3d at 1048. To meet
that purpose, the public only needs "access to testimony and documents that are used in
the performance of Article III functions." Amodeo II at 1048. Accordingly, Noble held
that "the weight to be given the presumption of access must be governed by the role of
the material at issue in the exercise of ... judicial power and the resultant value of such
information to those monitoring the ... courts." Noble at 732, quoting Amodeo II at 1049.
The Kentucky Supreme Court's subsequent decision in Courier-Journal, Inc. v.
McDonald-Burkman demonstrates how the trial court should apply a straightforward twopart analysis to determine whether public access is appropriate. The threshold
determination is whether documents sealed in the record played any role in the trial
court's adjudication of litigants' substantive rights. If the answer is no, they are not
judicial documents and the public has no right of access because the documents "lie
entirely beyond the presumption's reach." McDonald-Burkman,298 S.W.3d at 849-50.
McDonald-Burkman illustrates the threshold determination. In that case, 3,000
pages of written discovery were filed in the record pursuant to local rule, but none of
them had any relation to the trial court's adjudication of the litigants' substantive rights.
Concluding that the trial court had properly sealed the filed discovery documents,
McDonald-Burkman adhered to the holdings in Amodeo II and Noble that the common
law presumption of access turns on whether a filed document is used in the trial court's
adjudication of litigants' substantive rights. Id. at 850-51. The Court again rejected a

Similar to Article III, the Judicial Article to the Kentucky Constitution exclusively vests "Nile
judicial power of the Commonwealth ... in one Court of Justice which shall be divided into a
Supreme Court, a Court of Appeals, a trial court of general jurisdiction known as the Circuit
Court and a trial court of limited jurisdiction known as the District Court." Ky. Const. § 109. See
also Herndon v. Herndon, 139 S.W.3d 822, 826(Ky. 2004)(identifying Ky. Const. § 109 as the
"source of the" Court of Justice's "authority" to adjudicate cases and controversies brought
before it).
4

9

 bright-line approach that would make all filed documents open to the public. Agreeing
that "mere filing" does not make "a judicial document subject to the right of public
access," the Court held that the "fact that the documents are in the custody of the court
does not change their character." Id. at 848-49, citing U.S. v. Noriega, 752 F. Supp.
1037, 1042(S.D. Fla. 1990).
In so ruling, McDonald-Burkman affirmed that "the common law presumption [of
access] does not go beyond evidentiary materials used in determining the litigants'
substantive rights." Id. at 849-50, quoting Amodeo II, 71 F.3d at 1050. The Court noted
that the documents filed in that case "lie entirely beyond the presumption's reach"
because they played "no role in the performance of Article III functions." Id.
The second part of the analysis applies only to documents that are determined to
have played a role in adjudication of litigants' substantive rights, i.e., "judicial
documents." For those adjudicatory documents, a "sliding scale" analysis is applied to
determine the weight of the presumption vis-à-vis the role of the particular documents.
Noble at 732; McDonald-Burkman at 849-50. McDonald-Burkman did not analyze, and
did not need to analyze, where the filed documents at issue in that case fell on the sliding
scale, because they did not belong on the scale at all. Id.
A.

These sealed documents are not subject to a common law
presumption of access.

Under the Kentucky Supreme Court's model outlined above, the trial court should
have found as a matter of law that the discovery documents here are notjudicial
documents, as they played no role whatsoever in the trial court's adjudication of litigants'
substantive rights and, thus,"lie entirely beyond the presumption's reach." Noble at 731;
McDonald-Burkman at 849-50.

10

 1.

