COMMONWEALTH OF KENTUCKY COURT OF APPEALS CASE NO. 2016-CA-710 PURDUE PHARMA L.P., ET AL APPELLANTS On Appeal from Pike Circuit Court Civil Action No. 07-CI-1303 V. BOSTON GLOBE LIFE SCIENCES MEDIA, LLC d/b/a STAT, ET AL APPELLEES BRIEF OF APPELLEE BOSTON GLOBE LIFE SCIENCES MEDIA d/b/a STAT S. Rogers ORE & SHOHL LLP 101 S. Fifth St., Suite 2500 Louisville, KY 40202 Telephone: (502) 540-2300 Counsel for Appellee Boston Globe Life Sciences Media, LLC d/b/a STAT CERTIFICATE OF SERVICE I hereby ce1iify that this Brief of Appellee was sent by First Class U.S. Mail, postage prepaid, this 9th day of November, 2016 to the following: Hon. Steven D. Combs, Pike Circuit Cowi, 146 Main St., Pikeville, KY 4150 I; Daniel E. Danford, 250 West Main St., Suite 2300, Lexington, KY 40507; Trevor W. Wells, 300 E. Main St., Suite 360, Lexington, KY 40507; Bethany A. Breetz, 400 W. Market St., Suite 1800, Louisville, KY 40202; Pamela T. May, P.O. Box 1439, Pikeville, KY 41502; Susan J. Pope, 250 W. Main St., Suite 2700, Lexington, KY 40507; Bayard V. Collier, P.O. Box 1139, Pikeville, KY 41502; Mitchel Denham, C. David Johnstone, Office of the Attorney General, 700 Capital Ave., Suite 118, Frankfort, KY 40601; Michael Brooks, LeeAnne Applegate, Robyn Bender, 1024 Capital Center Dr., Suite 200, Frankfmi, KY 4060 I; Donald L. Smith, Jr., 131 Main St., 3'd Floor, Pikeville, KY 4150 I; and Tyler Thompson, 13800 Lake Point Circle, Louisville, KY 40223. It is further certified that no portion of the record on appeal was withdrawn by, or on behalf of, . Appel-le~/!f-.-~---+--<;._,_~~-Q.I--~t-\-------""""=---/ ~Counselfor~ STATEMENT CONCERNING ORAL ARGUMENT Appellee, Boston Globe Life Sciences Media, LLC d/b/a STAT does not request oral argument and states that oral argument is unnecessary for the Court to resolve the straightforward legal issue presented in this appeal. The appeal concerns whether the trial court abused its discretion by allowing public access to court records where: ( 1) records filed with a trial court are presumptively public; (2) Appellant failed to prove any legitimate justification for its desire to seal the records; and (3) a high degree of deference is given to a trial court's decision to allow public access to its records. II COUNTERSTATEMENT OF POINTS AND AUTHORITIES Page No. STATEMENT CONCERNING ORAL ARGUMENT ................................................. ii COUNTERSTATEMENT OF THE CASE. .................................................................... I I. PURDUE'S CRIMINAL CONVICTION AND CIVIL LIABILITY FOR ITS DECEPTIVE MARKETING OF OXYCONTIN . ...................................... I United States v. Purdue Frederick Co., 495 F. Supp. 2d 569 (W.D. Va. 2007) ........... I, 2I United States ex rel. Radcliffe v. Purdue Pharma L.P., 582 F. Supp. 2d 766, 767 (W.D. Va. 2008) .................................................................................................................. I Friedman v. Sebelius, 686 F.3d 8I3 (D.C. Cir. 20I2) ........................................................ I United States v. Purdue Frederick Co., 963 F. Supp. 2d 56 I, 565 (W.D. Va. 20I3) ......... 2 Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 2II (2d Cir. 20I3) ............................. 2, 3 II. THE AGREED QUALIFIED PROTECTIVE ORDER. ........................................ 3 Lawson v. Office of the AG, 4I5 S.W.3d 59, 63 (Ky. 20I3) ........................................... 3, 5 III. PURDUE AGREES TO A $24 MILLION JUDGMENT. .................................... .4 IV. STAT'S REQUEST FOR RECORDS . .................................................................... 5 KRS 6I.878(I) ..................................................................................................................... 5 V. STAT'S MOTION TO INTERVENE AND UNSEAL COURT RECORDS . ....... 6 Central Ky. News-Journalv. George, 306 S.W.3d4I (Ky. 20IO) ............... 6, 9, IO, I2, I9 Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d I25, I30 (Ky.I988) ....................................................................... 7,9, II, 14, I5, 16, I7, I8, I9,23 Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433, 44I (Ky. App. 20I4) .................................................................... 7, 9, I4, I5, I6, I7, I8, I9, 23 ARGUMENT ...................................................................................................................... 8 I. THE STANDARD OF REVIEW REQUIRES SUBSTANTIAL DEFERENCE TO THE TRIAL COURT'S DECISION . .................................................................. 8 Jll Roman Catholic Diocese v. Noble, 92 S. W.3d 724, 730-731 (Ky. 2002) ....................................................................................... 9, 10, 14, 16, 20, 22, 23 States v. Amodeo, 44 F.3d 141, 147 (2nd Cir. 1995) ............................................. 9, 15, 16 Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 849 (Ky. 2009) .................................................................................................... 9, 14, 15, 22,23 Bailey v. Bertram, 471 S.W.3d 687, 692 (Ky. 2015) .................................................... 9, 14 Couch v. Couch, 146 S.W.3d 923,926 (Ky. 2004) .......................................................... 10 McFall v. Peace, Inc., 15 S. W.3d 724, 727 (Ky. 2000) .................................................... 10 Cline v. Spectrum Care Academy, Inc., 316 S. W.3d 320, 326 (Ky. App. 201 0) .............................................................................................. 10, 13, 14, 22 II. THE LAW PROVIDES A STRONG PRESUMPTION IN FAVOR OF PUBLIC ACCESS TO COURT RECORDS . ...................................................... 11 Johnson v. Simpson, 433 S. W.2d 644, 646 (Ky. 1968) .................................................... 11 Ashland Publishing Co. v. Asbury, 612 S.W.2d 749,752 (Ky. App. 1980) ..................... 11 Brown& Williamson Tobacco Corp. v. FTC, 7IOF.2d 1165, 1177(6thCir.I983) .... 12 KRS 411.060 ...................................................................................................................... 12 KRS 61.870(I)(e) .............................................................................................................. 12 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-71 (1980) ........................... 12 Press-Enterprise Co. v. Superior Court, 478 U.S. I (1986) ....................................... 12, 13 Ex parte Farley, 570 S. W.2d 617, 625 (Ky. 1978) ........................................................... 12 Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658,661 (Ky. 1983) ............................... 13 Ill. THE RIGHT OF PUBLIC ACCESS APPLIES TO THE RECORDS AT ISSUE IN THIS CASE ........................................................................................... .. 13 CR 30.06(1) ....................................................................................................................... 14 IV A. The Right of Public Access Attaches to All Documents Filed in the Trial Court Record, Including Deposition Transcripts, Motions and Exhibits ................................................................................................................ 14 Comm. v. Kincaid, 2011 Ky. App. Unpub. LEXIS 939 (Ky. App. 2011) (citing McDonald-Burkman, 298 S. W.3d 846) ............................................................................ 14 B. The Public Interest in Disclosure in this Case is Substantial ......................... 16 Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir. 2013) .................................... 16 Boston Herald, Inc. v. Connolly, 321 F.3d 174 (1 51 Cir. 2003) ......................................... 16 Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) .......................................................... 16 Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289, 1294 (9th Cir. 1986) .......................................................................................................................... 17 Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F. 3d 132, 140 (2d Cir. 2016) ........................................................................................................................... 19 Co. Doe v. Pub Citizen, 749 F. 3d 246,271 (4th Cir. 2014) .............................................. 19 Fed Trade Comm 'n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) ................................................................................................................................. 