SUPREME COURT OF KENTUCKY
NO.

PURDUE PHARMA L.P., PURDUE PHARMA, INC, THE PURDUE FREDERICK
COMPANY, INC. THE PURDUE FREDERICK COMPANY, PURDUE
PHARMACEUTICALS L.P., AND THE P.F. LABORATORIES, INC. MOVANTS

V.
BOSTON GLOBE LIFE SCIENCES MEDIA, LLC STAT, COMMONWEALTH

OF KENTUCKY EX REL ANDREW BESHEAR, ATTORNEY GENERAL,
ABBOTT LABORATORIES, AND ABBOTT LABORATORIES, INC. RESPONDENTS

MOTION FOR DISCRETIONARY REVIEW

Daniel E. Danford Bethany A. Breetz Trevor W. Wells
STITES HARBISON, PLLC STITES HARBISON, PLLC REMINGER CO LPA

250 West Main Street, 400 West Market Street, 2100 North Main Street
Suite 2300 Suite 1800 Suite 202

Lexington, KY 40507 Louisville, KY 40202 Crown Point, IN 46307

Telephone: (859)226-2292 Telephone: (502) 681-0634 Telephone: 219-323-2060

Certificate of Service

I hereby certify that copies of this motion were sent by ?rst-class mail, postage prepaid,
January 14, 2019, to: Jon L. Fleischaker, Kaplan Johnson Abate Bird, LLP, 710 W. Main
Street, Louisville, KY 40202; S. Travis Mayo, Of?ce of the Attorney General, 700 Capital
Avenue, Suite 118, Frankfort, KY 40601; C. David Ohnstone, LeeAnne Applegate, and
Michael Edward Brooks, Of?ce of the Attorney General, 1024 Capitol Center Drive, Suite 200,
Frankfort, KY 40601; Donald L. Smith, Jr., Pruitt De Bourbon Law Firm, 131 Main Street,
Pikeville, KY 41501; Tyler Thompson and Anthony Ellis, Dolt, Thompson, Shepherd 
Kinney, PS C, 13800 Lake Point Circle, Louisville, KY 40223; Susan J. Pope, Frost Brown Todd
LLC, 250 W. Main Street, Suite 2700, Lexington, KY 40507; Bayard V. Collier, Boehl, Stopher
Graves LLP, 137 Main Street, Suite 200, PO. Box 11239, Pikeville, KY 41502; Hon. Steven
D. Combs, Pike Circuit Court, 146 Main Street, Pikeville, KY 41501; and Samuel P. Givens Jr.,
Clerk of Kentucky Court of Appeals, 360 Democrat Drive, Frankfurt. KYI.40601.

Bethany A. Breetz

PRELIMINARY INFORMATION REQUIRED BY RULE 762.0(3)

A. Movants, Purdue Pharma, L.P., Purdue Pharma Inc., The Purdue Frederick Company,
Inc. d/b/a The Purdue Frederick Company Purdue Pharmaceuticals LP, and The RF.
Laboratories, Inc. (collectively ?Purdue?) are represented by Daniel E. Danford, STITES 
HARRISON, PLLC, 250 West Main St., Suite 2300, Lexington, KY 40507; Bethany A. Breetz,
STITES HARRISON, PLLC, 400 West Market St., Suite 1800, Louisville, Kentucky 40202; and
Trevor W. Wells, REMINGER CO LPA, 2100 North Main,St., Suite 202, Crown Point, IN 46307.

B. Boston Globe Life Sciences Media, LLC d/b/a STAT is represented by Jon L.
Fleischaker, Kaplan Johnson Abate Bird, LLP, 710 W. Main Street, Louisville, KY 40202.
The Commonwealth of Kentucky is represented by S. Travis Mayo, Office of the Attorney
General, 700 Capital Ave., Suite 118, Frankfort, KY 40601; C. David Johnstone, LeeAnne
Applegate, and Michael Edward Brooks, Office of the Attorney General, 1024 Capitol Center
Dr, Suite 200, Frankfort, KY 40601; Donald L. Smith, Jr., Pruitt De Bourbon Law Firm, 131
Main St., Pikeville, KY 41501; Tyler Thompson and Anthony Ellis, Dolt, Thompson, Shepherd
Kinney, PSC, 13800 Lake Point Circle, Louisville, KY 40223. Abbott Laboratories and
Abbott Laboratories, Inc. are represented by Susan J. Pope, Frost Brown Todd LLC, 250 W.
Main Street, Suite 2700, Lexington, KY 40507, and Bayard V. Collier, Boehl, Stopher Graves
LLP, 137 Main Street, Suite 200, PO. Box 11239, Pikeville, KY 41502.