The Sackler Deposition

The Boston Globe's main target, the Sackler deposition, was filed under seal by
the court reporter without notice to the parties. It was not used by the trial court in any
type of adjudication, much less an adjudication that "determines the substantive rights of
parties." McDonald-Burkman at 849. It was not an exhibit, was not referenced in any
dispositive motion, and was not presented to the trial court as having any relevance to the
Agreed Judgment. In sum,the Sackler deposition was not a factor in any adjudication
made by the trial court, and it played no role in the judicial process ofthis case.
Accordingly, it is not a "judicial document" and "lie[s] entirely beyond the presumption's
reach." McDonald-Burkman, 298 S.W.3d at 850; Amodeo II, 71 F.3d at 849-50. See also
Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33(1984)("Pretrial depositions...are not
public components of a civil trial" and can be shielded with a protective order.) Because
the presumption of public access does not attach to the Sackler deposition in the first
instance, no further analysis should have been undertaken by the trial court. (R. 2070,
Opp. at 6-8.) Instead, a proper "determination that the documents are notjudicial
documents would dispose ofthe [media's] claims altogether." Boston Herald, Inc. v.
Connolly, 321 F.3d 174, 180 (1st Cir. 2003). The trial court erred as a matter of law by
ordering the Sackler deposition unsealed.
2.

Routine Discovery Motions and Exhibits

The bulk of the documents at issue are routine discovery motions and exhibits.
The "modern trend in federal cases" is to find that discovery motions and accompanying
exhibits are notjudicial documents. Bernstein v. Bernstein Litowitz Berger & Grossman
LLP, 814 F.3d 132, 140(2nd Cir. 2016)(citations omitted). The distinction between
discovery and non-discovery motions is "necessary to account for the unique function

11

 discovery serves in modern proceedings.'" F.T.C. v. Abbvie Products, 713 F.3d 54,63
(11th Cir. 2013).
The overwhelming majority of documents disclosed during discovery are
likely irrelevant to the underlying issues and will not be "heard or read by
counsel" or "by the court or other judicial officer." Id. Thus, we had
ample reason ... to exempt materials attached to discovery motions from
the presumption of public access while retaining that presumption for
materials that invoke "judicial resolution ofthe merits," such as
complaints, motions to dismiss, or motions for summary judgment."
Id., citing Chicago Tribune Co. v. The Washington Post Co., 263 F.3d 1304, 1312-13
(11th Cir. 2001)("documents filed in connection with motions to compel discovery are
not subject to the common-law right of access.") Accordingly,"there is no right of
public access to documents considered in civil discovery motions." Anderson v.
Cryovac, Inc., 805 F.2d 1, 11-13 (1st Cir 1986).5 See also Leucadia, Inc. v. Applied
Extrusion Tech., Inc., 998 F.2d 157, 165 (3rd Cir. 1993). The sealed discovery pleadings
and exhibits at issue here are not "judicial documents," and, thus "lie entirely beyond the
presumption's reach." McDonald-Burkman 298 S.W.3d at 850.
3.

Unexamined Summary Judgment documents

The last category of documents at issue includes the Commonwealth's partial
summary judgment reply and a single exhibit attached to Purdue's response. Summary
judgment materials ordinarily stand on a different footing because the trial court's
adjudication typically impacts the litigants' substantive rights. Here, however, because

Anderson explains that "[m]aterials submitted to a court for its consideration of a discovery
motion are actually one step further removed in public concern from the trial process than the
discovery materials themselves, materials that the Supreme Court has said are not subject to the
public's right of access." 805 F.2d at 12-13. "Indeed, if such access were to be mandated,the
civil discovery process might actually be made more complicated and burdensome than it already
is . . .. "[R]ather than facilitate an efficient and complete exploration of the facts and issues, a
public right of access would unduly complicate the process" and "require the court to make
extensive evidentiary findings whenever a request for access was made, and this could in turn
lead to lengthy and expensive interlocutory appeals. ..." Id. at 12.

5

12

 the deemed admissions underpinning the Commonwealth's motion were subject to a writ
petition before the Kentucky Supreme Court, the partial summary judgment motion was
stayed for more than a year before settlement and was never heard or decided by the trial
court. Accordingly, the sealed documents attached to the stayed motion never played a
role in the trial court's adjudication ofthe litigants' substantive rights and, thus, do not
belong on the sliding scale. See, e.g., City ofGreenville, Ill. v. Syngenta Crop Protection,
LLC,764 F.3d 695,697(7th Cir. 2014)(exhibits to response to motion to dismiss not
subject to presumption because they were not relied on by the court).
B.