20 IV. PURDUE FAILED TO PROVE ANY LEGITIMATE REASON TO SEAL THE COURT RECORDS ............................................................................ 20 US. v. Beckham, 789 F.2d 401,413 (6th Cir. 1986) ......................................................... 20 Shane Group v. Blue Cross Blue Shield, 825 F.3d 299, 308 (6th Cir. 2016) ........ 21, 22, 23 P&G v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) ........................................... 22 Maclean V Middleton, 419 S.W.3d 755, 761 (Ky. App. 2014) ........................................ 22 CONCLUSION ................................................................................................................ 24 APPENDIX ....................................................................................................................... 25 v COUNTERST ATEMENT OF THE CASE Appellee Boston Globe Life Sciences Media, LLC d/b/a STAT ("STAT") 1 does not accept the Statement of the Case set forth in the Brief of Appellants Purdue Pharma L.P., The Purdue Frederick Company, Inc., Purdue Pharmaceuticals L.P. and The P.F. Laboratories, Inc. (collectively "Purdue"). STAT's Counterstatement follows. I. PURDUE'S CRIMINAL CONVICTION AND CIVIL LIABILITY FOR ITS DECEPTIVE MARKETING OF OXYCONTIN. In 2007, Purdue was convicted of the federal felony of misbranding its drug OxyContin with the intent to defraud or mislead. United States v. Purdue Frederick Co., 495 F. Supp. 2d 569 (W.D. Va. 2007). Purdue's crimes relating to OxyContin have been the subject of much litigation and public interest throughout the United States. See id.; see also, e.g., United States ex ref. Radcl~ffe v. Purdue Pharma L.P., 582 F. Supp. 2d 766, 767 (W.D. Va. 2008) (federal False Claims Act case involving Purdue's marketing of OxyContin); Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012) (involving 12-year exclusion from pmiicipation in federal health care programs of Purdue executives convicted for OxyContin marketing). Along with the criminal conviction, Purdue faced monetary sanctions "totaling $600 million, reported to be one of the largest in the history of the pharmaceutical industry." Purdue Frederick, 495 F. Supp. 2d at 572. Purdue was required to pay $60 1 Throughout the proceedings, Purdue has incorrectly referred to STAT as "the Boston Globe." STAT is not the legal entity that publishes The Boston Globe newspaper. STAT is a subsidiary of Boston Globe Media Partners, LLC, a company which also owns The Boston Globe. STAT is a national online health and life-sciences news publication that focuses on science research and development, medicine, the biotechnology, pharmaceutical and health care industries, and health and science policy and politics. (See STAT's website at www.statnews.com and www.statnews.com/about.) million in escrow for states wishing to settle claims against it. See United States v. Purdue ~Frederick Co., 963 F. Supp. 2d 561, 565 (W.O. Va. 2013). Forty-nine states opted into the settlement, each receiving a distribution from this fund to settle claims for Medicaid expenditures that resulted from Purdue's fraudulent marketing and promotion of OxyContin. !d. at 565. Kentucky, which suffered among the worst from the drug addiction epidemic that followed Purdue's criminal marketing of OxyContin, was the only state to opt out of the settlement and to sue separately. !d. at 565. On October 4, 2007, the Attorney General, together with Pike County, filed this lawsuit on behalf of the Commonwealth of Kentucky. !d. at 565. The Complaint alleged that Purdue violated Kentucky law by misleading doctors, patients and government officials about OxyContin's risks of addiction and susceptibility to abuse. Parroting the factual basis for Purdue's criminal conviction, the Commonwealth alleged that, from 1995 to 2001, Purdue promoted OxyContin as "less addictive, less subject to abuse and diversion, and less likely to cause tolerance and withdrawal than other pain medications," despite knowing that those assertions were false. (R. 271, et seq., Am. Compl., ~ 42.) The Commonwealth asserted a variety of fraud-based civil claims against Purdue. See id.; see also Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 211 (2d Cir. 2013) (affirming remand of this case from federal court and summarizing the allegations of Purdue's wrongdoing). The Commonwealth alleged that Purdue's deceptive marketing of the drug contributed to an addiction epidemic, including a variety of widespread harms m Kentucky such as hundreds of overdose deaths. (SeeR. 271, et seq., Am. Compl.) 2 II. THE AGREED QUALIFIED PROTECTIVE ORDER. Following Purdue's removal of the case to federal court, discovery did not commence until 2013 when the case was finally remanded to Pike Circuit Court. See Purdue Pharma, 704 F.3d 208. When discovery commenced, the parties submitted a 33page Agreed Qualified Protective Order, which the trial court adopted (the "Protective Order"). (R. 1478, et seq., 12/4113 Agr. Qual. Prot. Ord.) The Protective Order allowed Purdue unilaterally to designate information produced in discovery, including deposition transcripts, as "confidential" and thereby restrict the other parties' use and public dissemination of the materials. Designations of confidentiality were supposed to be limited to narrow categories of information such as trade secrets and personal financial or medical information. (!d. Order left it to the parties' to make such designations. (!d. at~~ at~ 5.) The Protective 5, 16, 19.) One goal of the Protective Order was to avoid the Open Records Act, which otherwise mandates public disclosure of depositions and documents obtained by the Attorney General in litigation. See, e.g., Lawson v. Office of the AG, 415 S.W.3d 59, 63 (Ky. 2013) (requiring disclosure of a sworn "proffer," equivalent to a deposition, taken by Attorney General). The Protective Order provided that documents Purdue chose to designate as "confidential" would not be subject to the Attorney General's disclosure obligations under the Open Records Act. (R. 1478, et seq. at~ 33.) In addition to governing the parties' exchange of materials m discovery, the Protective Order also provided that, if a party chose to include documents designated as "confidential" in a court filing, such filing would initially be under seal. (!d. at ~ 20.) Prior to STAT's motion to intervene, the trial court had never been asked to make any 3 finding that any particular materials had been properly designated as "confidential" or that they were appropriately sealed in the court file. On the contrary, the Protective Order held that Purdue's designation of materials as "confidential" shall not be "construed in any way as a finding" that the materials were properly designated as such. (!d. The Protective Order expressly contemplated a challenge confidentiality designations "at any point in these proceedings." (!d. at~ to at~ 22.) Purdue's 22.) It provided that "[a] party shall not be obligated to challenge the propriety of a designation at the time made, and a failure to do so shall not preclude any subsequent challenge." (Id.) Such a challenge would require Purdue to move for a specific protective order and to carry "the burden of demonstrating the propriety of its [confidentiality] designation." (!d. at~ 22.) Purdue claims that it produced more than 17 million pages of documents to the Attorney General pursuant to the Protective Order. (Purdue Brf., p. 1} The parties filed only a handful of the documents with the trial court as exhibits to various summary judgment motions and other motions. (See id. at 3-4.) The parties also filed summary judgment briefs and other motions under seal. (See id. at 3-4.) The documents filed under seal also included the complete deposition transcript of Purdue board member Dr. Richard Sackler, which was filed on September 22, 2015. (See id. at 3.) III. PURDUE AGREES TO A $24 MILLION JUDGMENT. On December 18, 2015, the Commonwealth settled with Purdue for the sum of $24 million. (R. 2019, et seq.) Among other things, the settlement agreement provided for the trial court's entry of an agreed judgment requiring Purdue to pay the Commonwealth $24 million. (!d. at~ 13.) It also provided for the Protective Order to remain in effect, but 2 The trial court record does not reveal how many of the documents Purdue produced were designated as "confidential" under the Protective Order. 