C. Purdue seeks review of the Court of Appeals? 72-page To-Be-Published December 14,
2018 Opinion (Tab 1). No petition for rehearing or motion for reconsideration is pending.

PRIMARY REASON TO GRANT DISCRETIONARY REVIEW

This appeal concerns access to confidential discovery documents that were sealed in the
record pursuant to a protective order entered by the trial court for good cause. Months after the
case settled, STAT sought access to the sealed discovery documents even though they played no
role in any substantive adjudication. The trial court ignored governing precedent from this Court
and improperly granted motion, primarily due to an opinion from the Court of Appeals
that misapplies this Court?s holdings. On appeal, the Court of Appeals provided a treatise on its
view of Kentucky?s common law and its interpretation of this Court?s opinions (re?writing the
common law in the process), while saying practically nothing about protective orders and their
impact on the common law. The Opinion guts litigants? ability to rely on protective orders and
retroactively strips protective orders of any role in litigation, particularly when a governmental
entity is a party. The bench and the bar need guidance regarding the impact of protective orders

on motions to unseal court records, and the procedure to employ when such motions are made.

STATEMENT OF MATERIAL FACTS
1. Suit is filed, and the parties negotiate, and the trial court enters, a protective order.

The underlying case was ?led 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 problems attributable to OxyContin
abuse. 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 magnitude of the claims made it
evident that discovery would be far?reaching, with massive document production. Finding ?good
cause? and that ?a protective order is necessary in this case to protect the con?dentiality of
documents  produced during discovery,? the trial court entered a Protective Order that allowed
the parties to designate con?dential documents and required sealing of court ?lings containing or
attaching such materials. Purdue alone produced over 17 million pages.

2. Purdue produces voluminous documents in reliance on the Protective Order.

Protective orders are enormously important in complex litigation because they allow for a
free exchange of information while protecting sensitive and confidential information. Here the
Protective Order allowed the Commonwealth to obtain all the information it desired without
encountering valid objections to production of con?dential information. Without it, Purdue
would not have voluntarily produced con?dential materials and witnesses for deposition, which
would have guaranteed signi?cant motion practice. For example, Purdue agreed to the Kentucky
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 bene?ts of the Protective
Order in this case??a streamlined discovery process, an expansive amount of discovery, and a

small number of discovery battleswillustrate the importance of protective orders. In reliance on

the Protective Order, Purdue produced millions of pages of documents, which included trade
secrets and confidential marketing materials, business information, documents submitted to the
FDA (including the chemical composition of OxyContin), strategies and personnel actions, and
settlement communications from an earlier criminal case??the type of information routinely
subject to protective orders.

The following documents were filed under seal pursuant to the Protective Order:

The Sackler Deposition: Dr. Sackler was deposed in August 2015. Without notice to the
parties, the court reporter filed a non?final version under seal in September 2015. Purdue did not
know it had been filed until STAT moved to intervene.1 The transcript was not an exhibit to any
motion or referenced in any dispositive motion, and it had no role in any decision in the case.

Routine Discovery Motions: The bulk of the sealed documents are motions to compel

 

with exhibits. Only one was actually decided by the court on the merits, and after Purdue
produced documents in accord with the court?s order, the issue had no further impact on the case.
Another motion to compel was held in abeyance and was never heard or decided. The remaining
motions were never ruled upon, most were not even fully briefed, and none were argued.

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. In over 400 pages of brie?ng
(excluding exhibits), Purdue?s response attached one sealed exhibit, and the Commonwealth?s
sealed reply attached a handful of confidential exhibits listed in footnotes 10 and 16 to the reply.
Purdue sought relief under CR 36.02 from the order deeming the requests admitted.

After the trial court denied that relief, Purdue sought a writ. The trial court then held the partial

 

1 The Commonwealth earlier took the deposition of another Purdue witness, but, as expected, that
different court reporter returned the transcript to the parties. No one filed that deposition.

summary judgment motion in abeyance until the appeal from the writ action was ?nal. While
the Court of Appeals denied the writ, its ?judicial conscience? could not ?ignore that a legitimate
question [wajs presented whether the deadline passed for reSponding to? the admissions, and ?it
would seem judicially economical and expedient to grant the writ and resolve the issue.? Purdue
Pharma LP. v. Combs, 506 337, 342 (Ky. App. 2014). Purdue appealed to this Court.