The sealed documents here do not belong on the sliding scale.

With respect to documents that are determined to be "judicial documents," the
Kentucky Supreme Court adopted the Amodeo court's simple yet flexible "sliding scale"
analysis, where the weight of the presumption of public access depends on "the role those
documents played in determining litigants' substantive rights—conduct at the heart of
Article III—and from the need for public monitoring ofthat conduct." Noble at 732;
Amodeo II at 1049. Documents at the top of the sliding scale—such as trial exhibits or
exhibits to a granted summary judgment motion—are afforded "the greatest weight"
because ofthe role they played in a court's determination of litigants' substantive rights.
Id. Documents at the bottom of the scale are those that still play a "role in adjudicating
the right of litigants," albeit "negligible," so the weight of the presumption is low and
"amounts to little more than a 'prediction of public access absent a countervailing
reason.'" Id., quoting Amodeo II at 1050.
None of the sealed documents here had any role in the trial court's adjudication of

13

 litigants' substantive rights, so the sliding scale analysis is inapplicable.6
III.

The trial court misapplied the Noble/McDonald-Burknzan model.
In its ruling on the common law right of access, the trial court included a block

quote from Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433(Ky. App. 2014), that
described the straightforward framework from Noble and McDonald-Burkman.(Appx. 1
at(unnumbered) p. 2.)7 But the trial court misapplied that framework by relying solely
on two factors that pertain only to the sliding scale analysis, which should not have been
applied to the "nonjudicial" documents in this case. Id.
The result is that the trial court ignored the key holding of McDonald-Burkman
and Amodeo II—documents playing no role in the adjudication of litigants' substantive
rights do not belong on the sliding scale, and "lie entirely beyond the presumption's
reach." McDonald-Burk/man at 849-50. See also Amodeo II at 1048. As a matter of law,
the trial court should have found at the outset that none of the sealed documents—the
Sackler deposition, the discovery motions, or the summary judgment documents—were
"judicial documents" and thus were not subject to the common law presumption of
access. Instead, the trial court erred as a matter of law by improperly assuming that they
all fell somewhere along the sliding scale. The trial court's failure to follow Kentucky
Supreme Court precedent mandates reversal of the Order.
A.

The trial court additionally erred by misapplying Fiorella.

The court compounded its error by improperly trying to shoehorn this case into
Even if they had played some role—and they did not—the few confidential documents at issue
would, at most, be at the very bottom of the sliding scale, where the entry of the Protective Order
for good cause provides a strong "countervailing reason" that easily outweighs the "low weight of
the presumption. Amodeo 11 at 1050. See also supra Argument IV.
Fiorella recognized that "discovery materials that are neither used at trial nor in support of a
pretrial motion" do not belong on the sliding scale because they "don not meaningfully enable
the public to act as a check on the exercise ofjudicial authority' and are likely to "come within a
court's purview solely to insure their irrelevance." See Fiorella at 440-41,

6

14

 the significantly different facts of Fiorella, a case where there was not even a courtapproved protective order. Fiorella involved alleged defamatory statements made by a
community college vice-president against a former president of the community college.
Fiorella, 424 S.W.3d at 435. The former president sued the Kentucky Community and
Technical College System (a state entity), Fiorella(one of the college's vice presidents),
and others. Id. After Fiorella was deposed, she had misgivings that"some ofthe
discovery she supplied in her deposition"(apparently related to the former president's
claims that she had reported that Fiorella had "improperly expended certain college
funds") would "be taken out of context by the viewing public...." Id. So portions of this
discovery "were sealed by agreement ofthe parties," but no protective order was sought
or entered by the trial court. Id. Further, Fiorella stood "to gain very little by sealing the
documents," because "[m]uch of the information sought to be sealed was "either alluded
to or identified outright in materials" in the record ofthat case that Fiorella did not ask to
be sealed. Id. at 442. The case was then dismissed on CR 56 grounds, and the ensuing
settlement "involve[d] the expenditure of public funds." Id. at 441.8
In sharp contrast to the facts here, Fiorella's effort was doomed because she did
not even attempt to seek a protective order before purporting to file portions of her
deposition under seal. Id. at 439. Finding "it was mere illusion that the [newspaper] did
not have access to the deposition," this Court held that,"because the court had not issued
a protective order,[the newspaper] did have access." Id. "[O]nce filed with the court,
`the fruits of pretrial discovery are, in the absence ofa court order to the contrary,
An oddity in Fiorella was the trial court's note that the parties entered into an agreed order of
dismissal when the record contained no such agreed order. Id. Rather, the trial court"dismissed
the claims against the original defendants explicitly on CR 56 grounds, not by an agreed order of
dismissal." Id. at 440-41. The trial court's murky conflation of settlement and summary
judgment in Fiorella heightened the likelihood that the deposition played a role in the trial court's
decision to dismiss the case either as settled or as subject to summary judgment. Id. at 441.
8