4 it did not address any particular court records that had been filed with the trial court under seal. (!d. at~ 21.) On December 22, 2015, the trial court entered the judgment approving and adopting the settlement. (R. 2036, et seq.) The judgment also directed how the Attorney General is to utilize the settlement funds. (!d. IV. at~ 8.) STAT'S REQUEST FOR RECORDS. After the $24 million judgment was announced, on February 15, 2016, STAT Senior Enterprise Reporter David Armstrong submitted an open records request to the Attorney General for a copy of Dr. Sackler's deposition transcript. The Attorney General's office denied Mr. Armstrong's request. (Exh. 3 to STAT's 3/16/16 Mot. to Intervene and Unseal. )3 According to the Attorney General, the Protective Order remained in effect and prohibited disclosure of documents designated by Purdue as "confidential." (See id. at pp. 2-3.) defendants designated many The Attorney General stated that "the Purdue portions of the deposition [of Dr. Sackler] as 'Confidential,"' and "[t]he Commonwealth filed multiple motions under seal that referenced and quoted portions of the deposition of Richard Sackler." (!d. at 3.) In a supplemental response, the Attorney General clarified that the entire deposition transcript had been filed under seal. (!d. at 2nd 2118116 letter.) The Attorney General did not invoke any of the statutory exceptions to disclosure set forth in the Open Records Act, KRS 61.87 8(1 ), none of which would have applied. See id.; see also, e.g., Lawson, 415 S. W.3d 59; OAG 88-48 (Open Records Act decision 3 STAT's motion to intervene and unseal court records is contained in the record on appeal in a separate, unnumbered collection of records certified by the Pike Circuit Court Clerk. For the Court's convenience, Exhibit 3 to STAT's motion, which consists of both an initial February 18, 2016 letter and a supplemental February 18, 2016 letter from the Attorney General, is attached hereto at Appendix Tab A. 5 that, "[u]nless the court has ordered the deposition to be sealed it may be inspected by the public after it has been filed."). The Attorney General cited several Open Records Act decisions which hold that a judicial order scaling a deposition transcript also prohibits the governmental party in possession of the transcript from providing it under the Open Records Act and, instead, requires relief from the trial court. (App'x Tab A, 2/18/16 AG ltr., p. 3) (citing, inter alia, 12-0RD-219 & 05-0RD-066). 4 V. STAT'S MOTION TO INTERVENE AND UNSEAL COURT RECORDS. On March 16, 2016, STAT moved to intervene in the case for the sole purpose of seeking to unseal Dr. Sackler's deposition transcript and the other court records that had been filed under seal by virtue of Purdue's "confidential" designations under the Protective Order. On May 2, 2016, Purdue filed its opposition to STAT's motion. (R. 2070, et seq.) Despite the Protective Order's express requirement, Purdue did not move the trial court for a document-specific protective order and did not attempt to carry "the burden of demonstrating the propriety of its [confidentiality] designation[ s]." (R. 14 78, et seq. at ~ 22.) Instead, Purdue urged the trial court to avoid reviewing the particular records and to avoid asking whether there was any legitimate reason for keeping them secret from the public. (See R. 2070, et seq. at pp. 12-13.) The trial court heard oral arguments on May 6, 2016. During the oral argument, Purdue still offered no proof to 4 This was also the same process followed in Central Ky. News-Journal v. George, 306 S.W.3d 41 (Ky. 2010). In that case, a trial court entered an order sealing two settlement agreements between and individual plaintiff and two defendant school boards. When the school boards denied a newspaper's open records request, the newspaper sought to intervene in the litigation for the purpose of moving to unseal the agreements. The Supreme Court relied upon the Open Records Act in reversing the trial court's decision to seal the records. Jd. at 45 (reversing "trial court's erroneous conclusion that the settlement agreements at issue should remain under seal" because "the agreements must be disclosed pursuant to Kentucky's Open Records Act."). 6 justify its desire for the Dr. Sacklcr deposition and other court records to be kept secret from the public. On May 11, 2016, the trial court granted STAT's motion. (R. 2105, et seq.) The trial court cited Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d 125, 130 (Ky. 1988) and Fiorella v. Paxton Media Group, LLC, 424 S.W.3d 433,441 (Ky. App. 2014), for their holdings that there is a presumptive right of public access to court records and a strong public interest in the disclosure of court records in cases involving settlements with government agencies. (See R. 21 07.) The trial court held that the substantial amount of money awarded to the Commonwealth in this case weighs in favor of public disclosure. (!d.) The trial court also noted that the parties' settlement came shortly after Dr. Sackler's deposition had been filed and after extensive briefing on dispositive motions that included multiple sealed exhibits and briefs. (R. 2106-2107.) The trial court held that those court records were appropriate factors in the parties' decision to settle and in the trial court's decision to enter the judgment against Purdue. (!d. at 2107.) The trial court cited Fiorella, 424 S.W.3d 433, as further support that there is a substantial public interest in disclosure of the court records. (!d.) In Fiorella, the Court of Appeals affirmed a trial court's order unsealing a party's deposition transcript and other discovery documents in part because of the potential that "the discovery was a factor both in the decision to settle and in the court's decision to accept the parties' decision to dispense with the case based on the settlement." 424 S.W.3d at 441. The trial court held that, in this case, there is "no higher value than the public (via the media) having access to these discovery materials so that the public can see the facts 7 for themselves." (R. 21 07.) The trial court rejected Purdue's legal arguments as insufficient to overcome the public interest in disclosure and held that any legitimate personal privacy interests would be protected by the court clerk's redaction of personal information such as addresses, Social Security numbers and telephone numbers. (ld at 2107-2108.) Purdue then initiated this appeal on May 16,2016. (R. 2112.) ARGUMENT The Court should affirm the trial court's decision. It is well-settled law that the public has a right of access to records filed with a court. Court records can be sealed only in limited circumstances, for specific reasons, and only upon a sufficient showing by the party seeking closure. Here, instead of making any such showing, Purdue attempted to unilaterally "seal" the records by making the unsupported claim that they are "confidential." Yet, Purdue does not get to decide what documents in the trial court's file are available to the public. That is the trial court's decision, and it is a discretionary decision for which a high degree of deference must be afforded. The decision to allow public access to the records was correct. This Court should affirm the decision. I. THE STANDARD OF REVIEW REQUIRES DEFERENCE TO THE TRIAL COURT'S DECISION. SUBSTANTIAL Purdue's brief conspicuously fails to set forth the appropriate standard of review for a trial court's decision regarding public access to court records, a standard which Purdue cannot surmount in this case. (See Purdue Brf.) The Kentucky Supreme Court has formulated a standard of review that gives tremendous deference to a trial court's decision to allow public access to its court records. The Supreme Court has held that the trial court is "the appropriate forum to make these decisions [concerning access to court records], which would then be upheld absent a record showing abuse of discretion." 