The case settled on December 16, 2015. By that point, oral argument had been held
before this Court in March 2015, and a ruling on the pending writ appeal appeared imminent.
The Commonwealth insisted on having the writ appeal abated pending a ?nal settlement
agreement and dismissal of the case. A motion, response, and order abating the writ appeal were
all ?led or entered in this Court the day before the December 17, 2015 rendition day.2

The trial court held the partial summary judgment motion in abeyance throughout the
writ appeal, and it was thus never heard or decided. Nor were Purdue?s December 2015 motions
for summary judgment??which were never fully briefed?wever heard or decided. Neither party
mentioned the Sackler deposition?which was completely irrelevant to any issues in any of the
dispositive motions?in that summary judgment brie?ng. None of the discovery documents at
issue in this appeal were ever presented to Judge Harris (sitting by designation during Judge
Combs?s absence) for consideration with the subsequent agreed judgment.

3. Judge Harris enters an Agreed Judgment settling the case and maintaining the
con?dentiality of discovery documents, including those at issue.

Maintaining con?dentiality of the parties? con?dential information was so vital that it

was made a material part of the Settlement Agreement. It speci?ed that the Protective Order

 

2 The lower courts ignored the imminent ruling on the pending appeal as an impetus for settlement, even
though granting of the writ would have signi?cantly changed the Commonwealth?s case against Purdue.
Instead, those couits speculated that the ?ling of the Sackler deposition (which ?ling Purdue did not even
know about at the time) or summary judgment brie?ng (which was being held in abeyance), or some sort
of possible ?future issue preclusion? led to settlement. (Tab 3.)

remained in full force, and the Settlement Agreement separately required the parties not to
disclose con?dential documents.

The parties emailed the settlement papers to Judge Harris mid-day during his Christmas
vacation. He reviewed them in his Knott County of?ce and signed the Agreed Judgment the
next morning.3 On December 22, 2015, Judge Harris entered judgment approving and adopting
the Settlement Agreement, thereby approving the continued sealing of the con?dential discovery
documents ?led in the record. Despite the Court of Appeals? mistaken belief to the contrary
(Tab 1 at 66), the Settlement Agreement was ?led in the record and was not sealed. It was and is
open to anyone who cares to review it. No one sought any of the sealed documents at that time.

4. Months after the case is settled, STAT seeks to intervene.

Months later, STAT sent the Commonwealth an open records request for Dr. Sackler?s
deposition transcript, which the Attorney General properly denied. In March 2016, STAT
moved to intervene and unseal, claiming that the documents were ?led under seal without a
supposedly required hearing and ?without any of the other required procedures or ?ndings
necessary to seal court records.? In other words, although neither STAT nor anyone else
objected to entry of the Protective Order (a public document) at the time it was entered or for
years afterward, STAT claimed a hearing was required before any documents in the record could
be sealedpursuant to that Order.

While only speci?cally identifying Dr. Sackler?s deposition, the motion also sought to

unseal an ?unknown number? of other sealed documents. STAT mistakenly argued that the

 

3 The undisputed facts regarding Judge Han?is?s signing of the agreed order were included in Purdue?s
brie?ng in this matter. Following questioning during oral argument, and in light of this Court?s then
recent opini0n in Rigdon v. Commonwealth, 522 861 (Ky. 2017), Purdue moved to supplement
the record with those emails that Judge Harris had not made part of the record (Tab 5), which motion was
denied with no reasons given. (Tab 6.) Guidance is needed on what parties should do when emails with
the trial court that were, or become, relevant were omitted from the record.

Sackler deposition: (1) was ?a basis for the Court?s exercise of judicial power in the numerous
summary judgment motions pending before the Court? at the time of the settlement; and (2)
?played an additional and signi?cant role in the Court?s exercise of judicial power in this case.?
In fact, the Sackler deposition was never mentioned in any summary judgment motion and
played no role in any adjudication by the trial court.

Purdue did not oppose intervention, but vigorously opposed the request to unseal Dr.
Sackler?s deposition and the other documents because they were sealed pursuant to a valid
protective order and not involved in any adjudication of the litigants? substantive rights and thus
were not subject to the common law right of access.