15

 presumptively public.'" Id. (emphasis added.) Fiorella also makes clear that this Court
"sees nothing wrong in parties' joint motions to obtain protective orders"; instead, it was
"discourag[ing] parties from attempting to 'seal' materials filed with the court by their
own agreement alone, without the court's approval in the form of a protective order." Id.
at 440 n.8.
Although Fiorella's analysis logically ended there, it went on in dicta to
"presuppose that the deposition had been properly sealed by court order, even though it
had just found to the contrary. Id. at 440. In that context, Fiorella cited three "attributes"
that caused it to believe that the deposition would fall somewhere on the Noble sliding
scale. Id. at 441-42. Because none of the documents here are judicial documents that
even belong on the sliding scale, the trial court should have recognized that these
attributes from Fiorella were irrelevant in this case. But even if the trial court had been
otherwise correct that the sliding scale applied to these "nonjudicial" documents, it
compounded its legal error by applying the attributes incorrectly.
1.

The Fiorella settlement involved expenditure of public funds.

In Fiorella, plaintiff alleged that the Kentucky Community and Technical College
System and its representatives had engaged in misbehavior and should be forced to pay
taxpayer monies as damages on account of that wrongdoing. Indeed, the very damaging
statements that were informally "sealer were by one ofthose public employees who was
concerned with public scrutiny of her behavior. Id. at 435, 441. Because it has been
narrowly recognized that the public has the right to know when its government has
misbehaved and when tax monies are expended to pay for such misbehavior, see, e.g.,
The Society ofProf. Journalists v. Briggs, 675 F. Supp. 1308, 1309(D. Utah 1987),
Fiorella noted as an "attribute favoring public access that the settlement "involvejd] the

16

 payment of public funds." Fiorella at 441. That attribute makes sense in the Fiorella
context, which sought damages on account of specific governmental wrongdoing. But it
has no application in cases where a private party has paid monies to settle a suit brought
by the Commonwealth.
This attribute does not apply here because no public funds were paid to settle this
matter. (See R. 2040, R. 2044.) Regardless, the trial court ignored the limited
application ofthis attribute when it held "[a]lthough 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." (Appx. 1 at 3.)
In essence, the trial court improperly used this attribute to justify taking
documents that are not "judicial documents" subject to public access and placing them on
the sliding scale regardless. Purdue has found no case in Kentucky (or elsewhere)
holding that filed documents are subject to public access simply because a private party
was sued by or paid money to the government.9 To the contrary, as the sole law review
article cited by McDonald-Burkman notes, this attribute does not apply to the actions of
private entities or individuals even though those actions have "generated great public
interest." Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69
Cornell L. Rev. 1, 51 (1983).1° If it were otherwise, the trial court's unwarranted
expansion of this narrow Fiorella attribute would skew Kentucky's public access model,

If the public has any interest in learning how the private settlement funds will be handled, those
details are publicly available in the record in the Settlement Agreement and Agreed Judgment or
through Open Records Requests to the appropriate Kentucky officials.
10 In the different context of disclosure under the Open Records laws, the Kentucky Supreme
Court has echoed this limitation on the public's "right to know." See, e.g., Central Kentucky
News-Journal v. George, 306 S.W.3d 41,45-47(Ky. 2010).