8 Peers, 747 S.W.2d at 128. "It is not the function of an appellate court ... to direct a trial court on how to exercise its discretion" in such matters. Id at 126. The Supreme Court has consistently applied this highly deferential standard of review, holding that "[a] discretionary decision whether to deny access to court documents and records should be made by the court in which those records and documents reside and not by an appellate court." Roman Catholic Diocese v. Noble, 92 S.W.3d 724, 730-731 (Ky. 2002) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978) and United States v. Amodeo, 44 F.3d 141, 147 (2nd Cir. 1995)); see also, e.g., Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 849 (Ky. 2009) (trial court's "inherent right to control access" is "left to the discretion of the court" and "deference must be given to the trial court's determination after consideration of the relevant facts and circumstances of the particular case."); Fiorella, 424 S. W.3d at 436 ("A decision regarding public access to its records is a matter within the trial court's sound discretion."). Kentucky's appellate courts have often overturned orders sealing court records because of the public's constitutional and common law right of access. Yet, the opposite is not true because civil litigants like Purdue have no legal right to keep court records secret from the public. In fact, the deference to a trial court's decision to allow public access is so strong that no Kentucky appellate court has ever held that a trial court abused its discretion by allowing public access to court records. See, e.g., Bailey v. Bertram, 471 S. W.3d 687, 692 (Ky. 2015) (trial court erred by allowing non-media third parties to intervene for purpose of moving to unseal, but Supreme Court did not overturn decision to unseal the records); Central Ky. News-Journal v. George, 306 S. W.3d 41, 44-45 (Ky. 9 20 l 0) (reversing order sealing court records and ordering records to be made public); Couch v. Couch, 146 S.W.3d 923, 926 (Ky. 2004) (reversing trial court and ordering records to be unsealed); McFall v. Peace, Inc., 15 S.W.3d 724, 727 (Ky. 2000) (reversing and ordering records to be unsealed); Fiorella, 424 S. W.3d at 444 ("We cannot conclude the circuit court abused its discretion in permitting public access to the documents."); Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 326 (Ky. App. 2010) (reversing orders sealing court records and remanding for further proceedings). The only Kentucky appellate decision to reverse a trial court's denial of a motion to seal is Noble, 92 S. W.3d 724. That case involved portions of a complaint that had been stricken pursuant to CR 12.06, which allows a trial court to strike "sham, redundant, immaterial, impertinent or scandalous matter." The Supreme Court did not hold that the trial court should have sealed the stricken portions of the complaint or that it abused its discretion by not sealing them. Rather, the Court remanded the case for the trial court to exercise its discretion because "the trial court was not aware that it had the discretion to seal" the documents and thus "failed to exercise its discretion in its ruling on the [party's] motion to seal." Noble, 92 S. W.3d at 730-731. In fact, on remand the trial court exercised its discretion to make the records available for public access. 5 Noble thus confirms that trial courts have wide discretion to publicly release court records. Here, the trial court properly exercised its discretion to make the court records public. Taking into account the facts and circumstances of this case, the trial court correctly held that there is "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." (R. at p. 5 See 1131103 Op. & Ord., Fayette Circ. Ct. No. 02-CI-2231, attached at Appendix Tab B. 10 21 07.) Purdue obviously does not like the trial court's decision to release court records which reflect upon its criminal marketing of OxyContin and underlie its decision to pay $24 million to the Commonwealth. Yet, there is no suggestion that the trial comi's decision was an abuse of discretion. 6 Under the highly deferential standard of review, the Court should affirm the trial court's decision. II. THE LAW PROVIDES A STRONG PRESUMPTION IN FAVOR OF PUBLIC ACCESS TO COURT RECORDS. Kentucky law has long recognized the vital importance of openness m the Commonwealth's courts: The principle that justice cannot survive behind walls of silence is so deeply imbedded in our Anglo-American judicial system as to give our people in today's modern society a deep distrust of secret trials .... One of the strongest demands of a democratic system is that the public should know what goes on in their courts. Johnson v. Simpson, 433 S.W.2d 644, 646 (Ky. 1968). Kentucky's Constitution provides that "[a]ll courts shall be open." Ky. Const. § 14. Applying that provision, the Comi of Appeals has held that "the courts shall be public, open, no hiding place about them." Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. App. 1980) (internal citations and quotation marks omitted). The strongly held policy of judicial openness includes the public's right of access to court records. In Peers, 74 7 S. W.2d 125, the Kentucky Supreme Court held, We recognize that the government belongs to the people, that its activities arc subject to public scrutiny, and that the news media is a primary source of protecting the right of public access. This right includes the public's "right to inspect and copy public records and documents, including judicial records and documents." ... Basic principles have emerged to 6 In Purdue's attempt to evade the proper standard of review, the word "discretion" appears nowhere in its brief Purdue repeatedly claims that the trial comi "erred," but those claims arc legally incorrect and inapt to the proper standard of review. (See Purdue Br£,pp. 11, 14,21,24-25.) 11 guide judicial discretion respecting public access to judicial proceedings. These principles apply as well to the determination of whether to permit access to information contained in court documents because court records often provide important, sometimes the only, bases or explanations for a couri's decision. !d. at 128 (citing Nixon, 435 U.S. at 597 and Brown & Williamson Tobacco Corp. v. FTC, 710 f.2d 1165,1177 (6th Cir. 1983)). Kentucky's General Assembly has also amplified the public policy in favor of informing the public about the content of court records. See, e.g, KRS 41 1.060 (legal privilege to publish "the whole or a synopsis of any indictment, warrant, affidavit, pleading or other document in any criminal or civil action."); see also KRS 61.870(1)(e) (including "[e]very state or local court or judicial agency" within the Open Records Act). 7 The U.S. Supreme Court has held that the First Amendment mandates a strong presumption of openness, in part because "[ o]penness ... enhances both the basic fairness of the ... trial and the appearance of fairness so essential to the public confidence in the system." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-71 (1980). The U.S. Supreme Court has also upheld the common law right "to inspect and copy public records and documents, including judicial records and documents." Nixon, 435 U.S. at 597-598; see also, e.g, Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (constitutional right of access applied to pre-trial hearing transcript). 7 See Ex parte Farley, 570 S. W.2d 617, 625 (Ky. 1978) (constitutional separation of powers prohibits Open Records Act application to the judicial branch, but "[t]here is very little in the policies evinced by the Open Records Law that we could not accept as a matter of comity."); see also Central Ky. News-Journal, 306 S.W.3d 41 (relying upon Open Records Act's mandate of disclosure to reverse trial court's order sealing settlement agreements). 