5. The trial court grants motion.

Following a hearing, Judge Combs (who had returned to the bench) ruled that the
common law right of access applies to all the sealed discovery documents and required them to
be unsealed. (Tab 2.) The Sacker deposition, which was ?led in the record due to CR 3006, is
just like the discovery material addressed in Courier-Journal, Inc. v. McDonald-Burkman, 298
846, 848?49 (Ky. 2009), where this Couit held that the ?ling of discovery documents in
the record due to a local rule did not make them ?judicial document[s] subject to the right of
public access.? But the court did not apply McDonald?Barman. Instead, determining that the
discovery documents were subject to a common law presumption of openness, the court relied on
z'orella v. Paxton Media Group, 424 433, 441 (Ky. App. 2014), in which the Court of
Appeals held that, because the discovery the parties had sealed (without entry of a protective
order) could possibly have been a factor in the decision by governmental entities to settle, ?the
mere possibility that the court considered the information . . . militates in favor of public access.?

6. The Court of Appeals af?rms, changing Kentucky law in the process.

The Court of Appeals af?rmed the trial court, signi?cantly changing Kentucky law in the

process. The Opinion spends about 62 pages discussing the common law from 1803 to the
present, explaining and interpreting opinions from this Court and its predecessor (as well as other
courts). (Tab 1 at 8?70.) It reaches the conclusion that Kentucky common law is unique from all
other common law and that, apparently, all documents ?led in a Kentucky court record?
regardless of type, use to which they are put, or existence of protective orders?have a
?Kentucky common law presumption of the public?s right to access court records.? Id. at 15.

The Opinion fails to acknowledge that protective orders are now common in complex
litigation and speci?cally allowed by Kentucky rules. Just as the enactment of Kentucky?s Open
Records Act impacted the common law regarding access to public records, the 1971 enactment
of a civil rule allowing protective orders and the ?ling of sealed materials in the record pursuant
to a valid protective order, necessarily impacted the common law access to court records. Yet,
while the Opinion uses the phrase ?protective order? seven times?six times referring to the
Protective Order in this case and one time quoting Fiorella for the proposition that CR 2603
empowers the trial court to protect parties ?by issuing a protective order denying public access to
discovery ?led with the Opinion never addresses how protective orders impact the
common law presumption of access.

The Opinion reinterprets and, in the process, eviscerates this Court?s holdings in Roman
Catholic Diocese of Lexington v. Noble, 92 724 (Ky. 2002) (Noble I), and McDonald~
Burkmau, in which this Court speci?cally addressed the issue here: access to documents ?led in
the judicial record. The Opinion labels Noble I ?confounding? and asserts that its primary focus
is courts? power-under CR 12.06 (motions to strike). (Tab 1 at 32?26.) But, in fact, this Court
devoted more space in Noble I to the commonulaw right of access to court records than to a
court?s power to strike documents. More importantly, while searching ?for a workable standard?

and after addressing ?practical, real world considerations,? this Court held in Noble I that the

?sliding scale of Amodeo (US. v. Amodeo, 71 F.3d 1044 (2nd Cir. 1995)) ?represents the best
approach in determining the weight to give the presumption of access? to court records, which
?must be governed by the role of the material at issue in the exercise of? judicial power and the
?value of such information to those monitoring the courts.? 92 at 732. Under this
Court?s sliding scale standard, ?Documents and records that play a great role in determining the
substantive rights of parties are afforded the greatest weight,? while ?[t]hose that play only a
?minor or negligible role in adjudicating the rights of the litigants are accordingly offered little
weight.? Id. The Opinion, however, calls this sliding scale standard ?dicta? and downplays it
into virtual non-existence. (Tab 1 at 37-56.)

The Opinion?s sidelining of McDonald~Burlanan is also wrong. That case is closely
analogous to the case here, especially with regard to the Sackler deposition. The Opinion
discounts what McDonaldnBurkman actually says and relies upon what the Court of Appeals
thinks this Court meant to say or should have said. (Tab 1 at 60-63.) In McDonald~Burkman,
the media sought access to discovery documents that were required to be and were ?led in the
court record due to a local rule.4 This Court af?rmed the denial of access and the sealing of the
discovery documents in the record.