9

17

 and would result in "nonjudicial" documents being improperly subject to the
presumption of public access. This is particularly true because, as the case law in this
area demonstrates, the media only goes to the expense of suing to unseal documents in
cases of significant newsworthiness.
In sum,the trial court never should have attempted to apply this Fiorella attribute
in any form, because it has no application to the "nonjudicial" documents here. Even if
that were not the case, the narrow principle actually recognized in Fiorella does not apply
because the Commonwealth did not pay settlement monies to cover any wrongdoing on
its part. Finally, neither Fiorella nor any other Kentucky case supports the trial court's
mutation of that narrow attribute from Fiorella. Indeed, the trial court had no basis in
Kentucky law to hold against Purdue the fact that it paid money to settle this case.
2.

The Fiorella deposition apparently was part of a granted
summary judgment motion.

Although the trial court here did not mention it, the second attribute found
compelling by Fiorella was that the damaging deposition ofthe public employee was or
should have been involved in the circuit court's summary judgment ruling, and thus
directly "played a role in the court's Article III function." Fiorella at 441-442. Here, in
contrast, the trial court neither heard nor decided any summary judgment motion, so no
sealed documents could have played a role in any summary judgment ruling, because
there was none. In particular, the Sackler deposition was not cited, discussed, or attached
to the Commonwealth's partial summary judgment motion, which had been fully briefed
and stayed by the trial court a full year before Sackler's deposition was even taken. Nor
was it involved in any fashion in Purdue's subsequent motions for partial summary
judgment. Not one ofthose motions was even fully briefed, much less heard or decided

18

 by the trial court. The Sackler deposition is the antithesis of this "attribute" from
Fiorella, a point the trial court overlooked.
3.

Fiorella alternatively presumed the trial court approved
the settlement in reliance on the deposition.

Having already held that the case was resolved by summary judgment rulings and
not by an agreed order of dismissal, Fiorella's last "attribute alternatively presumed that
"the summary judgments granted were merely an artifice to accomplish the resolution of
the legal action upon the basis of an agreed settlement." Fiorella at 441. In that
presumed context, there was little doubt that the deposition of Fiorella, a public
employee, put the community college defendants in a compromising position and thus
was a factor in the trial court's decision to "accept the parties' decision to dispense with
the case based on the settlement." Id. Accordingly, Fiorella stated much more broadly
than it needed to that "[e]ven the mere possibility that the court considered the
information ... militates in favor of public access." Id.
That statement may have been understandable in the context of Fiorella, but it has
no application to the facts here. Nothing in the record suggests that Judge Harris, who
was sitting by designation during Judge Combs's absence, had any reason to sua sponte
travel to Pikeville to review the Sackler deposition prior to entering the Agreed
Judgment. Moreover, unlike the deponent in Fiorella, Dr. Sackler is not a public
employee and his deposition was not attached as an exhibit or involved in any
adjudication by the court. It was not mentioned in the Settlement Agreement or Agreed
Judgment, and neither party asked Judge Harris to review the transcript(or any ofthe
other documents that were on file, under seal, in the Pike County Judicial Center) when
he took a brief window of time during his Christmas vacation to review and sign the
Agreed Judgment that was emailed to him in his Knott County office.
19

 Regardless, the trial court noted only the obvious—that the case settled at some
point "after some discovery was taken, including Dr. Sackler's deposition, and
dispositive Motions were filed, with Exhibits attached."(Appx. 1 at p. 2.) This
underscores why the "mere possibility" dicta does not have application outside the facts
of Fiorella. Because many things are filed with the court prior to settlement, some of
substance and some not, and there is always a theoretical "possibility" that a trial court
could sua sponte review something in the file, adopting Fiorella's dicta outside the
peculiar facts of that case amounts to the bright-line "everything-filed-is-a-publicdocument" argument that was rejected by the Kentucky Supreme Court and the Amodeo
court." McDonald-Burkman at 848-49; Amodeo I, 44 F.3d at 145. Purdue has found no
case adopting such a bright-line rule, which would swallow the Kentucky Supreme