12 The right of public access to court records may only be overcome in limited circumstances, and the heavy burden to justify closure must be borne by those who seek to seal court records. See, e.g., Cline, 316 S.W.3d at 325-326 (citing, inter alia, Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky. 1983)). In addition to proving that closure is necessary to protect a substantial and legitimate legal interest, a proponent of sealing court records must also "identify and eliminate less onerous alternatives" such as redaction. !d. at 326. Applying the First Amendment right of access, the U.S. Supreme Court has imposed similar requirements: The presumption [of openness] may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise, 4 78 U.S. at 10-11. Here, the public's right of access attached to each document filed in the trial court record. Purdue made no showing of any legitimate reason for closure of any of the court records in this case. In fact, Purdue did not bother to attempt to meet its burden to justify closure. See id.; Meigs, 660 S.W.2d 658; Cline, 316 S.W.3d at 325-326; see also Prot. Ord., R. 14 78 at ~ 22 (Purdue had "the burden of demonstrating the propriety of its [confidentiality] designation."). The trial court's decision should be affirmed. III. THE RIGHT OF PUBLIC ACCESS APPLIES TO THE RECORDS AT ISSUE IN THIS CASE. Purdue has consistently sought to divert attention away from the court records that reflect upon its deceptive and criminal marketing of OxyContin and away from its failure to articulate any legitimate reason to keep such records secret from the public. To accomplish this diversion, Purdue argues that the records are not subject to the legal 13 presumption of public access in the first place. Purdue's argument is simply wrong. The cases cited by Purdue deal with the very different situation of access to discovery documents that were only exchanged by the parties and never put into the court record. (See infra at p. 16 n.9.) In stark contrast, this case deals with records that were filed with the trial court as part of the parties' motion practice and a deposition transcript that is required to be filed pursuant to CR 30.06(1 ). See Fiorella, 424 S. W.3d at 438 n.4. A. The Right of Public Access Attaches to All Documents Filed in the Trial Court Record, Including Deposition Transcripts, Motions and Exhibits. Under the First Amendment, the common law and the operation of the Rules of Civil Procedure, Kentucky's courts have repeatedly and consistently held that "judicial documents are presumptively available to the public." Noble, 92 S. W.3d at 731; Cline, 316 S. W.3d at 325; see also, e.g., Bailey, 471 S. W.3d at 689 ("presumption that all civil proceedings are open for public review and scrutiny"); Fiorella, 424 S.W.3d at 439 (presumption of openness "for everything filed with the courts"); Joan Kincaid Advisory Comm. v. Kincaid, 2011 Ky. App. Unpub. LEXIS 939 (Ky. App. 2011) (citing McDonald-Burkman, 298 S. W.3d 846) ("public's right to access court documents or material" is "so entrenched in our judicial system that there is a presumption that judicial records are available to the public."). 8 Since the Supreme Court's decision in Peers, 747 S. W.2d 125, the law has been clear and simple: records filed with the court are open to the public and may not be sealed merely because a party wants them to be kept secret. Purdue contends that there is no presumptive right of public access to court records such as deposition transcripts or motion exhibits. That contention is wrong. The 8 A copy of the decision in Joan Kincaid Advisory Comm. is attached at Appendix Tab C. 14 right of public access applies to deposition transcripts and exhibits to motions, both of which are regularly filed in public trial court records across Kentucky. See Amodeo, 71 F.3d at 1049-1050 (right of public access is particularly strong for "documents [that] are usually filed with the court and are generally available."). In Peers, the Kentucky Supreme Court held that the public right of access applies to "the court file" which includes "pleadings, depositions and interrogatories in the file." 74 7 S. W.2d at 126. When such documents are filed with the court, they "become court records accessible by the public." See Fiorella, 424 S.W.3d at 438 n. 4, 7. Purdue misleadingly cites decisions that discuss a presumption of public access to discovery materials that were exchanged among the parties but never filed in the court record. Purdue repeatedly cites McDonald-Burkman, 298 S. W.3d at 849-850, for the proposition that documents that were not expressly relied upon in an adjudication of litigants' substantive rights are not 'judicial documents" and thus "lie entirely beyond the presumption's reach." (Purdue Brf., pp. i, 7, 9-10, 12, 14,20 n.l1, 24.) That is not what the court held in McDonald-Burkman. The court quoted a passage from Second Circuit's decision in Amodeo that the presumption of public access does not apply to documents that are merely "passed between the parties in discovery" and not filed with the court. McDonald-Burkman, 298 S.W.3d at 850 (quoting Amodeo, 71 F.3d at 1050). The com1 in McDonald-Burkman was very clear that motions and "any other document which is presented to the court" are subject to the presumptive right of public access. ld As the Court of Appeals has recognized, "McDonald-Burkman holds that discovery materials which the parties file with the trial court, even when a court rule compels the filing, and 15 which are subject to the court's protective order, are nevertheless subject to the slidingscale analysis first embraced in Kentucky in Noble." Fiorella, 424 S. W.3d at 443. Purdue urges a similarly tortured reading of other cases for the proposition that there is no presumption of public access for discovery documents filed in the court record. Purdue cites Noble, 92 S. W.3d at 732, for the statement that it would be "unthinkable" for the public to have access to discovery materials that are filed with a trial court. (Purdue Brf., p. 8.) Yct, the actual quote from Noble is that "[ u]nlimited access to every item turned up in the course of litigation would be unthinkable." Noble, 92 S.W.3d at 732 (quoting Amodeo, 71 F.3d at 1048). Again, that was a statement attributed to the Amodeo decision about discovery exchanged but not filed. Id Unlike the cases cited by Purdue, the documents at issue in this case were all filed in the trial court record. 9 Therefore, the right of public access clearly attaches. See Peers, 747 S.W.2d at 129; Noble, 92 S.W.3d at 732; Fiorella, 424 S.W.3d at 443. B. The Public Interest in Disclosure in this Case is Substantial. The public interest in the content of the court records at issue in this case is as substantial as possible. The court in Peers held that "[s ]uch factors as promoting the public's understanding of the judicial process and of significant public events justify 9 Purdue's citation to other decisions is similarly misleading in that it confuses discovery materials merely exchanged among the parties with discovery material that is filed in the court record. Purdue cites Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir. 2013). (See Purdue Brf., p. 8.) Yet, that case dealt with a document that "was never filed." Newsday, 730 F.3d at 169 (Lohier, J., concurring). Purdue also relics on Boston Herald, Inc. v. Connolly, 321 F.3d 174 (1st Cir. 2003). (Purdue Brf., p. 11.) That case also concerned records that were never filed with the court. See Connolly, supra, at 180. Purdue cites Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), for the proposition that depositions "can be shielded with a protective order." (Purdue Brf., p. 11.) Yet, that case only concerned a protective order limiting the parties' ability to disclose discovery materials which had not been filed with the court. Seattle Times, 467 U.S. at 33. 16 creating a strong presumption in favor of copying access" to court records. Peers, 747 S.W.2d at 129 (quoting Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289, 1294 (9th Cir. 1986)) (emphasis added). The public interest in the court records of this lawsuit is at its apex. The elected Attorney General brought this case on behalf of all citizens of Kentucky against a large pharmaceutical company for its criminal marketing of a drug that contributed to an addiction epidemic that has ravaged the Commonwealth. The Commonwealth accepted a $24 million settlement, and the trial court entered judgment against Purdue. The public interest in disclosure is as substantial as possible. Purdue claims the right of public access to court records exists only to foster the public's monitoring of the courts but "not the parties." (Purdue Brf., pp. 6, et seq.) According to Purdue, release of the records in this case would shed no light on the trial court's exercise of judicial functions because the parties' settlement precluded the trial court from ruling on the summary judgment motions or conducting a trial on the merits. Purdue is wrong for several reasons. First, the factual premise of Purdue's argument is false. Purdue did not merely settle with the Attorney General in the absence of judicial involvement; the trial court entered a $24 million judgment against Purdue and retained jurisdiction to enforce its judgment. (R. 2036, et seq. at ,[ 4.) Further, the trial court found that the records were appropriate factors "both in the decision to settle and in the court's decision to accept the parties' decision to dispense with the case based on the settlement." (R. 21 07.) The trial court relied on precedent that even the mere possibility that discovery materials filed in the court record factored into the parties' decision to settle, or the trial court's decision to accept the settlement, "militates in favor of public access." Fiorella, 424 S. W.3d at 441. 