In ruling on the lack of a constitutional right of access in McDonald-Barman, this Court
held, ?Historically, discovery materials were not available to the public or press,? and discovery
?is essentially a private process because the litigants and the courts assume that the sole purpose

of discovery is to assist trial preparation.? 298 at 848. In response to the media?s claim

 

4 That Jefferson County local rule requiring the Commonwealth to ?le criminal discovery in the record
has since been eliminated. CR 30.06, which requires court reporters to ?le depositions in the record, is
similar to that former rule and has been abrogated by local rule in numerous counties. The similarity
between the local rule and the anachronistic CR 30.06 highlights that the McDonald-Burkman rule should
apply to all depositions ?led pursuant to CR 30.06 and that depositions that would not be public in some
counties should not be public in any county.

that, ?because the discovery documents are filed with the court as required under local rule, they
become court records and immediately open to the public,? this Court unequivocally
?disagree[d]. The fact that the documents are in the custody of the court does not change the [ir]
character,? and the ?documents themselves contain no evidentiary value until admitted into
evidence during trial or other proceedings.? Id. at 848-49. Public pretrial access to discovery
material ?would actually hamper the administration of justice.? Id at 849.

Turning to the common law right of access, this Court recognized that the common law
generally presumes that ?criminal and civil actions should be conducted openly? and includes
?the right to inspect and copy public records and documents.? Id (emph. added). Documents
accessible under this common law right (?public records?) may, however, be sealed. Id This
Court went on to reiterate its ?sliding-scale approach? from Noble I to ?determine how much
weight to give the presumption of access to court documents and records.? Id This Court then
relied heavily on Amodeo II in establishing the sliding-scale approach and quoted from Amodeo
II regarding the fact that some documents have no presumption of access:

Documents that play no role in the performance of Article functions, such as

those passed between the parties in discovery, lie entirely beyond the

presumption?s reach, and ?stand on a different footing than a motion ?led by a

party seeking action by the court,? or indeed, than any other document which is
presented to the court to invoke its powers or affect its decisions.

Id at 850, quoting Amodeo II (quote cleaned up) (emph. added by this Court). This Court then
recognized that ?[t]his View is shared among the federal courts as well? and cited a number of
cases standing for the proposition that ?the common law presumption does not go beyond
evidentiary materials used in determining the litigants? substantive rights.? Id. (emph. added).
This Court in McDonald-Burkman held that the discovery material tiled in the record due to a
local rule?which had not been used in determining the litigants? substantive rights?was

?entirely beyond the [common law?s] presumption?s reach.? This holding is directly applicable

to the Sackler deposition, which was filed in the record solely due to CR 3006 and was not used
in determining the litigants? substantive rights.

The primary Kentucky cases the Opinion relies on as the basis for marginalizing Noble I
and McDonald-Burkman are City of St. Matthews v. Voice of St. Matthews, Inc, 519 811
(Ky. 1974), and Central Kentucky News-Journal 12. George, 306 41 (Ky. 2010).
According to the Opinion, the principles of St. Matthews govern, id. at 31, 36?3 7, 42, 47-48, 49,
50, 54, 60, 63, 66?69, 71, and St. Matthews trumps far more applicable cases decided in the four
decades since its rendition. The main difference between St. Matthews and this appeal is that St.
Matthews concerns access to municipal records and largely turns on an issue of standing. The
opinion in St. Matthews changed the previous common law requirement that, to inspect records,
the person must be able to prove an interest in them sufficient to ?enable him to maintain or
defend an action for which the documents or records sought can ?irnish evidence,? to a
purpose which tends to advance or further a wholesome public interest or legitimate private
interest.? Id. at 813, 815. The Court held that its decision ?will remove the impediment of lack
of interest in many cases but may serve to focus attention on what constitutes a public record.?
Id. at 816 (emph. added). Here, standing is not at issue. At issue is whether discovery
filed in court records is public and, if so, the proper presumption and test for public access. St.
Matthews, which concerns access to a city?s public records and right to monitor a city ?s actions,
simply does not answer the questions here concerning access to discovery in court ?les.

George concerns settlement agreements with school boards (public agencies).5 Although

Kentucky?s Open Records Act made the settlement agreements public records, the trial coult

 

5 The Opinion relies on the parties? briefs to interpret this Court?s opinion in George. (Tab 1 at 51??56.)
Presumably opinions of this Court should speak for themselves, and the arguments made in the briefs
should not be used to alter the actual holdings of the opinions. This practice is ripe for guidance as well.