11 Ironically, while trying to fend off plaintiff's argument that the McDonald-Burkman and
Amodeo II quote concerning documents that "lie entirely beyond the presumption's reach" creates
a bright line rule that no discovery documents belong on the sliding scale, Fiorella appears to
have drawn the opposite, but equally incorrect, bright line that the sliding scale applies to all
discovery filed in the record. Fiorella at 442-43. Fiorella should have simply responded that—
under Noble and McDonald-Burkman--discovery materials fall on the sliding scale if they were
used by the trial court to adjudicate the litigants' substantive rights. Instead, Fiorella speculated
that McDonald-Burkman must have been referring to "discovery material that is never filed,"
Fiorella at 443, even though Noble, McDonald-Burkman, and Amodeo II all concerned
documents actuallyfiled in the record. Fiorella's speculation ignores the facts ofthose cases and
would render their important holdings mere surplusage.
Fiorella also wrongly states that McDonald-Burkman"continue[d] its analysis by applying the
sliding scale analysis." Id. at 443. McDonald-Burkinan never determined that the filed discovery
documents belonged on the sliding scale (or which "weight" should apply). Instead, the Court's
commentary focused on whether the trial court's ruling would "cause Appellant to suffer 'great
and irreparable injury' if the petition is not granted," a necessary inquiry in that writ case.
McDonald-Burkman at 850-51. The Court's preface to that discussion—"[h]owever, even if a
common law right of access to discovery material exists..."—underscores that, having already
found that the common law presumption did not apply, McDonald-Burkman was focused on its
writ analysis and did not need or intend to engage in a full sliding scale analysis. McDonaldBurkinan's writ analysis does not change that filed documents with no role in the court's
adjudication of substantive rights "lie entirely beyond the presumption's reach," id. at 849-50,
and does not sanction a bright-line rule that Noble, McDonald-Burkman and Amodeo I and II
squarely rejected. In any case, the trial court's Order does not suggest that it relied upon this
dicta from Fiorella.
20

 Court's model for determining how the presumption of public access might apply to
documents filed under seal.
Echoing this point, City ofGreenville, Ill. v. Syngenta Crop Protection, LLC,764
F.3d 695,698 (7th Cir. 2014), specifically rejected that bright-line rule, noting that
Iplublic access depends on whether a document `influenc[ed] or underpin[ned] the
judicial decision,'" otherwise "Seattle Times'[467 U.S. 20] protection of discovery
materials would be toothless." Id. at 698 (citation omitted). There, the trial judge
declined to read exhibits regarding a motion to dismiss and denied public access because
the documents "can shed no light on the functioning of the Court and the basis for its
decisions." Id. at 697. The Seventh Circuit affirmed because—like the Kentucky
Supreme Court—it had "limited the presumption of public access to materials that affect
judicial decisions." Id. Greenville rejected dicta from an earlier case suggesting that a
court could "presume"judicial reliance from the "fact of filing," instead warning that that
"dicta must be measured against our repeated statements that the presumption of public
access turns on what the judge did, not on what the parties filed." Id
Greenville's analysis puts this alternative "attribute' in Fiorella in its intended
context. Because the deposition of a public employee in Fiorella played a role in the trial
judge's resolution of the case, it affected a judicial decision and thus was a "judicial
document." Id. Fiorella did not need to rely on the filing to "presume' anything, since
the court had already held that the deposition was integral to the circuit court's grant of
summary judgment, which by itself places the deposition at the top of the sliding scale.
Noble, 92 S.W.3d 732. Fiorella 's "mere possibility" language does not apply to any of
the sealed documents here, and the trial court erred as a matter of law to the extent it
adopted, out of context, a bright-line rule that Noble and McDonald-Burkman rejected.

21

 IV.