17 Second, Purdue is wrong as a matter of law to suggest that the right of public access to court records is somehow limited to the specific records used by the trial court in adjudicating the parties' substantive rights. If Purdue's suggestion were the law, then public access to court records would only occur after a trial court has adjudicated the parties' substantive rights. Thus, in Purdue's view, it can defeat the right of public access to court records altogether by settling prior to a summary judgment ruling or before trial. Yet, that is not, and has never been, the law. The right of public access to comi records attaches at the time a record is filed with the court, and the parties' subsequent settlement does not diminish the right. As the Kentucky Supreme Court held, "[t]he value of investigative reporting as a tool to discovery of matters of public importance is directly proportional to the speed of access. This is true when investigating court records after the case is closed as well as with a case in progress." Peers, 747 S.W.2d at 129. Peers also illustrates the flaw in Purdue's suggestion that the settlement somehow erases the public's right of access by avoiding a court's adjudication of the case. Peers involved a civil action by a former police officer against the county government and against several government officials. The parties settled before trial. Peers, 74 7 S. W.2d at 126. The Courier-Journal then sought access to the pleadings and discovery material filed in the trial court record as well as "the terms of the settlement between the former county employee and the county officials in so far as the file may disclose." !d. at 129. The Kentucky Supreme Court held that because "[t]his case involves county government and county officials sued by a former police officer" and "[t]he settlement may involve expenditure of public funds," that "[t]hese circumstances weigh in favor of requiring the record to be open to public inspection." Peers 747 S.W.2d at 129-130; Fiorella, 424 18 S. W.3d at 441 (same); see also, e.g, Central Kentucky News-Journal, 306 S. W.3d 41 (reversing order sealing court records where public agency settled); see also, e.g, Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016) ("We therefore hold that pleadings - even in settled cases - are judicial records subject to a presumption of public .access."). Third, as illustrated in Peers, Fiorella, and Central Kentucky News-Journal, Purdue is wrong to argue that the sole purpose of the right of public access to court records is to monitor the courts' exercise of judicial functions. Those cases all involved governmental litigants that settled without a court's adjudication of the claims, and they all involved a substantial public interest in the content of court records. The same is true in this case, except that the public interest in disclosure is even greater here because this case deals with exceptionally "significant public events." Peers, 747 S.W.2d at 129. The Fourth Circuit has held, The interest of the public and press in access to civil proceedings is at its apex when the government is a party to the litigation. Indeed, the public has a strong interest in monitoring not only functions ofthe courts but also the positions that its elected officials and government agencies take in litigation. Co. Doe v. Pub. Citizen, 749 F.3d 246,271 (4th Cir. 2014). Courts have repeatedly held that monitoring government litigants is a proper function of the right of public access to court records. In Nixon, 435 U.S. at 597-598, the court held that the purposes of the right of access include "keep[ing] a watchful eye on the workings of public agencies" and "publish[ing] information concerning the operation of government." The First Circuit has held that "[t]he appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public's right to know what 19 the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch" Fed Trade Comm'n v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987). The same logic forcefully applies in this case. The nature of this case and the involvement of Kentucky's Attorney General leave no doubt that it involves matters of extraordinary public importance. The public interest in access to the underlying trial court records is at its zenith. Purdue is wrong to suggest that it can erase the public interest in disclosure simply by agreeing to a $24 million judgment in lieu of facing a summary judgment or trial for its illegal marketing of OxyContin to Kentuckians. The right of public access applies to the records at issue in this case, and the trial court did not abuse its discretion by refusing to keep those records secret from the public. The Court should affirm the trial court's decision. IV. PURDUE FAILED TO PROVE ANY LEGITIMATE REASON TO SEAL THE COURT RECORDS. The records at issue in this case were filed with the trial court in a case of significant public interest, and they played an important role in the parties' decision to settle their dispute and in the trial court's entry of the judgment against Purdue. As such, "[ o ]nly the most compelling reasons can justify" denying public access. Noble, 92 S.W.3d at 732 (citing US v. Beckham, 789 F.2d 401, 413 (6th Cir. 1986)). Yet, here, Purdue failed to prove any reason to justify its desire for secrecy. Purdue claims that the records consist of "confidential marketing strategies," "training manuals and instructions for sales representatives," "minutes of high-level business strategy meetings" and similar information about its marketing of OxyContin. 20 (Purdue Brf., p. 2.) Purdue's claim is devoid of any factual support. 10 Nor can Purdue expect the Court to believe that the various scaled motions, summary judgment briefs and deposition of Dr. Sackler consist entirely of such information. Moreover, even accepting Purdue's characterization of the sealed court records, Purdue still cites no authority that the purported nature of such materials supports (let alone requires) a trial court to seal them. The facts of this particular case compel the conclusion that Purdue has no legally recognized interest in maintaining the secrecy of such information. The sealed documents purportedly concern Purdue's marketing of OxyContin. (See Purdue Brf., p. 2.) Yet, Purdue's marketing of OxyContin during the relevant time period constituted a federal crime which was the basis upon which the Attorney General sought to impose civil liability in this case. See Purdue Frederick Co., 495 F. Supp. 2d 569; see also R. 271, et seq., Am. Compl. As the Sixth Circuit held, "[ s]uffice it to say that financial and negotiating information about a practice since outlawed ... is not entitled to protection as a legitimate trade secret." Shane Group v. Blue Cross Blue Shield, 825 F.3d 299, 308 (6th Cir. 20 16). Purdue obviously has a selfserving desire to keep the records secret, but there is no valid legal interest in closure. The Sixth Circuit's decision in Shane Group also illustrates the fallacy of Purdue's argument that the trial court's prior entry of the Protective Order is somehow a "countervailing reason" supporting closure of the court records. (See Purdue Brf., pp. 2225.) Deflecting attention from the nature of the sealed court records themselves, Purdue cites a litany of cases for the general notion that protective orders are an accepted and 10 As the basis for these claims, Purdue cites only 83 seconds of argument from one of its lawyers during the May 6, 2016 oral argument on STAT's motion to unseal. (Purdue Brf., p. 2) (citing 5/6/16 at 2:52:30-53:53). 