10

sealed those public records and ordered that the school boards not turn them over in response to
open record requests. This Court reversed, ?conclud[ing] that the agreements must be turned
over pursuant to Kentucky?s Open Records Act,? id. at 45, which applies to public agencies, not
to the judicial branch. Ex parte Farley, 570 617, 625 (Ky. 1978) (?the public policy?
regarding access to judicial branch records ?must be articulated by the courts themselves?) But,
despite the Court of Appeals? assertion to the contrary, the Settlement Agreement here was not
sealed and was not made confidential, and it is available through open records requests to the
Attorney General and requests to the court clerk. The issue here, unlike George, concerns
private discovery documents sealed in the court record pursuant to a valid protective order.
Another problem with the Opinion is that it relies upon, and is an extension of, forella,
which itself misinterpreted Kentucky law and had different facts from those here.6 In iorella
the documents at issue were not subject to a protective order and had not been sealed Via a court
order; the discovery documents had simply been filed in a sealed envelope by the parties, without
the court?s permission to do so. Further, because ?[m]uch of the information Fiorella seeks to
seal is either alluded to or identi?ed outright in materials she has not asked to be sealed, most of
it in her own deposition testimony,? there was no justi?cation for sealing. Id. at 442. Also,
according to iorella, the documents at issue appeared to have been considered by the trial court
in dismissing the case on summary judgment, and thus ?played a role in the court?s Article 
?anction.? 424 at 441-42. But, although the court could ?not ignore the fact that the
record does not Show the case was dismissed as settled, but on the basis of successful summary
judgment motion,? the court nevertheless accepted the ?assertion that the case was? dismissed as

settled and opined on the effect of that settlement. Id. at 441. It is that dicta stacked upon

 

6 The author of the Opinion is the author of Fiorella. Discretionary review was not sought in Fiorella.

ll

dicta?determinations predicated upon a hypothetical protective order and non?existent
settlement?wthat the trial court relied upon in ruling that the discovery documents here were
presumed open and upon which the Opinion reiterates and expands. (Tab 2 at 3; Tab 1 at 65-66.)

While trying to fend off arguments in that case, iorella created an erroneous, bright-line
rule that the sliding scale applies to all discovery filed in the record. forelch at 442-43.

iorella should have simply recognized thatmunder Noble I 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, iorella speculated that McDonald-Burkman must have
been referring to ?discovery material that is never ?led,? iorella at 443, even though Noble 1,
McDonald-Burkman, and Amodeo all concerned documents actually ?led in the record.

iorella?s speculation ignores the facts of those cases and renders their holdings surplusage.

iorella also wrongly states that McDonald?Burkman ?continue[d] its analysis by
applying the sliding scale analysis.? Id. at 443. McDonald?Burkman never determined that the
filed discovery documents belonged on the sliding scale (or which ?weigh 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, 298 at 850?51. The Couit?s preface to
that even if a common law right of access to discovery material
exists?qunderscores 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. McDonald~Burkman?s writ analysis supports the conclusion 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 iorella ?s bright?line rule that Noble

1, McDonald?Burkman and Amodeo I and squarely rejected.

12

QUESTIONS OF LAW INVOLVED AND REASONS WHY THIS COURT SHOULD GRANT REVIEW

As demonstrated above, this appeal concerns a variety of important and fundamental
questions about: (1) what documents ?led in the court record are public documents
presumptively entitled to public access; (2) the weight of the presumption of access (including
whether the weight of the presumption changes depending on the type of document, the purpose
for which it was ?led in the record, and whether the document was ever actually used for that
purpose); and (3) the impact of protective orders on the common law presumption and the weight
of that presumption. Compare Noble 1, McDonald?Burkman, and Amodeo II with iorella and
the Opinion. Counsel for Purdue is aware of no Kentucky opinion that addresses the media?s
access to discovery sealed in the record pursuant to a validly entered CR 26.03 protective order.
While that is the precise issue in this appeal, the Opinion fails to discuss the impact of the
Protective Order on the sealing of the documents.

Further, the Opinion has rewritten the common law to allow a presumption of access to
. court documents not just for the purpose of monitoring the courts, but for monitoring any public
agency that is a party to litigation. But the Open Records Act allows for monitoring public
agencies; the common law presumption of access to court records is to monitor the courts.