In the alternative, if any sealed documents fit on the sliding scale, the
Protective Order provides a sufficient "countervailing reason."
As discussed above, none ofthe sealed documents are "judicial documents"

subject to the common law presumption of access because none of them played any role
in any adjudication of litigants' substantive rights by the trial court. See, e.g., McDonaldBurkman, 298 S.W.3d at 849-50. Accordingly, the trial court should have held as a
matter of law that none of the "nonjudicial" documents in this case were subject to the
common law presumption of access, and that they all should have remained sealed.
Even if these "nonjudicial" documents had played some role, however, for the
reasons outlined above the few confidential documents at issue would, at most, be at the
very bottom of the sliding scale as documents that played "only a minor or negligible role
in adjudicating the right ofthe litigants" such that the weak presumption "amounts to
little more than a 'prediction of public access absent a countervailing reason.'" Noble at
733. Alternatively then, at the bottom of the sliding scale, the entry of the Protective
Order for good cause provides a strong "countervailing reason" that easily outweighs the
"low weight ofthe presumption. Amodeo II at 1050.12 See also R. 2070 at 10-13 (citing
cases to that effect).
The Protective Order was highly beneficial because it allowed for a smooth
discovery process, and facilitated the production of more than 17 million pages of
documents with few discovery motions. Without the Protective Order, Purdue would not
have voluntarily produced confidential materials or its witnesses for broad-ranging
depositions, and this would have resulted in significant motion practice and delays. See
For example, Amodeo //found "the public interest in access is not as pressing"' when
summary judgment is denied. Id. at 1049-50, quoting In re Reporters Comm.for Freedom ofthe
Press, 773 F.2d 1325(D.C. Cir. 1985). That minimal interest logically evaporates when a
summary judgment motion is stayed and never heard or adjudicated. See, e.g., Greenville, 764
F.3d at 697.
12

22

 Greenville, 764 F.3d at 697(The increased risk of public disclosure of confidential
documents "would induce litigants to resist disclosure in the first instance.")
Because "protective orders further the important governmental interest of
preventing abuse of the pretrial discovery process," the trial court has "'substantial
latitude' to employ,for good cause, this discovery-management device." Anderson, 805
F.2d at 6-7. See also The Courier-Journal and Louisville Times Co. v. Marshall, 828
F.2d 361, 367(6th Cir. 1987). Given the "liberality of pretrial discovery permitted" and
the "significant potential for abuse," courts must"have the authority to issue protective
orders conferred by" CR 26.03. Seattle Times,467 U.S. at 34.13 When the trial court
here entered the Protective Order nearly three years ago, it did so based "on a showing of
good cause," and the Protective Order was properly "limited to the context of pretrial
discovery, and [did] not restrict the dissemination ofthe information if gained from other
sources." Id. at 37. Therefore, the trial court's finding of"good cause'for the Protective
Order "is sufficient to meet any constitutional objections to restrictions imposed upon the
public's or the media's right of access to discovery materials, whether these materials are
filed with the court in connection with discovery matters or remain solely in the
possession of the parties and their counsel." Flagg v. City ofDetroit, 268 F.R.D. 279,
294(E.D. Mich. 2010). See also Amodeo II, 71 F.3d at 1050 ("Judicial efficiency" is a
"countervailing factor" that can outweigh the presumption of access).14
13 CR 26.03 allows for protective orders to protect the confidentiality of discovery. "[T]he
interest of the judiciary in the integrity of its discovery processes ... is adequate to sustain a rule
like [CR 26.03] which authorizes a trial court to protect the confidentiality of information given
for purposes of litigation." Seattle Times, 467 U.S. at 28.
orders reflect
14 The Marcus law review article cited in McDonald-Burkman stated that protective
the litigants' "substantial interest in the orderly operation of the civil litigation system" and are
"accorded substantial weight," particularly in complex cases, like the one here. Marcus, Myth
and Reality in Protective Order Litigation, 69 Cornell L. Rev. at 58. The bright-line rule urged
here "disregard[s] this reality...and thereby threaten[s] to undermine it." Id. at 73.
23