21 encouraged method of facilitating and managing discovery in civil litigation. (!d) That completely misses the relevant point. The court in S'hane Group held that there is a fundamental difference between "protective-order justifications" and "sealing-order ones." 825 F.3d at 306-307. The burden to seal court records is "vastly more demanding" because "[u]nlike infor1nation merely exchanged between the parties, the public has a strong interest in obtaining the information contained in the court record." !d. at 305. Contrary to Purdue's suggestion, a trial court cannot enter a protective order and thereby prospectively "abdicate its responsibility ... to determine whether filings should be made available to the public" by delegating the task to the parties. P&G v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); see also Maclean v. Middleton, 419 S.W.3d 755, 761 (Ky. App. 2014) (citing Noble, 92 S.W.3d at 730-731, 734 and Cline, 316 S. W.3d 320, for the statement that "court records should not be sealed as a matter of routine practice simply at the request of the parties."). In order to seal court records, the law required Purdue to prove - and the trial court to make written findings of - a compelling legal interest in the closure of the specific records that outweighs the public interest in openness. See, e.g., Shane Group, 825 F.3d at 305-06; McDonald-Burkman, 298 S. W.3d at 850-51; Cline, 316 S. W.3d at 325-326. The existence of the Protective Order in this case, which predated Purdue's attempt to seal the court records, does not support a legitimate reason for secrecy. In fact, the Protective Order affirmatively refutes Purdue's contention. The Protective Order was explicit that "[ n]othing in this Qualified Protective Order shall be construed in any way as a finding that documents, data or information designated as 'confidential' ... actually is 'confidential."' (R. 1478, et seq. 22 at~ 22.) It also provided that, if challenged, "[t]he party that designated the documents, data or information 'confidential' ... shall have the burden of demonstrating the propriety of its designation." (!d. at ,[ 22.) When STAT sought access to the scaled court records, Purdue made no effort to carry that burden, much less the "vastly more demanding" burden to justify sealing court records. Shane Group, 825 F.3d at 305. Purdue diligently sought to avoid that burden. Purdue devotes most of its argument to the question of where on the "sliding scale" framework of the right of public access the court records in this case fit. Yet, that is ultimately a meaningless exercise. Even if the public right of access were only minimal (which is clearly not the case here), there still always remains a "prediction of public access absent a countervailing reason," and Purdue failed to prove any legitimate reason to seal the court records. Noble, 92 S.W.3d at 732. Purdue cannot demonstrate that the trial court abused its discretion by unsealing the records, particularly in light of the high degree of appellate deference given to such trial court decisions. See id. at 730-31; McDonald-Burkman, 298 S. W.3d at 849; Peers, 747 S.W.2d at 126, 128; Fiorella, 424 S.W.3d at 436. The trial court correctly held that the public's interest in disclosure in this case outweighs Purdue's unarticulated and unsubstantiated desire for secrecy. That decision should be affirmed, and the public should be permitted to examine the documents that shed light on Purdue's illegal marketing ofOxyContin. 23 CONCLUSION For all of the reasons set forth herein, the judgment of the Pike Circuit Court should be affirmed. Respectfully submitted, Jon L. leischaker Jeremy S. Rogers DINSMORE & SHOHL LLP I 01 S. Fifth Street 2500 National City Tower Louisville, KY 40202 Telephone: (502) 540-2300 Counsel for Appellee 24 APPENDIX A. February 18, 2016 letters from Attorney General, Exhibit 3 to STAT's March 16, 2016 motion to intervene and unseal court records. B. January 31, 2003 Opinion & Order, Fayette Circuit Court Case No. 02-CI-2231, on remand from Roman Catholic Diocese v. Noble, 92 S. W.3d 724 (Ky. 2002). C. Joan Kincaid Advisory Comm. v. Kincaid, 2011 Ky. App. Unpub. LEXIS 939 (Ky. App. 2011). 25 if? ABA CoMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL CAPITOL BUILDING, ANDY BESt1f:AR 700 ATTORNEY GENEt1AL SliiTF' 118 CAPITAL AVENUF 40601 (502) 696-5300 FAx: (502) 564-2894 FRANI(FORT, KENTUCKY February 18, 2016 SENT VIA V.S. MAIL David Armstrong Senior Enterprise Reporter STAT 135 Morrissey Boulevard Boston, MA 02125 Re: Open Records Request Received on February 15, 2016 Dear Mr. Armstrong: This Jetter concerns your request for " ... a copy of the deposition of Richard Sackler taken as part of the attorney general's lawsuit against Purdue Pharma LP (Civil Action No. 07CJ-01303, Pike Circuit Court)." The Oflice of the Attorney General represented the Commonwealth of Kentucky in the litigation of Commonwealth ofKentucky v. Purdue Pharma L.P., eta!., Pike County Circuit Court Civil Action No. 07-CI-01303. On December 22,2015, the Pike County Circuit Court entered an Agreed Judgment and Stipulation of Dismissal with Prejudice ("Judgment") that dismissed the action as against all of the defendants as set forth in a Settlement Agreement and General Release ("Settlement Agreement"). A copy of each the Judgment and the Settlement Agreement is enclosed herein. In the Judgment, the Court specifically incorporates the Settlement Agreement by reference in the Judgment as iffully set forth in the Judgment. Further, the Court retains jurisdiction of the Judgment and the parties to the action for the purpose of enforcing the Judgment. The Judgment mandates that the Commonwealth of Kentucky and the PUl'due Pharma defendants comply with all obligations in the Settlement Agreement, and the laws of the Commonwealth of Kentucky shall govern the terms of the Judgment. Under the teims of the Court's Judgment and the Settlement Agreement that it incorporates by reference, the Office of the Attorney General is prohibited from disclosing or producing documents or information produced in discovery in the litigation. As a result of the entry of orders of the Pike County Circuit Court, a court of competent jurisdiction, the documents you request are exempt from disclosure. See 12-0RD-219 (citing OAG 89-22, OAG 91-121, 94-0RD-139, 01 -ORD-~~'~RSt (bhQ~QiQ~~tt.ovER M/F/D U\ ('\,(\' Thus, the Court ordered that, "The parties and their lawyers agree that within 60 days of the date of this Agreement they will either return to the producing party or will completely destroy any and all paper and/or electronic doeuments received from the producing pmiy, or received by virtue of any subpoena, and any copies made of same." The Court further ordered as follows: The Releasors agree that they have not and will not, directly or indirectly, share or direct anyone else to share, the foregoing doGumcnts and/or any paper and/or electronic notes, memoranda or other v;ritings that contain information about or from such documents, with any other pcrwn or entity, including any person or entity that is investigating or in litigation against Purdue or Abbott, or is contemplating or may be reasonably expected to contemplate an investigution or Iitigation against Purdue or Abbott. The Settlement Agreement deflncs the term "Rcleasors" as: " ... the Commonwealth, Jack Conway, Attorney Generul, and his successors, the named Plaintiff in the action, along with any und all people purporting to act on behalf of the Commonwealth of KentLJcky in un official capacity as a representative of the Commonwealth, including the Commonwealth's officials, officers, employees, agents, attorneys, legul representatives, and any and all of its political subdivisions. Releasors shall fUiihcr refer to any and ull of tbe Commonwealth's counties, cabinets, adtninistrntive bodies, boards, bureaus, officers, agencies, divisions, departments, government bodies, und commissions; and any predecessors, successors, heirs, executors, trustees, udministrators, and assigns of the foregoing." In addition, the Court bars the "Rclcasors" from sharing information gathered from a "Releasee" during the course investigating or Iitigating the action with any other person or entity. The term "Relcasees" is defined in J.D. of the Settlement Agreement. The definition includcs any party the Commonwealth received documents or information f!·om in the litigation, including information gained through depositions. Furthermore, the Pike County Circ:uit Court orders that the Agreed Qualified Protective Order that the Pi lee Circuit Court entered on December 4, 2013, shu!! continue and remain in full force and effect. 