Noble 1, 92 at 732. Under iorella and the Opinion here, protective orders in cases
where a governmental entity is a party are virtually worthless. If a case settles and public funds
are paid to or by a governmental entity, then the Opinion holds that public interest virtually
necessitates unsealing any sealed documents. Tab 1 at 65-66; z'orella, at 441. And if the case is
tried or dismissed on summary judgment and the government wins or loses, then, under the same
logic, all sealed documents, regardless of whether they have been entered into evidence or
whether they were sealed under a protective order, must be unsealed. These rulings will remove

the beneficial certainty that protective orders provide to litigants and will turn the discovery

13

process for governmental entities seeking sensitive or con?dential information into pitched
battles over where, whether, and how the discovery is legally obtainable. And parties to
concluded litigation who relied on protective orders to keep their documents con?dential may
now have their discovery documents opened for all to review.

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
sought and granted. See, e. g, Edwards v. Hickman, 237 183, 192 (Ky. 2007) (denying
writ of prohibition due, in part, to ?extensive con?dentiality protection language? in a protective
order because any concern about ?gaining a competitive advantage through the revelation of the
information is alleviated by the stringent con?dentiality requirements on most of the material as
ordered by the circuit court?). Without such orders, there would be no ?adequate vehicle for
relief,? and the number of writ petitions sought and granted will increase.

In addition, the bench and bar need this Court?s guidance as to whether a determination
that good cause has been shown for a Protective Order is suf?cient for parties to act in
accordance with that order, including ?ling documents under seal. Here, the Protective Order
was entered in 2013, allowing far?reaching discovery without signi?cant motion practice, and no
one objected to or raised any issues about it until STAT intervened in 2016. Without the
protective order and the ability to protect con?dential documents under seal in the record, the
discovery process would have devolved into a contentious unproductive mess that needlessly
taxed the resources of the parties and the court.

If the Opinion stands, it would be a backward step in Kentucky litigation and would put
an end to the effective uSe of umbrella protective orders, which, as illustrated by the experience
here, are recognized as important in complex cases. See, e. g, In re Alexander Grant Ca, 820

F.2d 352, 356 (11th Cir. 1987) (approving ?umbrella? protective orders ?in complicated cases

14

where do cument-by-dq?cumcnt review of discovery materials would be unfeasible? and because
?[b]usy courts are simply unable to hold hearings every time someone wants to obtain judicial
review concerning the nature of a particular document?). Rather than necessitating a document-
by-document review before sealing a large number of documents in a complex litigation such as
this one, courts uphold ?the use of umbrella protective orders? and do ?not permit the media to
challenge each and every document protected by the umbrella order,? instead allowing the media
?only to challenge the umbrella order as being too broad, based on a variety of factors,? none of
which exist here. Chicago Tribune v. Bridgestone/Firestone, Inc, 263 F.3d 1304, 1316 (11th
Cir. 2001) (Black, J. concurring). Courts ?have restricted the scope of the media?s challenge
because a document-by?document approach would not only burden the trial court, but, more
importantly, it would interfere with the free ?ow of information during discovery. . . . Such
interference by parties who have no interest in the underlying litigation could seriously impair an
Article court from carrying out its core function?resolving cases and controversies.? Id.
This Court should set public policy, not the Court of Appeals.

As demonstrated above, the Opinion directly undermines this Court?s precedent, with a
far?reaching impact on Kentucky litigation practice. This Court very carefully sought out and
adopted the Amodeo II framework for assessing the common law presumption of access to
documents sealed in the court record pursuant to a protective order. If that precedent is going to
be changed, it is this Court, and not the Court of Appeals, that should do so. This Court should

grant discretionary review.

 

a 

Bethany A. Breetz I Daniel E. Danford Trevor W. Wells

STITES HARBISON, PLLC STITES HARBISON, PLLC REMINGER Co LPA

400 W. Market, Ste 1800 250 W. Main St, Ste 2300 2100 N. Main St, Ste 202
Louisville, KY 40202 Lexington, KY 40507 Crown Point, IN 46307

15

Tab APPENDIX

December 14, 2018 Court of Appeals Opinion

May 11, 2016 Pike Circuit Court Order

Purdue Pharma LP. v. Comm. No. (Ky. App. 2015)
Protective Order

Motion to supplement

Court of Appeals Order denying motion to supplement