 The "important governmental interest" in facilitating discovery in complex cases
has resulted in protective orders becoming "a fairly common feature of civil litigation,
particularly in cases involving corporate parties," Flagg, 268 F.R.D. at 291, because they
promote "the overriding goal ofthe Rules of Civil Procedure, to secure the just, speedy,
and inexpensive determination of every action.'" United Nuclear Corp. v. Cranford Ins.
Co., 905 F.2d 1424, 1427-28 (10th Cir. 1990). See also Martindell v. Intl Tel. & Tel.
Corp., 594 F.2d 291, 295(2nd Cir. 1979).15
From a broader perspective, if protective orders cannot be relied upon,then
discovery is less likely to be ordered to be produced and writs prohibiting discovery are
more likely to be granted. See, e.g., Edwards v. Hickman, 237 S.W.3d 183, 192(Ky.
2007)(denying writ due, in part, to "extensive confidentiality protection language" in a
protective order). See also Kentucky Farm Bureau Mut. Ins. Co. v. Hopper, 2002-SC774, 2003 Ky. Unpub. LEXIS 71 (Ky. 2003)(protective order provided an "adequate
vehicle for relief). Without such orders, there would be no "adequate vehicle for relief,"
and the number of writ petitions sought and granted will increase.
The Order mentioned the Protective Order in perfunctory fashion, but—
compounding its underlying error in placing these documents on the sliding scale at all—
the trial court alternatively failed to rule that the "good cause" that justified the Protective

Umbrella protective orders spare the trial court from conducting invasive document-bydocument reviews before sealing a large number of documents in complex litigation such as this
one. Chicago Tribune, 263 F.3d at 1316. Thus,to avoid burdening the court and interfering with
the free flow of discovery, the media is allowed "only to challenge the umbrella order as being
too broad, based on a variety of factors," none of which exist here. Id. See also Greenville, 764
F.3d at 697("Requiring judges to vet every document in the record to determine whether it is
covered by a privilege or some other basis of confidentiality would needlessly increase the district
court's workload"). Such orders obviate the need for a hearing every time a document is
designated confidential or filed under seal. In re Alexander Grant & Co., 820 F.2d 352, 356
(11th Cir. 1987)(in complicated cases "[b]usy courts are simply unable to hold hearings every
time someone wants to obtain judicial review concerning the nature of a particular document").
15

24

 Order was a "countervailing reason" that outweighed the, at most, weak presumption.
(Appx. 1.) Accordingly, in the alternative, if this Court finds that any of the sealed
documents belong on the sliding scale, it should rule that the trial court erred by not
concluding as a matter of law that this significant "countervailing reason" outweighed the
presumption and should reverse the May 11, 2106 Order.

CONCLUSION
Because the Sackler deposition and the other sealed documents at issue played no
role in the adjudication of litigants' substantive rights, and thus "lie entirely beyond the
presumption's reach," McDonald-Burkman at 849-50, the trial court erred as a matter of
law by ordering those documents that were properly filed under seal pursuant to a proper
protective order to be unsealed. The May 11, 2016 Order should be reversed.
In the alternative, even if the sliding-scale analysis were appropriate as to any of
the sealed documents, this Court should reverse the Pike Circuit Court because it erred by
not finding as a matter of law that the "good cause" supporting entry of the Protective
Order is a significant "countervailing reason" that outweighs the weak presumption at the
bottom of the sliding scale.

Daniel E. Danford
STITES & HARBISON,PLLC
250 West Main Street, Suite 2300
Lexington, KY 40507-1758
Telephone: (859)226-2292

Bethany A. Breetz
STITES & HARBISON,PLLC
400 West Market Street, Suite 1800
Louisville, KY 40202-3352
Telephone: (502)681-0634

Trevor W. Wells
MILLER WELLS PLLC
300 E. Main Street, Suite 360
Lexington, Kentucky 40507
Telephone: (859)281-0077

Pamela T. May
PAM MAY LAW FIRM,P.S.C.
P.O. Box 1439
Pikeville, Kentucky 41502
Telephone: (606)432-0400

25

 APPENDIX

Tab 1

May 11, 2016 Order (R. 2105-2108)

Tab 2

Protective Order (R. 1478)

Tab 3

May 13, 2016 Agreed Order (R. 2109-2110)

Tab 4

Kentucky Farm Bureau Mut. Ins. Co. v. Hopper, 2002-SC-774,
2003 Ky. Unpub. LEXIS 71 (Ky. 2003)