'fhe Agreed Qualified Protective Order prohibits the disclosure of documents designated as "Confidential," "Highly Confidential," or which contain "ConfldentiallTealth lnfonnution." The terms and conditions of the Agreed Qualified Protective Order govem the production and handling of documents, answers or responses to interrogatories, responses to requests for admissions, depositions, pleadings, exhibits and other discovery, and all other documents, data or information the parties or any third pmiy exchanged in response to discovery requests or subpoenas or deemed produced. By maintaining the full force and effect of the Agreed Qualified Protective Order, the Judgment of the Pike County Circuit Court prohibits the disclosure of documents thut contain 2 information that is confidential, highly conf'iclcntial, or contain confidential health information. Pmsuant to that Order, the parties filed numerous motions and exhibits with the Court under seal. 'T'he Commonwealth filed multiple motions under seal that referenced and quoted portions of' the deposition ofRichard Sadder. Further, the Purdue defendants designated many portions of the deposition as "Confidential." Thus, the release of the deposition referenced and quoted in motions filed under seal, would violate the orders of the Pike County Circuit Court and subject the Office of the Attorney General to potential sanctions. With the exception of any pleading filed under seal, the pleadings :tiled in the litigation arc publicly-available at the Pike County Circuit Court, which maintains the Court record in the litigation. Therefore, the entry ofthc orders of the Pike County Circuit Court, a court or competent jurisdiction-· the Judgrm:nt and the Settlement Agreement it incorporates, and the Agreed Qualified Protective Order that remains in full force and ci'fcct --removes all records within their purview and the parties bound by those orders fhm1 application of the Kentucky Open Records Act. See 12-0RD-219 (citing OAG 89-22, OAG 91-121, 94-0RD-139, 01-0RD-95, and 050RD-066), The Office of the Attorney General is bound by and must adhere to the orders of the Pike County Circuit Court in deference to the judicial process, See 05-0RD-066, 12-0RD 219. If the Office of the Attorney General, or any of the individuals and entities under the def1nition of "Releasors" in the Settlement Agreement, were to disclose any document that falls under the Court's orders, it would subject itself to potential sanctions, This office takes it obligation to comply with the Court orders seriously, and cannot risk any potential violation of those orders, inadvertently or otherwise. ~C..,'ee 07-0RD-110 (rcaf'flrming that where a document is sealed by the orckr of a court, the question of whether the document is subject to public inspection must be raised in the judicial system). In your request, you reference the case of Lawson v. Office ofAttorney Gen., 415 S, W.Jd 59 (Ky. 2013), where the appellant sought to have the Franklin Circuit Court cr~join the Office of the Attorney General from releasing a proffer of information that he had made 26 years earlier. The circumstances ofLm11,wm stand in stark contrast to those present in this case. l!nlikc in this case, a court had not entered orders barring the dii>closme of documents in Lawson. With respect to your specific request, the Off:1ce of the Attorney General does not raise the exemptions to the Open Records Act that Lawson raised, KRS 61.878( 1)(a) and KRS 61.878( 1)(h). Rather, the orders of the Pike County Circuit Court prohibit the O:ttice of the Attorney General from releasing documents in the litigation, and a violation of those orders would subject the office to potential sanctions of the Court. As mentioned above, with the exception of any pleadings filed under seal, the pleadings filed in the litigation are publicly-available at the Pike County Circuit Court, which maintains the Court record in the litigation. Access to any pleading filed under seal, and the documents referenced by pleadings t1led under seal, may only be gained through an order of the Pike County Circuit Conrt. The Commonwealth, which is bound by the orders of the Pike County 3 Circuit Court, including those referenced herein, will abide by any order of the Pike County Circuit Court thut requires the diselosure of a specific document. If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General's Office, Civil Division, pursuant to KRS 61.880(2), or by f11ing an original civil action in the Franklin County Circuit Court under KRS 61.882. If you first appeal to the Attorney General but arc dissatisfied with the Attorney General's decision, you may further appeal to the circuit court pursuant to KRS 61 .880(5). Sincerely, ·~++v'I'V-- ~,3-: -------- -ra ayo . ·stunt Attorney General Office of the Attorney General 700 Capital Ave., Suite 118 Frankfort, KY 4060 I (502) 696-5300 Enc.:l. 4 COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL CAPITOl. BUILDING, SiJITI' ANDY BESHEAR 700 ATTORNEY GENERAL FRANKFORT, KENTUCKY February 18, 2016 40601 (502) 696-5300 FAx: (502) 564-2894 SENT VIA O.S. MAIL David Armstrong Senior Enterprise Reporter STAT 135 Morrissey Boulevard Boston, MA 02125 Rc: 118 CAPITAL AVENUF Supplern.ental Response to Open Records Request Received on February 15, 201 (j Dear Mr. Armstrong: This letter serves as a supplemental response of the Office of the Attorney General to your request for" ... a copy of the deposition of Richard Sackler taken as part of the attorney general's lawsuit against Purdue Pharma LP (Civil Action No. 07-CI-01303, Pike Circuit Court)." For the purpose of clarification, the deposition of Richard Sackler was filed under seal with the Pike County Circuit Court during the course of the litigation of Commonwealth of Kentucky v. Purdue Pharma L.P., et al., Pike County Circuit Court Civil Action No. 07-CI01303. Access to any pleading filed under seal, and the documents referenced by pleadings filed under seal, may only be gained through an order of the Pike County Circuit Court. The entire response of the Office of the Attorney General is incorporated by reference herein. If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General's Office, Civil Division, pursuant to KRS 61.880(2), or by :filing an original civil action in the Franklin County Circuit Court under KRS 61.882. If you first appeal to the Attorney General but are dissatisfied with the Attorney General's decision, you may further appeal to the circuit court pursuant to KRS 61.880(5). FAYETTE CIRCUIT COURT CIVIL BRAN(: II FIFTH DIVISION SAMUEL Ll·J·: [DWARDS CiRA YWOIJ:, .JAMES MAl-fAN, WlLUAM LALLEY, EDWlN GONZALEZ, AND KAY MONTGOMERY INDIVIDUALLY AND ON BEl!ALI-: OF ALL O'IllERS SIMILARLY Sl'I'UATED PLAJNTil:Fs VS. NO. 02CI-223 I ROMAN CATIIOLI(' DIOCESES OF COVINGTON, AND ROMAN CA'fHOLlC DIOCESE OF LEXINGTON DEFENDANTS * * • * ** ** * In response to the Court's Order to file a more definite statcmel'lt, Plaintiffs in this case riled nn Amended C:omplainL nulking certain atlegations Vv'hich the Court ordered stricken !:i"om the Complaint as void ab initio, involving persons other than the parties to the suit, and thus more properly raised as potential evidentiary mntters. 'l'lw Court also scaled the record pursuant to KTZS 413.249 (3) until the stat1.1te's constitutionality could he determined. The Defendants Dioceses moved that any strickc:n portious be sealed in the record. On tlnding KRS 413.2.49 (J) unconstitutional, the Court ordered the entire record be open to the public, including the stricken portions. This Order was ehnllcnged through the writ process, rL'aching the Supreme Court. The dioceses argued that the question of a tria) court's ability to seal portions ol'a court record had nol been clearly delineated. In ordered that it he published ::lpparcnl <1greement, the Supreme Courl issued its opinion and Specifically, the Supreme Court held thiitthe '"dcpl~nds on the suggl~sted unique filets and circumstcus should be point which will not ltllther the search I(H Oll the merits of the claims rather than a legal tn1th. Likewise, the Herald -Leader has properly nrgucd its position in favor of the public right to know at all stages of this process to dak. h11thcr, it has exhd•itcd journalistic integrity that could well be a model for rnany others ill not availing itsclf"ul'mntcrials obtained by reporters from someone who was clearly contravening the orders of this Court, the Court of Appeals, and the Supreme Court. While these mntc:nals may h:wc hecn obtained by appropriate journalistic measures, the intcgi"ity of the person providing tile tmltcrial3 can certainly be taken into question. Nonetheless, the lierald--Lcader has !lever wavered Crom its stated position that given the nature ofthc allegations and the widespn~ad public imp